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ISRAELI EMERGENCY REGULATIONS
& THE DEFENSE (EMERGENCY) REGULATIONS
by David A. Kirshbaum
Historic Basis for Emergency Regulations
Many governments reserve the right to pass legislation during times of emergency
which they would not pass during normal times. Such "emergency" legislation
or regulations is usually distinguished by compromising the freedoms and civil
liberties that are enjoyed by the local population during normal times. Such
a procedure has been OK'ed in international law - in the Hague Regulations of
1907, and in the Geneva Conventions of 1949.
Another example is the Patriot Act of 2001 which the American government adapted
following the terrorist attacks of Sept. 11, 2001 which compromised American
civil liberties in order to increase prevention and protections against terrorism.
Throughout the years of the British Mandate in Palestine, the British Mandate
government adopted many emergency measures in response to the violence between
the British and the Zionist groups and the Arab groups. The most important of
these were the Defense (Emergency) Regulations of 1945, which are examined in
depth later in this article.
Legislative Basis for Emergency Regulations
In its first piece of legislation following the founding of the State of Israel,
the Provisional Council of State (the provisional legislature) passed the Law and Administrative Ordinance (19 May 1948) which says in Article 9 (a)
& (b) --
- (a) If the Provisional Council of State deems it expedient so to do,
it may declare that a state of emergency exists in the State, and upon
such declaration being published in the Official Gazette, the
Provisional Government may authorise the Prime Minister or any other
Minister to make such emergency regulations as may seem to him expedient
in the interests.of the defence of the State, public security and the
maintenance of supplies and essential services.
- (b) An emergency regulation may alter any law, suspend its effect or modify
it, and may also impose or increase taxes or other obligatory payments.
Thus, as long as the Israeli legislature (soon to become the Knesset) kept
renewing its declaration of a state of emergency, then it was empowered to pass
emergency legislation which could violate normal principles of civil liberty
as the Knesset saw fit or needed. And this it did, and thus the State of Israel
has lived in a state of emergency for more than half a century, and the Knesset
has passed and renewed emergency legislation covering a wide range of areas
of Israeli society and commerce, from the movement of sea-going vessels to the
taxation of tobacco.
Emergency Legislation Becomes Ordinary Legislation
There are many examples of emergency legislation becoming ordinary legislation.
Some examples of this are the Registration
of Inhabitants (1949) and Prevention
of Infiltration Law (1954). An important example of this is how parts of
the Defense (Emergency) Regulations (1945) were adopted into formal legislation
in the Occupied Territories in the form of the Israeli Military Order 378 (1970).
Abuse of Emergency Regulations to Facilitate Oppression and Exploitation
The passage of Emergency Regulations during times of national emergency to
secure security and military goals is used widely. The problem is the potential
of such legislation to be abused by undemocratic, authoritarian or even fascist
governments to enable them to exploit their own population, or the population
in territories they control. This is the situation we find in Israel and the
adjacent Palestinian territories Israel controls.
The State of Israel was started by Zionist organizations originating in Europe
during the late 1800's.
Israeli Emergency Regulations and International Law
Defense (Emergency) Regulations of 1945: A Special Case
The Defense (Emergency) Regulations of 1945 are the epitomy of all of the above.
Following World War I, the British Government had been fulfilling a mandate
given them by the League of Nations to administer the area of Palestine until
independent Government systems could be established amongst the people who lived
But by the end of World War II, the conflict between the native Palestinians,
European Jews that had immigrated there and the British had become so violent
that in 1945 the British Government issued a drastic set of regulations in order
to control the situation that severely violated human rights according to internationally
accepted norms. These regulations were known as the Defence (Emergency) Regulations
of 1945. Many on both sides of the conflict protested these regulations intensely.
