Amendment to the Police Ordinance (No. 37) - 2022 “Ben-Gvir Law”

Amendment No. 37 to Israel’s Police Ordinance, passed on 28 December 2022, subordinates the Israeli Police to the authority of the Minister of National Security. The law grants the Minister the authority to determine the police's policies and general principles of operation, including policies relating to investigations. These powers effectively give the Minister the authority to decide who the police target, why they are targeted, and how the police treat them, or, in other words, how much violence and intimidation is exerted against them.

The amendment was introduced pursuant to the coalition agreement signed between the far-right Jewish Power Party (Otzma Yehudit) and the Likud Party, with the purpose of granting Itamar Ben-Gvir, the Minister of National Security, and the leader of the Jewish Power Party, direct control over the Israeli police.

The amendment politicizes the police force by giving a political figure with a clear partisan and ideological agenda the authority to set police priorities, which were previously managed by professionals. This change has already led, as described below, to an exacerbation of the police's racist policies against Palestinians and violations of their rights.

Since Minister Ben-Gvir assumed office as National Security Minister, the escalation is evident in several ways: the police have intensified their suppression of Palestinian symbols, such as the Palestinian flag; enforced a near-total ban on Palestinian demonstrations in Israel, during the war on Gaza; carried out mass and violent arrests of Palestinian citizens for making legitimate statements and other expressions on social media; and implemented a more aggressive policy of home demolitions.  This has been accompanied by Ben-Gvir's public statements, which unmistakably reflect violent and racist rhetoric towards Palestinians, and legitimizes the police's use of violence against them.

Main provisions

Subordination of the Israel Police

8B.

(a)   The Israeli Police operate under the authority of the Government.

(b)   The Minister is in charge of the Israeli Police on behalf of the Government.

Policy Directives and Principles

8C.

(a)   The Minister shall set the police’s policy and general principles of operation, including determining priorities, work programs, general guidelines, the general provisions outlined in Section 9(A)(a), and the execution of all its powers concerning the police budget, in accordance with the Budget Foundations Law 5745-1985, and the provisions therein, and will carry out supervision and control over the police’s activity and level of readiness.

Policy Guidelines in Investigations

8D.

(a)   The Minister is entitled to set general policy in the field of investigations, including determining essential priorities, after having heard the position of the Attorney General, and following consultation with the general [Police] Commissioner and those in the police entrusted with matters of investigation.

(b)   The provisions of this clause shall not diminish the obligation of the Israeli Police according to any law regarding investigation or cases, including matters of opening the [investigations or cases], managing them, or closing them, nor shall it detract from its obligation to initiate an investigation, if it is known to it that an offense has been committed, as stated in Section 59 of the Criminal Procedure Law (Consolidated Version), 5742-1982.

Context

This amendment was introduced to enable Itamar Ben-Gvir, the Minister of National Security and the leader of the radical right-wing and racist 'Jewish Power' Party ('Otzma Yehudit'), to exert complete control over the police, as outlined in the coalition agreement between his party and the ruling Likud Party. This amendment aligns with the Jewish Power Party’s objective, as outlined explicitly in the agreement, to implement structural changes within the police force, encompassing policies related to investigations, prosecution, and open-fire regulations.^[1]

The exertion of control over the police is intended to intensify oppressive and discriminatory policies targeting Palestinians, as evidenced by the long history of racist rhetoric and policies pursued by its initiator, Itamar Ben-Gvir. Ben-Gvir has been indicted by Israeli authorities more than 50 times and convicted on 12 charges. In 2007, he was convicted of supporting a terrorist organization and inciting racism for promoting the ideology of the late racist rabbi Meir Kahane. Some of the most notable statements in which he openly expressed his racist views are laid out below. In relation to the police, he wrote during the May 2021 Uprising that “a police officer whose life is endangered should shoot rather than resort to methods of dispersing protest”.^[2] In November 2022, he issued a statement saying, ”It’s time to show [Palestinians] who is the master of the house here.” In October 2022, Ben-Gvir himself pulled out a gun and threatened to shoot Palestinians Sheikh Jarrah protesting about home demolitions in the East Jerusalem neighborhood.^[3] This, along with the political platform of the Jewish Power Party, make clear that Ben-Gvir’s exertion of control over the police as National Security Minister serves as a means to advance a violent, racist and authoritarian agenda.

Why is it discriminatory?

The  amendment grants a political figure – a minister appointed by the ruling government coalition – who has a clear partisan and ideological agenda, responsibility for setting policing policies and priorities, a responsibility that was previously held by career police officers. The minister’s decision-making will therefore inevitably be influenced by political considerations related to his role as an elected official. Thus, the amendment undermines the rule of law and makes the law enforcement inherently political.

This increased politicization of the police exacerbates existing racist practices towards Palestinian citizens, which have persisted since the establishment of Israel and the military rule Palestinians were subjected to until 1966. The police's racist and violent practices and policies are evident in the innumerable examples of severe police violence and brutality against Palestinian citizens^[4], which, in some cases has resulted in deaths, as in the cases of Ya’akub Abu al-Qi’an, Eyad al-Hallaq, and Muhammad al-Isawi, as well as the thirteen young men killed by police firearms during the events of October 2000. These incidents were enabled by the near-blanket impunity afforded to police by police investigative mechanisms (i.e., the Police Investigations Department, or Mahash, which is staffed by former police officers and is not an independent body) and by the Israeli courts.

Indeed, since Minister Ben-Gvir took office in December 2022, a series of policy measures implemented and directives announced make clear the grave consequences of the additional politicization of the police created by the amendment for Palestinians in particular. These include the Minister’s directive that the police must ‘enforce the prohibition’ on displaying Palestinian flags in public areas^[5] – despite the fact that there is no such prohibition in Israeli law – and to accelerate the demolition of homes of Palestinians in East Jerusalem as a punitive, retaliatory action “in response to attacks”^[6]. Amnesty International issued a statement condemning  Ben-Gvir’s directive concerning the waving of the Palestinian flag, noting that “This appalling attempt to erase the identity of the Palestinian people is the latest in a series of measures that Israeli authorities have introduced to legitimize racism and discrimination against Palestinians.”

These policy pronouncements have been accompanied by the Minister's overt racist rhetoric, which continued after he assumed the office of National Security Minister in November 2022. In August 2023, he said, “My right, the right of my wife and my children to move around Judea and Samaria [the West Bank] is more important than freedom of movement for the Arabs. The right to life comes before freedom of movement.” After his blatantly racist comments were widely condemned, including by the United States, Ben-Gvir doubled down, saying, “I will repeat them 1,000 times”.

Legal challenges to law

HCJ 2985/23 High Follow up Committee et al. v the Knesset et al.

On 17 April 2023, Adalah filed a petition to the Supreme Court demanding the annulment of Amendment to the Police Ordinance (No. 37) - 2022, on the grounds that it is unconstitutional and undermines the rule of law. Adalah's petition was joined with four other petitions that were filed against the amendment (HCJ 8987/22; 99/23; 179/23; 532/23). On 18 June 2023, the Supreme Court issued an order nisi, instructing the state to explain why the amendment should not be repealed.  The petition is currently pending before the Supreme Court.