As the war with Iran rages, a consequential battle is unfolding between the High Court of Justice and Israel’s law enforcement authorities over the limits of protest and freedom of speech in wartime.
This battle erupted on Saturday evening, having simmered for the first month of the war amid strict gathering restrictions imposed by the Home Front Command.
After weeks of dispersing small anti-war protests that had largely gone under the radar, Israel Police arrested 17 protesters after some 600 gathered at Tel Aviv’s Habima Square, calling for an end to the Iran war.
In a statement, police said it dispersed an “unlawful protest” held in defiance of a High Court ruling and Home Front Command restrictions. The court had granted interim approval for a larger group of protesters to gather at Habima Square earlier on Saturday evening.
According to the court, a petition filed on Wednesday by activists was expedited to Friday in a bid to resolve the issue before the weekend. The state did not present its position in time for the Friday hearing, the judiciary said, prompting the court to issue a ruling requiring authorities to establish a framework that would allow up to 600 demonstrators to gather, up from the initial figure of 50.
In that ruling, the justices also took aim at what they described as selective enforcement of Home Front Command restrictions by police – accusing law enforcement of applying them against protesters, but not against other public gatherings.
Police responded with a sharp statement, insisting that they had presented their position to the High Court before Shabbat. They also argued that implementing the decision would require the deployment of hundreds of officers “while risking their lives,” and would necessitate the desecration of the Shabbat.
These tensions reached Israel’s political echelon, with Justice Minister Yariv Levin decrying what he called a dangerous intervention in a professional security matter, according to reporting by The Jerusalem Post’s Sarah Ben-Nun. Levin further urged the cabinet to instruct police and other authorities to enforce Home Front Command restrictions as issued, ignoring the court ruling.
Public trust in various national institutions has degraded significantly in the last decade, further exacerbated by the October 7, 2023, massacre and the wars that followed. A state cannot function if its judiciary and law enforcement openly clash over basic rights and a sitting justice minister cannot order law enforcement to act in contradiction to a court ruling, regardless of whether that ruling warrants critique.
The police arrests in defiance of a court ruling pose a real danger to democratic norms but in parallel, the court must take into account the reality of wartime.
Restrictions at Western Wall lead to arguments over religious freedom
The fallout has not remained confined to protest rights and has spilled over into the sensitive arena of religious freedom amid restrictions at Jewish holy sites during Passover. Sephardic former chief rabbi Yitzhak Yosef unleashed a scathing attack on justices on Sunday over a ruling to restrict the entry of worshipers to the Western Wall Plaza during Passover.
“All our troubles in religious matters with the state, including conscription of yeshiva students, are all because of these wicked judges,” he said. “If they hold a protest in Kaplan [Tel Aviv] with 600 people, then they should allow 600 people at the Western Wall. There’s a place to immediately enter the [sheltered areas].”
Yosef’s inflammatory comments about the judges are unacceptable but his comparison highlights the other side of the judiciary’s argument regarding selective enforcement. Where is the legal line drawn between different types of gatherings? What rights are untouchable during wartime, and which can be set aside, if any?
On Sunday, the court heard a petition on lifting restrictions at the Western Wall, which currently limit the number of worshipers at the site to 50. However it rules, the decision will surely have a lasting impact on how wartime restrictions are perceived and enforced.
Wartime does not suspend rights and if protesters adhere to set restrictions, they should be allowed to freely demonstrate against the war without fear of arrest. And if 600 can gather in Tel Aviv for a protest, the same number should be allowed to gather at the Western Wall to worship and celebrate Passover.