Protests in Exceptional Times: Israel’s New Demonstration Prosecution Guidelines

Since May 9, Israel has been experiencing a large wave of protests. The unrest includes a parament vigil next to the prime minister’s official residence in Balfour Street in Jerusalem, large weekly demonstrations in the same Jerusalem location, smaller demonstrations in some 300 other locations around the country (the so-called bridges and junctures demonstrations), and other gatherings in a variety of places throughout the remaining weekdays. The tens of thousands of protesters participating in these demonstrations are calling for the resignation of Prime Minister Benjamin Netanyahu because of the criminal indictments served against him, his failings in handling the coronavirus crisis, and a variety of other reasons, including his divisive style of leadership and alleged involvement in additional corruption scandals. The demonstrations are organized by a loose network of civil society groups and economic associations (focusing mainly on the interests of small businesses adversely affected by the economic crisis), and the protests enjoy the support of most opposition parties. 

The demonstrations have generated much attention and controversy in Israel. The prime minister and some of his political supporters have described the demonstrators as “violent anarchists” and “extreme lefties.” Many of those sympathetic to the prime minister have criticized protesters for refusing to accept the outcome of the recent elections, which led to Netanyahu forming a unity government with the center-left Blue and White party. There has also been much discussion in the media around the compatibility of the mass gatherings with coronavirus public health guidelines (although most protesters wear masks, there is little physical distancing between them), and with requirements governing noise in residential areas (demonstrations typically end after midnight and cause much disruption in the residential neighborhood where the prime minister’s official residence is located; the Supreme Court recently ordered the demonstrators to refrain from making loud noise during nighttime). 

There has also been much discussion of the manner in which the police have handled the larger demonstrations—especially the practice of the police ordering the dispersal of demonstrators after 11 p.m., the enforcement of that order through physical means (including, at times, the deployment of water cannons), and the decision to arrest a few dozen demonstrators who allegedly behaved aggressively or continued to block roads after being informed by the police that they must evacuate the area. The demonstrators have claimed, in this regard, that the police resorted to violence in an unwarranted and/or excessive manner and that they are operating under political pressure to stop the demonstrations. 

In the midst of these unfolding events, the Office of the State Attorney, the legal counsel for the Israeli government, published on Aug. 25 a 13-page document containing guidelines describing the office’s policy regarding prosecutors’ exercise of discretion as to when to press criminal charges against law-breaking demonstrators. The guidelines, which build on an earlier 1983 document (which was last updated in 2010), codify and harmonize preexisting prosecutorial practices. Although the state attorney prepared the new guidelines over a long period of time (early drafts circulated two years ago), the office published them now with a view to influencing prosecutorial decisions relating to the current wave of protests. The prime minister and other right-wing politicians critical of the Office of the State Attorney seized on the timing of the publication of the guidelines, and portrayed it as an attempt by supposedly left-leaning Ministry of Justice lawyers to support the protesters.

The New Guidelines

The guidelines open with an affirmation of the importance of the right to assembly as a basic right under Israeli law, and the document emphasizes the ensuing need to limit the application of criminal law to demonstrators. 

The document notes that the guidelines must be applied on an equal basis to all protests and that they should strike a balance between the right to assembly, the rights of other individuals and the public interest. It also acknowledges the need to avoid creating a chilling effect on participation in demonstrations, while punishing those who engage in violence and serious disruption of public order. 

The guidelines outline which parts of the Israeli government are responsible for making declination decisions. Part two of the guidelines explains that the decision whether or not to prosecute will generally be taken by the prosecution service in the Ministry of Justice, and not by police prosecutors who typically handle more mundane cases (and are presumably less capable of handling sensitive cases than Ministry of Justice prosecutors). Furthermore, the guidelines note that all protest-related prosecutions need to be authorized by a district attorney. 

Part three of the guidelines discusses the long list of criminal law provisions that potentially govern the conduct of participants in assemblies. These include Section 151 of the Criminal Law, which criminalizes the act of gathering in an assembly with the aim of committing an offense or behaving in a manner that suggests the likelihood of engaging in a disturbance of the peace or provoking others without good cause to engage. In addition to Section 151, other bases for prosecution include other criminal law provisions on rioting, rioting following a dispersal order, refusal to disperse, causing damage through rioting, making threats, misconduct in a public place, attacking a police officer (with or without aggravating circumstances), disturbing a police officer in the fulfillment of official duties (with or without aggravating circumstances), violating a lawful order, insulting a public official, incitement to violence or racism, and preventing a lawful arrest.

Part four of the guidelines discusses the prosecutorial policy in relation to the application of those provisions of criminal law to demonstrators. The point of departure of the guidelines—and the locus of outrage for Netanyahu’s allies—is that criminal prosecution is warranted only in cases involving multiple offenses or other particularly serious circumstances. This significantly limits the offenses and circumstances for which protesters can be prosecuted. For example, rioting offenses would be prosecuted only if they involve violence to persons or property; misconduct in a public place can be prosecuted only with the approval of the deputy attorney general (who will evaluate the seriousness of the circumstances); and the offense of insulting a public officer should not, as a rule, be resorted to at all. The guidelines also distinguish between actively and passively disturbing a police officer (for example, pushing a police officer versus refusing to move away) and note that prosecutions would be generally appropriate only in cases involving active conduct. 

