Amended Military Orders may lead to Undefined and Limitless Illegal Deportations and the Detention of Protect Persons from the West Bank including East Jerusalem - Civic Coalition to Defend Palestininans' Rights in Jerusalem

Legal Memorandum

On 13 April 2010, Israeli Military authorities implemented “the Order regarding Prevention of Infiltration (Amendment No.2)” and “the Order regarding Security Provisions (Amendment No.112)”. The military orders (Order Numbers 1649 and 1650) were signed approximately six months prior by Major General Gadi Shamni who, at the time, served as the Military’s General Commander in the West Bank. In addition to facilitating the potential deportation of tens of thousands of Palestinians the amended orders will criminalize the presence of the affected Palestinians and carry a maximum prison sentence of seven years.



The following provides a brief overview of the Orders and their potential effects while also analyzing their legality under international humanitarian law. At present the Orders’ language makes it impossible to positively ascertain who will come under the new definition of an ‘infiltrator’ and to what extent the Israeli authorities will apply it. However when viewed against past practices concerning the transfer or deportation of Palestinians from the West Bank certain groups face an increased risk.


Expansive Definition of Infiltrator


The newly implemented Military Orders amend the definition of ‘infiltrator’, defined in the original 1969 Order (Order Number 329) as “A person who entered the Area [West Bank] knowingly and unlawfully after having been present in the east bank of the Jordan [sic], Syria, Egypt, or Lebanon following the effective date.” Section 1B of the current order replaces and notably broadens the former definition to include, “a person who entered the area [West Bank] unlawfully following the effective date, or a person who is present in the area [West Bank] and does not lawfully hold a permit.”


The formulation of the second stipulation in the amended definition - ‘a person who is present in the area and does not lawfully hold a permit’ - is both vague and broad in its potential application. Its implementation, while not strictly defined, can be assumed to target vast segments of the Palestinian population within the West Bank and carry with it indirect effects for Palestinian East Jerusalemites. Additionally, internationals present in the West Bank appear to fall under this new definition.



Relevant Background


The recently implemented Orders represent a dramatic legal expansion of a piecemeal system composed of numerous orders and requirements that ultimately serve to minimize or restrict the presence, movement, or access of the Palestinian population to, within, or from the West Bank, East Jerusalem, and the Gaza Strip.
After the Israeli occupation in 1967, the West Bank and Gaza Strip were declared ‘closed military zones’. This led to the imposition of an extensive permit regime that created severe restrictions on the free movement of Palestinians and began to create a foundation for the later fragmentation of the occupied territories. After 1967, residency in the West Bank or Gaza strip became contingent on Palestinians’ possession of Israel-issued identification cards. Those who received the necessary documentation were identified through a census conducted by Israeli authorities. The census omitted individuals who had fled the occupied territories during the preceding conflict as well as those who left the region earlier, either to refugee camps in the neighbouring countries or through immigration to a third-state.


Since the initial distribution of identification documents to the Palestinian population who remained immediately after the occupation began, approximately 150,000 have subsequently had their cards and accompanying residency rights revoked by Israeli authorities. Justifications for the revocations have varied but commonly affect Palestinians whose economic, social, family, or academic pursuits have caused them to travel abroad for a substantial periods of time. Additionally those who are identified as dual-nationals or individuals whose family reunification applications have been unsuccessful commonly risk losing their Palestinian documentation.
When viewed in the context of the frequent developments intended to alter the ‘legality’ of Palestinians throughout the occupied territories identifiable subsections of the Palestinian population appear to be the intended targets of the new Orders.


Those Potentially Effected


Recent reports disseminated through the international media have cited Israeli military sources claiming that ‘anyone registered with the Palestinian population registry would be considered lawfully present’. While the validity and potential application of this comment can not yet be ascertained, it is important to note that the Palestinian population registry which was transferred to the Palestinian Authority under the Interim Agreement on the West Bank and the Gaza Strip (Oslo II) still requires Israeli authorization. Since 2000 Israel has implemented a freeze that effectively ensures the Palestinian Authority is unable to make changes to the registry. In effect any registered Palestinian has been unable to move ‘legally’ since 2000 thus those whose economic, family, or academic interests have required relocation to the West Bank from Gaza or a third country would fall outside the Israeli stated allowances.


