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A Tertiary Model for Countering Terrorismin Liberal Democracies: The Case of IsraelA. Pedahzur & M. RanstorpPublished online: 08 Sep 2010.

To cite this article: A. Pedahzur & M. Ranstorp (2001) A Tertiary Model for Countering Terrorismin Liberal Democracies: The Case of Israel, Terrorism and Political Violence, 13:2, 1-26, DOI:10.1080/09546550109609678

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A Tertiary Model for CounteringTerrorism in Liberal Democracies:

The Case of Israel

AMI PEDAHZUR and MAGNUS RANSTORP

Like other studies in the field of counter-terrorism the question underlying this articleis to what degree can a democracy lead an effective struggle against terrorism and atthe same time uphold its liberal, or even democratic, character? This article seeks toelaborate on the theoretical tools used for answering this question by developing theoperational aspects of the ‘war model’ and ‘criminal justice model’ in the war againstterrorism and then by presenting an ‘expanded criminal justice model’ to mediatebetween the two already existing models. This continuum of models is then tested onthe Israeli response to Jewish terrorism and possible explanations for the state’sdecision to move from one model to the other are presented. One of the centralconclusions of the study is that the most successful anti-terrorist campaigns led byIsrael against Jewish terrorists were the ones in which the state’s authorities did notcross any democratic boundaries.

Introduction

For many years, scholars have been preoccupied with one of the centraldilemmas facing liberal democracies that wish to maintain their legitimacyin view of the varying degrees of challenges posed by terror and politicalviolence. At the core of this dilemma is to what degree a democracy canlead an effective struggle against subversive elements while at the sametime uphold its liberal, or even democratic, character. In the effort to defenditself against terrorism, how can a liberal democratic state avoid the slipperyslope that so easily may lead it to adopt the exact same methods as thosewho wish to undermine it? In his pioneering and exhaustive book, Terrorismand the Liberal State, Paul Wilkinson expounds upon this problem withgreat clarity:

The primary objective of counter-terrorist strategy must be theprotection and maintenance of liberal democracy and the rule of law.It cannot be sufficiently stressed that this aim overrides in importanceeven the objective of eliminating terrorism and political violence as

Terrorism and Political Violence, Vol.13, No.2 (Summer 2001), pp.1–26PUBLISHED BY FRANK CASS, LONDON

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such. Any bloody tyrant can ‘solve’ the problem of political violenceif he is prepared to sacrifice all considerations of humanity, and totrample down all constitutional and judicial rights.1

Two decades later, in response to this dilemma, Peter Chalk furtheradvances the argument that the elusive ideal for any democracy is to adoptcounter-terror measures which are both effective and, at the same time,conform with the underlying premises of a liberal democracy.2

In the years following the publication of Wilkinson’s classic book, agreat deal of research and academic debate have been devoted to thedemocratic dilemma of the fight against terror which in turn has spawned anumber of different theoretical models.3 In particular, two contrasting typesof models of response have been identified and delineated, the ‘war’ modeland ‘criminal justice’ model. In the ‘war’ model, a stronger emphasis isplaced on the actual restraint of terror than on the maintenance of liberaldemocratic rights, whereas in the ‘criminal justice’ model, the preservationof democratic principles is a fundamental premise in the fight against terror,even at the expense of a reduced effectiveness of counter-terrorist measures.Despite the general usefulness of this broad conceptualization, these twomodels often do not concur with the reality on the ground. While mostliberal democracies understandably try to refrain from using the ‘war’model, their attempts at complying with the ‘criminal justice’ model and, atthe same time, responding decisively to terrorism, have often resulted in thestretching of certain boundaries of the ‘criminal justice’ model. Arguably,nowhere is this more evident than in the case of Israel’s multifacetedpolicies and responses to its own internal Jewish terrorism and politicalsubversion that has plagued Israeli society since the establishment of thestate in May 1948. Unlike the often contentious and lively academic debateconcerning whether Israel actually conforms to the principles of a liberaldemocracy, a debate that often focuses on the argument that Israel’srelations with its Arab citizens are the sole factor for that compatibility,there is widespread consensus that Israel conforms to the liberal democraticmodel with regard to at least its Jewish population. Furthermore, the case ofIsrael does not deviate too far from Crelinsten’s definition of a liberaldemocracy with regard to counter-terrorism applied to its own Jewishcitizens, namely the ‘rule of law, the governing administration’s opennessand responsibility, and the preservation of trust between citizens andgovernment based on citizen access to enough information as far as isallowed in the public interest’.4

The primary aim of this article is to present an expanded taxonomybetween the ‘war’ and ‘criminal justice’ models or, in other words, atertiary, mediating model that reconciles the two aforementioned modelsand one that provides a more direct relation to the empirical reality of

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Israel’s changing response to Jewish terrorism and subversion over the lastfifty years. At the same time, this model is predicated upon two levels ofanalysis. The exogenic level stresses the cultural and social context of theprocess of determining policy and how policy-making is affected by theseconditions. The endogenic perspective examines the degree in which theemployment of the counter-terrorist model is based on consistent andprofessional grounds and whether it is possible to identify alternativemotives for the use of one model of response over another.

Addressing the Grey Areas Between the ‘War’ and ‘Criminal Justice’Models

The corpus of literature inquiring into counter-terrorism makes an analyticaldistinction between the ‘war’ model and ‘criminal justice’ model5 onseveral levels. Terrorism, from the perspective of the ‘war model,’ isregarded as an act of revolutionary warfare, whereas the ‘criminal justice’model considers terrorism a criminal act. In line with these respective viewsare their correspondingly different responses to terror. The ‘war’ modelplaces the onus of response on a military that emphasizes the marshalling ofall the means at its disposal in order to quash terrorist action. The ‘criminaljustice’ model accords the police with the primary responsibility forresponding to terrorism, and its actions are naturally restrained by the state’scriminal legal system.6 As emphasized by Crelinsten in an attempt to furtherdistinguish the two models:

In a criminal justice model, the rule of law is paramount, while in thewar model, it is the rules of war that prevail. In the criminal justicemodel, it is the police who exercise the state’s monopoly on the use ofviolence. The rules of engagement, so to speak, involve the use ofminimal force, which requires an exercise of judgment on the part ofthe officer(s) involved. Military rules of engagement, on the otherhand, require the maximal use of force designed to overpower theenemy’.7

Notwithstanding the above distinction, a review of the literaturedemonstrates that the attempt to apply theory to reality is often difficult andfraught with complexity. While the characteristics of the ‘war’ model arequite clear and its boundaries well-defined, those of the ‘criminal justice’model suffer from ambiguity, especially as it often appears that the attemptto adhere to the ‘criminal justice’ model leads policy-makers in liberaldemocratic states to an almost unrestrained elasticity of its boundaries. Inparticular, Crelinsten and Schmid argue that during times when democraciesundergo a sense of an impending threat or crisis, they tend to extend the

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limits of the ‘criminal justice’ model. This elasticity entails the applicationof special anti-terror legislation providing the police with greater authority,adjustment of judiciary processes to facilitate the prosecution of terrorists,and, occasionally, the establishment of special courts for trying accusedterrorists.8 However, Crelinsten later tried to tackle the elasticity fromanother angle. He argued that it is often difficult to draw clear boundarieswith regard to political violence, especially because violent events of acriminal nature may tend to become enmeshed with those stemming frompolitical motives. These developments make it difficult to formulate anunequivocal retaliatory policy and also lead to the mutual infraction ofpolice and army forces – the encroachment of the military into thejurisdiction of police authority and vice versa.9 Crelinsten and Schmidconclude by underscoring the significant disparity between the models andthe reality of counter-terrorism. They argue that precisely because of theseaberrations of the ‘criminal justice’ model, liberal democracies attemptingto exercise counter-terrorist strategies will tend to deviate from the ‘rule oflaw’ and democratic standards.10 As a consequence, the ‘criminal justice’model proves to be a hypothetical concept with very elastic boundaries, andin most cases cannot serve as a suitable vehicle for the assessment ofvarious countries’ capabilities to respond effectively to terror while alsomaintaining the conceptual and ethical boundaries of a liberal democracy.Consequently, the development of a third ‘mediating’ model is necessaryfor assisting in the clarification of the boundaries between the ‘war’ and‘criminal justice’ models, and may be referred to as the ‘expanded criminaljustice’ model This model acknowledges the fact that the war against terrormay often stray from liberal standards and employ means not necessarilyaccepted as principles of criminal law enforcement, but at the same timestill significantly differs from the rules of war and customary militarymethods. The goal of this model is to include all those ‘gray’ areas that areso commonly practiced in the war against terrorism yet are not accountedfor in either the ‘war’ or the ‘criminal justice’ models as noted above. Theadvantages of the ‘expanded criminal justice’ model are twofold. First, itallows the creation of a continuum between the first two models that willreduce the discontinuity between them. Secondly, the tertiary model willprovide a framework for integrating theory and empirical reality, making iteasier to classify and detect the changes in various countries’ responses toterrorist threats. Based on a set of deductive inferences drawn form theliterature in this field, the two traditional models as well as the proposedmodel can be classified according to the following criteria: general features,state interests, democratic acceptability, constitutional, legal and operationalaspects (see Table 1).

