The 1907 Hague Convention's Article 43 and Fourth Geneva's Article 64 require that occupied territory penal laws stay in force, applicable to both occupier and occupied. However, since 1967, Israel issued over 2,500 Military Orders, controlling daily life solely for Palestinians, not settlers, the military commander having final authority over institutionalized discrimination, suppressing democratic freedoms, including free expression and right to gather peacefully to protest.
Under Israel's 1967 Military Order No. 101 ("Order Regarding Prohibition of Incitement and Hostile Propaganda Actions" as amended), gatherings of more than 10 Palestinians are prohibited without advance IDF notice, including names of participants, those in violation subject to 10 years imprisonment, a heavy fine, or both. The order implies that Palestinians have no legal right to demonstrate, express views freely, or engage in nonviolent peaceful protests.
Even Jews aren't exempt when supporting Arabs, Haaretz writer Nir Hasson (on July 10) headlining "Unprecedented police brutality at East Jerusalem protest" saying:
"Some 300 left-wing activists clashed with police July 9 during the weekly" Sheikh Jarrah neighborhood protests." Every weekend, Israelis join Arabs for a just Jerusalem, demonstrating against settler activity, decrying their takeover of area homes.
Over 40 public figures, including jurists, academics, intellectuals, and writers co-signed a letter, accusing the district police of "illegal and inequitable" conduct, demanding Attorney General Yehuda Weinstein investigate unequal treatment "based on political leanings."
Among the signatories are former Attorney General Michael Ben-Yair, retired Judge Boaz Okun, former Education and Justice Minister Amnon Rubinstein, legal scholar Mordechai Kremnitzer, and former head of the Israel Bar Association, Shlomo Cohen, among others, over 40 in all defending peaceful Sheikh Jarrah demonstrations, begun months ago, resulting in over 120 arrests and dozens of indictments.
After the courts ruled dispersing them illegal, police changed tactics, erecting barriers selectively, permitting those supporting settlers, not their opponents, highlighted last Jerusalem Day (commemorating the city's reunification in June 1967) when police let hundreds of religious extremists rally all day and night, calling for revenge against Gentiles near Palestinian homes. At the same time, Arab supporters were removed, some arrested, including Jews, many targeted violently two days later for protesting seated in streets, police a de facto armed militia for extremism, defiantly violating international law.
The Right to Demonstrate
In July, the Israeli human rights group B'Tselem published a position paper titled, "The Right to Demonstrate in the Occupied Territories," explaining that Palestinian, Israeli, and international activists protest regularly against the Separation Wall - in recent months, Israel reacting harshly against them.
Dozens have been arrested, many indicted. On February 17, 2010, OC Central Command signed two "Declaration Regarding Closure of Area" orders, designating those adjacent to the Wall in Bil'in and Ni'lin closed military areas every Friday from 8AM - 8PM when demonstrations regularly occur.
In its paper, B'Tselem examined "the theoretical framework of the right to demonstrate in international law, Israeli law, and the military law," applying to Palestinians, not Israelis, governed by civil law - affirmed in Israeli case law as a basic right based on High Court decisions.
Freedom to Demonstate Under Israeli Law
Former High Court President/Justice Aharon Barak established that:
"a demonstration of a political or social character is a manifestation of the autonomy of individual will, freedom of choice, and freedom of negation that are included in the framework of human dignity as a constitutional right."
Israel's Supreme Court stressed the importance of protecting minority views saying:
"The freedom of expression and demonstration is intended to protect not only those who hold accepted and popular opinions, but also - and herein lies the principal test of freedom of expression - opinions that are liable to incur anger or outrage."
Even so, restrictions may apply in exceptional cases, as a last, not first resort. Before taken, however,:
"it must be examined whether the assembly or demonstration can be held while at the same time preventing the occurrence of the danger and reducing its dimensions, by means of police details directed at those persons who are creating the danger....It must be made a high priority - alongside the protection of public well-being and security, in general - since it is intended to ensure the freedom of expression that is so vital to a democratic system."
Justice Barak defined the need for balance saying:
"As with other liberties, here, too, a balance must be struck between the will of the individual - and of individuals - to express their views by way of assembly and demonstration, the will of the individual to protect his well-being and property, and the will of the public to protect public order and security. Without order there is no liberty. Freedom of assembly does not mean the abandonment of all public order, and freedom of procession does not mean the freedom to riot."
Under Israeli law, permits are required for more than 50 people to demonstrate and make speeches. Police may refuse them only if proved with "near certainty" that security, order, and/or free movement or rights of others will be compromised. They may also consider their ability to handle demonstrations along with other responsibilities and challenges.
In the public interest, Supreme Court decisions sought reasonableness and alternatives, not denial of the right to demonstrate. For example, in 1996, justices suggested rescheduling one around a US president's visit. In 2005, they rejected a 36-hour demonstration request to block a main Jerusalem road because of the imposition on city residents, ruling instead for a shorter, defined period.
A recent Sheikh Jarrah ruling sided with police on the location, yet allowed a limited procession to homes adjacent to ones participants wished to target, deciding a compromise was justified.
Freedom to Demonstrate Under International Law
International law protects the right to demonstrate. Under Article 21 of the International Covenant on Civil and Political Rights:
"The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others."
