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The Crisis of Democracy Amidst the 7th of October Attack and the War on Gaza: The Case of the Palestinians Citizens of Israel

Following the brutal attack in Israel on October 7th and the subsequent devastating war on Gaza, there has been a surge of aggressive actions by Israeli police forces, resulting in widespread arrests of Palestinian citizens of Israel and, in some instances, Jewish leftists who shared posts on social media. Some posts explicitly supported the attack, justifying Hamas’s actions and celebrating them. Others, particularly in response to Israel’s actions, expressed concern for Palestinian victims by posting their names and pictures and showing solidarity with innocent casualties in Gaza. However, even ambiguous posts and statements have led to arrests, investigations, and, in some cases, prosecutions. These actions were accompanied by public harassment campaigns initiated by Jewish extremist right-wing activists against these citizens at their homes. In several instances, harassment continued even when no charges were filed or charges were dropped.

Beyond the apparent infringement on freedom of speech, which has instilled fear and deterred individuals from expressing compassion for innocent victims, the case of the Palestinian minority in Israel, as presented in this eblog, demonstrates how wartime exacerbates the crisis of democracy, shapes, and reshapes the scope of citizenship of ethnic minorities during times of emergency.

Diminishing Freedom of Speech

The profound impact of the October 7th attack in Israel, which resulted in casualties, the kidnapping of civilians, and the displacement of others from localities surrounding Gaza, significantly altered the socio-political landscape. This led to a more hawkish and militaristic response from the public and the government. This shift was reflected in a broader embrace of populist, right-wing policies and a noticeable reduction in the space for public dissent or protest.

Prior to these events, Israel was already experiencing internal divisions regarding its judicial overhaul plans, which were met with extensive protests. However, after the attack, there was a marked decline in these protests as the nation’s focus turned to security concerns and national unity in the face of external threats. The urgent need for collective security and solidarity overshadowed previous civil actions, effectively limiting the scope and frequency of public demonstrations.

The events of October 7th were followed by a ruthless and harsh military response in Gaza, resulting in the deaths of thousands of children and innocent civilians, the displacement of about two million refugees, the destruction of hundreds of cultural, health, education, and religious institutions and an ongoing humanitarian crisis. The severity of the attacks and the subsequent military response created a highly polarised environment, where expressions of dissent, particularly concerning Israel’s military actions in Gaza, were less tolerated both socially, politically, and legally. This environment has made it challenging for voices advocating for a ceasefire or critiquing the government’s approach to gain traction or visibility.

The restrictions on expressing opposition against the war in Israel manifest in two significant ways. First, there is the curtailment of public demonstrations, particularly noticeable in the initial two months following the events of October 7th. Secondly, there are ongoing arrests, investigations, and legal prosecutions targeting Palestinian citizens of Israel (and, in some cases, left-wing Jews) who express their views or solidarity on social media regarding the ongoing humanitarian crisis in Gaza. Simultaneously, there were numerous instances of incitement and calls for war crimes and genocide by Israeli journalists, public representatives, and influencers against innocent Palestinian civilians. These statements, despite being highly criminal, were not only socially accepted but also went unprosecuted. This is despite the ICJ’s call in January 2024 to take all measures to prevent and punish direct and public incitement to commit genocide of Palestinians in Gaza.

Limitations on the Right to Protest and Demonstrate

Demonstrations against Israel’s military actions in Gaza have faced severe restrictions and forceful dispersals by both the Israeli police and the legal system as well, particularly highlighted in incidents in Haifa- a mixed city and the Palestinian town of Umm al-Fahm.

These actions followed a directive from the Israeli Police Commissioner, who, on October 17, 2023, announced a refusal to permit (all) demonstrations supporting the Palestinian people in Gaza. This directive was explicitly tied to identification with Gaza, suggesting punitive measures such as deportation to Gaza for sympathisers. This policy quickly manifested in practice as the police forcefully dispersed a planned demonstration in Haifa on October 18, 2023. The police declared the demonstration illegal, citing a lack of a permit and associating it with support for Hamas. The police used mass dispersal tactics, leading to several arrests, who were later released by court order.

Further exacerbating the situation, on October 19, 2023, the Israeli police spokesperson made statements in a radio interview reinforcing the aggressive stance against demonstrations supporting Gaza, equating them with supporting Nazi terrorist activities and threatening severe repercussions. Moreover, on 19 October 2023, residents of Umm al-Fahm faced violent dispersals during their protest against the Israeli offensive in Gaza, which involved rubber bullets and stun grenades. The police sought to extend the detention of the arrested protesters, including minors, with the court proceedings marred by procedural delays and denials of due process.

A defining event for the legal system’s attitude was the dismissal of a petition on November 8, 2023, which sought to overturn the police’s refusal to issue permits for protests in Palestinian towns in Israel. The court sided with the police, citing a severe manpower shortage due to the ongoing war, which they claimed prevented them from managing public order at such events. While the court recognised the right to demonstrate as fundamental, it upheld the police’s decision based on operational constraints and concerns about incitement to violence and public disorder during the protests. The court did not contest the police’s view that Palestinian demonstrations are particularly prone to incitement and disruption. For the first time in Israeli legal history, this led the Supreme Court of Justice to effectively deprive a specific group of citizens of their right to protest.

