Human Rights Watch opened a new front against the IDF’s West Bank Courts on Tuesday, alleging it uses a crack-down on incitement as an excuse to limit legitimate Palestinian criticism of “the Israeli occupation.” While HRW and other NGOs have criticized these courts before, this report is new in that it highlights a new trend of the IDF Prosecution and Facebook aggressively confronting aspects of Palestinian activity on social media. Facebook is also involved in recent years in limiting incitement on its platform in the US, EU countries and elsewhere with an ongoing debate about whether it has struck the right balance. The main author of the report, Omar Shakir, told The Jerusalem Post that he recognized that Israel, and any democracy, has a theoretical right to limit incitement-directed speech. However, the heart of the report delves into the question whether Israel has blurred the lines between legitimate criticism and incitement both on social media and in terms of the physical right to protest. While HRW says Israel has violated the balance between protecting free speech and limiting incitement, the IDF and Israeli supporters say that the HRW report itself blurs or overlooks incitement and terror-connections by Palestinians it presents as unfairly treated by Israel. HRW’s report quotes IDF statistics that the IDF prosecution “prosecuted 4,590 Palestinians for entering a ‘closed military zone,’ a designation it frequently attaches on the spot to protest sites, 1,704 for ‘membership and activity in an unlawful association,’ and 358 for ‘incitement’…between July 1, 2014 and June 30, 2019.” According to HRW, “the Israeli army has deprived generations of Palestinians in the West Bank of their basic civil rights, including the rights to free assembly, association and expression, regularly drawing on military orders issued in the first days of the occupation.” Further, HRW argues that, “Even if such restrictions could have been justified” to preserve public order and safety in 1967, “the suspension of core rights more than half a century later with no end in sight violates Israel’s core responsibilities under the law of occupation.” Along these lines, HRW claims that, “the responsibilities of an occupying power toward the rights of the occupied population increase with the duration of the occupation.” This observation by HRW is a robustly debated interpretation of how international law applies to disputed land being administered by a foreign power. The report says that, “Israeli occupying forces rely on military orders permitting them to shut down unlicensed protests or to create closed military zones to quash peaceful Palestinian demonstrations in the West Bank and detain participants.” HRW says that the 1945 Emergency Regulations as well as IDF orders issued in 1967 and 2010 are too vaguely worded, which makes them easy to abuse to prosecute nonviolent Palestinian political activists. In fact, HRW charges that IDF orders “are written so broadly that they violate the obligation of states under international human rights law to clearly spell out conduct that could result in criminal sanction.” The report says that it “draws on 29 interviews, primarily with former detainees and lawyers representing Palestinian men and women caught up in the Israeli military justice system, as well as a review of indictments and military court decisions.” The IDF generally disputed the HRW report allegations, but former IDF chief West Bank prosecutor Lt.-Col. (res.) Maurice Hirsch presented a rebuttal of the allegations in greater detail. He said, “Firstly, the report seems to claim, based ostensibly on international law, that old laws are inherently prejudicial and discriminatory. This hypothesis lacks any theoretical or legal basis.” “Secondly, the report systematically ignores the fact that international law permits Israel to establish military courts and to promulgate criminal legislation,” said Hirsch. Next, Hirsch said that regarding “the statistics regarding prosecutions for entering ‘closed military zones’, the report insinuates that these indictments were incidental to political demonstrations,” when in fact, he said that almost all of these indictments are submitted against Palestinians who “infiltrated into Israel without holding a valid permit.” Further, Hirsch said that most Palestinians prosecuted for membership in a terror organization, related to membership in Hamas, Palestinian Islamic Jihad and the Popular Front for the Liberation of Palestine which are “all internationally designated terrorist organizations.” Regarding those Palestinians, where HRW said they were prosecuted for terror without proof of violence, Hirsch said that, “Not all terrorism related offenses are inherently violent. Membership in terrorist organizations and the provision of material support, including terror funding and glorification, for terrorist organizations does not always manifest itself in acts of violence.”
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