On 6 April this year (2024), amid steadily increasing Israeli aggression and oppression in the occupied Palestinian territory of the West Bank, Israeli security agents seized at gunpoint a 23-year-old Palestinian woman, Layan Nasir, taking her from her home in the town of Bir Zeit, near Ramallah
There was no charge, no indication of trial, evidence or eventual release. This is routine in the many thousands of such cases that have taken place since Israel occupied the Palestinian territories in 1967: Palestinians of all ages, men, women and children, disappear into the maw of Israel’s detention system for unknowable periods. Ms Nayan’s family have had no contact with her.
So, on what basis of law do the Israelis carry out these detentions?
It all goes back to British emergency legislation when Britain ruled Palestine, between 1917 and 1948.
Here, a former UN Special Rapporteur for Human Rights in the occupied Palestinian territory, Michael Lynk, explains how Britain set up these oppressive laws and how Israel chose to keep them on the books when the British departed Palestine in May, 1948.
Professor Lynk is an associate professor at the University of Western Ontario, in London, Ont. This text is an edited version of the address he gave at the Balfour Project’s (virtual) conference, on 17 and 18 May, 2022, entitled Abandoning Palestine: the end of the British Mandate and our continuing responsibility
The Strange Afterlife of the British Defence (Emergency) Regulations 1945
By Michael Lynk
Thank you to the Balfour Project for this generous invitation to be a part of this virtual conference. I have long followed the extraordinary work of the Balfour Project as it educates the public in Britain and beyond about how the Balfour Declaration of November 1917 and the 30-year British Mandate over Palestine have rippled through more than a century of history, leaving in its wake a maelstrom of tragedy, sorrow and human suffering on all sides, with by far the greatest cost being borne by the Palestinians.
I have been asked to speak today about one of these fateful ripples of history – the strange afterlife of the British Defence (Emergency) Regulations 1945,[1] and particularly the role that its legislative descendants are playing today in Israel’s entrenched repression of the Palestinians in the occupied territory.[2]
Many of you who are listening to this presentation will know that the Israeli Minister of Defence, Benny Gantz, designated six Palestinian human rights and humanitarian organisations as terrorist organisations in October 2021.[3] Under Israel’s counter-terrorism legislation, this designation – if it becomes permanent – will enable it to ban the Palestinian organisations, seize their assets, charge and even imprison their leadership and staff with terrorist offences, and shutter for good their indispensable advocacy. These organisations have been living under the sword of Damocles ever since.
You may also know that there are many thousands of Palestinians who have been convicted of security and terrorism offences, and sentenced to long terms of imprisonment. They were charged and found guilty under an Israeli military court system that denies most of the fundamental features of a fair trial that are embedded in international law and familiar to us in the West, such as the right to an impartial judiciary, the right to know all of the evidence and allegations against you, the right to be able to make full answer to these allegations, and the right to be tried in your own language.[4]
Thousands more Palestinians have been incarcerated throughout the five decades of the occupation through the mechanism of “administrative detention”. This permits Israel to arrest and detain a Palestinian as a security suspect for periods of six months at a time, without charges, without evidence, without a trial and without a conviction. These six month administrative detentions can be continuously renewed by the Israeli authorities through a perfunctory application to the Israeli military courts, with no meaningful judicial oversight or review.[5]
All of these military-legal processes and procedures, and more, are anchored in Israel’s Counter-Terrorism Law of 2016.[6] This law has been heavily criticised by international human rights organisations and experts for its sweeping definitions, its denial of basic rights for defendants, and its promiscuous use by the Israeli military to shrink the available space for Palestinian civil society organisations to carry on their invaluable work in shining a spotlight on the many abuses of the 55 year old Israeli occupation. I will return to the Counter-Terrorism Law shortly.
To understand the scale and sweep of Israel’s Counter-Terrorism Law, we have to start with its legislative ancestor, the British Defence (Emergency) Regulations 1945. These regulations were promulgated by the British Mandate authority in 1945, at the end of the Second War World, as the various underground organisations of the Jewish Yishuv were scaling up their armed resistance to the British Mandate with the aim of creating a Jewish state in Palestine.
