Legal basis for deportation

Legal basis for deportation

1 Jan 2017

Palestinians from the Occupied Territories are deported pursuant to the authority of regulation 112 of the Defense (Emergency) Regulations, 1945. This regulation authorizes the regional commander "to make an order under his hand, requiring any person to leave and remain out of Palestine." The regulation was rescinded within Israel in 1979, but remains in force in the Occupied Territories.

The deportation order is based on the sole discretion of the military commander, without the deportee having been convicted of any offense and without prior judicial hearing in which evidence against him is presented to a judge.

After the deportation order is issued, the prospective deportee may appeal the order to an advisory panel, which is composed of military personnel, whose determination is only a recommendation. After appealing to the advisory panel, the deportation decision may be appealed to the High Court of Justice before execution of the order.

In practice, the right to be heard granted to a candidate for deportation is only symbolic and does not allow complete and proper exercise of this right. In every administrative decision, particularly one that severely violates an individual's rights, it is incumbent on the authorities to hear the affected party's claims against the decision. Israeli courts have ruled that the right to be heard must be given prior to execution of the deportation. However, due process requires that the individual be provided an opportunity to study the material on which the administrative decision was based. The deportees and their attorneys were not granted this opportunity. Most of the material relied on by the IDF commander in making his decision to sign the deportation order was kept secret, and the disclosed information was usually drafted in general and vague terms, such as allegations of incitement, subversion, and membership in a hostile organization, thus preventing appeal on substantive matters.

The Supreme Court ruled that deportation is allowed only as a preventive measure, when the prospective deportee's presence constitutes a clear and immediate danger to the security of the area or the welfare of its residents. Deportation is not allowed to serve as punishment for criminal offenses, since such punishment lies within the arena of the judicial system.

Contrary to this ruling, Israel has at times used deportation as an easy alternative to punishment by law. Examination of the timing of deportations, the data published regarding the deportees, and statements of defense officials and politicians who took part in the deportation policy indicate that the decision to deport more than once resulted from political considerations and not personal-security reasons relating to the prospective deportee. By example, review of the timing of deportations indicates that the government at times used this measure in response to public pressure and to dispel the feeling that state security was deteriorating.

Deportation of residents of occupied territory contravenes international law. Article 49 of the Fourth Geneva Convention stipulates 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."

The Supreme Court interpreted this article to refer only to mass transfers, and not to deportation of individuals for "security" reasons. This interpretation guided the High Court in petitions against deportation.

Because the High Court ruled that deportation is a legitimate use of the military commander's authority, the hearings focussed on whether the administrative arguments raised by the specific petitioner warranted intervention by the High Court. Thus, the High Court refrained from examining the wisdom of the military commander's discretion, but only whether discretion was exercised as required. To date, the High Court has rejected every petition challenging an order of deportation.