Wednesday, July 14, 2010

New Military Orders Facilitating the Deportation of Gazans From West Bank and East Jerusalem - Al-Haq

Al-Haq's second Alternative Report addresses Israeli's violations of the International Covenant of Civil and Political Rights with respect to freedom of movement within the occupied Palestinian territory, including Military Orders 1649 and 1650:

"These military orders dramatically broaden the existing definition of infiltration in the occupied West Bank, criminalizing and subjecting to deportation any person present in the area who does not hold a permit issued by the Commander of the IDF. If implemented, these orders would facilitate the mass deportation or transfer of Palestinians and other protected persons from the West Bank, in clear violation of international law."

Read the full report here.
Read the report's section on Military Orders 1649 and 1650 here.

5.2.1 Factual Background

100. On 13 April 2010, military orders 1649 ‘Order regarding Security provisions’ and 1650 ‘Order regarding Prevention of Infiltration’, issued by the General Officer Commander of the Israeli Occupation Forces Central Command, entered into force. These military orders dramatically broaden the existing definition of infiltration in the occupied West Bank, criminalizing and subjecting to deportation any person present in the area who does not hold a permit issued by the Commander of the IDF. If implemented, these orders would facilitate the mass deportation or transfer of Palestinians and other protected persons from the West Bank, in clear violation of international law.

101. Military order 1650 amends military order 329 “Order regarding Prevention of Infiltration”, dating from 1969. According to that order, an infiltrator was a person who entered the West Bank from Jordan, Syria, Lebanon and Egypt, without a permit from the military commander of the area, or who stayed in the area after the expiration of such a permit. The aim of the order was mainly to prevent Palestinian refugees from returning to their homes, and to prevent armed combatants from entering occupied territory. The meaning of “unlawful” entry into the area was defined by reference to the opposite term “lawful” which meant “as per permit by the military commander”. Punishment for infiltration included imprisonment or a fine, and possible deportation.
Recently issued military order 1650 radically widens the definition of infiltration to include all those who (i) enter the area “unlawfully” and (ii) who are present in the area without lawfully holding a permit. A permit is defined as a: “document or permit issued by the commander of the IDF forces or someone acting on his behalf under the provisions of security legislation, or issued by the authorities of the State of Israel under the Entry into Israel Law…which permit the presence of a person in the Area.”

102. The new definition of “permit” is very vague. A technical reading seems to exclude Palestinian IDs from the scope of documents which might be considered permits under the order. Palestinian IDs, although ultimately approved by Israel, are in fact issued by the Palestinian Authority under the provisions of the Israel-Palestinian Interim Agreements, and therefore do not fit the requirements of the definition. It would appear that the “lawful document or permit” which permits presence in the area, referred to above, does not include Palestinian ID documents. Significantly, the order also deletes the definition of “resident of the Area”, and fails to redefine the  term. Previously, any person not in possession of documents identifying him as a resident of the Area had to prove he was not an infiltrator. The presumption, therefore, was that those in possession of residency documents were not infiltrators. By contrast, the new order contains no such provision: section 5, which sets out those presumed to be infiltrators, states that: “a person is presumed to be an infiltrator if he is present in the Area without a document or permit which attest to his lawful presence in the Area without reasonable justification.” In other words, all persons present in the West Bank are presumed to be infiltrators, irrespective of whether they are Palestinians holding a West Bank ID card that establishes their status as a permanent resident of the area.

103. Furthermore, the new order criminalizes those who are considered infiltrators. Whereas in the old order, infiltrators would be deported, under the new order, not only can they be deported but they can also be sentenced to up to seven years imprisonment if they have entered the area unlawfully, and three years imprisonment if they are present without a lawful permit. The term “infiltration” is ambiguous, but on a literal reading it includes all those present in the occupied West Bank, including those who were born and are legally resident there. The concept of infiltration is not limited to persons who have entered the territory unlawfully, or whose entry permits have expired, but to those present in the West Bank, whether they entered the territory or have always been there. Thus, according to the new definition, the presence of all the current inhabitants of the West Bank is criminalized and all are subject to potential deportation.

