The massive demonstrations in Israel against the judicial overhaul legislation have died down for now, but could be back at any time. An assessment of the manner in which the police handled these critical events in the history of Israeli society leads to important conclusions and lessons for the future.
Was the Israel Police’s inability to prevent protesters from blocking Tel Aviv’s Ayalon Highway a failure for the force? Did police officers who threw stun grenades at the protesters act unlawfully? These and other questions have been raised and deserve answers.
Before examining the performance of the police force in response to protests around the country over the past three months, it is important to clarify a number of basic principles.
The functions of the Israel Police are defined in Section 3 of the Police Ordinance Act. Alongside its duty to prevent offenses, arrest offenders, and bring them to justice, it is also entrusted with ensuring the “public order and the security of lives and property.” Additional commentary on the special and fundamental place of the right to demonstrate in a democratic state seems unnecessary.
Every citizen can adopt a perspective from the marketplace of ideas and vote in elections for a party that optimally represents his or her views. And yet, the right to vote is not designed to block citizens from protesting government decisions during its term of office – whether or not they voted for that government.
How, then, can we reconcile the right of protest granted to every citizen, and the duty of the police to ensure public order? Israeli law, still based on Mandatory British law, has adopted the model that requires anyone interested in holding a demonstration or procession involving more than 50 people to contact the police in advance and obtain a license to demonstrate.
The purpose of the requirement is not to receive approval for the very existence of a demonstration, as in most cases the police are obliged to authorize it. Rather, this requirement is intended to notify the police about the planned demonstration so that they can prepare in advance.
In this context, the force examines, first and foremost, whether the place and date chosen for the demonstration meet the requirements for the expected number of participants. Here, the police may not approve the demonstration if the requested location is too small to contain the protesters and thus constitutes a risk to life. On many occasions, police approve an event on the condition that organizers move the demonstration to a safer location or that they change the route of a march.
Organizers have the right to petition the High Court if their request is rejected, and, at the end of the day, most such petitions are granted – with suitable compromises that allow a demonstration to be held, while minimizing any disturbance of public order.
Blocking the Ayalon Highway
The Israel Police’s long-standing policy is that inter-city roads should not be blocked. Such obstructions cause severe harm and suffering to many members of the public. In the balance between freedom of protest and the duty of the police to ensure public order, the latter consideration has the upper hand.
Preventing the blockage of highways does not hurt, certainly not significantly, the right to protest, especially in demonstrations where the police have sealed off, for this very purpose, main inner-city streets (for example, the closure of Gaza Street and Paris Square during Jerusalem’s “Balfour Protests,” which took place week after week against the previous premiership of Benjamin Netanyahu; and during the recent protests, the closure of Kaplan Street and other major streets in Tel Aviv).
However, this is not the first time that inter-city highways have been blocked in violation of the license conditions granted by the police. This also occurred during the 2005 disengagement from Gaza, as well as protests held by the disabled calling for higher benefits.
LEGALLY, THE police are empowered to declare that once license conditions have been violated, a demonstration is illegal and that participants must disperse. To the extent that protesters ignore police instructions to disperse, forces may use various means – in a graded manner:
First comes the use of force to disperse protesters and to make arrests, and later, if violent resistance is displayed by the protesters, comes the use of stun grenades and water cannons.
Yet the decision on exactly what means to use and when to activate them is reserved for senior commanders only. In practice, police commanders often chose to contain these events, letting demonstrators blow off steam, but after some time, and after issuing instructions, they order their subordinates to disperse an illegal demonstration.
I will not claim to be able to determine whether the use of stun grenades by police officers who hurled them into a crowd during one of the Tel Aviv protests, causing one injury, was legal. This matter is under investigation.
However, what can be said is that police, in principle, have the authority to use stun grenades to disperse an illegal demonstration, if the protesters not only refused to disperse but even resorted to violence against the police officers.
I do not know if this was the case here; at the very least, it appears as if there was an error of judgment by the police officers. Protests, by their nature, are charged and emotional. Protesters often violate license terms. Israeli police commanders have always shown restraint and have not been quick to fully exercise their authority.
One can hope that this will also turn out to have been the case in the Tel Aviv protest. If it turns out that this was not the case, those responsible should face the full extent of the law, while police commanders should draw lessons.
There have always been demonstrations and there always will be. The same is true of violations of police orders. What has never been seen here is the National Security Minister Itamar Ben-Gvir’s deeply disturbing and blatant intervention by giving operational orders to police commanders on how to deal with protesters blocking roads.
The Israeli system designates the police commissioner as a professional, independent, and apolitical actor. The commissioner’s decisions should be motivated purely by professional considerations. The minister’s intervention in providing operational guidelines is not only illegal but could lead commanders to make wrong decisions from a professional perspective – purely because they sense this would curry favor with the minister.
It is all the more egregious and outrageous when the guidelines in question concern police handling of civilians protesting against the government and against the minister himself. In this regard, the minister should remain silent and refrain from any involvement.
The writer has extensive experience serving in a legal capacity within the Israel Police and IDF, including holding the position of senior legal adviser to the police from 2006-2016.