Israel claims international law doesn't apply in Occupied Palestine, a position with no support among non-Israeli jurists or other states. It's universally binding in wartime, peace, or in occupied territory, especially for a protracted period.
Yet under Military Order 101, any assembly, vigil, or procession with 10 or more people requires permission by permit if it's intended for:
"a political matter or one liable to be interpreted as political, or to discuss such a matter, (or) for a political goal or for a matter liable to be interpreted as political."
These provisions apply to public or private gatherings, including in private homes, the military commander may prevent those attempting "to influence public opinion in the Area in a manner liable to impair public well-being or the public order."
Prohibitions also apply to:
-- intentions to harm public well-being or order;
-- facilitating their execution;
-- activities identifying with or supporting hostile or unlawful organizations or associations, as defined under military law;
-- publications, films, photographs, recordings, or other materials "contain(ing anything with) political meaning," and their distribution without approval; and
-- national symbols without special permission from the military commander or any soldier or police officer he authorizes "to exercise his powers in accordance" with given orders. In addition, "any soldier shall have the authority to use the required degree of force" at his discretion.
However, Military Order No. 101 violates Israeli and international law, both recognizing the right to demonstrate, exceptions applying when it conflicts with public safety or security. "Order No. 101, by contrast, does not recognize the right to demonstrate; instead, it focuses on establishing prohibitions and restrictions" of legal gatherings and expressions.
Yet, it's language is vague, imprecise, and open to interpretation or abuse.
-- it's also contrary to international and Israeli law;
-- it doesn't specify who may decide the content or purpose of the gathering or publication, just that they're "liable to be interpreted as political;"
-- "the required degree of force" is undefined, leaving considerable leeway for abuse; Israel takes full advantage;
-- lawful expression and demonstrations are restricted;
-- requiring permission for peaceful gatherings implies an intrinsic and a priori danger, even in private homes or publications, people subject to arrest and indictment for expressing their views nonviolently;
-- displaying Palestinian symbols, even privately, may be a crime;
-- imposing 10 years in prison and/or large fines for "offenses" not causing injury, loss of life, or property destruction is disproportional and unjust; by comparison, the same "offense" under Israeli law calls for one year in prison and no fine; and
-- permitting authority to be delegated to junior officers "shows gross disrespect" for the right to demonstrate and express views freely.
Recently, a senior military official said "there is no problem with people coming to the place with signs, with songs, but they must not commit any act of violence." Yet when Palestinians and their supporters do it they're assaulted, arrested, and risk charges and disproportionate punishment, in violation of international and Israeli law. However, settlers under civil law are exempt, favoring them under a grossly unjust system, common in all police states, Israel qualifying by example.
Extreme Israeli repression continues, including (in mid-July) revoking the East Jerusalem residency of four Palestinians affiliated with Hamas, Palestine's legitimate government, not the West Bank coup d'etat one.
-- Muhammad Abu Tir, Muhammad Tutah, and Ahmad 'Atun, elected Change and Reform Party Palestinian Legislative Council (PLC) members, affiliated with Hamas; and
-- Khaled Abu 'Arfah, Hamas' minister for Jerusalem affairs.
As East Jerusalem residents, they had permanent residency status, revoked in June 2006 for not resigning their political positions, then interior minister Roni Bar-On saying they breached their allegiance to Israel.
At the time, three of the four were in prison, illegally arrested to disrupt, discredit, and weaken Hamas. After their release, they were ordered out of East Jerusalem and Israeli territory within 30 days. On June 25, Abu Tir was arrested and indicted for remaining. If convicted, he'll again be imprisoned. On July 1, the others sought refuge at Red Cross headquarters in East Jerusalem.
After their residency status was revoked in 2006, a petition objecting was filed with the High Court. It's still pending, President/Justice Dorit Beinsich denying an application for an interim order enjoining their expulsion until the Court rules, the petition's hearing scheduled for September.
Revoking legal residency and forcible transfers are illegal under international and Israeli law, including in East Jerusalem, an international city under a UN Trustee Council, lawlessly annexed to the Jerusalem Municipality in 1967. Subsequently, Israeli law was imposed, yet Palestinians are entitled to their rights under the laws of occupation, permitting the occupier, at most, to demarcate a person's residence location for a specific period of time, deportation strictly forbidden.
However, since occupying East Jerusalem, Israel revoked residency status from persons it claimed moved their center of life to another country. The above case is the first time it was ordered for lack of allegiance -because of affiliation with Hamas.
Under 1945 British Mandate Defense (Emergency) Regulations, residents and citizens were deported for security reasons, the harsh provision repealed by the Menachem Begin government. Exiling Hamas officials will reinstate what was rescinded over 30 years ago, banishing them for no allegiance to an occupying power, in violation of international law, Fourth Geneva's Article 68 saying:
"Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, not a grave collective danger, nor seriously damage the property of the occupying forces or administration" or their installations "shall be liable to internment or simple imprisonment" only, proportionate to the offense committed. No other personal liberty infringements may be imposed, including forcible transfers from their legal residence, Israel setting a dangerous precedent doing it.
Stephen Lendman lives in Chicago and can be reached at email@example.com. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.