Then, the day Britain's mandate came to an end in May, 1948, the British Government
rescinded these regulations, and published notice of this in an official law
gazette in London. Israel the next day declared itself a State, and then soon
after that declared an official state of emergency. Then upon declaring the
state of emergency, it began immediately using emergency regulations against
the Palestinian rebellion (except for those pertaining to Jewish immigration
and activities such as Regulations 102 & 107c, rescinded in the Law and Administration Ordinance, Article 13, passed May 15, 1948). When criticized
for using these extreme measures against Palestinians when they themselves had
so vigorously protested when the British Mandate Government had used the same
measures against them, the Israeli government (with the support of the Israeli
Supreme Court) said that the British Government had not cancelled the regulations
correctly by NOT publishing the cancellation in newspapers in Palestine where
the regulations were applied, but only in London. The government and the court
declared that laws that were passed but not published where they were to be
implemented were called "unpublished laws" and were thus considered
to be invalid. They even passed an amendment on August 24, 1949 to the Law and Administration Ordinance stating this.
But this still did not answer the question why would Israel begin using laws
that they themselves had earlier found repugnant and had protested vigorously.
Over the years, the Israeli Government has continued to cancel and modify some
of the Defence (Emergency) Regulations of 1945, but mostly it has added more
as it has continued to extend its declared state of emergency (please see the
Index of Israeli emergency regulations on this website for a list of some of the post-1948 emergency regulations).
For example, even though the Prevention
of Infiltration Law of 1954 is not labelled as an official "Emergency
Regulation", it extends the applicability of the Defence (Emergency) Regulation
112 of 1945 (see below) giving the Minister of Defence extraordinary powers
of deportation for accused infiltrators even before they are convicted (Articles
30 & 32), and makes itself subject to cancellation when the Knesset ends
the State of Emergency upon which all of the Emergency Regulations are dependent.
Another example is how the Israeli Military Commander in the Occupied Territories
Order 378 (and its amendments) to replace Defence (Emergency) Regulations
110 and 111 (concerning 'area detention' and 'administrative detention'; see
below), and refine procedures for their implementation and review.
Then the Israeli Government wrote a military order applying them in the Occupied
Territories shortly after beginning their military occupation there in 1967.
From a civil rights point of view, the most important Defence (Emergency) Regulations (1945) are:
- Reg. 84 - UNLAWFUL ASSOCIATIONS: empowers an Israeli
government official or military commander to declare any body or persons or
organization, whether incorporated or not, to be an unlawful association.
Thus any person who joins such an organization, or attends their meetings
may be subject to fine or imprisonment.
PART VII -- UNLAWFUL ASSOCIATIONS
Regulation 84 -- Meaning of expression "unlawful association"
|84. In this part, the expression "unlawful association"
means any body of persons, whether incorporated or unincorporated and
by whatsoever name (if any) it may from time to time be known; which
and includes any branch, centre, committee, group, faction or institution of any such body.
- (a) by its constitution or propaganda or otherwise advocates, incites or encourages any of the following unlawful acts, that is to say --
or which has committed or has claimed to have been responsible for, or to have been concerned in, any such acts as are mentioned in sub-paragraph (ii), (iii) or (iv) of this paragraph; or
- (i) the overthrow by force or violence of the constitution of Palestine or the Government of Palestine;
- (ii) the bringing into hatred or contempt of, or the exciting of disaffection against, His Majesty's Government in the United Kingdom or the Government of Palestine or the High Commissioner in his official capacity;
- (iii) the destruction of or injury to property of His Majesty's Government in the United Kingdom or of the Government of Palestine;
- (iv) acts of terrorism directed against servants of His Majesty's Government in the United Kingdom or against the High Commissioner or against servants of the Government of Palestine;
- (b) is declared by the High Commissioner, by notification in the Gazette, to be an unlawful association,
- Reg.94 - NEWSPAPER PUBLISHING REGULATIONS: requires
newspaper publishers to acquire a license from the District Commissioner,
who may refuse to issue the license without giving any reason whatsoever.
In addition, the District Commissioner may also revoke or suspend a publishing
license without giving any reason. But under current Israeli administrative
law, the publisher can ask for a hearing to review the Commissioner's decision,
but the Supreme Court generally refuses to grant such hearings.