First set of repressive British repressive security laws were aimed at crushing the Arab revolt
The British Defence (Emergency) Regulations 1945 replaced an earlier body of emergency security orders and laws, enacted in 1936 to counter the Great Arab Revolt against the British Mandate and supplemented by a 1937 Order-in-Council and the Defence Laws of 1939. This 1936-39 revolt was triggered by the growing realisation by the Palestinians that their quest for an independent state in Palestine was being thwarted through the collaboration of the Mandate and the Zionist movement to build a Jewish homeland in Palestine in accordance with the Balfour Declaration and its incorporation into the League of Nations mandate granted to Britain. The Palestinian claim to an independent state in Mandate Palestine – consistent with the promise of self-determination contained in Woodrow Wilson’s 14 principles of 1919, its Class A mandate designation by the League of Nations and, most of all, by their indigenous status and overwhelming demographic presence in Palestine – was answered by the bayonets of the British military.[7]
These 1936 regulations gave the British High Commissioner in Palestine broad powers to repress the Arab Revolt in the name of public security. In the words of the 1937 British Order-in-Council enacted to support the emergency regulations, the High Commissioner could use “his unfettered discretion…to suppress mutiny, rebellion and riot and for maintaining supplies and services essential to the life of the community.” By the time the British defeated the Revolt in 1939, more than 5,000 Palestinians had been killed, thousands more had been wounded, imprisoned or exiled, and the Palestinian leadership had been politically decimated. The use of the repressive tools in the 1936 emergency regulations and its legal supplements were decisive in quelling the three-year Palestinian uprising.
Eight years later, in 1945, with the well-organised, well-trained and increasingly well-armed Jewish militias initiating their final bid to end the British Mandate, to stifle the Palestinian claim for self-determination and to establish a Jewish state in Palestine through force, the British modernised their 1936 emergency regulations into the British Defence (Emergency) Regulations 1945. These Regulations established military courts to charge and convict anyone in Palestine thought to have committed security offences. These courts consisted of three military officers, who could consider secret evidence that would not be disclosed to the defendant. Their decisions were not open to appeal. British military and police officers had the power to search any place, arrest any person and detain them indefinitely on the basis of mere suspicion. Administrative detention was employed, as was the expulsion of any person from Palestine.[8]
While the violence between the Jewish militias and the British military in Palestine was fierce in the years between 1945 and 1948, most historians of the period agree that the levels of repression meted out by the British military against these militias and the Jewish Yishuv were nowhere close to the scale of brutality employed against the Arab Revolt a decade earlier.[9] Consider this: the British military in Palestine had most of the same repressive legal tools to permit them a relatively free hand in quelling the respective revolts in the 1930s and in the 1940s. The decisive issue was against whom they were employing this repression: on the one hand, a poorly-armed colonialised and subjugated people with little outside help, and on the other, a largely European settler population with important Western sources of support. This is the decisive factor in explaining the differences in the levels of violence utilised by the British.
In May 1948, British gave up its mandate in Palestine, the Jewish Yishuv declared the State of Israel, and the mass expulsion of the Palestinians intensified. The British revoked the Defence (Emergency) Regulations several days before the formal end of the Mandate, but the new Israeli government insisted that the Regulations had not been properly abrogated, and the government incorporated much of the Regulations into the new Israeli legal system.
This new life given to the Defence (Emergency) Regulations had two significant consequences. First, in the period between 1948 and 1966, they were primarily employed by Israel to establish and maintain a regime of military rule over the Palestinian Arabs who had remained in Israel after the 1948 Nakba. During this period, the roughly 160,000 Palestinians in Israel who had not been expelled in 1948 or who had returned were subject to a pass system that severely restricted their freedom of movement, curtailments on their political and civil rights, and arbitrary arrest and imprisonment for actions that were considered seditious or contrary to public safety and order.[10] While Israel also used the Defence (Emergency) Regulations against Israeli Jews – most notably the Lehi underground terrorist organisation which had assassinated Court Bernadotte in September 1948 – it was the Palestinian citizens of Israel who bore the disproportionate brunt of this repressive stick through this time period.
A new lease of life for the regulations after the 1967 Occupation began
And second, after the Israeli government lifted the application of the Regulations against its Palestinian citizens in late 1966, they remained on the law books. Within six months, they were reapplied with full force by the Israeli military commander to the newly-captured Palestinian and Arab territories in the immediate aftermath of the June 1967 war.[11] Their legitimacy and applicability were subsequently reaffirmed by the Israeli Supreme Court.
Most of the justifications for movement restrictions and curfews, censorship, arbitrary arrests and detentions, home demolitions, prohibitions on political activity and civil society advocacy, deportations, area closures and much more during the first five decades of the occupation found its legal rationale under Israeli law in the Defence (Emergency) Regulations 1945. These Regulations, and their abusive application to buttress an illegal occupation that has become indistinguishable from annexation and apartheid, has been the source of consistent criticism by both Palestinian and Israeli human rights organisations, and by international advocacy organisations disturbed by the enormous daylight between the Regulations and the obligatory requirements of international human rights and humanitarian law.[12]
In 2016, the Israeli Government overhauled the Regulations and recreated them as the Counter-Terrorism Law. As a comprehensive letter on the Counter-Terrorism Law by 11 UN special rapporteurs and human rights experts issued in May 2022 to the Israeli Government noted, there has been, in effect, a permanent and continuous emergency in Israeli law for 74 years, and for 55 years in the occupied Palestinian territory. The focus of this state of permanent emergency has been almost entirely directed at the Palestinians, with all of the attendant enforcement of a profoundly embedded relationship of domination and subjugation which that entails.[13]
Drawing from this remarkable letter from the UN human rights experts to the Israeli Government, I would like to focus on four features of the 2016 Counter-Terrorism Law which illustrates two fundamental issues for the purposes of today’s conference: First, the legal and political continuity between the British emergency suppression laws from 1936 and 1945 to the present; and second, the continuity in the abusive use of so-called public safety laws that have much less to do with public safety and much more with perpetuating unwanted alien rule over a rebellious indigenous population that wants nothing more than independence and an end to their subjugation.
