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Incitement
Less than one month after
the signing of the Wye River Agreement, President Yasser Arafat issued a
special presidential decree on incitement on 19 November 1998.
Subsequently, a Palestinian-American-Israeli committee, the Committee for
the prevention of incitement, was formed. Its role is to monitor cases of
incitement and to issue special reports and recommendations. The Wye
Memorandum, signed on 22 November 1998, stipulates in its Article 3 that
such a decree be issued and that such a committee be formed:
“ A. Drawing on relevant international practice and pursuant to Article
XXII (1) of the Interim Agreement and the Note for the Record, the
Palestinian side will issue a decree prohibiting all forms of incitement
to violence or terror, and establishing mechanisms for acting
systematically against all expressions or threats of violence or terror.
This decree will be comparable to the existing Israeli legislation that
deals with the same subject.
A)
A U.S.- Palestinian - Israeli committee will meet on a regular
basis to monitor cases of possible incitement to violence or terror and to
make recommendations and reports on how to prevent such incitement. The
Israeli, Palestinian and U.S. sides will each appoint a media specialist,
a law enforcement representative, an educational specialist and a current
or former elected official to the committee.”
This decree is illegal and seeks to
justify the curtailing of freedom of thought and expression. Its language
consists of flexible phrases, which may be interpreted in different ways.
The decree itself stated that
“the following acts are considered illegal in all the Palestinian
governances: inciting racial discrimination, encouraging violent actions
that are against the law, showing disrespect for different religions,
using violence or inciting the use of violence that harms relations with
brotherly and foreign states, forming illegal societies that commit or
incite the committing of crimes, stirring up the masses to change matters
by illegal use of force, incitement to sedition and incitement to breach
agreements between the PLO and brotherly or foreign states”.
Why is the presidential decree on
incitement considered to be illegal?
The preface of the presidential decree on the prevention of incitement
states
|after referring to the constitutional and legal rules in force, to law #
5 for 1995 dealing with powers and legislation, to the penal law # 74 of
1936 and to its amendments, to the penal law # 16 for 1960 in use in the
Palestinian Districts of the West Bank, to the PLO Code of 1979 and to
decision # 1 of 1994 on the applicability of rules and orders in use prior
to 5 May 1967 in the Palestinian Territories …”.
It is clear that the President bases the
legitimacy of this decree on all applicable laws in force prior to 1967.
However, on the basis of our research and the conclusions of the workshop
organized by the al-Haq
organization on legislation aimed at preventing incitement, it is clear
that Article 28 of the 1962 Gazan constitution confers responsibility for
the issuing of laws exclusively on the Legislative Council. The Executive
Authority may only issue laws in emergency cases when the Legislative
Council has not been convened. Article 28 provides that
“if circumstances require the
drawing up of urgent arrangements that cannot be postponed, then the
Executive Council may issue decisions with the force of law related to
such circumstances. These decisions must be presented to the Legislative
Council when it convenes and are to be considered valid unless the Council
decides to annul them”.
When the President
issued the decree on 19 November 1998, the Legislative Council was in
session. Consequently, the decree violates the contents of its own preface
(Article 28 of the 1962 Constitution) and is to be considered illegal.
The Triparty Committee on
Incitement: its function and some of the problems is faces
In accordance with Article 3B of the Wye
River Memorandum, it was agreed to form this committee. The Palestinian
side of this committee is headed by President Arafat’s advisor Marwan
Kanafani. The task of this mission id limited to monitoring cases of
incitement and the issuing reports and recommendations on the matter.
Some of the basic obstacles this
committee faced included the definition of incitement. After both parties
were unable to agree on a solution, the American party successfully
presented the solution of judging each incident on its own merits. This
solution derives from the American Supreme Court in which one of the
justices remarked “… I know incitement when I see it”.
The dispute concerning the definition of
incitement was caused by two factors:
a)
Whether only actions could give rise to incitement or whether words
could also qualify. The Palestinian argued in favour of actions only,
whereas the Israeli side insisted that incitement could also be verbal.
b)
Whether the source of the verbal
incitement could be official or also unofficial. The Palestinian side
argued in favour of only the former, whilst the Israeli side argued that
the nature of the source was irrelevant. (As recorded by Marwan
Kanafani, the Head of the Palestinian side to the Committee On Incitement,
during the workshop “Legislation preventing incitement and ambitions to
build a democratic system”, organized by al-Haq on 17 February 1999)
At present, the
work of the committee is limited to the exchange of complaints. For
instance, the Israeli side would accuse Palestinian radio or a Palestinian
of having transmitted information on a particular matter and the
Palestinian side would respond in kind.
Testimony of Kanafani during the
al-Haq Workshop of 17 February 1999
How does the Presidential decree and
the special committee on incitement affect press freedom?
The Presidential decree had
both obvious and less obvious consequences on the local press. Concerning
the former, there has clearly been an increase in violations and abuses
against journalists who write about, meet with or show interest in the
political opposition, and in particular with regard to opinions critical
of the U.S., Israel and the peace process. Some of the more hidden
consequences include an increase in self-censorship among journalists,
leading almost inevitably to an uncritical reporting of the official point
of view. Thus journalists hope to avoid questioning or the closure of
their press agencies.
The very first of the abuses taking place
pursuant to the Wye River Agreement was the arrest of eight individuals
who were on their way to the house of Sheik Ahmad Yassin to conduct some
interviews with him. Amongst the violations following the issuing of the
Presidential decree features the closure of some television stations on
the basis that they covered the American-British aggression against Iraq.
The major negative aspect of the decree was its ambiguous use of language
and its lack of definition of the term “incitement”. This gave the
Authority the opportunity to use the decree at any time to suppress
freedom of expression.
"… and consequently this decree will
remain a word directed towards the Palestinian media - visual, heard and
written - with the result that political freedom will deteriorate. The
decree will turn the media into mouthpieces that will repeat the views of
political or security officials; if it does not do so, the media will be
closed and its employees will be imprisoned or made redundant, which will
in turn create other unforeseeable difficulties”.
View of Tayseer al-Zobri, Director of the
Palestinian Media Establishment, al-Haq Workshop of 17 February 1999
Are
their any special laws preventing incitement in other countries? Does the
Presidential decree respect international human rights standards?
There
are laws concerning incitement in many parts of the world, although these
laws are not singled out by the legislator and generally form part of a
state’s penal law. (As an example, incitement to avoid paying
taxes is a crime, as provided for under tax laws.)
Dr. Amin Mekki, First technical advisor to the UN
Commission office in al-Haq Workshop of 17 February 1999
The penal law of
1936 applicable in the Gaza Strip, to which the Presidential decree on
incitement refers, includes provisions for crimes that include an element
of incitement. An example is provided by a number of offences relating to
public order: incitement to riot or mutiny in the armed forces, incitement
to the stirring up of disputes between religions and races, incitement to
civil war and incitement to spreading of false news.
The 1936 law is inconsistent with human
rights principles, because it was designed primarily to endorse the
Authority of the King and of the High Commissioner. It is a law that
clearly requires revision.
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