Israel and the occupied Palestinian territories
41. The former Special Rapporteur, Frank La Rue, carried out an official visit to Israel and the occupied Palestinian territories from 6 to 17 December 2011. He presented his report on the visit at the twentieth session of the Human Rights Council, held in June 2012 (A/HRC/20/17/Add.2).
42. The visit was undertaken in the context of continuing political conflict, revealing a varied, but often threatened, environment for freedom of opinion and expression. In Israel, the Special Rapporteur found that restrictive national security legislation tended to undermine access to information. He observed discriminatory treatment of Palestinian citizens of Israel and members of the Bedouin community and attempts to curtail their right to freedom of opinion and expression, alongside pervasive censorship of the media by the military. The Special Rapporteur gathered reports of raids on media outlets and physical harassment of journalists, photographers and human rights defenders by members of the Israeli security forces in the occupied Palestinian territories. Journalists were also arrested, detained and subjected to travel bans by security forces. Reports of deliberate attacks against Palestinian, Israeli and foreign journalists covering demonstrations in the West Bank were also received by the Special Rapporteur.
43. In the occupied Palestinian territories, the Special Rapporteur identified the overall weakness of the legal framework protecting the right to freedom of opinion and expression as a primary point of concern. In both Gaza and the West Bank, restrictions on media outlets imposed by the Palestinian Authority and the de facto authorities, including bans on the distribution of certain newspapers, were prevalent, along with intimidation of journalists by intelligence services and State security forces. The Special Rapporteur found common stories concerning arbitrary arrests followed by short detention periods during which journalists were subjected to interrogation as to the content of their work.
44. The recommendations made to the Government of Israel following the visit concerned reviewing restrictive domestic legislation; media censorship; the policing of peaceful protests; the work of journalists; and minority rights. The recommendations made to the Palestinian Authority concerned legislative reform; independence of the media regulatory body; press freedom; and the right to peaceful assembly. The recommendations made to the de facto authorities in Gaza concerned media freedom; peaceful assembly; and the work of journalists.
45. The Special Rapporteur welcomes the information provided by the Palestinian Authority in support of the present report. He regrets that a response was not submitted by the Government of Israel. The 22 communications sent to Israel and the 4 communications sent to the Palestinian Authority since the visit testify to the continuing concerns regarding freedom of opinion and expression in Israel and the occupied Palestinian territories. The recommendations made by the former Special Rapporteur have retained their relevance throughout this period, during which they have gone almost entirely unimplemented (see table 4).
46. In Israel, regressive steps towards legalizing discrimination and undermining the right to freedom of expression were taken through amendments to the Basic Laws. On 19 July 2018, the Knesset adopted a bill entitled “Basic Law: Israel as the Nation-State of the Jewish People” (the Nation-State Law), raising serious concerns as to its impact on the constitutional rights of minorities in Israel. In article 1 (c), the right to exercise national self-determination is declared as unique to the Jewish people. In article 3, Jerusalem in its entirety is designated as the capital of Israel. In article 4, Arabic is downgraded to a language of “special status”, while in article 7, “Jewish settlement” is defined as a “national value” to be encouraged and promoted. Concerns as to the compatibility of the Law with international standards, including with regard to anti-discrimination, were raised in a communication sent by several special procedures mandate holders in November 2018. A substantive reply to the communication has yet to be received. Further concern has been raised by recent comments by the Prime Minister of Israel, who stated that Israel is “not a state of all its citizens”. The Law, which has since been subject to several High Court challenges, was adopted amid discussions in the Knesset concerning a further amendment to the Basic Laws that would insert a so-called “override clause”, undercutting the capacity of the courts to decide on the constitutionality of amendments to the Basic Laws.
47. New legislation has brought fresh limitations on freedom of expression in the name of national security. In March 2017, an amendment to the Entry into Israel Law provided for authorities to deny entry into the State to anyone who has publicly called for a boycott against Israel, with grounds for prohibition also including affiliation with any organization that has publicly supported such a boycott. A bill proposing to extend the potential for civil lawsuits based on the Boycott Law of 2011 is currently pending in the Knesset. In 2016, the Transparency Law was enacted, targeting human rights NGOs through the imposition of new reporting obligations, subject to fines, on organizations receiving more than 50 per cent of their funding from foreign Governments.
48. Journalists and photographers have repeatedly been targeted in connection with their work. Frequently detained without charge, they have seen their detention periods extended through a series of administrative processes overseen by the military and civil courts. Threats by security forces, including of sexual and gender-based violence, smear campaigns led by the highest public authorities, physical assaults and travel bans have been used in an apparent attempt to dissuade journalists and human rights defenders from pursuing their work.