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TA

BL

E 1

Cri

teri

aW

ar m

odel

Exp

ande

d cr

imin

al j

usti

ce m

odel

Cri

min

al j

usti

ce m

odel

Gen

eral

fea

ture

Stat

e ai

ms

and

mea

ns

Dem

ocra

tic

acce

ptab

ility

Con

stit

utio

nal a

nd le

gal a

spec

ts

Ope

rati

onal

asp

ects

Terr

oris

m is

reg

arde

d as

a ta

ctic

exer

cise

d in

gue

rilla

act

iviti

es o

r ev

enac

ts o

f re

belli

on.

App

rehe

ndin

g te

rror

ists

and

the

elim

inat

ion

of te

rror

ism

.

The

exe

rcis

e of

mili

tary

for

ce a

ndm

ilita

ry s

trat

egie

s w

ith th

e in

tent

ion

ofer

adic

atin

g te

rror

ism

in a

cer

tain

soc

iety

will

lead

the

coun

try

sign

ific

antly

aw

ayfr

om a

ccep

tabl

e de

moc

ratic

sta

ndar

ds.

Law

s of

war

dic

tate

cou

nter

-ter

rori

smm

easu

res

and

cons

eque

ntly

any

cons

titut

iona

l or

lega

l con

side

ratio

n is

sole

ly s

econ

dary

.

Forc

es r

espo

nd to

terr

oris

m a

re th

e ar

my

and

spec

ial u

nits

. The

nat

ure

of th

eir

resp

onse

res

ides

in m

ilita

ry d

octr

ine.

Terr

oris

m is

reg

arde

d as

an

exce

ptio

nal

phen

omen

on th

at is

not

nec

essa

rily

an

act

of w

ar, y

et a

lso

devi

ates

fro

m th

e st

anda

rdde

fini

tion

of a

fel

onio

us c

rim

e.

Arr

est a

nd p

enal

izat

ion

of te

rror

ists

.

The

exp

ansi

on o

f th

e co

ncep

t of

the

rule

of

law

by

adop

ting

spec

ial l

egis

latio

n in

the

battl

e ag

ains

t ter

rori

sm a

nd a

dmin

istr

ativ

ere

gula

tions

will

div

ert t

he r

egim

e aw

ayfr

om li

bera

l acc

epta

bilit

y, y

et w

ill n

otco

mpl

etel

y vi

olat

e de

moc

ratic

bou

ndar

ies.

The

exp

ansi

on o

f co

nstit

utio

nal b

ound

arie

sby

ado

ptin

g ad

min

istr

ativ

e re

gula

tions

or

spec

ial l

aws

in th

e fi

ght a

gain

st te

rror

ism

,an

d th

e di

ffer

entia

l tre

atm

ent b

y th

e co

urt

syst

em o

f of

fenc

es d

efin

ed a

s te

rror

ist.

Forc

es r

espo

ndin

g w

ill b

e pr

imar

ily p

olic

ean

d se

cret

ser

vice

, occ

asio

nally

com

plem

ente

d by

spe

cial

ant

i-te

rror

ism

units

. The

nat

ure

of th

e re

spon

se w

illin

clud

e pr

even

tive

arre

sts,

sur

veill

ance

tech

niqu

es a

nd g

athe

ring

inte

llige

nce

date

– ty

pica

l met

hods

use

d by

sec

ret s

ervi

ces.

All

this

with

the

inte

ntio

n of

bri

ngin

gsu

spec

ts to

tria

l.

Terr

oris

m is

reg

arde

d as

a c

rim

e.

Arr

est a

nd p

enal

izat

ion

of te

rror

ists

whi

le a

dher

ing

to th

e ‘r

ule

of la

w’

and

liber

al d

emoc

ratic

sta

ndar

dsw

ith r

espe

ct to

the

inst

itutio

n of

law

and

enfo

rcem

ent.

The

use

of

this

mod

el c

orre

spon

dsw

ith th

e el

emen

ts to

the

liber

alde

moc

ratic

ori

enta

tion.

Rig

id c

onst

itutio

nal b

ound

arie

s.

The

sta

te r

espo

nds

to te

rror

ist

inci

dent

s in

com

plia

nce

with

sta

tecr

imin

al la

w a

nd is

sub

ject

toco

nsta

nt ju

dici

ary

regu

latio

n.

The

for

ces

resp

ondi

ng w

ill b

e th

epo

lice.

The

nat

ure

of th

e re

spon

se is

circ

umsc

ribe

d by

the

stan

dard

rul

esof

aut

hori

ty a

ccor

ded

to a

n an

ti-cr

imin

al p

olic

e fo

rce.

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An anatomic analysis of these three models reveals that in effect theyconsist of two principal parts, infrastructure and structure. Theinfrastructure is the numerous constitutional and judiciary arrangementswhose absence, presence and character dictate the operational range ofaction. For example, the disregard of constitutional boundaries in the frameof the ‘war’ model leaves much room for the manoeuvre of military forceswhose goal is the elimination of terror. The ‘criminal justice’ modelendeavours to strike a balance between combat effectiveness and themaintenance of the liberal character of the state, subordinating the waragainst terror to rigid liberal constitutional principles and thus providing thepolice with only limited means for action. The ‘expanded criminal justice’model regards terror as an exceptional phenomenon and therefore, despitethe aspiration to adhere as much as possible to the ‘rule of law’, legalboundaries are extended to enable a more effective response to terror whilepartially foregoing certain liberal principles and in general abusing freedomof expression and action. Nevertheless, contrary to the ‘war’ model, themeans exercised in the frame of the intermediate model are not enough toviolate completely the boundaries of the broad definition of the democraticpolitical system.11

In order to overcome the methodological problems that may arise whenattempting to confirm a theoretical argument using the ‘case analysis’method, the Israeli response to Jewish terror will be reviewed and analysedthrough a diachronic perspective. In fact, this type of analysis will giveprominence to the advantages embodied in the three-model constellations aswell as feature the delicate nuances of this taxonomy.

The Nature of Jewish Terrorism in Israel

In the most comprehensive study of political violence in Israel written todate, Brother Against Brother: Violence and Extremism in Israeli Politicsfrom Altalena to the Rabin Assassination, Ehud Sprinzak charts the map ofviolence and terror in Israeli society, originating as far back as thefoundation of Israel. According to his methodology, it appears that nearlyall forms of political violence documented in the professional literaturehave found expression in Israel, ranging from violent street demonstrationsto the extremes of political assassinations and terrorism of a highlysophisticated nature.12 Regarding the factors leading to the burgeoning ofJewish violence and subversion within Israel, Sprinzak proposes a trilateralclassification:

1. violence of a political-ideological nature as exemplified by the strugglebetween the Israeli left- and right-wings over the country’s borders;

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2. violence evolving from feelings of ethnic deprivation, namely thestruggle between those of Azhkenazim and Sephardim descent on thebasis of socio-ethnic gaps and the resultant feelings of discrimination;

3. violence stemming from the conflict between ultraorthodox and secularJews, or, more specifically, religious Jewish protest against the Israeligovernment and its policies.13

Complementing Sprinzak’s comprehensive and analytically balancedapproach of the phenomenon of political violence is a book written byCarmi Gillon, the former head of the Israeli Shabak or GSS (GeneralSecurity Services), who deliberately adopts a much narrower approach.14

Gillon’s principle base of analysis is the political-ideological dimension,and not without reason. This dimension proved to be the dominant cause ofnumerous incidents of calculated and sophisticated violence, a fact alsosubstantiated by Sprinzak, whereas the other sources (ethnic, economic andreligious) provided for many years different forms of intriguing extra-parliamentary politics or, at the most, acts of hooliganism. This point is ofgreat relevance because Gillon’s perspective strikingly reflects theboundaries of political violence and terror as defined specifically by policy-makers and the security establishment in Israel.15 Therefore, this is also theonly aspect in which retaliatory measures were directly assigned to the GSS,whereas the response to violent incidents stemming from ethnic, religiousand economic reasons was relegated to the criminal law enforcementsystem. In order to analyse the dynamics of Israeli counter-terror policy toJewish terror and subversion, it therefore appears sensible to examinemainly the political-ideological axis.

