HCJ hastens and deletes prematurely a petition by HaMoked against the forced removal of a Palestinian from the West Bank to the Gaza Strip: The court is satisfied with the state’s notice regarding its intent to revoke the deportation order and replace it with an administrative detention warrant without providing the petitioners due opportunity to respond to the state’s claims המוקד להגנת הפרט
31.01.2010
HCJ hastens and deletes prematurely a petition by HaMoked against the forced removal of a Palestinian from the West Bank to the Gaza Strip: The court is satisfied with the state’s notice regarding its intent to revoke the deportation order and replace it with an administrative detention warrant without providing the petitioners due opportunity to respond to the state’s claims
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The petitioner, a resident of the village of Silwad in the West Bank for some ten years, married and father of three, was apprehended on October 28, 2009 near the settlement of Ofra and taken to the Huwwara detention facility with the purpose of immediately removing him to the Gaza Strip, as he is registered as a resident thereof in the population registry. The response to HaMoked’s appeal to the legal advisor for the West Bank to postpone the implementation of the deportation order so as to allow him to turn to the courts in this matter stated that the military was indeed taking action to delay the deportation. However, in another conversation later that day, the legal advisor’s office notified that due to the petitioner’s medical condition – epilepsy – and the difficulty of continuing to hold him, the military had retracted its decision regarding the delay and would wait only a few hours for implementation of the deportation. Following this shameful notice, HaMoked was forced to file an urgent petition with the High Court of Justice (HCJ) against the deportation.

It is important to note that the legal advisor’s office was not satisfied with the decision to postpone the deportation but further injured the petitioner’s rights by not holding a proper and fair hearing as required, a hearing in which the petitioner would have had the proper opportunity to make his position heard. Moreover, when HaMoked notified the legal advisor’s office that the petition, including a motion for a temporary order to halt the deportation, was pending before an HCJ justice, the answer was that the office had no intention of delaying the deportation so long as the aforesaid order had not reached them.

In the petition dated October 10, 2009 and in the supplementary arguments filed with the court later, due to the urgency in submitting the petition, HaMoked stressed, inter alia, that the decision to remove the petitioner to the Gaza Strip lacked any legal basis, was extreme and unreasonable and constituted a flagrant breach of international humanitarian law. This since the decision tears the man – a native of the Occupied Territories, a family man and father of young children – away from his loved ones and the center of his life for many years and treats him as a foreigner who had “infiltrated” the West Bank and continued to remain there illegally. HaMoked also strongly objects to the security allegations raised by the military against the petitioner, the alleged grounds for deportation. The records of the petitioner’s questionings – which are flawed in and of themselves – clearly indicate that the security allegations were raised only in hindsight. In the first questioning the petitioner underwent, following which the decision to deport him was raised, the military relied solely on the infiltration allegation.

Following the hearing of the petition, held on January 7, 2010, during which the HCJ strongly criticized the state’s position and its attempt to forcibly remove the petitioner from the West Bank to the Gaza Strip with no legal basis, even given the security allegations against him, the state submitted a notice to the HCJ indicating that it had decided to change tactics, replacing the deportation order it issued against the petitioner with an administrative detention warrant due to the security allegations against him. It is important to note that the notice expressly indicates that the deportation order remains intact and is not cancelled so long as an administrative detention warrant for the petitioner had not been issued. Following the state’s notice to the court, HaMoked requested leave to respond and obtained the state’s consent thereto. However, on the very same day, the court hastened to issue a judgment, before the deportation order was cancelled in practice, according to which the petition to revoke the deportation order had become moot, in light of the state’s notice of its intention to replace the deportation with administrative detention.

HaMoked stresses that aside from the gap between the date on which the judgment was handed down and the cancellation of the deportation order – a period of time which the court did not consider and ruled that a pending petition had been rendered moot, when the state could still retract its decision and deport the petitioner – indeed, the petitioners should have been duly given the opportunity to state their position regarding the content and significance of the state’s notice.
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