East Jerusalem’s Palestinian Population


Palestinian East Jerusalemites who are in possession of an Israeli-issued ID card would seemingly be denied ‘legal’ entry into the West Bank. Thus those who rely on access to the West Bank for a variety of reasons including economic factors or family ties wouldhave to choose between applying for the new West Bank permit and severing their ties to the West Bank in order to remain in Jerusalem. Those who chose to apply for the necessary West Bank permit risk the loss of their Jerusalem ID as has commonly been the case with East Jerusalemite Palestinians who receive additional forms of residency permits. Traditionally those excluded include individuals in possession of foreign passports or who have left East Jerusalem for an extended period of time and are thus unable to satisfy Israel’s stringent criteria of demonstrating that the center of their lives is in Jerusalem.


Those who decided to stay in East Jerusalem would lose unfettered access to the West Bank and may face various hardships as a result. In the event that they enter the West Bank even for a short visit to family, they would risk a maximum of seven years imprisonment under the new Orders.


While much of the current attention surrounding the implementation of the Orders has focused on the potential effect that these will carry for Gazans present in the West Bank, foreign-born Palestinians, and international workers, these orders must also be considered in relation the current Israeli policy regarding East Jerusalem. The basis of this policy is to build and maintain a Jewish demographic majority throughout the expanded Jerusalem municipality. Countless policies and laws have been implemented to serve this end and by placing the considerable number of East Jerusalem’s Palestinian population in a situation under which they are forced to choose between their Jerusalem residency and access to the West Bank, these Orders indirectly facilitate Israel’s longstanding objectives concerning Jerusalem.


Palestinians holding Gazan Residency


Approximately 25,000 Gazans live in the West Bank for a diversity of reasons including family ties, economic interests, and academic pursuits. Regardless of whether they are Gazan-born or later came to maintain their permanent residence within Gaza, this group of Palestinians appears likely to be subject to the Military Orders. The transfer of Gazans from the West Bank back to Gaza has occurred for several years often affecting students who had gained admission to study in the West Bank and marriages to which one party is a resident of Gaza and the other either the West Bank or East Jerusalem. Although such past instances have been common it appears the current orders will allow for the accelerated application of the transfer.
Foreign-born Palestinians and/or Spouses


In addition to the above mentioned groups, Palestinians in the West Bank who were either born in a foreign country, including the refugee camps in neighbouring states, or who married a West Bank Palestinian will come under the auspice of Military Orders. Since freezing decisions on all family reunification applications in 2000 it has been impossible for the spouses of West Bank Palestinians to receive Israeli-issued documentation despite being of Palestinian origin and regardless of how long they have lived in the West Bank.


Outside of marriage, foreign-born Palestinians who carry documentation from neighbouring countries or abroad and have returned to the West Bank after 1967 will also be venerable to deportation or imprisonment.


International Workers


It is unclear to what extent Israeli authorities will apply the new Orders to internationals present throughout the West Bank. Many international workers come to the West Bank to assist in solidarity movements, development initiatives, and human rights advocacy. A literal reading of the Military Orders implies that their presence in the West Bank would now be considered ‘illegal’, punishable by either deportation or imprisonment.


Permit Ambiguity


The current ambiguity concerning the potential scope and application of the Orders derives first from the expansive definition of ‘infiltrator’ but also from their failure to provide elucidation as to what existing documentation constitutes an acceptable permit. Section 5B of Amendment No.2 defines a ‘lawful document or permit’ 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.”


A literal interpretation of the Amendments implies that unless the newly introduced criteria are met then previously issued Israel documentation and identification cards would not satisfy its rigid formulation. Such a reading of the amendments would allow the Israeli presence occupying the West Bank greatly expanded authority to deport, transfer, or imprison huge numbers of Palestinians.