The Early Years of the State of Israel – The Predominance of the‘War’ model

The years prior to the founding of the State of Israel were marked by theZionist movement’s struggle to establish a sovereign state. Like othernationalist struggles, violent means were also used as an integral strategy orcomponent in this venture. Two movements that were distinguished byultra-nationalist right-wing notions –the Etzel (National MilitaryOrganization) and Lechi (Israeli Freedom Fighters) –were the most devotedto use of terror. Their tactics sparked fiery debate among the variouspolitical factions in the Jewish Yishuv,16 which did not abate with theinauguration of the State of Israel and the cessation of the British Mandatein the spring of 1948. Approximately one month after the officialdeclaration of the establishment of Israel, the nascent state’s politicalleadership deliberately chose to adopt the ‘war’ model and all it entailed in

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its attempt to put an end to the struggle over sovereignty and with the aimof dissolving the Etzel and Lechi. The incident most strikingly marking theassimilation of this model was the Altalena affair.

On 22 June 1948, the Army’s Chief of Operations directly ordered hissoldiers to fire a heavy gun barrage and sink the Altalena ship not far fromthe shores of Tel Aviv. On deck were Etzel members and in its cargo holdwere significant stocks of weapons smuggled from France by theorganization. This drastic step taken by Israel’s first prime minister, Ben-Gurion, invites the question whether the weapons ship Altalena was indeedsuch a threatening element that it left the decision-makers with noalternative but to employ such extreme measures as prescribed by the ‘war’model. The answer to this question is multifaceted. Politically, behind thescenes of the Altalena affair, there was an attempt by the month-old state toraise quickly a state-run army that was to contend with the overall state ofwar with the neighbouring Arab states at that time. In order to organize suchan army, it was necessary to combine all the clandestine elements that werein operation prior to the State of Israel’s establishment into one unitarynational framework.17 However, the effort to unite hastily several hawkishfactions, often separated by vast ideological chasms and a history of bitterconfrontation, into one common framework was no mean feat. Furthermore,the various elements of the new army were not so willing to surrender theirrespective paramilitary distinctions and quickly subordinate to unite undera single national framework in which the Labour Movement had a highlydominant role. The Etzel, for example, strove to maintain a certain degreeof autonomy in the new state-run army context, as revealed by the fact thatits 5,000 members joined the Israeli Defense Forces as seven battalionsoperating under their own separate command.18 In fact, Etzel requested thatits members be accorded favoured status in the distribution of weaponsseized from the Altalena.19 In line with the conventional approach forcountries adhering to the ‘war’ model, the Israeli leadership saw this as agenuine direct threat, growing exponentially as the ship drew closer to theshores of Tel Aviv.20 This sense of ‘crisis’ stemmed from the belief of theIsraeli leadership that members of the Etzel movement were attempting toform an alternative power centre and about to challenge the authority of thenewly formed Israeli government.21 As such, the odds favouring the militaryoption increased. In the meantime, members of the Etzel movement, whohad been conscripted into the burgeoning national army, abandoned theirbases and made their way towards the location where the ship was expectedto set ashore. The leader of the Etzel movement, Menachem Begin, inresponse to the escalation of the ‘crisis’, endeavoured to reach acompromise with the Israeli political leadership, trying to prevent thesinking of the ship and the resultant loss of life. However, the new Prime

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Minister was apparently not too eager for such a resolution. According tothe situation Ben-Gurion presented to his ministers, the Etzel movementrepresented an immediate and unacceptable challenge to the new sovereigngovernment.22

The Altalena affair has itself provoked a fierce debate among Israelischolars over whether Ben-Gurion perceived his own government to betruly in jeopardy or whether he simply used it to disable his political foes.Horowitz and Lissak advance the argument that applying ‘war’ modeltactics to the Altalena affair and the Etzel movement was deliberatelyundertaken in order to consolidate government stability. Accordingly,Israel’s aggressive policy toward Altalena was only another variation on auniversal theme where the group seizing power – within the context of theinstitutionalization of nationalist and social revolutions – needs to use forcein order to rid itself of any radical elements carrying the potential ofundermining the regime’s stability.23 In contrast, Barzilai emphasizes thepolitical nature of Ben-Gurion’s real concern over the build-up of hostilepolitical forces, principally potential adversaries to his own party’sgovernment.24 Whether Ben-Gurion’s motives were driven by politicalconsiderations or were in the national interest, the Altalena affair signifiedthe advent of a comprehensive campaign whose aim was to crushoppositionist militarist factors in the country. The operation included armyraids on all Etzel military installations, arrest of the movement’s leaders,and, in effect, the total dismantling of its military capacities.25 With thedissolution of the Etzel movement, the use of the ‘war’ model againstJewish political violence ended. Those in charge of the nascent State ofIsrael adopted instead the ‘expanded criminal justice’ model, as analternative course of countermeasures to internal subversion. The benefit ofthis option was that it sanctioned offensive action against terrorists andzealous politicians while it simultaneously protected the democratic basis ofthe state and prevented it from plunging into a crisis of legitimacy.

Adoption and Institutionalization of the ‘Expanded Criminal Justice’Model

The operational foundations of the ‘mediating’ model must includeconstitutional and judiciary versatility, making it possible for the state torespond to terrorist action using means that deviate from the criminal code.Except for Great Britain, Israel is the only democracy that does not have awritten constitution ensuring basic individual rights, such as the freedom ofspeech and freedom of association. Notwithstanding the internal politicalreasons preventing the adoption of a formal constitution, the newlyestablished State of Israel was under a genuine threat from its Arab

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neighbours, and this fact consolidated a sweeping public consensus on theissue of the precedence of security and military matters over civil rights.However, the sense of threat has persisted and this ‘security complex’ hasdominated policy and discourse for many years. Therefore, Israel has neverreally retracted the state of emergency under which it has operated all theseyears.

Hofnung argues that a ‘state of emergency’ is a governmentaldeclaration of the existence of an exceptional set of circumstances, whichtherefore demand the adoption of extraordinary measures.26 As a result ofthe continuous state of emergency in Israel, the state has drafted a complexsystem of regulations intended to restrict basic individual rights. In anattempt to clarify this tangled web, it is possible to distinguish three strandsof emergency legislation. First, there is the Defense (Emergency)Regulations (1945). Inherited from its predecessor, the British Mandatoryauthorities in Palestine, these regulations granted a great deal of power tothe military command. High-ranking officers are authorized to order housedemolitions, impose curfews, make arrests, carry out searches and detainsuspects without judicial restraint. However, the enforcement of theseregulations within Israeli borders is not common and is carried out only withthe approval of the highest levels of the executive authority (the Cabinet orMinister of Defense). Secondly, section 9 of the Law and AdministrationOrdinance (1948) authorizes the executive authority to suspend, revoke oralter parliamentary legislative measures in cases of emergency. Finally,there is the Parliamentary emergency legislation.27

For the benefit of the present analysis, seven components from the 1945security regulations have assisted in laying the foundations for counter-terror action in terms of the ‘expanded criminal justice’ model:

1. Military censorship – the military censor is authorized to ban anypublication (including daily newspapers) containing, according to themilitary censor, material that may endanger national security.

