HaMoked: Center for the Defence of the Individual and other organizations have lodged a protest with the state attorney’s office against summary expulsions of Palestinians from their homes in the West Bank to the Gaza Strip and against the conduct of the military legal advisor for the West Bank regarding this issue: The legal advisor declines to intervene in expulsion procedures as required, thereby impeding the candidates for expulsion from exercising their rights המוקד להגנת הפרט
11.02.2010
HaMoked: Center for the Defence of the Individual and other organizations have lodged a protest with the state attorney’s office against summary expulsions of Palestinians from their homes in the West Bank to the Gaza Strip and against the conduct of the military legal advisor for the West Bank regarding this issue: The legal advisor declines to intervene in expulsion procedures as required, thereby impeding the candidates for expulsion from exercising their rights
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For a number of years, Israel has been implementing a policy of expelling Palestinians living for extended periods of time in the West Bank to the Gaza Strip due to their registered address therein. Expulsions take place without the individuals’ being given the opportunity to exercise their right to a hearing and to receive proper counsel. In two cases recently processed, HaMoked made immediate appeals to the military legal advisor for the West Bank requesting that the expulsion be delayed for a short while in order to petition the High Court of Justice against the decision. In the first case, the legal advisor’s office intentionally dragged its feet in order to obstruct HaMoked from averting the expulsion. HaMoked was able to halt the removal of the other applicant at the last minute, after turning to the court which issued a temporary order prohibiting the removal before the military was able to execute its decision. The legal advisor, whose authorization was required in order to finalize the expulsion, refused HaMoked’s request to delay the expulsion, despite being notified that a petition had been submitted in this matter.

In October 2009, HaMoked lodged a complaint with the military advisor for the West Bank at the time, regarding the conduct of officials in his office in the two cases. The response indicated that the legal advisor’s office would henceforth cease to intervene in delaying expulsions in cases where there is no judicial order directing to do so. It must be noted that the legal advisor’s office has an active role in removal proceedings. Officers with the legal advisor’s office personally authorize the execution of each removal, both at the time it is being decided and following the hearing of arguments regarding the decision. The legal advisor’s abstention constitutes a substantive change in the conceptualization of his role, a change which includes shirking the authority to delay the decisions of the administration. One cannot accept a situation whereby a public service attorney ignores communications by attorneys and requests for temporary injunctions which had been long since submitted citing the formal reason that a decision on the matter had yet to be reached and that under such circumstances “there is no legal duty to act otherwise”.

At present, the expulsion proceeding includes only a brief “questioning” of the deportee, after which the decision to expel is either approved overturned. The legality of the expulsions was reviewed in a number of legal proceedings in which temporary injunctions were issued, and in one an order nisi was issued (HCJ 6685/09 Kahouji v. Military Commander of the West Bank; HCJ 2786/09 v. Military Commander of the West Bank; HCJ 8729/09 Suali v. Military Commander of the West Bank).

The organizations maintain that expelling Palestinians living in the West Bank from their homes on the basis of their registered address is unacceptable and contradicts international law, interim agreements between Israel and the PLO and the legislation of the military commander in the area. Additionally, the expulsion constitutes a severe violation of the human rights of the deportees and their family members who remain in the West Bank. This practice effectively constitutes forcible removal of protected residents which is a grave breach of international humanitarian law. The organizations demand the state attorney’s office order military officials to immediately desist from removing residents of the Occupied Territories from their places of residence in the West Bank to the Gaza Strip, particularly when the reason for doing so is their registered address; this, at least until the court delivers a judgment on the principle issue of the legality of the expulsions, as aforesaid. The state attorney’s office was also requested to instruct military officials that inasmuch as residents of the Occupied Territories continue to be removed on the basis of their registered address, this will be carried out, at minimum while granting the right to a hearing and to appealing the decision.

Providing a real opportunity for a person who is about to be removed, a person whose most fundamental rights are at stake, to obtain counsel or turn to the court and refraining from summary proceedings the legality of which is doubtful, are not goodwill gestures which are performed “ex gratia” (as the legal advisor notes), but are the legal advisor’s duties, as a senior legal advisor and as the official entrusted with upholding the precepts of law in all military actions.
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