Criminal Law in Mandate Palestine

Over the course of the Mandate period, British authorities in Palestine put in place a criminal legal system designed to prevent Palestinian political organizing, minimize metropolitan expenditure and manpower, and maximize colonial officials’ flexibility by giving them broad powers of “preventive” action and collective punishment. As in other colonial settings, policies based on these imperatives were often couched as consistent with local tradition or “emergency” responses that temporarily disrupted an otherwise enlightened order. In fact, by the time a new criminal code replaced the Ottoman Penal Code in 1937, the latter had been amended by British ordinances so many times that it more closely resembled the laws of other British colonies than anything an Ottoman official would recognize. Significant developments in the criminal law of Mandate Palestine were more often than not direct responses to Palestinian anticolonial mobilization, with police powers and sanctions expanding consistently over the Mandate period, putting in place a model that the State of Israel would adopt with Palestinians after 1948.

The groundwork for Britain ’s approach to policing Palestinians was laid in the early 1920s, even before the Palestine Order in Council went into effect. The Prevention of Crime Ordinance , issued in October 1920 and amended the following year, gave the government the authority to detain or impose bonds on individuals whom it felt might disturb the peace. The Palestine Police Ordinance of 1921 established the civilian police force that would remain in place throughout the Mandate (supplemented at various times by the Palestine Gendarmerie , Jewish Settlement Police , the Transjordan Frontier Force , and British military units) and laid out its structure, power, and duties. The authorities had the power to declare any area to be in a “disturbed or dangerous state”—prompting an increased police presence, the cost of which would be borne by the area’s inhabitants, who might also be subjected to collective fines in order to compensate individuals who had suffered injury to body or property during the “state of disturbance.” They also had the power to regulate and direct (“as occasion requires”) all public assemblies and processions. The latter was a priority because assemblies and processions frequently turned into violent expressions of Palestinians’ dissatisfaction with Britain’s Mandate and its support for the Zionist project during the early Mandate years, as occurred after the Nabi Musa Festival in 1920 and May Day demonstrations in 1921. The Ottoman law on assemblies empowered officials to disperse public gatherings and to arrest those who refused to abide, laying out penalties for those assembled, those who addressed public assemblies, and those who distributed or posted material “with a view to incite people to assemble with or without arms.” Mandate authorities used both Ottoman and Mandate ordinances to arrest, try, and punish members of the Jaffa branch of the Arab Club for having incited the masses during the 1921 disturbances.

The Collective Responsibility for Crime Ordinance of 1921 , the Prevention of Crime (Tribal and Village Areas) Ordinance of 1924 , and the Collective Punishments Ordinance of 1926 further solidified the legal basis of collective punishment in Mandate Palestine. These ordinances entrenched practices of assessing collective fines, billeting additional police in restive villages (at the villagers’ expense), and binding over individuals “preventively.” The Prevention of Crime (Tribal and Village Areas) Ordinance, meanwhile, sought to recruit tribal leaders into the legal order, delegating to them police powers of arrest and investigation, while threatening detention, fines, and the confiscation of livestock if tribes did not cooperate with Mandate authorities. When these ordinances were introduced, they were presented as necessary tools to prevent rural disorder that were sensitive to the authentic traditions of Palestinian tribes and villagers; the authorities falsely equated attempts to recruit local intermediaries and punish recalcitrant Palestinians with communally oriented Palestinian practices of collective reconciliation (sulh) and tribal adjudication (qada ‘asha’iri). British Mandate authorities drew here on well-established colonial practices; ignorant of local sociopolitical dynamics and thinly spread outside of urban areas, the colonial state blamed its own illiberal efforts to control the colonized population on the supposed backwardness of these communities.

The Collective Punishments Ordinance in particular became an all-purpose tool in the hands of the Mandate. Though originally limited in application to “village and tribal areas,” the ordinance was amended in 1928 so that it could be applied to municipal areas, too. Authorities had to publicly announce the addition of individual villages, tribal areas, or municipal neighborhoods to a “schedule” of locations subject to collective punishment. In September 1929, as the al-Buraq Uprising shook Jerusalem , Hebron , Safad , and other areas throughout Palestine, the High Commissioner added the Jerusalem Division, the Southern District, and the Northern District to the schedule, effectively making all of Palestine subject to collective punishment. In 1935, the Collective Punishments Ordinance was further amended, removing any requirement to prove that a crime was committed in the area subject to collective punishment. This formalized the capricious nature of colonial rule: all of Palestine was both de facto and de jure subject to collective punishment at the whim of British authorities.

