|
Writers Articles And Opinions |
|
|
|
09 August 2010 By Stephen
Lendman
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.
Final Comments
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.
Affected are:
-- 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 lendmanstephen@sbcglobal.net.
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.
http://www.progressiveradionetwork.com/the-progressive-news-hour/.
EsinIslam.Com
|
Save
Add Comments To This Story