2. Restrictions on freedom of movement – an individual suspected ofsubversive activity may be subject to a restraining order that will restricthim to his area of residence and require that he report daily to the policestation.

3. Administrative detentions – originally effected under the Emergency(Defense) Regulations (1945), this mandatory arrangement gainedlegislative endorsement in 1979. The 1979 statute gave license to theMinister of Defense and, under special circumstances, the Chief of Staff,to arrest a person without trail for a period of up to six months. Detentioncan be extended on condition that it is subject to judicial approval ateach extension.

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4. Special courts – defense regulations authorize the Chief of Staff to setup special courts for those suspected of activity that may jeopardize statesecurity. Another legal proceeding is putting such suspects on trial in acivil court of law on the condition that these courts sustain verdict inaccordance with emergency legislation.28

5. One of the principal measures available to courts trying suspects ofsubversive offences is the Prevention of Terrorism Ordinance No. 33(1948). According to chapter 8, the executive authority is in charge ofdetermining whether a political movement is a terrorist one or not. Anillustration of the rigidity of the ordinance is found in chapter 2, whichdetermines that an individual who takes part in the establishment oractivity of a terrorist organization, or even dispenses propaganda in anyform, will be guilty of an offense whose maximum sentence is twentyyears imprisonment.

6. Special legislation applying to the occupied territories (territoriesoccupied by Israel in 1976) and hence not in accordance with customaryIsrael legal standards (apart from East Jerusalem and the Golan Heights,which have been annexed by law). These areas are subject tointernational laws of occupation, which authorize the regional militarycommander to take any measures necessary to maintain control of, andorder in, these territories.29 In most cases, these measures were takenagainst the Palestinian population but, as Cohen-Almagor has pointedout, Jewish settlers were also occasionally subject to administrativedetention orders. For example, following the Baruch Goldstein massacreat the Tomb of the Patriarchs in February 1994, eight Jewish extremistswere put under administrative detention.30

7. The seventh course of action, which has received less than adequateacademic attention, concerns the obscure legal statutes of the internalIsraeli security service, otherwise known as Shabak (GSS).31 Unlikeother countries, such as Great Britain, where there is a robust system ofpublic control over the secret services,32 in Israel there is not only anabsence of legislation which may have defined the limits and methods ofthe GSS, but public accountability of the security service is onlypartial.33 A frail constitutional infrastructure enables the widespreadexistence of the phenomenon Crelinsten calls ‘provocative policing,’that is, actions not necessarily designed to gather anti-terrorist evidencefor the sake of prosecution, but rather in order to serve the intelligenceaims of the security forces.34 Furthermore, the absence of a genuinesystem of accountability also sanctions the adoption of patterns ofactions verging on the illegal or what Gillon calls the ‘gray’ areas.35

Following the above delineation of the legal foundations of the

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‘expanded criminal justice’ model, the process of its operational adoptionwill now be examined. The first indication of the abandonment of the ‘war’model was apparent already in the final stages of the dismantling of theEtzel movement when five members of the organization’s command wereplaced under administrative arrest. They were allowed to appeal to theSupreme Court,36 a fact that proved that the security forces were still liableto the civil court system even if this accountability was still partial.However, the most significant step towards the adoption or the ‘expandedcriminal justice’ model away from the ‘war’ model became apparent in theactions taken in order to eliminate the smallest and most zealousunderground right-wing movement – the Lechi. The incident that directlyprompted this was the assassination of the Swedish diplomat, Count FolkeBernadotte, who had been assigned to be the United Nations mediator forPalestine, on 17 September 1948, in a well-planned ambush by Lechimembers. While the initial Israeli response to the assassination was more incompliance with the ‘war’ model, as soldiers from the Palmach (army elitesquads) unit raided Lechi military camps, closed down Lechi organization’soffices and arrested dozens of its members,37 it quickly adopted severalmeasures that relied completely on the judicial base of the ‘expandedcriminal justice’ model. Three days after the murder, the Israeli governmentdeclared Lechi to be a terrorist organization, thus expediting the process ofthe indictment of Lechi-affiliated members, including those whom had notbeen active participants in the terrorist operations. Israel´s actions againstLechi indicated that Israel had become an established fact and a sovereignstate bound to a system of rules. As such, every use of military force againstcivilians carried a genuine risk of harming the public legitimacy of the newgovernment. As a result, the tertiary model was acknowledged as an optionnecessary for at the stabilization of the government, both in order to gainlegitimacy and also to justify the crackdown of violent antagonists. As forthe motive behind the declaration of Lechi as a terrorist organization,Barzilai argues that the order was more directed toward subduinggovernment opponents and de-legitimizing them than based on the rationaleof taking counter-terror stabilizing action.38 Despite the veracity of thisargument, it seems that the disavowal of the ‘war’ model in favour of the‘expanded criminal justice’ model demonstrates how Ben-Gurion, in hisefforts to undermine his political opponents, chose a more restrainedapproach and abandoned any rigid methods employed in the struggleagainst Etzel.

Another indication of the institutionalization of the ‘expanded criminaljustice’ model, as the dominant doctrine in the struggle against Jewishterror, was the decision to favour the GSS over the army and police in thefight against terror. Isser Harel, founder of the GSS, began to isolate the

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secret services from the army and thus reinforce its status an autonomousnon-military body. According to Harel, this made it easier to reconcile thebalance between security operational needs, on one hand, and theconstraints of a democratic political system on the other. Harel alsoattempted to set the ground rules for GSS operations. As he saw it, the roleof the organization in the war against terror should be limited to preventivemeasures. After the gathering of all available evidence, it was determinedthat the suspects would be transferred to the police for further investigationand prosecution, if necessary.39 On the face of it, it seemed that Harel’saspiration was that Shabak’s role in the war against Jewish terror would belimited to ‘reactive policing’, a term Crelinsten defines as a methodintended to restrict counter-terrorism to the ‘criminal justice’ model.However, according to Carmi Gillon, who sat at the helm of Shabak formore that 40 years, the course chosen by his predecessor Harel and, in turn,his successors was undeniably ‘provocative policing’. For instance, thisinvolved security measures against regularly identified targets that appearedas potential threats (including political parties and movements), mostnotably employing surveillance of them in order to gather information andallow frequent pursuit of the leaders.40

The early 1950s were rife with events providing policy-makers withseveral opportunities to develop further actions that fall under the tertiarymodel. Three radical movements emerged at that time: Brit Hakanaim(Covenant of the Zealots), Hamachaneh (the Camp) and the Zrifin (thename of the prison where members where held) Underground.41 The firsttwo organizations eventually merged under a common leadership of militantHaredim (an ultra-orthodox sect), who vehemently objected to the Zionistcharacter of the state. At the outset, their actions were primarily acts ofhooliganism, yet the Israeli police was still quite powerless in restrainingthem. Therefore, the GSS assumed responsibility for dealing with thisgroup, and Harel managed to plant two agents among its ranks, whoseprimary mission was to monitor and report member movements. Afterreceiving intelligence reports regarding the intention of the organization tostep up actions and engage in terrorist tactics, the GSS launched acomprehensive campaign against the group and its supporters, and 20suspects were put under administrative arrest.42 However, the handling ofthe Zrifin Underground, is an even more striking example of theentrenchment of the ‘expanded criminal justice’ model. The Underground,whose members were chiefly inspired by the Lechi tradition, began theirforay into terror in the winter of 1953, and on 9 February 1953, it carriedout its most violent and bold attack. A huge bomb was planted anddetonated at the Soviet Embassy building in Tel Aviv and three diplomatswere injured. Following a co-ordinated investigation between security

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service and police force, the Israeli government decided to enforce thePrevention of Terrorism Ordinance (PTO) on this group. In addition, for thefirst time, the Israeli government decided to establish a special militarycourt in order to prosecute and sentence members of the Underground.43

Some years later, as political violence subsided, counter-terrorist measureswere relaxed and military courts were no longer convened for the trial ofJewish terror organizations.