49. The recent findings of the Commission of Inquiry, established pursuant to Human Rights Council resolution S-28/1 to investigate alleged violations of international human rights law and international humanitarian law committed in the context of the “Great March of Return” protests of 2018, underline the critical need for the Israeli authorities to radically review their approach to the right to freedom of assembly, in particular in a context of occupation and related restrictions on political participation. The Special Rapporteur regrets that peaceful protests have become flash points within which other rights, including the right to life, have been put at risk. He expresses the deepest concern at the Commission of Inquiry’s documentation of the deliberate targeting of journalists covering the Great March of Return protests, as evidenced by the killing of two journalists and the injuring of 39 others. The Special Rapporteur calls upon the State to ensure that investigations, in full compliance with international human rights standards, be undertaken to identify those responsible for these crimes.
50. When considered as a whole, these developments seem to indicate the consolidation of a policy of selective respect for freedom of expression by the Israeli authorities, according to which entire communities under its control are not seen as equal rights holders. The authorities must take full responsibility to ensure, as an imperative, that Israel fulfils its obligations under the international human rights treaties to which it is a party and respects and protects the rights emanating therefrom for all those under its jurisdiction.
51. In the West Bank, fundamental issues remain. The Press and Publications Law has not been brought into line with international human rights standards and the Palestinian Broadcasting Corporation has yet to be reformed. Complaints on grounds of defamation have repeatedly been filed by public officials, including against journalists.
52. On 24 June 2017, the Cybercrime Law was passed, criminalizing, in broad wording, the accessing of websites, the use of encryption and a wide spectrum of forms of expression online, alongside obliging Internet service providers to cooperate with security agencies in data collection without judicial oversight. The passing of the Law was followed quickly by the blocking of websites critical of the authorities. Despite positive amendments made in April 2018, the Law has continued to be used to stifle criticism online, and there were repeated instances of its arbitrary application in 2019. In its current format, the Law epitomizes a trend since the visit towards the criminalization of dissent by the Palestinian Authority. This has been reflected in the summoning and detaining of journalists for short periods, during which they are subjected to interrogation as to the purpose of their work. This practice has occurred most often in connection with criticism of government officials and peaceful protests, which have been met with violent responses by the authorities.
53. Similar developments have occurred in Gaza, where threats and attacks on journalists, human rights defenders and others in response to acts of expression have been common. As in the West Bank, criticism of the authorities, including online, has placed individuals at the most risk, with journalists working for outlets associated with Fatah also targeted. Recently, public demonstrations against tax increases and poor living standards have been violently dispersed, reinforcing a pattern of clampdown on public protest against policies of the de facto authorities.
54. In both the West Bank and Gaza, a lack of legislative protection for the right to freedom of opinion and expression remains. The absence of such protections remains extremely problematic in an overall environment characterized by hostility towards critical views. Alongside the immediate halting of overtly repressive practices and policies concerning freedom of opinion and expression, a systematic shift is needed to create an enabling environment for the expression of diverse views in the West Bank and in Gaza.
Israel and the occupied Palestinian territories: status of implementation of recommendations
|To the Government of Israel|
|Refrain from adopting laws that are inconsistent with the obligations of Israel under international human rights law (para. 98)||Contravened. Serious concerns are raised as to the compatibility with international human rights law of the Nation-State Law of 2018, amendments to the Entry into Israel Law passed in 2017 and the Transparency Law of 2016.|
|Amend the Basic Law on Human Dignity and Liberty to include principles of non-discrimination, equality and the right to freedom of opinion and expression (para. 99)||Contravened. In 2018, the Nation-State Law was added to the Basic Laws of Israel. The Law raises serious concerns as to its compatibility with the general principle of non-discrimination and with freedom of expression. Purporting to define the constitutional identity of the State of Israel, its application could take precedence over the Basic Law on Human Dignity and Liberty.|
|Amend or repeal articles 1A, paragraphs 144B, 144D2 and 144D3, article 5, paragraph 166, and article 7, paragraph 173, of the Penal Code of 1977 (para. 100)||Not implemented.|
|Abolish the post of Chief Censor and ensure that restrictions on the right to freedom of expression on the grounds of national security are made only where these grounds are prescribed by law, and that such law is accessible, unambiguous, drawn narrowly and with precision, and justified as being necessary and the least restrictive means available to protect a specific and legitimate national security interest (para. 101)||Not implemented.|
|Repeal Military Order 101 (para. 102)||Not implemented.|
|Ensure that no excessive force is used against peaceful protesters and ensure accountability for all injuries or deaths resulting from the use of force by the Israeli security forces (para. 102)||Contravened. Hundreds of killings by Israeli security forces monitoring protests in the occupied Palestinian territories have been recorded since the visit, with those recorded by the Commission of Inquiry during the Great March of Return potentially amounting to war crimes. The perpetrators have enjoyed almost blanket impunity.|