The guidelines then proceed to identify nine considerations as to when to prosecute demonstrators: 

(1) The violent nature of the assembly—if violence is at a level that renders it difficult for the police to maintain public order, then prosecuting those directly engaged in violence or inciting violence should be considered. Another relevant consideration on this note is whether the demonstration was unlicensed (in circumstances where it is clear that a license should have been sought) or if the terms of license were violated.

(2) The location of the protest—whether the demonstration was organized in a particularly sensitive location or at an extraordinary time and place that prevents police officers from protecting the public or puts police officers’ lives at risk. The guidelines note in this regard that a demonstration near the private residence of public officials (as opposed to official residence) may be a factor in deciding whether or not to prosecute, especially if the demonstrations are repetitive or cause a nuisance. (This factor, which also appears in the previous guidelines, aims to shield public officials from harassment and threats intended to prevent them from exercising their public function). 

(3) The disruption of traffic—a deliberate and prolonged blocking of a major traffic artery is an aggravating circumstance. In other cases, involving a spontaneous “spill over” of the demonstration into the road or a short blockage or disruption of a side road, the guidelines advise prosecutors not to prosecute.

(4) Damage to public or police property.

(5) Incitement to commit offenses. 

(6) The organization of a demonstration without license (where it is clearly warranted) or an assembly in which offenses are planned

(7) Police misconduct may justify nonprosecution of demonstrators 

(8) Age—prosecuting minors should be done with the utmost care.

(9) The past criminal record of the suspect. 

The guidelines also identify several other relevant factors, including the availability of individualized evidence showing an offense was committed by the specific individual in question, and the way other protesters in the same and in other demonstrations were treated. 

As indicated above, the new guidelines supplement earlier guidelines promulgated by the attorney general in 1983, and amended in 2003 and 2010. These earlier guidelines described the conditions under which a license to demonstrate should be granted (under the Police Ordinance, a license is required when certain conditions are met—for example, when the assembly involves more than 50 participants in open space, with speeches or lectures offered), and stipulates that a license can be denied only in exceptional circumstances that are, in principle, unrelated to the substance of the demonstration. Like the new guidelines, the old guidelines also address the circumstances under which charges can be brought against demonstrators and members of the public who try to disrupt assemblies. Finally, they address the authority of police officers to uphold the criminal prohibition of unlawful gatherings.

Implications for Freedom of Assembly

The new guidelines appear, on the whole, to internalize the constitutional status of freedom of assembly as a basic human right. There are also interesting parallels between the guidelines and General Comment 37—the new general comment of the Human Rights Committee on the right to assembly, notwithstanding their different context (exercise of discretion in criminal law matters versus general human rights standards). In particular, it’s striking that the guidelines treat violence or incitement to violence as the dividing line between legitimate participation in assembly and unlawful conduct. Also notable from a freedom-of-assembly perspective is that the document underscores that criminal law does not apply to the mere act of participating in an assembly (regardless of whether the assembly meets the requirements of domestic law), it articulates the principle that the temporary disruption of public order—including traffic—should be tolerated, and it accepts content neutrality as a guiding principle in regulating assemblies. Some legal problems do remain, however.

First, Israel still nominally practices a system of licensing assemblies. This is at odds with the standard laid down in the general comment—that states should transition from a system of authorization of assemblies to a system of notification. And by introducing the lack of a license as a factor in deciding whether or not to prosecute organizers of assemblies, the new guidelines retain the licensing regime’s relevance in criminal law (although the practical importance of the decision has been reduced after a 2017 judgment of the Israeli Supreme Court that narrowly construed the circumstances in which a license is required). An associated concern is the broad power of the police to impose conditions and to order dispersal, which may give rise to criminal liability for those demonstrators who refuse to comply with such requirements. Here too, Israeli law on peaceful assemblies appears to fall short of the standard introduced in the general comment (para. 85), which treats dispersal of assemblies as a power to be exercised only in exceptional circumstances. 

Second, although the guidelines do acknowledge that police misconduct is a relevant factor in the decision whether or not to prosecute, in practice, concerns have been expressed in recent years in connection with the level of force applied by Israeli police. This question has arisen in the context of, for example, the aggressive use of crowd control equipment such as water cannons. The matter has been reviewed in passing recently by the Supreme Court, which refused to review the specific procedures for using “skunk” water cannons, noting that the police revised its entire crowd control procedures after the petition to the court was filed, and that the new procedures should be reviewed only after their application in practice. Reactions by the Ministry of Justice Police Investigations Unit to recently documented cases of police violence and dangerous application of water cannons have so far been timid, and these reactions don’t inspire confidence that the relevant components of the government have deeply internalized the strong protection afforded by domestic law and the guidelines to the right to assembly.

Finally, there is still lack of clarity about the interplay between the exercise of the right to assembly and coronavirus restrictions introduced by the government and the Knesset. The new so-called Corona Law did detail that demonstrations would be exempt from emergency movement restrictions that the government is authorized to decree. But the public health law also provided that the authorities may introduce conditions on the exercise of the right to assembly. So far, there has been no serious attempt to put in place significant limits on assemblies for public health reasons, but with the growing numbers of demonstrators, increasing political tensions (with the possibility of new elections looming around the corner), and the rise in coronavirus infections across the country, this state of affairs might change. An attempt to limit the right to assembly for public health reasons (as was recently attempted in Berlin) would confront the Israeli legal system with a serious test, and it remains to be seen whether the generally permissive approach toward assemblies reflected in the guidelines will continue to hold under such difficult conditions.