• N.T. Haludoodvash (law student)

Securing the Holy City: Racialized Search Practices and the Security Justification (a student blog)


Jerusalem, Israel. Home to the most religiously significant sites for three of the world’s major religions: Islam, Judaism, and Christianity. The Holy City is also home to Amendment No. 5 to the Power for Maintaining Public Security Law, a controversial stop and frisk law that could increase racial bias in policing by removing the reasonable suspicion required for a body search in certain geographic areas.

A History of Violence

In order to understand how Israel’s stop and frisk law holds the potential to unfairly target Arab Minorities, it is first necessary to understand the events leading to the introduction of the law, and how the historical context shapes Israel’s approach to security.

Between October 2015, and the introduction of the law in February 2016, 28 Israelis and two U.S. citizens were stabbed, shot or run over and killed in a series of violent attacks across the occupied West Bank, Jerusalem and Israel.1 The Israel ministry of Foreign Affairs has directly attributed these attacked to Islamic Radicals and has called the period a “wave of terror”.2 Since the attacks, “fear and paranoia” have come to characterize the city’s atmosphere”, and Israeli security forces are on high alert for an attack.3 Tensions are particularly high surrounding Jerusalem’s Old City and the Damascus Gate, which is a common hang out area for young Palestinian men, and the frequent scene of previous attacks. When walking past the Damascus Gate area, it has become commonplace to see heavily armed soldiers patting down young Palestinian men, while other guards closely monitor the area.

The Law

On February 2nd 2016, the Knesset (the national legislature of Israel) introduced the controversial stop and frisk law, entitled Amendment No. 5 to the Power for Maintaining Public Security Law.4 Prior to the amendment, police were only authorized to search without a warrant if they had reasonable suspicion that the person was carrying a weapon illegally (on their person or in their car), or was planning to commit a crime with a weapon.5 Amendment Number 5 expands police power, by allowing police to stop and frisk individuals when there is “reasonable suspicion that he is about to commit a violent offense, in order to check whether he is carrying an illegal weapon.”6 This provides police with the ability to search individuals based on a more general suspicion. This new standard applies to anyone who the police have reasonable suspicion, whereas the previous standard focused on the possession of a weapon.

While the expansion of criteria for reasonable suspicion is concerning, perhaps the most troubling part of the Amendment allows for the body search of persons in high-risk areas without a requirement of specific reasonable suspicion. According to the law, when there is suspicion of hostile terrorist activates in a certain geographic location, whether reasonably held or not, police may conduct a body search of any person.7 In practice, this law replaces the requirement of reasonable suspicion to conduct a body search for weapons with a suspicion of an entire group of people by virtue of being present in a geographic area.

The Potential for Racial Bias

Following the wave of violence that characterized the Israeli-Palestinian relationship prior to its introduction in 2016, it is not difficult to imagine the potential this law holds for the disproportionate, and randomized targeting of Arab minorities for body searches. Critics of the law aptly note that it holds the potential for an increase of racial profiling and risks sending the message to police officers that they can do whatever they want, with no articulable criteria.”8 According to Jamal Zahalka, an Arab member of the Knesset, it is “clear the main people affected will be Arabs and people who look like Arabs”.9

This leaves the average rights conscious citizen wondering: What areas of Israel will this law apply in? The Israeli government does not disclose the exact areas in which this law applies, however, given the onslaught of attacks by Palestinians, the answer seems obvious: areas with a critical mass of Arabs.

This assertion is not to suggest that the Israeli Police are inherently racist or that officers use the law to purposely target and diminish the rights of the Arab Minority. However, common sense and anecdotal experience suggests that the law undoubtedly expands the potential for racial discrimination that will predominantly affect the Arab minority in Israel. After all, when was the last time the Israeli Security forces conducted a pat down search of a Rabbi (some exceptions apply!)?

The Israeli police force, like any police force, is compiled of members who conduct searches based on experience and subconscious stereotypes of people who are guilty of wrong doing and like any other organization are not free from racial stereotypes and preconceived notions of who is most likely going to commit acts of violence. This notion is well demonstrated by non-profit group that work in the region. According to organizations such as Amnesty International, Arab citizens living in Israel and the Occupied Territories have long faced discrimination.10 Additionally, the United Nations Human Rights Office of the High Commissioner has publicly condemned Israeli State actors for their “persisting discriminatory practices against Palestinians”.11 It is not a great leap to conclude that some police disproportionately target Arab citizens for searches.