Prosecution of Freedom of Speech on Social Media

Following the October 7th attack, hundreds of Palestinians (and, in some instances, left-wing Jewish citizens) have been arrested and interrogated. Some of the arrested shared posts clearly in favour of the attack, justifying Hamas’s actions and celebrating it. Others expressed concerns for the Palestinian victims by posting their names and pictures and prayers for their safety. Ambiguous statements have also been sufficient to trigger arrests, interrogations, and criminal prosecutions under the Counter-Terrorism Law enacted in 2016.This law broadens the range of offences connected to terrorism that were listed in the Penalty Law, 1977 and includes special enforcement powers for the purpose of combatting terrorism. According to the instructions of the State Attorney’s Office, opening an investigation based on suspicions of committing a crime based on this law by the police is subject to his approval. However, on October 19th, the Deputy State Attorney issued a letter clarifying a change in the instructions regarding initiating investigations and arrests of those suspected of committing crimes of incitement and expressing identification with a terrorist organizsation.

The instructions are as follows: “An investigation must be opened, prosecution initiated, and a request made for the arrest until the end of the legal proceedings against anyone who publishes words of identification with a terrorist organisation or publishes words of praise, sympathy, encouragement, support, or identification with the atrocities committed against the citizens and soldiers of the State of Israel starting on October 7, 2023, even if it is a single publication, provided that it is serious and directly relates to the current period.” This change has provided a wide discretion for the police to prosecute individuals.

Considering that this is an emerging and ongoing event, comprehensive empirical research on the matter is still lacking. However, Adalah, the legal centre for Palestinian rights in Israel, has collected some initial data, which is also handling the related legal cases. Additionally, in March 2024, an interview with the attorney in charge of the “Project for Offenses of Incitement” under the State Attorney’s Office was published, providing further updated data on the situation.

Adalah’s report shows that under the Deputy State Attorney’s letter, which is still in effect, 251 arrests, interrogations, and “warning talks” were documented between October 7 and November 13. Of these, 121 cases regarding social media posts, 31 were connected to demonstrations, 60 were categorised as political activity, religious activity, or obstructing police work, and 39 cases were of unknown origin. In 132 of the cases, requests to extend arrests were also made. According to official police data, as of November 7, 76 indictments had been filed since October 7, 2023. By March 2024, the attorney in charge of the “Project for Offenses of Incitement” reported that the number of indictments had more than doubled, reaching over 150 for offences of incitement to terrorism and/or identifying with terrorist organisations. For comparison, only 17 indictments were filed for crimes of incitement between January and September 2023, and about 50 indictments were filed in total between 2020 and 2022.

What are the effects of all these actions of reinforcing the already selective and discriminatory Israeli enforcement policy towards the Palestinian minority? This leads me to the second issue I wish to address.

The Crisis of Democracy and Reinforcing Second-Class Citizenship:

In the aftermath of October 7th, the joint policy of the enforcement system—including the police, the attorney general, and the courts—has resulted in several concerning outcomes. The first is the removal of checks and balances common in a democratic pluralist system. To all this data, a crucial piece of information must be added: as previously mentioned, there has been zero prosecution of the hundreds of cases of incitement to commit genocide and war crimes against Palestinian citizens of Gaza. This shows that the police and the attorney’s office operate a selective enforcement policy that relates to a broader and ongoing complex socio-political- legal environment of over-policing against minority groups.

Second, severe infringements on the rights to freedom of speech and freedom of protest for those who were arrested and detained, most of them from the Palestinian minority. It should be noted that during this period, the police did permit demonstrations conducted by Jewish citizen protesters for the legitimate cry for the release of hostages. This highlights a discriminatory policy led by the police and the court’s straightforward acceptance of a manpower shortage argument only in cases of demonstration requests critical of the war. This approach signals a clear denial of minorities’ right to protest, especially during times of conflict. These measures are not only discriminatory, but they also form part of a broader effort to suppress dissent and negatively label Palestinian citizens, reinforcing their perception as second-class citizens.

Third, beyond the evident infringement on these rights, this policy has had, and continues to have, a chilling effect on all Palestinian citizens, who now live in great fear of posting harmless content expressing solidarity with innocent victims or simply demanding a ceasefire. Consequently, this policy effectively infringes on the political rights of the Palestinian minority and further diminishes their already fractured sense of citizenship. This, in turn, distances Israel from the concept of democratic pluralism. One should keep in mind that the essence of democracy isn’t just about having theoretical rights but also about the ability of everyone to exercise these rights in everyday life without fear of being prosecuted. Feeling secure is not only about physical safety but also about having the ability to express oneself without fear of later being accused or detained.

To conclude, in my view, the true crisis of democracy in Israel today is when a call for peace and solidarity with innocent victims becomes a felony.

Over de auteurs

Manal Totry-Jubran

Manal Totry-Jubran is Associate Professor of Law, Bar Ilan University. Her main fields of interests are: Constitutional law, Law and Society, Legal Geography, Multiculturalism, Minority Rights.


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