By: Lawyer Mahmoud Khaldoun Jabarin
Some people believe that the laws and policies implemented by the police against Arab citizens in the last month are the result of the state of emergency declared in the country and the Israeli government’s declaration of war on Gaza under the Basic Law: The Government. However, this assumption is incorrect.
Only four days after the declaration of the establishment of the state, a state of emergency was declared in the country. Over time, this emergency power was incorporated into the Basic Law: The Government, and to this day, the state of emergency has been extended regularly, granting the government exceptional powers.
What has changed recently are the circumstances. After the recent events, the state entered a state of maximum alert, shifting from normal conditions to wartime conditions. It is well known that a country’s public policy is shaped by the circumstances it faces, meaning that in certain situations, the state may overlook actions that are prohibited by law because the circumstances allow such actions. As a result, the state avoids focusing its efforts on such activities. However, when the general atmosphere or regional conditions change, the state may decide to combat such actions, seeing them as a potential security threat, and this approach is reflected in the courts’ rulings as well.
To illustrate this point, consider that before the last war, the police would release workers from the West Bank who were apprehended in the country without permits, often imposing only a short sentence or a future penalty if they were charged. However, after the recent war, the penalties for such cases have been increased, with courts now sentencing offenders to prison terms ranging from two to seven months. Additionally, the police have begun arresting workers from the West Bank who are caught for the first time without a permit, referring them to the prosecution for charges.
What changed? The law itself did not change, but the circumstances did. This shift prompted the authorities to tighten their policies regarding the enforcement of the law, and the courts followed suit by imposing harsher penalties, as from the perspective of the authorities, these actions now posed a security threat. The matter didn’t stop there; it extended to closing businesses employing workers from the West Bank without permits.
What can be concluded from this is that the application of the law and the level of punishment are determined by the circumstances, not just the text of the law itself.
Another Example:
After the 2014 war, the prosecution began filing indictments regarding incitement on Facebook, which gained wider attention during that period. The prosecution relied on intelligence reports indicating that posts on Facebook negatively impacted viewers, encouraging them to engage in actions that threaten public security. These reports were based on statements from detainees who mentioned being influenced by what they saw on social media platforms. Initially, the penalties were light, but as the influence and spread of social media grew, the severity of the sentences increased, and the permissible space for such posts narrowed.
The Anti-Terrorism Law, in effect since its announcement in 2016, is one of the central pieces of legislation guiding many of today’s arrests. The main clause in this law, Clause 24, has many sub-sections, and the maximum penalties range from one year to five years in prison. For example, the law imposes a maximum of five years in prison for anyone who publishes incitement on social media to carry out terrorist acts, or publishes materials supporting such acts in ways that could lead others to engage in actions that harm the state’s security. A lighter clause criminalizes the publication of slogans or support for a banned organization, with a penalty of up to three years in prison.
On November 12, 2023, a new clause was added to the law, valid for two years and extendable, criminalizing the consumption of content from Hamas or ISIS. The maximum penalty for this offense is one year in prison. The clause applies to individuals who regularly consume content from these organizations, as long as the content falls into one of three categories: documentation of terrorist acts against state security, calls or incitement to such acts, or support for terrorist activities.
Since the outbreak of the recent war, dozens of indictments have been filed against Arab citizens who posted tweets or publications that directly or indirectly indicated support for the banned Hamas organization. Additionally, indictments have been filed against those who praised the events of October 7. These indictments were filed under the aforementioned Clause 24. There is a policy of strict enforcement in this area, such that even liking a prohibited post could lead to legal consequences, including job termination. Similarly, sending a message in a family WhatsApp group could result in legal issues, even leading to an indictment based on the message’s content. Furthermore, even vague posts are now being scrutinized legally, even if they do not result in formal charges.
Both official and unofficial institutions have adopted similar policies. Posting any image expressing support for Gaza, whether for the people or children, has become subject to legal accountability. One could lose their job or university position for liking a post that could be interpreted as support for terrorism. Even if the like was made unintentionally, the individual must justify it to avoid losing their position.
Regarding the Right to Protest:
The right to protest has been restricted under these circumstances. The police justify this by claiming that they do not have enough personnel to maintain public order in the Arab community due to the need to ensure general security during the ongoing war. They argue that any demonstration in the Arab community could potentially turn violent, based on previous experiences. As a result, the police have even prohibited small protests that do not require a permit, arguing that such protests might escalate into violent demonstrations. The Israeli Supreme Court has supported the police’s stance on banning protests, citing concerns that these gatherings might turn violent. The court has referenced this decision in supporting other rulings against protest activities. Recently, the Supreme Court allowed a joint demonstration by Arab and Jewish activists to stop the war in Tel Aviv, but under strict conditions.
Current Situation:
In practice today, there have been many arrests related to posts on social media platforms like Instagram and Twitter. Even publishing an illegal post in a “story” or “status” on WhatsApp could lead to arrest and investigation. For example, an indictment was filed against a young man from the Triangle region for posting a video supporting terrorism in his WhatsApp status and sending a copy to a relative. Due to this, the court refused to release him under house arrest with relatives, as it was unconvinced that the proposed alternative to detention would prevent him from posting more content. In another case, the court insisted that the detainee send a report to a probation officer before a decision was made on his arrest, after he was charged with publishing posts supporting terrorism. Additionally, a journalist was questioned by the police for writing the phrase “Inna Lillahi wa Inna Ilayhi Raji’un” (Verily, we belong to God and to Him we shall return) following her mother’s passing. The police later understood the situation after she explained her loss. Another example is that of a university student who was expelled for liking an inciting post. After attending a disciplinary session at the university, she was reinstated after claiming that she had unintentionally liked the post.
There are many such examples, but the common thread is that courts are increasingly favoring detention in cases involving posts on social media. However, the possibility of offering alternatives to detention, such as restricting the detainee’s use of social media or other conditions, is also being considered by the courts.
Before concluding, it is important to note that minors under the age of 18 are not exempt from legal accountability. There are concerns that people’s intentions may be misunderstood, and individuals may be investigated for posts that were meant in a different context or for personal occasions, but which were misinterpreted by the police. This could undermine freedom of expression, especially in matters unrelated to the war.
In these circumstances, lawyers have a significant responsibility to educate the public and clarify the current legal situation and its implications. Human rights organizations must also challenge any unreasonable or illogical laws that may be passed during this critical period through various legal channels.
