Academic journal article Fordham Urban Law Journal

Responding to Terrorism: How Must a Democracy Do It? A Comparison of Israeli and American Law

Academic journal article Fordham Urban Law Journal

Responding to Terrorism: How Must a Democracy Do It? A Comparison of Israeli and American Law

Article excerpt

INTRODUCTION

Terrorism has become commonplace in the world today. (1) In the past decade, the United States was, for the first time, the victim of terrorist attacks on its own soil. (2) Conversely, the State of Israel has been engaged in a perpetual struggle with terrorism since the day of its founding in 1948. (3) As democracies, the United States and Israel (4) are subject to a great deal of criticism with respect to legislation used to combat terrorism. Responding to terrorism, a question often arises regarding the measures that a democratic state may legally apply in order to effectively protect its citizens and yet continue to honor human rights. (5) The ability of a democratic state to efficiently defend itself from terror is a difficult task and ultimately reflects the moral integrity of the state. (6) Maintaining the balance between public safety and human rights is presumably harder today, considering recent suicide bombings. (7) For the United States, protecting against terrorism is especially challenging, considering it has seldom been seen throughout American history. (8) Nonetheless, the United States government has taken numerous steps in response to the new issues it faces arising from the September 11th attacks on New York and Washington, D.C. (9)

This Comment compares the Israeli and American laws that sanction controversial responses to terrorism. It discusses criticisms of these laws with respect to human rights violations and how, if at all, the two governments strive to preserve their law's effectiveness without violating international standards. Part I of this comment briefly discusses the origins of terrorism and establishes a universal definition for the word. Part II reviews the history of three Israeli responses to terrorism, including 1) administrative detention, 2) torture, and 3) the demolition of houses; and describes how these tactics are criticized domestically as well as internationally. Part II further illustrates the present status of relevant Israeli statutory and case law. Finally, Part III discusses comparable measures recently taken by the United States (10) and how these responses are criticized. The importance of a democracy's need to "respond appropriately" to terrorism and the difficulty that flows with it will be stressed throughout this comment.

I. THE ORIGIN AND DEFINITION OF TERRORISM

The word "terrorism" originated during the French Revolution, when the French government instituted the "Reign of Terror" to execute political opponents, seize their property, and force the rest of the population into submission. (11) Today, the word terrorism has taken on a new meaning. Scholars agree that terror cannot be clearly defined. (12) England, however, attempted to define "terrorism" in part 20 of the British Prevention of Terrorism ("Temporary Provisions") Act of 1989. (13) According to the Act, "terrorism means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear." (14)

The Fourth Genera Convention, adopted in 1949, similarly provides that an act of violence against the population, against civilians who are not combatants, for political, ethnic, racial or religious reasons, will be regarded as a terrorist act. (15)

Even with the numerous meanings given to the word terrorism, a majority of the definitions possess a common basis: terrorism is the use of violence against civilians or non-military targets in order to achieve a particular purpose. (16)

II. ISRAELI RESPONSES TO TERRORISM

A. Administrative Detention

The literal definition of administrative detention is detention carried out by an administrative power and not by a judicial power or authority. (17) This definition, however, does not make clear the substance and nature of administrative detention. (18) Administrative detention, often referred to as preventative detention, is commonly 0understood as imprisonment without trial. …

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