The first feature that I would draw from the May 2022 letter by the human rights experts is their penetrating critique of the Counter-Terrorism Law as it is applied to so-called terrorist organisations in the occupied Palestinian territory. The letter forthrightly states that:
“the present legal and regulatory framework for designating terrorist organisations lacks precision in key respects, infringes on critically important rights, and may not meet the required thresholds of legality, necessity, proportionality and non-discrimination under international law.”
Reliance on confidential information…anathema to all democratic legal standards
The UN experts go on to say that they are concerned that the Law might result in the unlawful infringement of the fundamental rights to freedom of peaceful assembly and association, and freedom of opinion and expression, as well as fair trial rights and core social, economic and cultural rights.
I want to point out that this May 2022 letter is the fifth occasion over the past eight months that UN human rights experts have issued public statements – to both the Israeli Government and to the European Union – protesting against the thin body of publicly-available evidence relied upon by the Israeli Government under the Law to justify its designation of the six Palestinian organisations as terrorist organisations and to persuade their international funders to starve the organisations of financial support.[14]
The second significant feature of the Counter-Terrorism Law commented upon by the UN human rights experts is the legislation’s reliance upon ‘confidential information” to secure designations and convictions. This is an anathema to modern democratic and human rights standards, and it follows a direct line from the British laws from 1936 and 1945. The definition of “confidential information” in the Counter-Terrorism Law is any information where:
“its disclosure is liable to harm State security, foreign relations or public safety or security or to reveal confidential work methods…”
The determination of what constitutes “confidential information” is determined by an Advisory Committee, made up of judges and jurists expert in security law. This is what is known in that wonderful British political phrase – “a pair of safe hands” — who are committed to the worldview of us versus them in the Israeli context.
The third significant feature of the Counter-Terrorism Law which draws a straight line from the past is the utter lack of fair trial and due process rights. The UN experts noted the ubiquitous use of secret and confidential information that is substantially withheld from the defendants and their lawyers. Under international human rights law, the minimum guarantees protected include the presumption of innocence, the right to equality under the law (including the right to be informed promptly and in detail in a language which the defendant understands of the nature and cause of the charge as established by law against him), a speedy progress to trial, the right to a fair and public hearing by a competent, independent and impartial tribunal, and the right to judicial review and appeal.
None of this is present in the current Law, nor – as we have seen – were any of these rights present in any of the predecessor laws going back 85 years.
The UN experts point out that:
“These provisions come at the high cost of leaving organisations or individuals wholly unaware of the measures taken against them and, in turn, their legal representatives unable to contest the designation.”
Equally disturbing, the experts stated, is the fact that “it is the Israeli Minister of Defence – the same person who requests the designation in the first place – that makes the final decision on a permanent designation, albeit with the opportunity for judicial review in the front of the Israeli Supreme Court”.
The perpetuation of an alien and deeply resented alien rule
In my view, that should not provide comfort to those deeply worried about the protection of human rights and civil liberties in the OPT. The Israeli Supreme Court has proven itself to be a judicial handmaiden of the occupation, particularly given its most recent ruling earlier this month endorsing the removal of Palestinian villages in the south Hebron hills and its declaration, in this decision, that international law plays no role whatsoever in the administration of Israel’s five-decade long occupation.[15]
The fourth and final significant feature of the Counter-Terrorism Law that ripples from the past is the severity of the sanctions and penalties imposed upon defendants who have been convicted under the Law. It provides for a wide range of criminal sanctions and penalties for designated individuals and organisations convicted under its provisions. Someone who is identified with a designated terrorist organisation can be sentenced to a term of two to five years incarceration. Members or directors of a designated organisation can receive 5 to 25 years of imprisonment. And someone who supports or incites in favour of a hostile organisation can receive a sentence of 10 years.