From the ‘Expanded Criminal Justice’ Model to the ‘CriminalJustice’ Model: Paradoxes of Israel Policy in Response to JewishTerror

In the early 1970s, when Israeli political institutions approached the finalstages of consolidation and the country achieved the status of a more stabledemocracy, it seemed that the adoption of the ‘criminal justice’ model, asthe dominant model in the fight against Jewish terror, was inevitable. Butthis, in fact, did not happened. A review of the factors forestalling thetransition to the ‘criminal justice’ model offers two principal types ofexplanation: factors rooted in the socio-political infrastructure of thecountry, so-called exogenic factors; and situation-specific motives affectingthe nature of the response to various acts of terror, otherwise termedendogenic factors.

At the exogenic level, there are three principal factors that prima facieappear of consequence. The first is the frailty of the liberal tradition inIsraeli political culture. This is due to the fact that Israel, the country of the‘ingathering of the exiles’, absorbed the majority of its immigrants fromcountries characterized by a dearth of liberal values. In addition, the pivotalrole of religion in the Israeli political system has also hindered theliberalization of the political culture.44 The absence of a liberal culture,among political elites as well as among the public, precluded the conditionsthat were suitable for the adoption of a liberal model in regard to variousissues, inter alia, the fight against terror. The profound cleavages of thissociety are the second exogenic factor, or more specifically, the disputeamong religious and secular leaderships in parliament, which has alsoundermined the drafting of a constitution.45 Filling this constitutional voidmight have created the potential for the removal of the constructional-legalbase of the tertiary model. Finally, the third factor relates to the ongoingIsraeli–Arab conflict. The Israeli ‘society under siege’, as it is often termedby sociologists, has constantly felt subject to a sense of threat and‘exceptionalism’,46 and has consequently developed a great deal of relianceon its military establishment. This militarist orientation has occasionallybordered on a genuine glorification of the secret services and elite army

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units and has led to far-reaching implications. Israelis tend invariably toprefer security interests to other considerations, including propergovernment procedures. Even as recent as the early 1990s, following aperiod of erosion in the status of the military establishment in general andthe GSS in particular, research confirmed the preference for security aboveall else. In particular, findings showed that more than 46 per cent ofsurveyed Israeli citizens totally rejected any judiciary intervention on behalfof the Supreme Court of Justice regarding decisions made by the IsraeliDefense Forces. Fifty-eight per cent supported the Supreme Court’stendency during those years to interfere as little as possible in securityaffairs.47 Therefore, the military apparatus in Israel enjoyed the almostunreserved trust of the public, a fact that awarded it with a great deal offreedom in its operations.

According to the above, at the endogenic level, the differential Israeliresponse to the four previously illustrated incidents raises a number ofquestions. The ‘expanded criminal justice’ model should apparently haveguided the state’s response throughout the course of its war on Jewish terror.However, herein lies a paradox. Whereas in respect to political groups whoconstituted an almost negligible threat of terrorist action (such as Kach andthe radical left), the tertiary model was practiced in full, but curiously thestate chose to exercise the ‘criminal justice’ model in regard to two of themost conspicuous incidents of Jewish terror and violence in the 1980s and1990s – the Jewish Underground and Uzi Meshulam’s group. This paradoxcan be explained by three principal causes. The first cause relates to the‘marginality factor’, which assumes that the smaller and more peripheral agroup is, the more forceful the state’s response will be, regardless of thedegree of violence. This ‘policy’ is a consequence of two stratagems: on theone hand, a society’s need to mark its legitimate boundaries by denouncingradical elements, and on the other, the fact that marginal groups enjoylimited public and political support which in turn prevents them frommustering public sympathy against their exclusion. The second explanationin fact highlights a conceptual thread running throughout this article, andthat is the intense politicization of counter-terrorism. This refers to the useof the means provided by the various models in order to advance aims thatare not necessarily related to the war on terror, but rather associated with thepolitical goals of the government in power. Finally, the third explanationrefers to the military establishment’s adherence to outdated conceptionsregarding violent threats in general.

The Kach Movement

Kach emerged in Israel in late 1971 and was in effect an offshoot of the

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Jewish Defense League (JDL), the violent and vigilant organization in theUnited States. When the leader of the movement, Rabbi Meir Kahane,immigrated to Israel, it seemed that his intention was to import the JDL’sviolent methods, especially as Kahane and his followers proved already in1972 to constitute a significant challenge to the State of Israel. In August1972, the Kach simulated a public trial against the Arab mayor of Hebron,Mohammed Ali Jabari, principally in response to his role in the 1929massacre of Jews and the events of the 1948 War of Independence. In aneffort to enact a public trial, Kahane and his adherents entered Hebron, amostly Arab city, provocatively creating a significant potential for violentconfrontation.48 In the first years of Kahane’s presence in Israel, the securityforces were still trying to decide what he was actually capable of, preferringto look upon him as more of a provocateur than a terrorist. In 1973, he wasthe first individual to be sentenced to a two month suspended prisonsentence for conspiring to commit criminal offences in the US. In a largepart, the conviction was based on evidence from letters that he wrote to hisfollowers encouraging them to engage in acts of terrorism.49 Seven yearslater, when his status as a terrorist was firmly established, Israel changed itspolicies and adopted the ‘expanded criminal justice’ model in its treatmentof Kahane and his adherents. The leader of Kach became a principal objectof close surveillance by the security services, and the GSS adoptedprovocative policing methods on his organization.50 This close surveillanceof him led ultimately to the administrative arrest of Kahane for a period ofnine months in relation to his organization’s plot to fire a long-range missileat the Dome of the Rock mosque on the Temple Mount.51 During the years1984–88, when Kahane served as a parliamentary member of the Knesset,the GSS suspended their surveillance due to a directive prohibiting themonitoring of elected public officials. Nonetheless, his supporters and partymembers remained under strict surveillance.52

In November 1990, the murder of Kahane in New York completelydevastated his organization and led to the dispersal of his followers into twominor movements – Kach and Kahane Chai (Kahane Lives). Despite theperipheral status of these political movements in terms of their marginalitywithin the Israeli political discourse, they still remained a principal target ofthe GSS. And in March 1994, in a wake of the massacre perpetrated byBaruch Goldstein (a former and active member of Kach) at the Tomb of thePatriarchs, the Israeli government decided to enforce the Prevention ofTerrorism Ordinance on Kach and Kahane Chai. Notwithstanding theoccasionally violent elements of these movements,53 their place in the arenaof radical violence at the time was minor, particularly in view of theradicalization of the Israeli Right, which included collective, or individual,blatant provocations against the rule of law and governmental legitimacy.

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Not only does the enforcement of the ordinance specifically against thesemovements seem out of proportion, but also the pretext for this decisionappears peculiar. Baruch Goldstein was identified as a ‘lone wolf’ at thetime – he committed the massacre at the Tomb of the Patriarchs on his ownaccord, unassisted by any organization. Yet, Cohen-Almagor explains, theinclusion of these organizations under the Prevention of TerrorismOrdinance was an inevitable development simply because the governmentof Israel had no other means of effectively dealing with these twomovements.54 He questioned the necessity to issue the Prevention ofTerrorism Ordinance, suggesting that its enforcement was not particularlyeffective because the core of the movement would continue to remain activeand unaffected, at the most under a different name and exercising morecaution. Equally, while the rationale behind the governmental decree of thePTO seems to have been a strong declaration and denial of the legitimacyof these organizations in an attempt to expel them from the legitimateboundaries of society,55 the enforcement of the PTO was supposed to haveprevented the use of administrative procedures which are not legitimatemeans in the war against terrorism. However, the fact is that ex-movementactivists are under the constant surveillance of the security services. Inaddition, the exercise of administrative procedures has not become any lessprevalent. Warrants for the arrest and restriction of movement of activists inJudea and Samaria are issued on a regular basis56 in addition to the use ofthe means imparted by virtue of the PTO.57

At a time when it seemed that even the use of the ‘criminal justice’model would have sufficed, it seems that the Israeli polity’s decision torespond so severely was because of these movements’ marginality. Byexercising the PTO in relation to these groups, the Israeli government wasable to send out a forceful message against those elements. The timing ofthis decision was also highly significant. It came immediately in the firstfew months after the signing of the Oslo Agreements, especially when anumber of powerful political elements led huge demonstrations – some ofthem violent – against the government. The Kach and Kahane Chaimovements were ideal targets for delivering a message in response, owingto their propensity for political dissent and to counter the mobilization of aparliamentary lobby for their cause. Another explanation for this iron-fistpolicy and isolated response against these two particular movements canalso be found in the outdated and entrenched perspective of Israeli politicalelites and security services, which regard the Kach and Kahane Chai as themost extremist and violence-prone factions on the fringes of the Israeliradical right. In retrospect, particularly following the assassination of Rabin,this policy turned out to be misguided.58 Furthermore, these movementsproved to be easy targets for the enforcement of a harsh policy of response,

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a posture readily adopted by an entrenched intelligence outlook, preferringnot to expand their view in the direction of the genuine threats evolving atthat time.