PART VIII - CENSORSHIP
Regulation 94 - Newspaper Permits
- (1) No newspaper shall be printed or published unless the proprietor thereof shall have obtained a permit under the hand of the District Commissioner of the District in which the newspaper is being, or is to be, printed.
- (2) The District Commissioner, in his discretion and without assigning any reason therefor, may grant or refuse any such permit and may attach conditions thereto and may at any time suspend or revoke any such permit or vary or delete any conditions attached to the permit or attach new conditions thereto.
- (3) Any person who contravenes this regulation or the conditions of any permit thereunder and the proprietor and editor of the newspaper in relation to which the contravention occurs shall be guilty of an offence against these Regulations.
- Reg.110 - POLICE SUPERVISION: empowers the government/military
to confine people to a limited area without trial or formal charges.
PART X - RESTRICTION ORDERS, POLICE SUPERVISION, DETENTION AND DEPORTATION
Regulation 110 - Police Supervision
- (1) A Military Commander may by order direct that any person shall be placed under police supervision for any period not exceeding one year.
- (2) Any person placed under police supervision by order as aforesaid shall be subject to all or any of the following restrictions as the Military Commander may direct, that is to say --
- (a) he shall be required to reside within the limits of any area in Palestine specified by the Military Commander in the order;
- (b) he shall not be permitted to transfer his residence to any other area in the same police district without the written authority of the District Superintendent of Police, or to any other police district without the written authority of the Inspector General of Police;
- (c) he shall not leave the town, village or Sub-District within which he resides without the written authority of the District Superintendent of Police;
- (d) he shall at all times keep the District Superintendent of Police of the police district in which he resides notified of the house or the place in which he resides;
- (e) he shall be liable, whenever called upon so to do by the officer in charge of the police in the area in which he resides, to present himself at the nearest police station;
- (f) he shall remain within the doors of his residence from one hour after sunset until sunrise, and may be visited at his residence at any time by the police.
- (3) Any person in respect of whom an order has been made under subregulations (1) and (2) may be arrested by any police officer or by any member of His Majesty's forces and conveyed to the area in which he should be.
- (4) If any person against whom an order has been made as aforesaid contravenes the terms of the said order or of this regulation, he shall be guilty of an offence against these Regulations.
- Reg. 111 - ADMINISTRATIVE DETENTION: empowers the
government/military to imprison people for up to 6 months without trial or
formal charges. After 6 months, the case must be reviewed, and the detention
can then be renewed at that point. Candidates for administrative detention
may appeal to a military advisory committee, which can only issue non-binding
recommendations. Evidence can be kept from the candidate and his lawyer for
PART X - RESTRICTION ORDERS, POLICE SUPERVISION, DETENTION AND DEPORTATION
Regulation 111 - Detention
- (1) A Military Commander may by order direct that any person shall be detained for any period not exceeding one year in such place of detention as may be specified by the Military Commander in the order.
- (2) Where an order is made under this regulation against a person in relation to whom an order under regulation 109 or 110 is in force, the order under this regulation shall be deemed to replace such other order.
- (3) Any person in respect of whom an order has been made by the Military Commander under subregulation (1) may be arrested by any member of His Majesty's forces or of the Police Force and conveyed to the place of detention specified in such order.
- (4) For the purposes of this regulation, there shall be one or more advisory committees consisting of persons appointed by the High Commissioner, and the chairman of any such committee shall be a person who holds or has held high judicial office or is or has been a senior officer of the Government. The functions of any such committee shall be to consider, and make recommendations to the Military Commander with respect to, any objections against any order under this regulation which are duly made to the committee by the person to whom the order relates.
- (5) Any person in respect of whom an order has been made under this regulation who commits any of the offences specified in subregulation (7) hereof may be arrested by any police officer without warrant, and shall be liable upon conviction by a Magistrate's Court to imprisonment for six months or to a fine of one hundred pounds or to both such imprisonment and fine, or such person may be punished by the officer in charge of the place of detention with any of the punishments set out in Part I of the Sixth Schedule to the Prison Rules (Laws of Palestine, p. 2022), and
- (a) if punished with a fine shall in addition to such fine be retained in a place of detention in accordance with the order issued under subregulation (1), or
- (b) if sentenced to imprisonment for a term less than the unexpired period of his detention, shall on the completion of such term be again detained in accordance with the order issued under subregualtion (1).