The al-Buraq Uprising of 1929 ushered in a number of sweeping changes to the Mandate’s legal system. Most immediately, the Criminal Law (Seditious Offences) Ordinance issued in October 1929 laid out a broad definition of “seditious offences” and severe punishments for those deemed to have committed them. Any opposition to British rule in Palestine (including opposition to the Mandate’s commitment to Zionism , which was enshrined in the Mandate itself) placed Palestinians at risk of imprisonment. Foreseeing further unrest as a result of its imposition of pro-Zionist policies in the face of Palestinian popular will, the British government in London issued a Palestine (Defence) Order in Council of 1931 to provide a framework for the Mandate government to take swift and decisive action in the event of another “emergency.” The High Commissioner had the authority to censor and suppress publications, assert control over trade and production, appropriate property, and detain individuals and deport them or try them before military courts, among other sanctions. The Order in Council was put into effect from October 1933 to February 1934, as another wave of Palestinian demonstrations against British and Zionist colonialism swept the country.

During the 1936–39 Great Palestinian Rebellion , British authorities again turned to the Palestine (Defence) Order in Council, which it further supplemented by orders in council that gave the civilian administration in Palestine the powers equivalent to those given to the military under martial law. In April 1936, the High Commissioner again proclaimed the Palestine (Defence) Order in Council of 1931 effective and issued a number of emergency regulations that allowed the Mandate government to impose curfews, censor written materials, occupy buildings, make warrantless arrests, and deport individuals without trial. The British continued to use the legal instruments available, whether authorized by the order-in-council or established by ordinance, to suppress political and militant activity and punish Palestinians suspected of taking part in or supporting the emergent uprising. British officials in Palestine and London debated imposing martial law in Palestine, but the arguments reflected the power struggle between Britain’s civilian and military leadership in Palestine and not concern over the legal rights of Palestinians. At the end of September 1936, Whitehall put forward the Palestine Martial Law (Defence) Order in Council , which gave the High Commissioner powers generally associated with martial law, including the power to try civilians in military courts. Emergency regulations could not be legally challenge. 

Between the first and second phases of the revolt, after the general strike was called to an end and the Peel Commission arrived in Palestine, the Mandate administration put forward a new criminal code. It consolidated the ordinances that had been issued in a piecemeal manner to that point and replaced any remaining Ottoman elements of the criminal legal system with a foundation based on legal structures imposed elsewhere in the empire. Colonial officials in London consolidated and expanded the existing orders in council in a new Palestine (Defence) Order in Council of 1937 . The “unfettered discretion” granted the High Commissioner in this Order in council manifested in widespread collective punishment, including the destruction of homes and businesses; the confiscation and destruction of moveable property; the imposition of curfews and a stifling permit regime; and the mass arrest, imprisonment, summary judgment by military tribunals, and execution of Palestinians. By the end of 1939, Britain’s brutal counterinsurgency had succeeded in suppressing the revolt, with profound impacts on Palestinian politics and society in the decade leading up to the Nakba .

During World War II , Britain’s wartime mobilization justified the maintenance of expanded police powers for the Mandate administration and restrictions on political expression for its population. Defence Regulations put in place in 1939 were consistent with empirewide policies effected by the Emergency Powers (Defence) Act issued by London in 1939. After the war’s end, however, as the Zionist Movement turned against its former sponsor and launched a violent insurgency with the aim of forcing Britain out of Palestine, the Mandate government again turned to the Palestine (Defence) Order in Council of 1937, using its authority to put in place Defense (Emergency) Regulations of 1945 . As during the 1936–39 Revolt (though now applied to both Jews and Arabs), the emergency regulations empowered British authorities to undertake warrantless searches, expropriate and demolish property, censor and suspend publications, impose curfews and restrictions on movement, and detain individuals and try them in military courts. 

Even after the end of the Mandate, however, these emergency regulations continued to haunt Palestinians. After the establishment of the State of Israel in 1948, the Israeli government incorporated the Defense (Emergency) Regulations of 1945, along with much of the existing Mandate law, into Israeli law through the Law and Administration Ordinance of 1948 . Israel applied these regulations to those Palestinians who had managed to remain within the new state’s borders and now found themselves under Israeli military rule. Similarly, after 1967, Israel argued that the existing law in the West Bank and Gaza included these regulations, which neither the Jordanian nor the Egyptian governments had officially revoked, and so were available to impose on Palestinians under Israeli military occupation. In this way, the patterns of collective punishment and the expansive “emergency” powers that the British had used to target the Palestinian population remained fundamental to the legal order under which Palestinians lived well after the end of the Mandate.