Academic studies have also documented the discriminatory nature of the Israeli legal system. One study from Haifa University in Israel found that a Palestinian with no criminal record is twice as likely to be convicted and sentenced to jail time as compared with a Jewish Israeli in a similar situation.12 A study from the Hebrew University showed that the court used more lenient standards against Jewish youth but harsher standards against Arab citizens of Israel. This was true even for the same charge and for similar crimes, the punishment imposed on Arab youths was harsher than for Jews.”13

The attacks that began in October of 2015 were horrific. October marked the beginning of weeks of violence, where Israel witnesses nearly daily shooting and stabbings for weeks.14 In the wake of these attacks it is difficult to argue with the logic of the Knesset in passing laws to combat violence: more police power equals less violence. However, this kind of logic comes with a price tag: a state sponsored constraint on the rights of Arab Israeli citizens that is justified in the name of safety and security. While grounded in a genuine concern for safety, using security as a justification to pass a law that significantly expands police powers, makes the Israeli legal system an open ended means to justify any law that promises to reduce violence, at seemingly any cost.

Summary

Given the wave of violence that occurred prior to the introduction of Amendment Number 5, it is unsurprising that the Knesset is eager to do its part to combat violence, by giving the police more power to search people who may have the intention of committing violent acts. While this is a laudable goal, the reality of this law is that it gives police the wide sweeping discretion to target Arab Minorities for searches, and erodes the civil liberties of anyone in an area designated as a “target for hostile violence”. This kind of law is based in a security justification rationale that allows the incursion into individual rights in the name of security.

The shocking reality of this law begs the question: How long will the Israeli Knesset use security as a justification for laws that erode civil liberties and expand police powers?

Endnotes

1 Israel Ministry of Foreign Affairs, Wave of Terror 2015-2018 (Israel: Israel Ministry of Foreign Affairs, 2018),online: < http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Palestinian/Pages/Wave-of-terror-October-2015.aspx> [Ministry of Foreign Affairs].

2 Ibid.

3 Zena Tahhan, “Israel’s Stop and Frisk Law ‘Blatant Racism’” Aljazeera (27 June 2016), online: <https://www.aljazeera.com/indepth/features/2016/06/israel-stop-frisk-law-blatant-racism-160622114003160.html.>

4 The Knesset, press release, Knesset Passes “Stop and Frisk Law” (February 2 2016), online: <https://www.knesset.gov.il/spokesman/eng/PR_eng.asp?PRID=11918) [Knesset].

5 Omri Efriam, “Government Approves New ‘stop and Frisk’ Authority for Police”, Y Net News (18 October 2015), online: https://www.ynetnews.com/articles/0,7340,L-4712859,00.html.

6 Johnathan Lis, “Knesset Passes Contoversial ‘Stop and Frisk’ Law”, Haaretz (02 February 2016), online: <https://www.haaretz.com/israel-news/.premium-knesset-passes-controversial-stop-and-frisk-law-1.5398890>

7 Fady Khoury, “The best response to Israel’s new stop-and-frisk law: Stop showering”, +972 Magazine (4 February 2016), online: < https://972mag.com/the-best-response-to-israels-new-stop-and-frisk-law-stop-showering/116657/>.

8 Knesset, supra note 4

9 Ibid.

10 Amnesty International, Press Release, “Discrimination Against Palestinians in Israel” (16 February 2016), online: <https://www.amnesty.org.uk/discrimination-against-palestinians-israel>

11https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23082&LangID=E

12 Arye Rattner & Gideon Fishman, Justice for All? Jews and Arabs in the Israeli Criminal Justice System, (West Port: Praeger Publishers, 1998).

13 Aseil Abu Baker, “Laws Targeting East Jerusalem: Discriminatory Intent and Application” (2016) 21:3 Palestine-Israel Journal.

14 Ministry of Foreign Affair, supra note 1.

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