Hanitzotz and the Revolutionary Communist League: The RadicalLeft in Israel

Another largely marginal group on the Israeli political scene, and hence alsoconsiderably vulnerable to the use of the ‘expanded criminal justice’ model,was the radical left-wing element. Despite Sprinzak’s argument that, incomparison with left-wing European organizations, the extreme left inIsrael rarely needed to take violent action,59 Israeli policy- makers tended toview organizations such as Hanitzotz (the Spark) and the RevolutionaryCommunist League as terrorist factions. The pretext for this was the factthat these organizations did not recognize the State of Israel’s right ofexistence and they also received financial assistance from two Palestinianterrorist groups led by George Habash and Ahmad Jibril. Consequently,these movements were branded as targets for GSS intelligence surveillance.However, Carmi Gillon, one of the leaders of the struggle against theseorganizations, addressed them as ‘a completely marginal phenomenon,having no effect whatsoever on society and which never threatened thefragile consensus in this country’.60 Apart from reflecting the ‘marginality’factor, as these minimally subversive groups were given equal treatment asorganizations that persistently used political violence, it also illustrates the‘politicization’ of the war on terrorism, reflecting the Israeli government´sorientation toward the extreme left. According to Barzilai, a prominentexample underscoring this politicization was the use of one of theamendments to the PTO in 1986, whose principal purpose (introduced andpromoted by the Likud Movement) was the prevention of meetings betweenIsraeli left-wing activists and Palestinian representatives. Ultimately, theSupreme Court was forced to decide on the controversial matter, choosingto avoid political confrontation by imposing prison sentences on thoseleftist activists that took part in such contacts. The inconsistencies in theamendment’s selective application was evident following meetings betweenthe Rabin Administration and PLO representatives in Oslo in the summer of1993.61 This incident lends further credence to the assumption that groupswith weak political backing are more likely to be labeled ‘terrorist’,regardless of whether they engage in violence or not. In the same vein, it isclearly apparent that counter-terrorist policy and the enforcement ofcounter-terrorism measures are substantially influenced by politicalinterests – and in this particular instance, the political sway one party hasover another in the attempt to preserve a coalition and balance of forces.

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The Jewish Underground

A further confirmation of the ‘politicization’ of counter-terrorism is the caseof the Jewish Underground. But prior to an elaboration of this process, abrief historical account is necessary of the context and formation of themovement. The 1967 Six Day War culminated in the occupation ofterritories more than three times the size of Israel and completely rewrotethe political discourse within Israel. The crucial change was the renewedprominence of the political division between left and right, and, in this case,the predominant issue was the future of territories seized in the war.62 Theright-wing maximalist camp coalesced around the idea of Erez Israel, agreater and indivisible Land of Israel, whereas the minimalist left-wingprogramme was the promotion of territorial compromises with the Arabworld in exchange for peace.63 This new prominence of the political-ideological cleavage put an end to a relatively lengthy period of time almostcompletely without Jewish terrorism. The most notable organization on thehawkish side of the Israeli political map, and which ultimately gave birth tothe Jewish Underground, was Gush Emunim (Bloc of the Faithful),64 amovement that was devoted to the ideology of Erez Israel and was inspiredby the theology of Rabbi Kook.65 Gush Emunim’s principal mode of actionwas the construction of illegal settlements which occasionally led toconfrontation with the official legal authorities, such as the case of theSebastia settlements in July 1974.66 Despite their illegal civil disobedience,the Israeli government and the Attorney-General, with the endorsement ofPrime Minister Yitzhak Rabin, chose to avoid bringing the settlers tocriminal trial. The decision to refrain from prosecuting these settlers, arguedGillon, was highly politicized, as the rule of law was subordinated to thePrime Minister’s intention to avert needless political confrontation withsettlers supported by a strong political lobby.67 Gillon even asserted that thedecision not to enforce the law against these offenders in practical effectopened a path towards the radicalization of several organizational members,which eventually led to the most sophisticated Jewish terror organization inIsraeli history. Among other actions, the organization was responsible forseverely injuring the mayors of Ramallah and Nablus in the summer of 1980by sabotaging their cars,68 and also for the attack on the Islamic College inHebron three years later. In reaction to these incidents, Prime MinisterMenachem Begin ordered the security service to take forceful action againstthe perpetrators. The GSS was activated, ordered to adhere to the ‘reactivepolicing’ approach, and proceeded to gather evidence in a serious attempt tobring the culprits to trial. Following intensive investigations with thesuccessful collection of enough incriminating evidence, the police and GSScarried out several arrests and proceeded to interrogate suspects.

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According to both Gillon, who led the investigation, and Haggai Segal,one of the detainees, a notable fact surrounding the interrogation of suspectswas the gentle manner in which they were conducted, without the use oftraditional GSS interrogation methods.69 As such, despite the involvementof the GSS in the investigation of the Jewish Underground, it would bedifficult to classify this as a case of the ‘expanded criminal justice’ model,especially as Shabak’s (GSS) role in this case was in effect restricted tostandard police procedures. Unlike the treatment of the undergroundmovements of the 1950s, Israel elected this time not to use the ‘expandedcriminal justice’ methods, as it refrained from declaring the organization tobe terrorist, establishing a special court or exercising other administrativemeasures against members and supporters of the Jewish Underground. Infact, all members of the movement stood criminal trial and were broughtbefore a criminal court of law. However, after their convictions of seriouscriminal offenses (which included murder), extraordinary political pressurewas applied to grant them pardon. This pressure was so effective that in amatter of years not one single prisoner member of the Undergroundremained behind bars. Among the reasons why Israel chose to adherealmost entirely to the ‘criminal justice’ model in addressing the mostsophisticated and brutal Jewish terror organization that Israel had known, isthe fact that it was a result of exactly the same reasons that had led it to reactto marginal and minimally threatening organizations with the securitymeasures of the intermediate model – marginality factor. The Israeli rulingelite and shapers of defence policy opted not to respond to the JewishUnderground according to the reality of the threat it posed or the severity ofits actions, but rather on the basis of the political clout to which it hadaccess. The Underground movement benefited from broad public support,principally among religious Zionists and right-wing parties, such as theMafdal and the Tehiyah. Even former Prime Minister Yitzak Shamirunequivocally supported the pardoning of members of the organization.70

An additional reason that explains this choice of action pertains to thecultural conceptions held by the security forces and the Israeli political elite.The alliance of the religious Zionists – and wellspring of the Underground– had struck a positive chord and earned a dependable reputation amongparticipants in the Israeli political discourse. Many found them to be notterrorists but a rejuvenated image of the authentic Zionist pioneers. Unlikemembers of the Kach movement, who had mostly emigrated from the USand the USSR and were in effect strangers to Israeli culture, followers of theJewish Underground represented the very heart and core of the Zionist-Israeli experience.71 These devotees even ‘captured the hearts’ of theirinterrogators. ‘The atmosphere in the interrogation of the JewishUnderground suspects’, described Gillon, ‘was quite exceptional. Most of

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the people arrested were considered for all intent and purposes “excellentboys”, they were officers in the IDF and many of them had in fact served inunits that had worked closely with Shabak. Then, all of a sudden, there wasa situation of interrogator and suspect and they were sitting on the side ofthose being interrogated, in the role of the accused.’72 Despite the gravity ofthe acts they had committed, the personal background of the terrorists andtheir political backing as well were crucial factors that completely changedthe counter-terror policy applied toward them.

