Insisting on the right to protest

Israeli soldiers try to arrest a member of human rights organization B’tselem during a protest against the Israeli occupation in the West Bank village of Nabi Saleh, on July 13, 2012. The Israeli army arrested at least 9 Israeli and International activists during the protest. Photo by Oren Ziv /Active Stills

“Take back the streets”: Repression and criminalization of protest around the world

By Raghad Jaraisy, ACRI, International Network of Civil Liberties Organizations*
October 2013

Introduction

The Palestinian village of Nabi Saleh, like many other villages in the West Bank, has been organizing peaceful demonstrations against the occupation for years. Despite the principle of nonviolence underlying these protests, these demonstrations are illegal under Israeli military law.

Bassem Tamimi, an organizer and demonstrator, was arrested in March 2011 on five separate charges arising from his participation in the demonstrations. He was convicted of two of the charges. After 13 months in jail, he was released on probation with the condition that he cease demonstrating. In October 2012, he was again arrested for participating in a demonstration.

He is just one example of the extreme and continued repression of freedom of expression in the Occupied Territories. Tamimi has become a symbol for the lost voice of the Palestinian people and their right to protest against the occupation.

The complete suppression of the rights of protesters and human rights defenders in the West Bank has failed to stem dissent; instead it has led to increased violence, higher rates of incarceration and the further militarization of the Israeli presence in the area.

Proceedings against Bassem Tamimi

Nabi Saleh is a Palestinian village of around 500 residents in the Ramallah Governorate of the West Bank, just north of Jerusalem. A large portion of the village land is agricultural, sustained by a nearby natural spring named Ein al-Qaws. In 2009, this spring was taken over by the illegal Israeli settlement of Halamish. In response, the villagers began protesting against the occupation and continued illegal land acquisitions resulting from a policy of settlement expansion. Since 2009, hundreds of people have been arrested in these demonstrations – including members of the local popular committees, villagers, minors, Israelis and international activists. Many individuals have been arrested more than once.

Bassem Tamimi, a schoolteacher in Nabi Saleh and a father of four, has taken the lead in organizing the weekly demonstrations against the Halamish settlement. On 24 March 2011, Tamimi was detained following one of these recurring demonstrations. The arrest took place minutes after Tamimi entered his house for a meeting with a French diplomat. The soldiers tried to prevent Tamimi’s wife, Nariman Tamimi, from filming the arrest, hitting her and attempting to grab the camera from her. When she passed the camera to their 10-year-old daughter, Ahad, the soldiers violently grabbed it from her and threw it outside in the mud.

Tamimi was eventually indicted by the military prosecution on five separate charges:

inciting and supporting a hostile organization, organizing and participating in unauthorized processions, incitement to stone-throwing, failure to respond to a summons to attend a police interrogation, and disruption of legal proceedings. The latter related to an allegation that he gave young people advice on how to act during police interrogation in the event that they were arrested. After 13 months in detention, he was released on 27 April 2012,on bail of NIS 12,000 (around $3,300).

The case against Tamimi was largely based on the evidence of a 14-year-old minor (known as “A”), also from Nabi Saleh. The defense contended that the statements made by A should be ruled inadmissible; they argued that the violent, demeaning, and illegal nature of A’s detention combined with the violation of his dignity and rights during interrogation as a suspect and a minor meant that his statements could not be considered free and voluntary. They pointed to a number of irregularities: the interrogation was conducted over several hours by four interrogators, only one of whom was trained as a youth interrogator, and continued despite A being sleep-deprived; neither of A’s parents were present during the interrogation; he was not advised of his right to remain silent; access to his lawyer was delayed and the interrogation began before A had consulted with her. The court, however, rejected the request to declare A’s evidence inadmissible.

On 29 May 2012, the Military Court’s verdict was handed down. Tamimi was acquitted on three charges and convicted of two: protesting without a permit, and inciting stone throwing. He was sentenced to 30 months’ imprisonment, 13 of which he had already served. The remaining months were to be served on probation. His probation was subject to two conditions: were he to be caught participating in an illegal protest in the next two years, he would serve two months in prison; should he be caught participating in “activity against the security forces” in the next five years, he would serve seven months in prison. His response to the sentence was: “I feel that my whole life is under the surveillance of the judge.”

