In a petition filed by HaMoked against the forced removal of a Palestinian police officer from the West Bank to the Gaza Strip, the state notified the court that it was revoking the deportation order and releasing the officer from custody: The police officer was held in detention close to ten months on a baseless claim regarding “illegal presence” in the West Bank
The state attorney’s office’s notice of revocation of the deportation order was submitted following an order nisi
issued by the High Court of Justice (HCJ) about a month ago. The court found that the burden of proof regarding the necessity of forcibly removing the petitioner to the Gaza Strip lay on the state’s shoulders.
The officer was stationed in the West Bank back in 1995 and arrived there from the Gaza Strip along with a significant number of other officers with Israel’s approval and under its auspices in the framework of the implementation of the Oslo Accords. Over the years, the officer married and started a family. On March 26, 2009, Israeli soldiers arrived at the officer’s house in Beit Sahur and arrested him for “illegal presence” in a closed zone, namely the West Bank. The response to HaMoked’s appeal to the legal advisor for the West Bank on behalf of the family, stated that the petitioner was to be removed to the Gaza Strip within days. HaMoked urgently petitioned the HCJ
in an attempt to prevent the officer’s forced removal and obtained a temporary order forbidding the deportation of the petitioner. 96 hours after the petitioner’s initial arrest, the state hastened to issue a new arrest warrant against him, this time based on the Order regarding Prevention of Infiltration. HaMoked filed a petition for writ of habeas corpus
for the release of the officer due to his unlawful arrest: the Order regarding Prevention of Infiltration of 1972 defines infiltration as entry into the Territories without a permit. The officer did not infiltrate the Territories, but moved from one part of the occupied territory to the other with Israel’s approval and consent.
In the petition, HaMoked argued, inter alia
, that the decision to remove the petitioner to the Gaza Strip lacked any legal basis and was extreme and unreasonable. The petitioners also stressed their concern that the petitioner might pay with his life for his forced removal to the Gaza Strip, now ruled by Hamas, due to his service as a police officer with the Palestinian Authority.
On June, 2009, two days before a scheduled hearing in the petition, the state attorney’s office surprisingly notified that it had decided to postpone implementation of the deportation and that it intended to indict
the officer for alleged membership in an “illegal organization” and allegedly performing services for said organization. When HaMoked received the materials on which the state based the indictment it became clear that these were baseless utterances by a man who had had a dispute with the officer. The state also claimed that the officer had allegedly breached the Order regarding Closed Zones and in so doing transferred the decision on the matter from the HCJ to the military court.
In these circumstances, the state notified the court that it would revoke the deportation order and reconsider it only upon termination of criminal proceedings against the petitioner.
After the military court accepted
the military prosecutor’s request for detention until the end of proceedings, while twisting the defendant’s version and blatantly ignoring the problematic nature of the source of the testimonies on which the indictment was based, HaMoked appealed the decision before the military court of appeals. The military court of appeals accepted the appeal and found that the officer must be released from custody subject to payment of a 30,000 NIS bail, because, inter alia
, the actions attributed to him had taken place long ago and he had been living in the West Bank for over a decade without any attempt being made to deport him to Gaza. For these reasons, the court saw no impediment to releasing him on bail pending a decision in his matter.
With great effort, the family managed to obtain the large sum set for bail. However, on the very day the money was deposited and the petitioner was to be released, the state was quick to issue another deportation order against him in stark contrast to its declaration before the court that the deportation would be reconsidered only upon termination of criminal proceedings.
Following the renewed deportation order, HaMoked again demanded the court hold an urgent hearing in the matter. Following the hearing, the aforesaid order nisi was issued instructing the state to show cause why an officer living in the West Bank for many years is to be removed to Gaza. On 19 January, 2010, the state notified that it had decided to revoke the deportation order against the officer and release him to his home in the West Bank. In addition, the state notified the court that despite the decision to revoke the deportation order and release the petitioner – who had been under arrest for some ten months – the criminal proceedings against him would continue and that it was not retracting its principled position according to which it is empowered to deport the petitioner to Gaza and that another deportation order may be issued in future, however, only if a substantive change in circumstances occurred.
The conduct of the military and the state in all proceedings against the officer, from the day of his arrest some ten months ago until the notice of his release, raise many questions. It seems that the state attempted to keep him under arrest through any measure possible, for reasons which are not clear. HaMoked’s arguments against the deportation order and the accusations regarding infiltration were examined by the HCJ only at a very late stage, after the petitioner remained under arrest for many months and only after the state issued a renewed deportation order against him. This, due to the fact that the state hastened to serve a criminal indictment for the same causes due to which it sought his deportation shortly beforehand and once it understood that the petitioner was about to be released on bail, it was quick to renew the deportation order.