Uzi Meshulam’s Group

The most evident use of the ‘criminal justice’ model in Israel can be gaugedfrom Israel´s response to the Yehud affair. This incident began in the winterof 1994 when a religious sect, led by the charismatic Rabbi Uzi Meshulam,began to fortify and occupy his house. The declared goal of this smallreligious sect was to urge the government to investigate the disappearanceof Jewish Yemenite children in the 1950s, a social wound that has yet toheal within Israeli society.73 In order to cast off all doubt with regard to thegroup’s unquestionable militancy and potential for terror, Assaf Hafetz(Chief of Police/Inspector-General at the time) described Meshulam and hisfollowers as an ‘unprecedented and extreme nationalist terror group’74 in agovernment session. In an effort to justify this description, Hafetz addedthat the actions committed by the group could not be anticipated and maylead to disastrous consequences. There were some grounds for theseconcerns, as Meshulam’s group exhibited a dangerous potential in the firstdays of their fortification, especially when his followers threatened to uselive weapons if security forces would take action against them. However,the Israeli response was to handle them with much restraint and to remainwithin the narrowest limits of the ‘criminal justice’ model. The arrest of themembers was conducted by Israeli Police, who opened fire only after thefirst shots were fired by the Meshulam house occupants. After their arrest,Meshulam and his followers stood trial under standard criminal procedure.Even during the course of the trial itself, there were reports that warned thatMeshulam devotees (dispersed in different locations around the country)intended to attack law officials and take revenge with acts of violence in thewake of the outcome of the rabbi’s verdict.75 Nevertheless, these reports didnot lead policy-makers to implement the Prevention of Terror Ordinanceagainst the group or take administrative measures against its members.76

An effort to understand why Israel chose this course of action andstrictly adhered to the ‘criminal justice’ model, reveals similar underlyingpolitical factors to those that seem to have influenced official Israel’streatment of the Jewish Underground. As for the degree of the marginality

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factor, Uzi Meshulam and his believers were not favoured with a broad baseof support similar to that enjoyed by members of the Jewish Underground.Nonetheless, they were successful in raising an issue onto the public agendathat touched a raw nerve in the history of Israeli society. Subsequent to thegroup’s encampment in the Meshulam residence, a political front emergedconsisting of public figures and members of the Knesset that demanded anofficial state-run commission of inquiry into the Yemenite children affair.As a result, the Israeli government was considerably interested in droppingthe matter of the abducted Yemenite children from the political agenda,principally for fear that it would lead to ethnic-based riots. It becameevident that any aggressive action taken by Israeli law enforcement againstMeshulam and his followers would serve as a pretext for keeping the issuein the political spotlight.

While Uzi Meshulam’s group operated out of socio-ethnic motivations,traditionally not included in areas considered to be Jewish terror, Israelipolicy-makers’ adherence to the notion that Jewish terror is solely a resultof the ideological cleavage between right and left prevented them fromperceiving the fortification of an armed sect with a charismatic leader as aterrorist threat. As a consequence, the security services and ‘expandedcriminal justice’ model measures were discarded, and instead the ‘criminaljustice’ model was applied. In July 1999, Uzi Meshulam was conditionallyreleased from prison after serving nearly five and a half years of hissentence, as long as he would be responsible for severely restricting thenumber of people allowed in his house and limiting his connection with themedia.77 After Meshulam’s release from prison, the leader chose to retirefrom political action and his followers have dispersed in all disparatedirections.

Conclusion

The goals of this study were threefold. First, the elaboration of theoperational aspects of the ‘war’ model and ‘criminal justice’ model in thewar against terror and the presentation of the ‘expanded criminal justicemodel’, whose primary function was to mediate between the two alreadyexisting models in the so-called ‘gray areas’. The use of a range of threemodels offers the possibility of a dynamic continuum, whose main premiserests on the fact that the more aggressive the nature of the selected model ofcounter-terror, the more that democratic foundations will tend to besacrificed in that process. For example, the transition from a ‘criminaljustice’ model to an ‘expanded criminal justice’ model often requires theforfeit of some of democratic fundamentals. The application of thiscontinuum of models to a large extent served the second aim of this study,

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that is, the analyses of Israeli responses to Jewish terror. Although in theearly stages of the state’s existence those in charge elected to counter terrorwith the means of the ‘war’ model, a democratization process of Israel hasgradually pervaded over the course of years and this, to a certain degree, hasrestricted measures taken against Jewish terror, specifically limiting theapproach to the ‘expanded criminal justice’ model and, indeed, occasionallyto the ‘criminal justice’ model. This leads us to the third goal of trying tofind causes for the transition from one model to another. Analysis of theIsraeli context, from the perspective of the theoretical literature, yielded atwo-dimensional analytical framework, exogenic and endogenic. At eachlevel there are subordinate explanations. The exogenic explanation attemptsmainly to underscore the weakness of the liberal element in Israel’s politicalculture and, at the same time, give emphasis to the security element, a factthat enabled policy-makers to adopt militant counter-terror measures. At thesame time, from another angle, it became clear that the endogenic approachprovides three principal explanations. First, there is the marginality factor,that is, the smaller the organization and the less support it has, the greaterits vulnerability and the chances that more rigid models will be appliedagainst it even if the threat of terror is negligible. Secondly, there is the so-called politicization factor. According to this line of reasoning, the decisionto adopt either model is a result of factors not necessarily related to thedegree of threat posed by the organization, rather, they may reflect thepolitical interests of leaders or certain demands made by other coalitionparties. The third explanation focused on the prevalence and adherence ofthe defence establishment to past conceptions, a fact that led toinconsistencies in counter-terror policies when speaking of new andunfamiliar types of terror.

NOTES

1. Paul Wilkinson, Terrorism and the Liberal State (Houndsmill: Macmillan 1986), p.125.2. Peter Chalk, ‘The Liberal Democratic Response to Terrorism’, Terrorism and Political

Violence 7/4 (1995), p.17; and Peter Chalk, ‘The Response to Terrorism as a Threat to LiberalDemocracy’, Australian Journal of Politics and History 44/3 (1998), pp.373–88.

3. For example, see: Peter Chalk, ‘EU Counter-Terrorism, the Maastricht Third Pillar andLiberal Democratic Acceptability’, Terrorism and Political Violence 6/2 (1994), pp.103–45;Peter Chalk, ‘The Liberal Democratic Response to Terrorism’, Terrorism and PoliticalViolence 7/4 (1995), pp.10–44; Peter Chalk, West European Terrorism and Counter-Terrorism: The Evolving Dynamic (Houndsmill: Macmillan Press 1996); Ronald D.Crelinsten, ‘The Relationship Between the Controller and the Controlled’, in Paul Wilkinsonand Alasdair M. Stewart (eds.), Contemporary Research on Terrorism (Aberdeen: AberdeenUniversity Press 1987), pp.3–23; Ronald D. Crelinsten, ‘Terrorism, Counter-Terrorism andDemocracy: The Assessment of National Security Threats’, Terrorism and Political Violence1/2 (1989), pp.242–69; Ronald D. Crelinsten, ‘The Discourse and Practice of Counter-Terrorism in Liberal Democracies’, Australian Journal of Politics and History 44/1 (1998),pp.389–413; Ronald D. Crelinsten and Alex Schmid, ‘Western Responses to Terrorism: A

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Twenty-Five Year Balance Sheet’, Terrorism and Political Violence 4/4 (1992), pp.307–40;Charles Dunlop, ‘The Police-ization of the Military’, Journal of Political and MilitarySociology 27/2 (1999) pp.217–32; Fernando Reinares, ‘Democratic Regimes, InternalSecurity Policy and the Threat of Terrorism’, Australian Journal of Politics and History 44/3(1998), pp.351–71; G. Davidson Smith, Combating Terrorism (London: Routledge 1990);and Paul Wilkinson, ‘Pathways Out of Terrorism for Democratic Societies’, in PaulWilkinson and Alasdair M. Stewart (eds.), Contemporary Research on Terrorism (Aberdeen:Aberdeen University Press 1987), pp.453–65.

4. Ronald D. Crelinsten, ‘The Discourse and Practice of Counter-Terrorism in LiberalDemocracies’, Australian Journal of Politics and History 44/1 (1998), p.390.

5. Crelinsten, ‘The Relationship Between the Controller and the Controlled’ (note 3), pp.3–23;and Crelinsten, ‘Terrorism, Counter-Terrorism and Democracy: The Assessment of NationalSecurity Threats’ (note 3), pp.242–69.

