05.07.2010
HaMoked: Center for the Defence of the Individual appeals to the legal advisor for the West Bank: revoke the Amendment to the Order regarding Infiltration
On April 13, 2010, the amendments to the military orders that redefine the issue of infiltration into the West Bank and its ramifications, entered into force - Order regarding Prevention of Infiltration (Amendment No. 2) and Order regarding Security Provisions (Amendment No. 112).According to the new amendment, an "infiltrator" is of now, inter alia, any "person who is present in the Area and does not lawfully hold a permit", regardless of his status in the Territories and the manner of his arrival thereto. Before the orders took force, HaMoked appealed to the military commander of the West Bank, and, along with nine other human rights organizations, also to the minister of defense, demanding both orders be revoked, or, at least redrafted clearly in a way that limits their scope of application such that it does not include the entire population living in the Territories and such that the legality of the procedures of custody and expulsion is ensured. On May 13, 2010, the reply of the legal advisor for the West Bank arrived. His response confirms HaMoked's concerns, that indeed the orders are vaguely worded and their application is entirely dependent on the internal interpretation of the military, whilst the military’s "soothing" claim is that the interpretation feared by the human rights organizations does not necessarily follow from the language of the orders. In the reply, the military presents its interpretation of the definition of "infiltrator", by which, "a person who is present in the Area"
applies only to a person who entered the Area, rather than someone who was born therein. Nonetheless, the military confirmed the remaining concerns of the organizations: that only the Israeli population is exempt from carrying a permit; a Palestinian who was born in Gaza and relocated to the West Bank in the framework of the safe passage, should have returned to Gaza at the closure of that passage-way. If still residing in the West Bank, he must obtain a permit. The issue of foreign nationals who lack status in the Territories was resolved as part of the 2007 gesture, and therefore has no practical ramifications. The military's reply additionally confirms HaMoked's concern that it is permissible to expel Palestinians from the West Bank without any judicial review – the legal advisor for the West Bank explains that "we are concerned with a judicial committee and not with a court ". In point of fact, rather than redrafting the orders, the military opts to quibble over possible interpretations. HaMoked sent a response, endorsed by all the organizations which appealed to the defense minister, stressing that the fact that the orders, as drafted, allow many interpretations and require explanations regarding varying intents as to their implementation constitutes crucial evidence that the orders are fundamentally flawed. Insofar as the military commander offers an interpretation which is not obvious from the wording of the orders, their language must be revised. It is derivative of the principle of legality, according to which, any piece of legislation must be clear and unequivocal.HaMoked’s arguments focus on four aspects of the orders: The first, as noted, deals with the broad application implied in the orders. The second relates to the absence of judicial review, which in fact enables to carry out an expulsion order without allowing the person concerned to challenge the decision. The third aspect relates to the criminal liability attributed to persons who were not deemed "infiltrators" previously, i.e. people who lawfully entered the West Bank, who, under the new order, have turned overnight into criminal offenders subject to three years imprisonment. The forth aspect relates to the possibility to hold a person in custody pending expulsion, for relatively lengthy periods, as a means to pressure him to “consent” to his expulsion to any destination worldwide.HaMoked argues that if indeed the orders are only to be implemented in a restrictive and defined manner - as the legal advisor purports – why is the military commander insistent on maintaining them in their current form which, in fact, makes it permissible to carry out mass expulsions and grave violations of international law?!