After Tamimi was released, he joined some 80 activists at a demonstration on 24 October 2012 at a supermarket inside an Israeli settlement. Tamimi was arrested once again for taking part in a protest – his twelfth arrest – when he tried to defend his wife from a soldier. He was indicted for attacking a soldier and sentenced to four months in prison and fined NIS 5,000 ($1,360). He was released in February 2013.

A veteran activist, Tamimi [above, in Ofer prison] has spent over three years in administrative detention for demonstrating. Despite being arrested 12 times, he has only ever been convicted and sentenced on two occasions. Military legislation in force in the Occupied Territories allowsfor the detention of an individual by administrative order – without indictment or trial – for up to six months. This order can be repeatedly extended for six-month periods, with no maximum term. An individual can therefore be incarcerated for years (indeed, this hashappened more than once) without due process, without the suspicions being put to the test of a fair trial, and without the fundamental right of defending oneself against these suspicions. Tamimi had faced charges on other occasions – sometimes without even being told the nature of the allegations against him, while in other instances both he and his attorney were denied access to “secret evidence” shown to the judge.

Tamimi’s time in detention has also been marked by mistreatment and torture. In 1993, for example, Tamimi was arrested on suspicion of murdering an Israeli settler in Beit El. He was eventually entirely cleared of the charge. During his weeks-long interrogation, he was tortured by the Israeli Shin Bet in order to draw a confession from him. Tamimi collapsed and had to be evacuated to a hospital, where he lay unconscious for seven days. He underwent surgery for a subdural hematoma** that resulted from excessive shaking during his interrogation by the Israeli security forces.

As one of the organizers of the Nabi Saleh protests and coordinator of the village’s popular committee, Tamimi has been the target of harsh treatment by the Israeli army. This has extended to his family. Since demonstrations began in the village, their house has been raided numerous times, his wife arrested three times and two of his sons injured: at the age of 14, Wa’ed was hospitalized for five days when a rubber-coated bullet penetrated his leg, while Mohammed, aged 8, was injured by a tear-gas projectile that was shot directly at him hitting him in the shoulder. Shortly after demonstrations in the village began, the Israeli Civil Administration served ten demolition orders to structures located in Area C; Tamimi’s house was one of them, despite the fact that it was built in 1965 – before the start of the Israeli occupation of the West Bank.

Every year, ACRI holds an annual Human Rights March, marking International Human Rights Day, and in 2011, a moving speech by Tamimi’s wife, Niraman, was read out by one of ACRI’s legal team. She highlighted the egregious violations of freedom of expression committed every day in the Occupied Territories, a situation of which her husband and son Wa’ed are two of a large number of victims. “During a time when the entire world is experiencing a wave of demonstrations and social protests,” she explained, “Bassem and his friends are languishing in the darkness of continuing imprisonment because, in the shadow of the Occupation, there is no dignity and no freedom of expression.”

Tamimi’s family lives under constant threat of police action as a result of exercising their right to freedom of expression: Wa’ed was arrested in November 2012, at the age of 16, for participating in one of Nabi Saleh’s weekly demonstrations and Niraman was arrested for the third time in June 2013. She has been charged with breaching a Closed Military Zone Order, after participating in the weekly Friday protest – even though the army itself admits that the protest was nonviolent, with no stones thrown.

Protesting in the Occupied Territories

Protesters marching in Nabi Saleh, June 2013.  Photo by Tamimi Press.

Sadly, the case of Bassem Tamimi is not unique. The West Bank Areas B and C are subject to Israeli military jurisdiction; accordingly, the military have legal oversight of Palestinian public protest.

Restrictions on the right to protest in the West Bank operate at three levels – legislative, operational and judicial.

Legislatively, the military law that applies to the territory (Military Order 101) prohibits virtually all protest activity, including vigils, processions, publications, and even personal items expressing a political viewpoint. The Order even goes so far as to state that “any person who attempts, orally or in another manner, to influence public opinion in the region in a manner that is liable to harm public safety or public order will be charged with violating this Order.”

