Defence (Emergency) Regulations

The Defence (Emergency) Regulations are an expansive set of regulations that were first enacted by the Mandatory authorities in British Mandate Palestine on 27 September 1945. Incorporated into Israel's domestic legislation after the state's establishment in 1948, the regulations remain in force to this day.^[1][2]

According to Israeli human rights group B'Tselem, provisions in the regulations permit the establishment of military tribunals to try civilians without the right to appeal, prohibitions on the publication of books and newspapers, house demolitions, indefinite administrative detention, extensive powers of search and seizure, the sealing off of territories and the imposition of curfews.^[1]

British Mandate

The 1945 Defence (Emergency) Regulations compiled old and new orders issued by the Mandatory authorities following the 1936–1939 Arab revolt in Palestine.^[3] In 1937, the Privy Council in London authorized the British High Commissioner in Palestine to enact such defence regulations "as appear to him in his unfettered discretion to be necessary or expedient for securing public safety, the defence of Palestine, the maintenance of public order and the suppression of mutiny, rebellion, and riot and for maintaining supplies and services essential to the life of the community."^[3] In his book, The Jewish State, Alan Dowty writes that the regulations subsequently issued reflected the preoccupations of a colonial power (i.e. Britain) facing widespread unrest and the threat of war.^[3]

With the growing prospect of rebellion from the Jewish Resistance Movement, the Mandatory authorities published the collected set of regulations, along with new measures to restrict illegal immigration in September 1945.^[3] The Defence (Emergency) Regulations comprised 147 regulations spanning forty-one pages that effectively established a regime of martial law.^[3]

A military court system was empowered to try those who violated the regulations with no right to habeas corpus or appeal.^[3] Broad powers of search and seizure were granted to British soldiers.^[3] The regulations also permit long-term detention without trial and the deportation of even native-born citizens.^[3] Permits are required for the publication of any material of "political significance."^[3] Any area can be closed and the civil courts suspended therein.^[3] Property can be expropriated or destroyed, movement restricted, mail opened, services suspended, or businesses closed and the military is not even required to publish orders that it intends to enforce.^[3]

The Jewish population in Palestine vigorously protested the Defence Regulations after they were first issued.^[3] Richard Crossman, a member of the Anglo-American Committee of Inquiry who heard such complaints in early 1946 reflected on the regulations in his diary, and concluded that, "Palestine today is a police state."^[3] Bernard (Dov) Joseph, who later became the Israeli Minister of Justice, also used the term "police state" to describe the Defence Regulations.^[3]

Israeli law

The Defence (Emergency) Regulations were incorporated into Israeli domestic law pursuant to section 11 of the Government and Law Arrangements Ordinance in 1948.^[1] An addendum to the law noted that exceptions could arise from "changes resulting from establishment of the State or its authorities."^[1] Only the section restricting immigration was cancelled at the time of the law's adoption into domestic Israeli law;^[3] the remaining regulations remain in effect except where explicitly annulled or superseded by either actions of the cabinet (under Section 9 of the Law and Administration Ordinance) or by Knesset legislation.^[3]

There has been significant debate in Israel surrounding the Defence Regulations.^[4] While most of the provisions incorporated into Israeli legislation have never been invoked by the executive branch, a few have been and continue to be repeatedly invoked, "precipitating public and legal debates concerning the appropriate balance between security considerations and democratic premises."^[4] (See Application section below for more.)

After a debate on the administrative detention provision in 1951, the Knesset plenum directed the Constitution, Law, and Justice Committee to draft a bill to repeal the regulations on the basis that they opposed basic democratic principles.^[1] The recommendation was not followed through and the regulations were not abolished. B'tselem submits that repeal was not possible since the regulations served as the legal basis for the military rule that was in effect for Arab citizens of Israel.^[1]

After military rule ended in 1966, the Ministry of Justice established a committee charged with examining and proposing amendments to the regulations that would lead to their partial repeal; however, the outbreak of the Six-Day War in June of 1967 brought the committee's work to an end.^[1]

After the war, the Israeli military governor in the territories occupied in 1967 immediately issued a military order "freezing" the legal situation there.^[1] The Israeli government argues that the Defence Regulations were part of the domestic law in these territories prior to occupation. To underline this position, Regional Commanders in the West Bank and in the Gaza Strip issued orders on explicitly outlining the validity of the Defence Regulations there.^[1]

Application

Provisions that have been repeatedly invoked by the Israeli authorities are Defence Regulations 86 - 101 which deal with censorship, Defence Regulations 109 - 112 which address restriction, detention, and deportation, and Defence Regulation 125 which concerns closed areas.^[4] The context in which they have been invoked is inextricably linked to the Arab-Israeli conflict and has had an impact upon relations between Jews and Arabs in Israel.^[4] These provisions of the Defence Regulations are generally invoked much less frequently within Israel itself today than was the case in the past.

The provisions that apply to publishing houses and published materials allow for the summary closure of publications and restrictions on distribution.^[5] The military censor can prevent the publication not only of sensitive security material, but anything that is deemed prejudicial to public order.^[6] The Defence Regulations have been and are used extensively in the occupied territories and serve as the legal foundation for the demolition of homes, the deportation of residents, the administrative detention of thousands of people, and the imposition of closures and curfews on Palestinian towns and villages.^[1]

See also

• Land and Property laws in Israel
• Prevention of Infiltration Law

References

1. ^ ^{a b c d e f g h i j} "Defence (Emergency) Regulations". B'tselem: The Israeli Information Center for Human Rights in the Occupied Territories. http://www.btselem.org/english/Legal_Documents/Emergency_Regulations.asp. Retrieved 2007-09-22. 
2. ^ Avner Yaniv (1993). National Security and Democracy in Israel. Lynne Riener Publishers. p. 175. ISBN 1555873944. 
3. ^ ^{a b c d e f g h i j k l m n o p} Alan Dowty (1998). The Jewish State: A Century Later. University of California Press. http://content.cdlib.org/xtf/view?docId=ft709nb49x&doc.view=content&chunk.id=s1.5.14&toc.depth=1&anchor.id=0&brand=eschol. 
4. ^ ^{a b c d} Abraham Ben-Zvi (December 2005). "The Limits of Israel's Democracy in the Shadow of Security" (PDF). Taiwan Journal of Democracy Vol 1, No. 2: 1–23. http://www.tfd.org.tw/docs/dj0102/001-024.pdf. Retrieved 2007-09-22. 
5. ^ ARTICLE 19 (1998-07-14). "Israel censorship strikes out debate". IFEX. http://www.ifex.org/en/content/view/full/6601. Retrieved 2007-09-22. 
6. ^ Yaacov Bar-Natan (Summer 1988). "Is Censorship in Israel Getting Worse?". Journal of Palestine Studies 17 (4): 149–153. doi:10.1525/jps.1988.17.4.00p0061t. JSTOR 2537307.