- (6) The Commissioner of Prisons may give orders or directions as to the internal management of and otherwise in connection with any place of detention specified in any order made under subregulation (1) and as to the discipline of all persons detained therein.
- (7) Any person detained in a place of detention in accordance with the provisions of this regulation who commits any of the following acts shall be guilty of an offence against these Regulations and shall be punishable as provided in subregulation (5): --
- (a) fails to obey or comply with any orders or directions given by the Commissioner of Prisons as to discipline or otherwise under subregulation (6), or with any order lawfully given under the authority of any such orders or directions;
- (b) fails to obey any order given to him by the officer in charge of the place of detention: the officer in charge of the place of detention shall be the senior prison officer present in such place of detention at any given time;
- (c) uses abusive or indecent language or is indecent in act or gesture;
- (d) shouts or makes unnecessary noise within a place of detention;
- (e) commits any nuisance within a place of detention;
- (f) refuses or neglects to conform with any lawful order or direction which has been brought to his notice in any manner;
- (g) threatens with violence any other detained person;
- (h) treats with disrespect any officer or person employed in or in connection with a place of detention;
- (i) has in his possession any article contrary to the orders or directions of the officer in charge of the place of his detention;
- (j) makes any false accusation against any officer or person employed in a place of detention;
- (k) strikes or uses violence against any officer or person employed in a place of detention or against any other detained person;
- (l) takes part in, or incites any person to, violence or insubordination of any kind;
- (m) escapes, or conspires to escape, or assists any other detained person to escape, from the place of his detention;
- (n) wilfully damages any article or Government property to which he may have access, or any part of a place of detention;
- (o) attempts to commit any of the foregoing offences.
- Reg. 112 - DEPORTATION: empowers the government/military
to deport people from their area of residence without trial or formal charges.
Candidates for deportation may appeal to a military advisory committee, which
can only issue non-binding recommendations. Further appeal can be made to
the Supreme Court of Israel. Evidence can be kept from the candidate and his
lawyer for security reasons. "Temporary Deportation" is also possible for
no more than 2 years.
PART X - RESTRICTION ORDERS, POLICE SUPERVISION, DETENTION AND DEPORTATION
Regulation 112 -- Deportation
- (1) The High Commissioner shall have power to make an order under his hand (hereinafter in these Regulations referred to as "a Deportation Order") requiring any person to leave and remain out of Palestine.
- (2) The High Commissioner shall have power by order under his hand to require any person who is out of Palestine to remain out of Palestine. A person with respect to whom such an order is published shall so long as the order is in force remain out of Palestine. An order under this regulation may be made subject to such terms and conditions as the High Commissioner may think fit.
- (3) A person with respect to whom a Deportantion Order is made shall leave Palestine in accordance with the order and shall thereafter so long as the order is in force remain out of Palestine.
- (4) A person with respect to whom a Deportation Order is made, whilst awaiting deportation and whilst being conveyed to any vessel, train, aircraft or vehicle in Palestine, shall be liable to be kept in custody in such manner as the High Commissioner may by the Deportation Order or otherwise direct and whilst in that custody shall be deemed to be in lawful custody.
- (5) The master of a ship or pilot of an aircraft about to call at any port or place outside Palestine shall, if so directed by the High Commimssioner, recieve a person against whom a Deportation Order has been made on board the ship or aircraft and afford him a passage to that port or place, and proper accommodation and maintenance during the passage.
- Reg. 119 - HOUSE DEMOLITIONS OR SEALING, DESTRUCTIONS OF
CROPS: empowers the government/military to destroy or seal private
homes, or destroy other private property without trial or formal charges.
