In the past few years, Palestinian, Israeli, and foreign activists have held regular demonstrations at several locations in the West Bank against the building of the Separation Barrier. Since the beginning of 2010, the Israeli military has changed its response to these demonstrations and has taken various steps to quell them.

As part of these efforts, the armed forces have arrested many of the organizers of the demonstrations, have occasionally used violence to disperse the protests, and have deported some of the foreign activists who participated in them. The military commander issues an order declaring the area where the demonstrations are held every Friday a closed military area during the time of the demonstration.

The order regulating demonstrations in the West Bank is Order No. 101, of 1967 – “Order Regarding Prohibition of Incitement and Hostile Propaganda Actions". This order imposes extreme restrictions on the right of Palestinians to organize or take part in demonstrations. In April 2010, B’Tselem wrote to the IDF and requested statistics on the number of cases in which demonstrators had been prosecuted in accordance with the order and charged with participating in an unauthorized procession, assembly or vigil. Due to technical limitations, the IDF only supplied us with data regarding verdicts given between 2004-2010, and only with partial figures for those years. The data indicate that only one person was convicted for this offense, and that the incident took place in 2010. Since then, three persons have been convicted for breaching the order, and at least two other persons are presently being tried.

Attorneys who represent Palestinian demonstrators told B'Tselem that Israel has not used Order No. 101 consistently over the years. The order was commonly used during the first intifada, but its use declined after the beginning of the Oslo process. In the beginning of 2010, the army increased implementation of the order; accordingly, re-examination of the order and its significance is warranted.

As is the case with all Israeli military legislation, the order applies solely to Palestinians in Areas B and C; Israeli citizens and third-party nationals are tried under the Israeli legal system.

In January 2010, the commander of Judea and Samaria Division, Brig. Gen. Nitzan Alon, said:

The approach, as far as we’re concerned, is to allow the demonstration so long as it is nonviolent. We make a clear distinction between a nonviolent demonstration, which is legitimate protest, and a violent demonstration of throwing stones, hurling pieces of iron, physically attacking and damaging the security fence. Against this, we shall use the crowd control measures.

However, the claim that the army only restricts the demonstrations in the West Bank because of the violence that occurs during them is inaccurate.

The assumption underlying Order No. 101, signed some two months after the Territories were occupied, is that the residents have no vested right to demonstrate or right to freedom of expression. Even nonviolent resistance and civil protest, including a peaceful gathering, are prohibited. The order conditions virtually any form of expression of personal opinions on the receipt of a permit from the military in advance, and imposes far-reaching and vague restrictions on the content presented in gatherings or publications. The order imposes a disproportionate obligation to secure permission, to the point that a modest gathering of ten persons without prior permission is considered prohibited, even if it takes place in the private domain. The order was issued in 1967, and its renewed employment more than 40 years later does not take into account the political changes the region has undergone in the interim, particularly those concerning the accords between Israel and the Palestinian Authority. The order is anachronistic with regard to its content, the punishments it subscribes, and the disregard of updated court rulings, especially High Court rulings concerning the right to demonstrate.

Over the years since 1967, few Palestinians have submitted requests to hold a demonstration. Among other reasons, this constitutes an act of protest against the occupation and a refusal to recognize its authority. However, in view of the sweeping provisions in the order and its implicit basic assumptions, it is reasonable to assume that even if such requests were submitted, many would be rejected. An example of disregard for the residents’ right to demonstrate are the orders that were issued by OC Central Command, on 17 February 2010, prohibiting the demonstrations in Bil’in and Ni’lin in advance. A sweeping, a priori prohibition imposed for a protracted period of time cannot be considered lawful, since the appropriate balances are not considered for each specific demonstration.

The rule of law in the West Bank is unequal and discriminates against the Palestinian population. Although the settlers live in the same geographical area in which the military government is imposed, Israel has decided that they are not to be 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.