The Palestinian Flag; Frequently Asked Questions, and Answers.
Below are answers to the questions we get asked the most about the Palestinian flag.
1. Can the Palestinian flag be waved in Israel?
Yes. There is no law in Israel that prohibits the Palestinian flag from being waved. Waving a flag – any flag – is a form of expression, and freedom of expression enjoys broad protection in the State of Israel. The Supreme Court ruled that the right to expression may not be restricted unless danger of grave harm to public safety is indisputable. Freedom of political expression, which includes waving the national flag, enjoys maximum legal protection. This is due to its vital role in the existence of a democratic regime, its social importance, and its increased vulnerability to harassment, relative to other forms of expression.
2. Where may the Palestinian flag be waved?
Everywhere. The flag may be brought to demonstrations, hung on homes, embroidered and printed on bags, and branded on clothing items freely. The Palestinian flag has already been waved in the Knesset in official meetings between government and Knesset members with representatives of the Palestinian Authority.
3. Is it a Palestinian flag or a Palestine Liberation Organization (PLO) flag?
The Palestinian flag is the flag of the Palestinian nation, whether based in Israel, the occupied territories, or throughout the world. It has been recognized as a symbol of Palestinian individual and collective identity since the start of the 20th century. It was later adopted by the PLO and also became the flag of the Palestinian Authority down the line. Following the Madrid Conference and the Oslo Accords in 1993, which formalized relations between Israel and the PLO, and later with the Palestinian Authority, the Attorney General declared that the public had no interest in instituting criminal proceedings against those who waved the flag. The Attorney General reinforced this directive in 2014, and even noted that action may be taken to remove the flag solely when “there exists a high level of probability that waving the flag will lead to a severe breach of public peace” or when “there exists genuine suspicion that waving the flag will constitute an offense in identifying with, or supporting, terrorist organizations.” In doing so, the Attorney General adopted the stringent assessments established in the ruling regarding restrictions on expression.
4. But waving the Palestinian flag may harm public sentiment.
Perhaps, yet a ban on waving a flag may also harm public sentiment, and regardless, harming sentiment is not reason enough to ban flag waving or restrict any other form of expression. Freedom of expression does not solely apply to opinions among the public consensus – its true test lies in defending opinions and positions that may be outrageous, infuriating, and detrimental. In a broad ruling, the Supreme Court rejected restrictions on freedom of expression, through claims of harm to public sentiment, declaring that “A socially pluralistic society must allow for the exchange of views, even if it harms sentiment among those who oppose those same views.” The very nature of democratic regimes calls for vulnerability to hurt feelings. Hurt feelings, even if dire, may be an inevitable consequence of the free exchange of opinions and ideas in a democratic society” (HCJ 2194/06 Shinui Party v. Chair of the Central Election Committee).
5. What is the court’s stance on the Palestinian flag?
As early as 1994, the Supreme Court rejected a petition seeking to prosecute those who waved the flag and remove them from the public sphere (HCJ 5883/93 Yahalom v. Israel Police Commissioner). In 2003, the High Court of Justice recognized the national significance of the flag as a sign of the Palestinian people’s identity at large, and annulled the Central Election Committee Chair’s decision to omit sections of the United Arab List and National Democratic Alliance’s campaign broadcasts, in which the Palestinian flag was displayed. The court ruled that it is solely permissible to restrict the flag’s display in broadcasts that present it in such a manner that may cause genuine, deep, and grave harm to public sentiment in Israel among those who might watch the broadcasts, especially those harmed by acts of terror” (HCJ 651/03 ACRI v. Chair of the 16th Knesset’s Central Election Committee). Just one year ago (2021), the Magistrate’s Court ruled in a hearing on a police request to pursue the arrest of a demonstrator who waved the Palestinian flag that “waving the Palestinian flag does not constitute an offense per Israel’s book of laws,” and ordered his release (Bail Hearing Request 334146-09-21 State of Israel v. The Marshal)
6. What about the bill banning Palestinian flags from being waved in universities?
This is an anti-democratic bill that violates the law in which the supremacy of freedom of expression is entrenched. The detailed comparison drawn in the bill’s explanatory memorandum, according to which those who bear the Palestinian flag endanger or do not recognize the state constitutes incitement, and the bill itself is rife with racism, ignorance, hatred, and disregard for the Palestinian flag that symbolizes the identity of over 20% of residents. Beyond the fact that it is highly unlikely for such a bill to pass the test of the High Court of Justice, delegitimization of Arab citizens and residents of Israel, the attempt to silence diverse opinions, and the urge to cultivate an academia dominated by threats and intimidation, should concern all residents, regardless of their political views. The notion that an Arab with a dagger lies behind every Palestinian flag must be quashed.
7. So why do the police ban Palestinian flags from being waved?
Because they are mistaken and driven by misconceptions, some of which are racist. Although Article 82 of the Police Ordinance authorizes police to prohibit flags from being waved if they cause “a breach of peace,” in accordance with regulations on freedom of expression, the Attorney General has already ruled that sanctions under this article may be solely be resorted to upon “a high level of probability that waving the flag will lead to a severe breach of public peace.” Such concern must be well-founded and not speculative. In the vast majority of cases wherein the police acted to confiscate flags from public spaces, entailing harm to those who waved them, no such concern arose.
Last February, ACRI petitioned the Police Commissioner and the Jerusalem District Commander to order them to bring an end to systematic police harassment of the Palestinian flag and those who wave it. In our petition, the High Court of Justice was asked to order the police to cease this illegal practice of confiscating Palestinian flags from demonstrators, and rule that waving the flag in practice does not constitute a threat to public peace. We also demanded that opening investigations due to incidents sparked by waving the Palestinian flag or resistance to confiscation, be conditional on the Attorney General’s approval, as with new investigations of further offenses regarding freedom of expression.