Operationally, the IDF (the Israeli army) views almost every act of protest as a “disruption of public order” and frequently uses excessive force to disperse demonstrations. In response to rock throwing, soldiers deploy tear gas, water cannons and rubber bullets – weapons that are intended to be non-lethal but that can cause serious injuries, including fatal ones, when used at close range. Several demonstrators have died as a result of military and police violence.

Finally, the military justice system contributes to the suppression of protest through its treatment of demonstrators who are brought to trial. Military courts have a crucial role in preserving the status quo of ongoing and sweeping suppression of freedom of expression and the right to protest in the West Bank. The courts essentially choose to avoid judicial review of the military forces’ actions and practices and use of dispersal means during demonstrations. Dozens of leading Palestinian activists and public committee members have therefore been prosecuted in military courts for organizing and participating in demonstrations all over the West Bank.

Administrative detentions in the West Bank are now based on Paragraphs 284-294 of the Order Regarding Security Provisions (a military order that constitutes legislation in the Occupied Territories). This order empowers military commanders in the West Bank to issue an administrative detention order when there are “reasonable grounds to assume that the security of an area or public security requires that an individual be held in detention.”

The order requires all administrative detainees to be brought before a military judge within eight days of the arrest in order to authorize the detention. However, this hearing is not a legal proceeding for determining the suspect’s guilt, but rather a form of “judicial review.”

Most of the evidence related to the suspicion is not disclosed to the detainee and his attorney, nor is the detainee given a suitable opportunity to defend himself. The decision of the judge can be appealed in the Military Appeals Court. Although administrative detainees who have exhausted all military avenues of appeal can turn to the High Court of Justice, experience indicates that the Court generally does not intervene in these decisions. Under international law applicable to the Occupied Territories, there is an absolute prohibition on arbitrary detention. Due to the grave human rights implications of administrative detention and the clear danger of its abuse, international law sets strict limits on its use.

The unfettered power of the military to regulate demonstrations combined with the extent of the material and activities that are outlawed entirely means that virtually all protest in the region is illegal. West Bank residents have barely any right to freedom of expression and demonstrators are arrested and jailed in nearly every case, even when protests are entirely peaceful.

The authorities’ violent response to demonstrations has become so commonplace that a committee established by the government in 2012 to look exclusively at conduct during the Gaza Flotilla incident of 2010 added a second part to their report (known as the “Turkel Report”) articulating the need for legal oversight of cases of military or police violence against Palestinians in the West Bank and Gaza.4 The report also highlights the significance of regulations that are already in place but not adequately enforced. ACRI, along with other international and Israeli human rights organizations, continues to push for real solutions to the increased violence and the inability of demonstrators to protest legally in the Occupied Territories.

ACRI has recently launched an online Information Center for Demonstrations in the Occupied Territories containing a vast range of material and contact details to assist activists in the Occupied Territories to understand their legal rights when dealing with the police and military forces. The protest portal is available in English, Hebrew and Arabic.

Ultimately, however, a radical shift in Israeli law, policy and practice will be necessary before the rights to freedom of expression and peaceful assembly begin to take on practical meaning for those living within the Occupied Territories.

* This document has been produced by a group of ten of domestic human rights organizations which cooperate as the
International Network of Civil Liberties Organizations (INCLO). Each organization is multi-issue, multiconstituency,
domestic in focus, and independent of government. We advocate on behalf of all persons in our respective countries
through a mix of litigation, legislative campaigning, public education and grass-roots advocacy. The organizations that
participated in the elaboration of this report are the American Civil Liberties Union, the Association for Civil Rights in
Israel, the Canadian Civil Liberties Association, Centro de Estudios Legales y Sociales (Argentina), the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Kenyan Human Rights Commission, the Legal Resources Centre (South Africa), and Liberty (United Kingdom). The tenth member of INCLO, the Irish Council for Civil Liberties, contributed editorially to the report.

** A subdural haematoma is a serious brain condition that is often caused by a head injury. Blood collects between the skull and the surface of the brain.
Symptoms of a subdural haematoma can include:
• vomiting
• mental confusion
• coma
Symptoms can appear quickly or may develop over time depending on the type of subdural haematoma