Virtually none of the definitions, designations or penalties of the Counter-Terrorism Law and its associated orders satisfy the minimum standards of international law. One would wish that such an argument would catch the attention of Israeli law-makers, Israeli judges and the Israeli military officers who enact, interpret and apply these sweeping provisions. One would hope that the eyes of the international community, particularly European and North American states who proclaim that they are deeply invested in supervising the occupation and realising their vision of a two state solution, would focus on this deeply illiberal legal regime and call for its abolition on the road to swiftly ending this forever occupation.
In conclusion, may I say that the constant historical thread of these repressive laws – from 1936 and 1945 to this very day – is the perpetuation of an unwanted and deeply resented alien rule over a people and a country that have become, in many ways, the political orphans of the modern system of international relations. The partition of Palestine was the first major decision of the young United Nations in 1947 and, arguably, its first major blunder. After all, the UN of 1947 is not reflective of the UN of today, and it is almost impossible to imagine that it would endorse today the severing of a country against the profound wishes of its indigenous and majority population.
Yet the United Nations of today remains haunted today by that partition decision. As Kofi Annan said in his 2012 memoirs, the unresolved Question of Palestine “…remains for the UN a deep internal wound as old as the organisation itself, given that the Arab-Israeli conflict began at the very inception of the UN – a painful and festering sore consequently felt in almost every intergovernmental organ and Secretariat body.”[16] There is no conflict in the modern world where the UN and the international community has spoken with such consistency and in such volumes about the rules of international law which apply to the obligations of Israel, the occupying power, and to the rights that are to be claimed by the Palestinian people, yet where the international community has acted with such remarkable political passivity in the face of its duty to enforce its own rules-based legal order.
[1] https://www.imolin.org/doc/amlid/Israel/The_Defence_Emergency_Regulations_1945.pdf
[2] For a critical review of the regulations, see: Al-Haq, “Perpetual Emergency: A legal analysis of Israel’s use of the British Defence (Emergency) Regulations 1945 in the occupied territories” (1989), accessed at: perpetual-emergency-pdf-1616579593.pdf (alhaq.org)
[3] J. Lis & H. Shezaf, “Gantz Declares Six Palestinian NGOs Terrorist Organizations” Ha’aretz, 22 October 2021.
[4] H. Shezaf & M. Horodniceanu, “Israel’s Other Justice System has rules of its own”, Ha’aretz, 25 April 2022.
[5] Both the Palestinian prisoners’ right organization Addameer (Administrative Detention | Addameer) and the Israeli human rights organization B’Tselem (Administrative Detention | B’Tselem (btselem.org) have valuable online webpages explaining Israel’s use of administrative detention.
[6] Israel: New Comprehensive Counterterrorism Legislation Adopted | Library of Congress (loc.gov)
[7] M. Hughes, Britain’s Pacification of Palestine: The British Army, the Colonial State and the Arab Revolt, 1936-1939 (Cambridge University Press, 2019).
[8] Al-Haq, supra, note 2.
[9] I. Black, Enemies and Neighbours: Arabs and Jews in Palestine and Israel, 1917-2017 (Atlantic Monthly Press, 2017); A. Shlaim, The Iron Wall: Israel and the Arab World (Norton, 2000).
[10] S. Jiryis, The Arabs in Israel (Monthly Review Press, 1976).
[11] R. Shehadeh, Occupier’s Law: Israel and the West Bank (Institute for Palestine Studies, 1985).
[12] See generally Amnesty International, Israel’s Apartheid against Palestinians (2022), pp. 105-108, 121.
[13] United Nations Special Procedures, “Letter to the Permanent Mission of Israel, United Nations, Geneva”, 5 May 2022 (OL ISR 6/2022).
[14] United Nations Special Procedures, Israel/Palestine: UN experts call on governments to resume funding for six Palestinian organisations designated by Israel (25 April 2022): “The United Nations has been very clear that the drafting and application of anti-terrorism laws have to be rigorously consistent with international law and human rights protections, including the principles of legal certainty, necessity, proportionality, the rule of law and non-discrimination… Applying anti-terrorism laws to well-regarded human rights defenders and civil society organisations – without persuasive evidence to substantiate these claims – seems to indicate a politically-motivated attempt by Israel to silence some of its most effective critics in violation of their rights to freedom of association and of expression,””
[15] H. Shezaf, “Israeli top court approves eviction of eight Palestinian villages after decades-long battles” Ha’aretz, 5 May 2022. Also see the Ha’aretz editorial on the issue: “Israel’s High Court of Justice, the Occupation’s Rubber Stamp””, 8 May 2022, where it noted that the court “…rejected the argument that the prohibition in international law against forced population transfer is binding on the court or that it applies to Israel.” Also see: D. Kretzmer & Y. Ronen, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2nd ed.) (Oxford University Press, 2020).
[16] Kofi Annan, Interventions (Penguin, 2012), at p. 254.