6. Crelinsten and Schmid, ‘Western Responses to Terrorism: A Twenty-Five Year BalanceSheet’ (note 3), pp.332–33.

7. Crelinsten, ‘The Discourse and Practice of Counter-Terrorism in Liberal Democracies’ (note3), p.399.

8. Crelinsten and Schmid, ‘Western Responses to Terrorism: A Twenty-Five Year BalanceSheet’ (note 3), p.334.

9. Crelinsten, ‘The Discourse and Practice of Counter-Terrorism in Liberal Democracies’ (note3), pp.399–400.

10. Crelinsten and Schmid, ‘Western Responses to Terrorism: A Twenty-Five Year BalanceSheet’ (note 3), pp.333–34.

11. See Robert A. Dahl, On Democracy (New Haven, CT: Yale University Press 1998), ch.4.12. Ehud Sprinzak, Brother Against Brother: Violence and Extremism in Israeli Politics From

Altalena to the Rabin Assassination (New York: The Free Press 1999).13. Ibid., p.320.14. Carmi Gillon, Shin Beth Between the Schisms (Tel Aviv: Yediot Aharanot Books and

Chemed Books 2000) (in Hebrew).15. Isser Harel, The Truth about the Kasztner Murder (Jerusalem: Edanim Yediot Aharanot

1985); and Yaakov Perry, Strike First (Tel Aviv: Keshet 1999).16. Bruce Hoffman, Inside Terrorism (London: Victor Gollancz 1998), pp.48–56.17. Dan Horowitz and Moshe Lissak, Trouble in Utopia: The Overburdened Polity of Israel (Tel-

Aviv: Am Oved Publishers 1990), pp.59–60 (in Hebrew).18. Martin Van Crefeld, The Sword and the Olive: A Critical History of the Israeli Defense Force

(New York, NY: Public Affairs Books 1998), p.81.19. Sprinzak (note 12), p.22.20. Chalk, ‘The Liberal Democratic Response to Terrorism’ (note 2), pp.17–18.21. Horowitz and Lissak (note 17), p.60.22. Sprinzak (note 12), p.24.23. Horowitz and Lissak (note 17), p.60.24. Gad Barzilai, ‘Centre Against Periphery: Law of “Prevention of Terrorism” Acts’, Plilim, 8

(1999), pp.238–39 (in Hebrew).25. Uri Brener, Altalena (Tel Aviv: Hakibbutz Hameuchad 1978), pp.393–96 (in Hebrew),

quoted in Sprinzak (note 12), pp.30–31.26. Menachem Hofnung, Democracy, Law and National Security (Aldershot: Dartmouth Press

1996), p.26.27. Ibid., pp.50–51.28. Menachem Hofnung, ‘States of Emergency and Ethnic Conflict in Liberal Democracies:

Great Britain and Israel’, Terrorism and Political Violence 6/3 (1994), pp.347–51.29. Ibid., p.351.30. Raphael Cohen-Almagor, ‘Combating Right-Wing Political Extremism in Israel: Critical

Appraisal’, Terrorism and Political Violence 9/4 (1997), p.90.31. Hofnung (note 26), pp.193–97.32. Chalk, ‘The Response to Terrorism as a Threat to Liberal Democracy’ (note 2), p.387.33. Gillon (note 14), p.424.

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34. Crelinsten, ‘The Discourse and Practice of Counter-Terrorism in Liberal Democracies’ (note2), p.402.

35. Gillon (note 14), p.425.36. Sprinzak (note 12), p.31.37. ‘The Searches and Arrests in Tel-Aviv are Continuing’, Yedioth Aharanot, 19 Sept. 1948.38. Barzilai (note 24), p.239.39. Isser Harel, Security and Democracy (Tel Aviv: Edanim Publishers Yediot Aharanot 1989),

pp.162–65 (in Hebrew).40. Gillon (note 14), pp.407–12.41. Sprinzak (note 12), p.61.42. ‘Emergency Laws were Implemented against the Zealots’, Yediot Aharanot, 17 May 1951.43. ‘Bachar: 12 Years, Heruti: 10’, Yediot Aharanot, 25 August 1953.44. Benyamin Neuberger, Democracy in Israel: Origins and Development (Tel-Aviv: The Open

University 1998), pp.30–55.45. Shmuel Sandler, Robert O. Freedman, Shibley Telhami, ‘The Religious-Secular Divide in

Israeli Politics’, Middle East Policy 6/4 (June 1999).46. Gil Merom and Robert Jervis, ‘Israel’s National Security and the Myth of Exceptionalism’,

Political Science Quarterly 114 (autumn 1999).47. Gad Barziliai, Ephraim Yuchtman-Yaar, Zeev Segal, The Israeli Supreme Court and the

Israeli Public (Tel-Aviv: Papirus 1994), pp.100, 216 (in Hebrew).48. Ehud Sprinzak, Buds of De-legitimate Politics in Israel 1967–1972 (Jerusalem: The Levi

Eshkol Center for the Study of Economics, Society and Policy in Israel 1973), p.190.49. Yair Kotler, Heil Kahane (Tel Aviv: Modan Publishers 1985), pp.199–204 (in Hebrew).50. Gillon (note 14), p.91.51. Kotler (note 49), p.144.52. Gillon (note 14), p.92.53. Sprinzak (note 12), pp.124–30.54. Cohen-Almagor (note 30), pp.85–86.55. Ibid., pp.87–88.56. Personal interview by Dr Pedahzur with Itamar Ben-Gvir, a leading activist of the ex-Kach

movement on 1 March 1999.57. Baruch Karah, ‘Is That a Way to Persuade a Judge?’, Haaretz, 30 August 1999.58. Gillon, (note 14), ch. 16.59. Sprinzak (note 12), p.121.60. Gillon (note 14), p.70.61. Barzilai (note 24), pp.242–43.62. Sprinzak (note 12), p.115.63. Rael Jean Issac, Israel Divided (Baltimore, MD: John Hopkins University Press 1976),

chs.3–4.64. Israel Shahak, ‘The ideology of Jewish Messianism’, Race and Class 37/2 (October-

December 1995).65. See Ehud Sprinzak, ‘From Messianic Pioneering to Vigilante Terrorism: The Case of the

Gush Emunim Underground’, Journal of Strategic Studies 10/4 (1986), pp.194–216; andEhud Sprinzak, The Ascendance of Israel’s Radical Right (New York: OUP 1991).

66. Yossi Bar, ‘Since the Morning Hundreds of Soldiers Evacuated the Settlers withoutResistance’, Yediot Aharanot, 29 July 1974.

67. Carmi Gillon, Ideologically Motivated Lawbreaking on the Extreme Right within the Contextof the Arab–Israeli Conflict (Thesis submitted in partial fulfillment of the requirements forthe M.A. Degree: University of Haifa 1990), pp.121–22 (in Hebrew).

68. Eitan Haber, Taufik Huri, Gad Lior, Yisrael Tomer and Chaim Shibi, ‘It is Estimated that aSmall Jewish Group is behind the Assassinations’, Yediot Aharanot, 3 June 1980.

69. Gillon (note 14), ch.9; and Haggai Segal, Dear Brothers (Jerusalem: Keter Publishing House1987), ch.17 (in Hebrew).

70. Gillon, (note 14), p.156.71. Noami Gal-Or, The Jewish Underground: Our Terrorism (Tel Aviv: Hakibbutz Hameuchad

1990), pp.38–40 (in Hebrew).

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72. Gillon (note 14), p.116.73. The real motive behind the fortification was apparently the escalation of a quarrel between

neighbours.74. Reuven Shapira, ‘Meshulam’s People Wrote Up a “Death List” which included Peres,

Shachal, Hafetz and Ben-Porat: This is a Nationalist Movement the Likes of Never SeenBefore’, Haaretz, 15 January 1996.

75. Reuven Shapira, ‘Fears in the Shabak that Meshulam’s People Might Carry Out ExhibitionAttacks’, Haaretz, 17 February 1995.

76. Interview by Dr Pedahzur with Tzadok Chugi, Uzi Meshulam’s lawyer, 2 March 1999.77. Nina Pinto, ‘Uzi Meshulam Has Been Released from Prison’, Haaretz, 8 July 1999.

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