|Ensure that all journalists in the West Bank, including East Jerusalem, can work without undue interference; release journalists who have been arbitrarily detained or ensure that they are promptly brought before a court; investigate all attacks against journalists and bring perpetrators to account (para. 103)||Contravened. Journalists and photographers, in particular those covering demonstrations, have been subjected to harassment, physical attacks, confiscation of equipment and travel bans imposed by the Israeli security forces and border police. An increase in attacks since the visit has led civil society to allege that Palestinian journalists are being systematically targeted. Information gathered in the preparation of the present report indicates that at least three journalists are currently being detained by the Israeli authorities.|
|Justify the imposition of travel bans on human rights defenders and journalists, and ensure the right to challenge bans in courts (para. 104)||Contravened. Broad and narrow travel bans have continued to be imposed, with journalists often notified as they attempt to access specific areas in the course of their work, leaving no room for effective judicial challenges. Continued Israeli infrastructural development in the West Bank, along with the advancement of its settler programme, has seen freedom of movement of Palestinians reduced further.|
|Ensure that Palestinian citizens of Israel can fully exercise their right to freedom of opinion and expression, including through their own media and language; repeal the requirement of “loyalty to the State of Israel” in East Jerusalem (para. 105)||Not implemented.|
|Fully respect the right to freedom of opinion of expression of Arab Knesset members (para. 106)||Contravened. The scope for freedom of expression has been reduced for all Knesset members.|
|Reinstate the residency status of the four members of the Palestinian Legislative Council (para. 107)||Not implemented.|
|Refrain from interfering with the content of textbooks in Palestinian schools in East Jerusalem and ensure that all cultural activities can be held without undue restriction (para. 108)||Not implemented. The 2011 amendment to the Budgets Foundations Law remains in place, allowing fines to be imposed on institutions celebrating the Nakba. A Supreme Court challenge against the law was rejected in 2012.|
|To the Palestinian Authority|
|Revise the Press and Publications Law of 1995 in consultation with civil society (para. 109)||Not implemented. A new bill is reportedly pending before the Cabinet.|
|Decriminalize defamation (para. 110)||Not implemented.|
|Refrain from filing defamation lawsuits and exercise a higher degree of tolerance for critical comments (para. 110)||Contravened. Individuals, including journalists, have continued to face litigation on the basis of defamation, with a recent trend in complaints following critical comments online.|
|Halt the practice of detaining and interrogating individuals for legitimate criticism of public officials (para. 111)||Contravened. Such practices continue and have intensified since the introduction of the Cybercrime Law in 2017.|
|Ensure that the right to freedom of expression on the Internet is fully guaranteed (para. 111)||Contravened. The right is severely undermined by the Cybercrime Law of 2017.|
|Take measures to promote tolerance of diverse opinions (para. 111)||Contravened. See the entries above.|
|Facilitate and support the reform of the Palestinian Broadcasting Corporation into an independent institution (para. 112)||Not implemented.|
|Lift the ban on newspapers affiliated with the de facto authorities and ensure that journalists working for such newspapers can undertake their work in the West Bank without fear of harassment or intimidation (para. 113)||Contravened. While the ban on newspapers has been lifted, media outlets associated with the de facto authorities, and their journalists, face judicial harassment, physical attacks and threats.|
|Allow peaceful demonstrations to take place in the West Bank without undue restrictions (para. 114)||Contravened. Organizers and participants in peaceful protests have faced threats, summonses and arrests, with protests critical of the authorities facing violent reprisals.|
|To the de facto authorities|
|Promote a culture of tolerance of divergent views (para. 115)||Contravened. See the entries below.|
|Stop the practice of arbitrary arrests, detention and interrogation of individuals expressing critical views, as well as raids on offices and interference with human rights-related events (para. 115)||Contravened. Numerous cases of arrests, summonses and detentions in response to criticism of officials have been recorded.|
|Lift the ban on newspapers affiliated with the Palestinian Authority and ensure that journalists working for such newspapers can carry out their work in Gaza without any undue interference or harassment (para. 116)||Contravened. While the ban on newspapers has been lifted, outlets associated with Fatah, and their journalists, have faced serious pressure and harassment.|
|Ensure that peaceful assemblies, demonstrations, workshops and conferences can take place in Gaza without undue interference and restrictions (para. 117)||Contravened. Protesters, as well as journalists covering demonstrations, have faced physical attacks, destruction of equipment, arrests and charges. In 2012, local authorities began to require approval before permitting assemblies.|
|Ensure that local and foreign journalists can carry out their work without intimidation, harassment and interference by officials from the Internal Security Agency; abolish the requirement for foreign journalists to name a local contact to enter Gaza (para. 118)||Not implemented. The requirement to name a local contact stands.|
 See communication ISR 12/2018, available at https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
 The Guardian, “Benjamin Netanyahu says Israel is ‘not a state of all its citizens’”, 10 March 2019. Available at www.theguardian.com/world/2019/mar/10/benjamin-netanyahu-says-israel-is-not-a-state-of-all-its-citizens.
 See communication ISR 1/2016, available at https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
 See communication PSE 2/2017, available at https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
Document Type: Report, Special Rapporteur Report
Document Source: General Assembly, Human Rights Council, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, State
Subject: Human rights and international humanitarian law, Public information
Publication Date: 30/05/2019