Appeals Process


Amendment No.112 further serves to limit, if not make completely redundant, the possibility of an appeals process for those facing sanction under the Orders. Section 1 (87.11) provides that, “A Committee for the examination of deportation orders shall be established in the Area [West Bank] which shall be authorized to review appeals against decisions rendered in accordance with the Order regarding Prevention of Infiltration.” When read in correlation with Amendment No.2, Section 3C which states, “where a deportation order had been issued under Subsection (A), the infiltrator shall not be deported unless 72 hours had elapsed from the time he was served the written deportation order…”, it appears that a five day discrepancy exists between when an individual can be deported and when he/she must appear before the newly established committee. Even in the event that all individuals in receipt of deportation orders from the West Bank are brought before this committee before their removal, the necessary levels of impartiality for an adequate appeals process would be significantly compromised. Section 1 (87.12) of Amendment No.112 states that “the commander of the IDF forces in the Area [West Bank] shall appoint judges with the rank of at least Major as members of the Committee”. Thus the same body who initially orders the deportation order is charged with hearing the only opportunity these new Orders provide to challenge their holdings.


International Law


While it is yet unclear what form the implementation or potential scope of these Orders will assume, the deportation of any Palestinians from the West Bank will represent a violation of the Geneva Convention. As occupied territory, the Palestinian residents of the West Bank, East Jerusalem, and the Gaza Strip qualify as Protected Persons as defined under Article 4 of the Fourth Geneva Convention which provides that Protected Persons are “those who, at a given moment and in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of a Party to the Conflict or Occupying Power of which they are not nationals.”


Both conventional and customary international humanitarian law explicitly prohibits the deportation or forcible transfer of Protected Persons from or within occupied territory. Article 49(1) of the Fourth Geneva Convention states that, “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”


Under international law an occupying power is only permitted to implement administrative measure for the strictly defined purposes of the fulfillment of its obligations under international humanitarian law, the maintenance of orderly government, and the protection of the occupying power’s security interests (Article 64, Fourth Geneva Convention). Any administrative impositions that deviate from the aforementioned allowances must be for the exclusive benefit of the occupied population. While clearly failing to serve the interests of protected persons within the West Bank, the Military Orders do not satisfy the prescribed exceptions as the facilitation of deportations is tantamount to a violation of humanitarian law, the associated movement restrictions create additional obstacles to Palestinian self-government and economic development, and finally, the broad nature of the Orders excludes the possibility of any legitimate security justification.


Suggestions through the Israeli media have suggested that the recent Military Orders will carry direct effect on the estimated 25,000 Gazan-born Palestinians present in the West Bank. Such an application represents a clear deviation from the Oslo Accords. Article 4 of the Declaration of Principles on Interim Self-Government Arrangements states that, “the two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period.”


The potential transfer of a protected person within occupied territory not only represents a violation of the Geneva Convention but also Israel’s agreed commitments under the Oslo Accords. Such an application of the amended Military Orders would compromise the spirit of Oslo while further strengthening the fragmentation of a future Palestinian-state predicated upon a just and lasting two-state solution.


In light of the above, the Civic Coalition calls upon:


Israel:


To engage their legal obligations as an occupying power and rescind the implementation of the Order regarding Prevention of Infiltration (Amendment No.2) and the Order regarding Security Provisions (Amendment No.112);


To cease forthwith the deportation or transfer of any Palestinian from the West Bank from or within the West Bank as required by Article 49(1) of the Fourth Geneva Convention;


To recognize its legislative and administrative competence as define under Articles XX and 64 of the Fourth Geneva Convention;


To respect their undertaken commitments through the Interim Agreement on the West Bank and the Gaza Strip (Oslo II), Article 4 of which states that, “the two sides view the West Bank and the Gaza Strip as a single territorial unit.


The United Nations and the International Community:


As High Contracting Parties to the Geneva Convention of 1949 to fulfill their obligations under Common Article 1, to respect and ensure respect for the provisions of the Conventions under all circumstances by taking appropriate measures to compel Israel to abide by its obligations under international humanitarian law.


The European Union:


For Member States to make effective use of the European Union Guidelines on promoting compliance with international humanitarian law (2005/C327/04) to ensure that Israel complies with the relevant standards of humanitarian law under paragraph 16(b), (c), and (d).


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