PART XII - MISCELLANEOUS PENAL PROVISIONS
Regulation 119 - Forfeiture and demolition of property, etc.
- (1) A Military Commander may by order direct the forfeiture to the Government of Palestine of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or of any house, structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence ; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything on growing on the land.
- (2) Members of His Majesty's forces or of the Police Force, acting under the authority of the Military Commander may seize and occupy, without compensation, any property in any such area, town, village, quarter or street as is referred to in subregulation (1), after eviction without compensation, of the previous occupiers, if any.
- Reg. 124 - CURFEW: empowers the military to confine
people to their homes or offices for an undetermined length of time. There
have been reports of curfews lasting for weeks, or even over a month. This
puts a damaging burden on Palestinian society and economy.
PART XIII - MOVEMENTS OF PERSONS, TRAFFIC
Regulation 124 - Curfew
|124. A Military Commander may by order require every
person within any area specified in the order to remain within doors
between such hours as may be specified in the order, and in such case,
if any person is or remains out of doors within that area between such
hours without a permit in writing issued by or on behalf of the Military
Commander or some person duly authorised by the Military Commander to
issue such permits, he shall be guilty of an offence gainst these Regulations.
- Reg. 125 - AREA CLOSURES: empowers the military
commander to declare an area "closed'. Thus no one is allowed in or out without
permission from the Israeli Military. This regulation has been used to exclude
a land owner from his own land so that it could be judged as unoccupied, and
then expropriated under the Land Acquisition (Validation of Acts and Compensation) Law
(1953). Closures need not be published in the Official Gazette.
PART XIII - MOVEMENTS OF PERSONS, TRAFFIC
Regulation 125 - Closed Areas
|125. A Miltary Commander may by order declare any
area or place to be a closed area for the purposes of these Regulations.
Any person who, during any period in which any such order is in force
in relation to any area or place, enters or leaves that area or place
without a permit in writing issued by or on behalf of the Military Commander
shall be guilty of an offence against these Regulations.
Below is the full Table of Contents of the Defense (Emergency)
Regulations of 1945:
----------------------------TABLE OF CONTENTS----------------------------
Supplement No. 2
The Palestine Gazette No. 1442 of 27th September, 1945.
THE DEFENCE (EMERGENCY) REGULATIONS, 1945.
Return: to the BEGINNING of this document.
Bash, Tami; Ginbar, Yuval; & Felner, Eitan. "Deportation of Palestinians from the Occupied Territories, and the Mass Deportation of December, 1992". B'Tselem, Jerusalem, Israel (1993).
Benvenisti, Eyal. "Legal Dualism: The Absorption of the Occupied Territories into Israel". The West Bank Data Base Project. Westview Press, Boulder, CO (1990).
"Defence (Emergency) Regulations". The Palestine Gazette, No. 1442. Published by the British Government, Palestine (Sept. 27, 1945).
Drury, Richard T. and Winn, Robert C. "Plowshares and Swords: The Economics of Occupation in the West Bank". Published by Beacon Press, Boston, MA (1992).
Jabareen, Hassan; Dalal, Marwan; Rosenberg, Rina & Bashara, Suhab. "Legal Violations of Arab Minority Rights in Israel". Adalah The Legal Center for Arab Minority Rights in Israel, Shfaram, Israel (1998).
Kretzmer, David. "The Legal Status of the Arabs in Israel". Series: Westview Special Studies on the Middle East. Westview Press, Boulder, CO (1990).
Kretzmer, David. "The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories". SUNY Press, Albany, NY (2002).
Shamir, Ronen. "The Colonies of Law: Colonialism, Zionism, and Law in Early Mandate Palestine". Cambridge University Press, Cambridge, UK (2000).
Shehadeh, Raja. "Occupier's Law: Israel and the West Bank". Institute for Palestinian Studies, Washington D.C. (1985).
Shehadeh, Raja. "From Occupation to Interim Accords: Israel and the Palestinian Territories". Kluwer Law International, Boston, MA (1997).
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of this document.
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(C) Israel Law Resource Center, February, 2007.