The provisions of Order No. 101 are contrary to Israeli law and international law, both of which recognize the importance and centrality of the right to demonstrate, and permit infringement of this right solely by way of an exception, when it clashes with other interests that are also worthy of protection. Order No. 101, by contrast, does not recognize the right to demonstrate; instead, it focuses on establishing prohibitions and restrictions on various types of gatherings and expressions.
The order raises several key problems:
A. Vague definitions
Order No. 101 prohibits any assembly, vigil, procession, or publication relating to “a political matter or one liable to be interpreted as political.” The order does not include a precise definition of what is to be considered such content. This vague and sweeping phrasing is open to interpretation, and, accordingly, could be used to restrict a broad range of subjects on which people wish to express their opinions. Such restriction is not compatible with freedom of expression.
Moreover, the order does not define who is entitled to determine that the content of the gathering or publication “is liable to be interpreted as political.” This, too, increases the ability to restrict freedom of expression.
The order permits the use of “the required degree of force” for the purpose of its enforcement, but does not clarify what this degree is, leaving considerable room for discretion and creating an opening for the excessive use of force.
B. Far-reaching restrictions on freedom of expression and demonstration
The order imposes far-reaching restrictions on freedom of expression and the freedom to demonstrate, exceeding the cautious restrictions permitted by international and Israeli law:
- The obligation to obtain a permit for any gathering in the West Bank assumes that a group of ten persons presents an intrinsic and a priori danger to the public order – despite the fact that such a gathering does not require any special preparation on the part of the security forces.
- Since the order does not relate solely to gathering in public places, it follows that it also restricts gathering in private places. The small number of participants determined in the definition of a gathering in the order – just ten persons – may turn many persons into offenders simply because they expressed their positions within the home and in their family. This brings the order to the point of the absurd.
- The lack of proportionality can also be seen in the prohibition imposed by the order on any publication “that has political meaning.” The order applies in a generalized and sweeping manner to all types of publication, whatever their circulation, and even if they are issued on a one-time basis. Even the publication in a Palestinian newspaper of an opinion piece criticizing the authorities might be considered a violation of the order.
- The order emphasizes the prohibition on political protest and prohibits the bearing of national symbols in the framework of a peaceful procession, or even on the level of the private individual. Such actions cannot be considered to constitute an attack on the military government and cannot be considered ones that by definition create a disturbance of public order.
Alongside these sweeping prohibitions, the order establishes a maximum penalty of ten years’ imprisonment or a heavy fine, despite the fact that these offenses do not injure life, body, or even property. By way of comparison: the penalty for a prohibited gathering in Israeli law is one year’s imprisonment, without a fine.
C. The delegation of powers
The order permits the military commander to delegate his powers under the order to any member of the security forces. Thus any soldier serving in the Occupied Territories may be empowered to prohibit gatherings and publications and to close public places for such periods as he establishes. Granting such sweeping powers to junior echelons shows gross disrespect for the residents’ rights and for the importance of protecting freedom of demonstration and freedom of expression.