The longstanding neglect of the government and law enforcement authorities has given rise to a crisis of governance in Arab society, which is expressed, among other things, in serious crime and murder as an almost daily occurrence. The emergence of violent and uncontrolled crime territories was not born for the first time in Israel. There are examples of this in the world, such as the drug cartels in Colombia or the crime neighborhoods in New York, although admittedly, here it is nevertheless a unique case, due to the national aspect of the Israeli-Palestinian conflict.
After neglecting the issue for years, the government wants to use the doomsday weapon – the Shin Bet, Israel's Preventive Security Service, with draconian measures aimed at fighting terrorism.
The ISA Law, enacted in 2002, stipulated in section 7 that the ISA could also be used for other purposes, "in another area determined by the government, with the approval of the Knesset Committee on Service, which is intended to safeguard and promote state interests that are vital to the national security of the state."
Netanyahu at the cabinet meeting. Interested in using the Shin Bet, Photo: Jonathan Zindel/Flash90
Do "state interests vital to national security" also include serious crime? In secret debates on the law in 1998, Knesset members from both the right and the left warned that the law could be used by governments to violate civil rights.
The deputy attorney general at the time gave several examples of possible areas, noting international crime, serious international offenses, and "things that are done around the globe in which there is a certain professional advantage to a body like the Shin Bet, or equivalent bodies, over routine police."
Remember the ISA training during the coronavirus? The text messages we received informing us that we had been exposed to a verified patient? These were operated by the ISA pursuant to Article 7.
High Court of Justice (Archive). Corona petitions rejected, photo: Oren Ben Hakon
The petitions against the use of ISA agents in the fight against the coronavirus were rejected, but the justices limited their use and warned of the consequences.
Supreme Court President Esther Hayut wrote: "A democratic society is prepared to tolerate a certain infringement, limited and fenced against human rights, and sometimes even the rule of law, as far as threats that raise concerns about its continued existence are concerned. The expansion of situations in which it is possible to turn to a preventive security service, therefore, raises serious concerns."
The justices ruled at the time that the economic damage to all households in Israel due to the lockdowns – and, of course, the health risk in the shadow of the global crisis of the pandemic – amounted to "national security."
The vehicle allegedly used by the shooters in the village of Yafia is on fire // Use under section 27A of the Copyright Law
Corona Department at Ziv Hospital in Safed (Archive), Photo: David Cohen-Ginny
In order to assess what amounts to "national security," the High Court of Justice established a test: "the test of grave and immediate danger to the citizens and residents of the state or to its regime orders."
High Court Test
Supreme Court President Hayut explained: "The further away from the core of the security concern, the more the government has the burden of showing that this is indeed an issue that poses a serious and immediate danger to the citizens of the State of Israel or to the regime order in the country, in a manner that requires the mobilization of all bodies, including the police and security services, in order to deal with the challenge."
A particularly high bar of danger to the citizens and residents of the state is required. While this is not necessarily an existential threat or a subversive man-made threat, it clearly does not refer to the routine threats to public order that civilian law enforcement agencies face on a daily basis.
Esther Hayut, Photo: Oren Ben Hakon
The requirement of immediacy states that "the danger must be such that there is no practical possibility of developing more appropriate alternative means of dealing with it before it is realized."
Does the government's decision to use the ISA on crime in the Arab sector pass the High Court of Justice test? Not sure at all, and the petitions against the government's decision will come.
The national public defender, Adv. Anat Misad-Canaan, has already expressed her opinion that it constitutes "a dramatic change in the world order in criminal enforcement in Israel, and it has a profound and fundamental impact on the character of the democratic regime."
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