Military law

Military law

8 Sep 2011
2 Jan 2013

In August 1967, two months after the end of the war, OC Central Command signed Order No. 101 – “Order Regarding Prohibition of Incitement and Hostile Propaganda Actions”. Since then, the order has been amended several times and is still valid in the West Bank.

The point of departure for Order No. 101 is that Palestinian residents have no vested freedom of protest or freedom of expression. Even non-violent resistance and civil protest involving peaceful assembly are forbidden. The order places extreme restrictions on the right of Palestinians to participate in or to organize demonstrations, and imposes ten years’ imprisonment and/or a steep fine on violators. The order is anachronistic in terms of the punishment it prescribes and its disregard of present-day court rulings, especially the ruling by the Israeli High Court of Justice concerning the right of protest (e.g., HCJ 2557/05 , Mateh HaRrov v. Israel’s Police Department et al., para. 13.)

According to the order, any assembly, vigil, or procession of ten or more people requires a permit from the commander of the Israeli military forces in the area, if the gathering is intended for the purpose of “a political matter or one that may 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 any gathering – both in public and in private, including a person’s home. The military commander may order the closure of any place where a public gathering is taking place.

Under the heading of “incitement,” the order prohibits any person from attempting “to influence public opinion in the area in a manner liable to harm public safety or public order.” The order also prohibits the intention of doing so or of facilitating the execution of such an attempt. The order further prohibits any activities in a public place indicating identification with, or support of, hostile organizations or unlawful associations, as per their definition in military law.

The order also restricts publications of any kind that “contain material with political significance,” and prohibits the distribution of such materials without the approval of the security forces. Prohibited publications include any printed, photographed, recorded, or filmed material, or material in any other form, including newspapers, journals, computer files and documents, even if produced on a one-time basis. The display of national symbols is also prohibited barring the receipt of a special permit from the military commander. The power to grant permits in accordance with the order was conferred on the military commander. However, he “may empower any soldier or police officer from the police forces to exercise his powers in accordance with this order.” In addition, “any soldier shall have the authority to use the force necessary” to enforce the order.

Since 1967, Palestinians have infrequently submitted requests to hold demonstrations. They have done so for a variety of reasons, including as an act of protest against the occupation and a refusal to recognize its authority. However, in view of the order’s sweeping provisions and its implicit basic assumptions, it is probable that even had such requests been submitted, many would have been rejected.

Conversations between B’Tselem and attorneys representing Palestinian demonstrators arrested by the Israeli military show that this order was used extensively during the first intifada and less frequently after the Oslo process began. In early 2010, the military once again began implementing this order more frequently. In November 2011, B’Tselem contacted the Israeli military, requesting data on the number of demonstrators tried under the provisions of the order on charges of conducting a procession or holding an assembly or a vigil without a permit. The military informed B’Tselem that between 2004 and 2011, 30 people were convicted of violating the order: one person in 2004, 28 in 2010 and one in 2011. Neither the military nor the police were able to say how many people had been investigated for alleged participation in demonstrations and then released without indictment. Renewed use of the order merits renewed scrutiny of the order and its implications. As with the rest of military law in the occupied territories, the order applies only to Palestinians in Areas B and C; Israeli citizens and third-party nationals are subject to Israeli law and tried in Israeli courts.

The laws implemented in the West Bank are inequitable and discriminate against Palestinians. Although the settlers live in the same geographical area in which martial law is imposed, Israel has decided that they are not subject to military law, but rather to Israeli law. The application of two distinct legal systems in a single territory constitutes gross discrimination. Thus, actions committed by Palestinians are liable to lead to ten years’ imprisonment and a fine, whereas the same actions, if committed by Israelis, would not even be considered offenses.