The escalation of the protest against the legislation advanced by the government, aimed at bolstering its power and undermining judicial oversight of its actions, once again raises calls to place limits on the right to demonstrate, as well as the question of the legitimacy of the means of enforcement used by the police in order to maintain public order. This question is not unique to Israel; it is widely discussed in various international arenas as well.
The point of departure for discussion – which seems to be indisputable – is that the right to assembly is a fundamental right in a democratic regime. The importance of this right is derived from its direct connection with freedom of expression and democracy itself.
In a democratic regime, the government is charged with acting to promote the public interests, and demonstrations are an important tool through which the public can express its position on what these interests are, by providing support to a specific policy or opposing it.
In 2020, The UN Human Rights Committee, in a document of principles analyzing the right to assembly in accordance with international law, stated that peaceful assemblies, “can play a critical role in allowing participants to advance ideas and aspirational goals in the public domain and to establish the extent of support for or opposition to those ideas and goals.”
According to the committee, the right to assembly includes the right of demonstrators to determine the content of the assembly as well as its location. Furthermore, demonstrators should not be required to obtain a license in order to exercise their right to assemble (however, states may require them – if it is reasonable under the circumstances – to notify the police ahead of time as to the location of the assembly).
Civil disobedience activities (such as blocking roads) are also covered by this right, providing that they are not violent in nature. Due to the importance of the right to demonstrate, the state is obligated to facilitate the exercise of this right and to protect demonstrators from injury by those hostile to them or to the agenda they are attempting to advance.
This obligation may also include taking steps such as blocking streets and directing traffic to alternative routes in order to make it possible for the demonstration to take place.
At the same time, it is clear that the right to demonstrate is not an absolute right, and the authorities must also take into account the rights of others (such as their freedom of movement) and the need to protect public order, safety, health, etc.
In this context, the UNHRC stated that the burden of justifying any limits placed on the right to assembly lies with the government (and not with the demonstrators), since assemblies must be seen as a legitimate use of public space (similar to other uses of public space, such as for the sake of free movement), and protest assemblies will inevitably disrupt the public’s daily lives to some extent.
The UN committee held that the government must allow disruptions such as these unless they result in a disproportionate burden on other persons.
The attorney general’s opinion presented to the government on July 11, 2023 states that demonstrations may be held at Ben-Gurion Airport since it is a public space and a demonstration may be dispersed – according to the Supreme Court ruling – only if “it is near to certain that it will lead to a serious disruption of public order.” This appears to be a correct implementation of the international law that applies in this matter.
The demand to refrain from violence is key
THERE IS AN additional context in which the necessity for balancing between the right to assembly and competing rights and interests comes to the fore – the demand that demonstrators refrain from violence.
International law does not protect violent assemblies, but the term “violence” is defined by the committee in a narrow way – both with regard to the extent of the violence (the danger of serious injury to life, body or property) and with regard to the scope of its use (isolated incidents of violence at a demonstration do not justify classifying the assembly as a whole as violent in nature).
Specifically, the committee noted that pushing and shoving by demonstrators or disruption of traffic are not seen as acts of violence that justify the removal of legal protection from the entire assembly (regardless of the question of whether it is possible, at a later date, to bring a case against any of the demonstrators for violating the laws of the State).
Due to the very low level of violence characterizing the present protest (according to the police commissioner at the cabinet meeting on July 9, 2023, there has not been a single police officer hospitalized as a result of the protest), it is clearly covered by the protection offered by international law.
And so, media comparisons between the alleged lax use of enforcement powers in the present protest and the alleged harsh measures of enforcement used in previous protests that were characterized by much higher levels of violence, are completely irrelevant.
Furthermore, the UN committee emphasized that all states must ensure that their enforcement actions do not discriminate against specific protesters. This comment was rooted in the concern that police actions in certain countries, such as the United States, which are aimed against members of minority groups could be particularly violent on racial grounds.
Indeed, just recently, France was criticized by the UN Office of the High Commissioner for Human Rights on the grounds of racism and discrimination in its law enforcement, in connection with the killing of a 17-year-old youth of Algerian origin, which led to the recent wave of riots in France.
It is clear that the committee’s intent is not to encourage the police to use more violence against demonstrators who belong to the majority or another “privileged” group, but rather to ensure that unnecessary force not be used against population groups who are the targets of racism and discrimination (such as, in the Israeli context, those of Ethiopian origin, for example).
The bottom line is that the protest against the government legislation is clearly covered by the protections granted by international law to the right to assembly and that the position of the attorney general of Israel, which is based on the Supreme Court’s decision, strikes an appropriate balance between exercising the right to demonstrate and protecting competing rights and interests.
Presumably, Israeli courts will also stand behind this position – on the basis of proportionality tests.
The writer is a senior fellow at the Center for Democratic Values and Institutions and the Center for Security and Democracy at IDI and a Law Faculty member at the Hebrew University of Jerusalem.