104. In addition, the new order removes any definition of the term “lawful”. The meaning of “unlawful entry” is therefore unclear, and could include circumstances other than those relating to having the correct entry permit. Moreover, in stating that infiltrators will be presumed to be those present in the area without the necessary permit and without “reasonable justification”, the order introduces arbitrariness. The inclusion of the exception of “reasonable justification”, without a definition, allows the military commander to apply it as per political convenience.

105. Finally, the mechanisms available to challenge deportation orders are inadequate. Order 1649 creates a committee which will oversee deportations. Persons subject to deportation orders, however, cannot initiate appeals to the committee. Instead, they are meant to be brought before the committee within eight days of receiving the order, at which stage a challenge can be heard. At the same time, the order allows the military commander to deport persons within 72 hours. As a result, it is perfectly possible that persons could be deported without having had the opportunity to challenge the deportation before the committee. In any event, the committee is comprised of military judges appointed by the commander of the Israeli Occupation Forces – the same authority that orders deportations in the first place. It is unclear the extent to which the residual jurisdiction of the Israeli High Court to hear judicial reviews of deportation orders will be available, given the possibility that the committee procedure will be viewed as an “alternative  remedy.” Even in the event that an appeal to the High Court is available, the court is notoriously prone, in deportation cases, to accept the arguments of the Israeli military, without proper scrutiny.

106. An Israeli spokesperson has stated that order 1650 “is not intended to apply to Israelis, but to illegal sojourners in Judea and Samaria,” and that it relates to “the deportation procedure of Palestinians illegally in the West Bank”. This Israeli position was confirmed in the official response to a letter by Hamoked – center for the defence of the individual. According to Hussein Al Sheikh, PA Minister for Civil Affairs, Israeli officials have also stated that the orders will restrict the entry of “internationals” into the West Bank whose visas will not be considered permission to enter the West Bank. Whilst on a literal reading the order could apply to all persons, it would appear that several groups of persons are therefore most at risk.

107. The primary at-risk group is the thousands of Palestinians who live in the West Bank but are registered in the Palestinian population registry with Gazan addresses. Many were born in the West Bank or have lived there for years with their families. As stated above, although the population registry is maintained by the P.A., Israel has final approval over changes to it. In 2000, Israel froze any changes to its copy of the population registry, meaning it no longer recognised any changes Palestinians made to their addresses from Gaza to the West Bank. Moreover, in 2007, Israel instituted a policy by which all 'residents' of the Gaza Strip (those registered with Gazan addresses) were required to hold a permit to remain in the West Bank. The policy is essentially an internal Israeli decision. It was never published, nor was it based on any particular legislation.

108. The process of acquiring such a permit is extremely difficult. The applicant has to prove they have lived in the West Bank for eight years continuously, are married with children, have security and policy clearance and have satisfied additional “humanitarian” grounds. As a result, many applications for permits have been refused, and hundreds of persons have already been deported to Gaza.

109. It is possible that the recently issued order will effectively serve to formalise the process, already begun, of transferring Palestinians registered with Gazan addresses from the West Bank to Gaza, and that in the wider context of the severe restrictions that already exist in relation to freedom of movement between the West Bank and Gaza, the order is intended to consolidate a wider Israeli policy of separating Gaza and its inhabitants from the West Bank.

5.2.2 Legal Analysis

110. Article 12 of the Covenant guarantees the right of everyone to “ lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. The military orders contravene this right of Palestinians as it prohibits Gaza addressees from choosing to reside in the West Bank and to move freely within the OPT and the West Bank without repercussions such as deportations being taken by Israel.

111. Israel also fails to justify its restrictions on the freedom of movement with respect to the military orders. In Israel’s official response letter of 16 May 2010 to a letter from Hamoked – Center for the Defence of the Individual, Israel claims that the military orders were amended and came into force in order to enhance the judicial review process.76 However, as has been discussed and concluded above, the military orders do not provide adequate judicial review as it is possible for a deportation to be carried out without a review. Israel also affirmed in their official response letter that there will be no higher body to which deportees can turn for a second review before having to resort to petitioning the final body – the Israeli High Court of Justice, which is  notoriously prone, in deportation cases, to accept the arguments of the Israeli military, without proper scrutiny. Israel can therefore not justify their restriction on the freedom of movement.

112. It also needs to be emphasized that the prohibition on Palestinians to move between the entirety of the Palestinian territory violates Palestinian right to self-determination as the military order provides another means of separating the Palestinian territory and divides the Palestinian people.

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