On April 13, 2010 order number 1650 (`the order` or `the new order`) went into effect in the West Bank as an amendment to an existing order on `prevention of infiltration`. Another order, number 1649, an amendment to an existing order on `security provisions`, was also issued, addressing procedural matters stemming from the new order. The new order is worded very vaguely, such that it is not entirely clear to whom it applies and what it means. The following document was prepared to answer questions on the meaning of the order, as far as can be understood from its language, from the procedures that preceded its amendment and from various statements by Israeli officials.
1) What is new about the amended order?
The new order, which applies to all parts of the West Bank (except for east Jerusalem), changes the definition of `infiltrator`, the penalty for infiltration and the way a person can prove he or she is not an infiltrator.
a) The definition of `infiltrator`:
In the previous order: Anyone entering the West Bank without a permit after being in one of the following countries: Jordan, Syria, Egypt, Lebanon. In other words, the old order applied mainly to Palestinian refugees and others who came from countries which, when the order was amended in 1969, were `enemy countries`.
In the new order: Anyone entering the West Bank `unlawfully` from anyplace and anyone who entered lawfully but `does not lawfully hold a permit`. The new order actually defines everyone as an infiltrator unless he or she can prove his or her entrance into the West Bank and presence there are lawful.
b) The penalty for `infiltration`:
In the previous order: Up to 15 years in prison and/or a fine.
In the new order: The penalty for entering unlawfully is set at up to seven years in prison, and for entering lawfully but residing unlawfully at up to three years in prison.
c) Proving `lawful presence`:
In the previous order: Presentation of a document identifying its bearer as a resident of the West Bank. A resident of the West Bank was defined as anyone whose permanent place of residence is in the West Bank. In other words, according to the old order a person could prove the lawfulness of his or her presence with a document proving residency in the West Bank, with residence being determined only by actual place of residence, i.e. the site of their home.
In the new order: A document or permit issued by the military commander or the authorities in Israel authorizing presence in the West Bank. Therefore, in the new order, lawful presence can be proven only by a document or permit issued by the state of Israel. The definition of `resident of the West Bank` as someone whose permanent place of residence is the West Bank was deleted from the new order. Israel, which controls the Palestinian population registry, thus determines who is a `resident` of the West Bank rather than the determination arising from the place of one`s residence or center of life.
2) To whom does the order apply?
It is difficult to determine to whom the order applies because it is written in such vague language. The new order creates a presumption that every person is an `infiltrator` unless he or she can prove that both his or her entrance to and presence in the West Bank were approved by the military commander or the relevant Israeli authorities. The order could seemingly apply to everyone: bearers of Palestinian identity cards, residents of east Jerusalem, Israeli citizens and foreigners. However, judging from current military policy vis-א-vis residents of the West Bank it can be assumed that the order is intended to apply to three main groups:
a) Palestinian residents who hold Palestinian identity cards in which their address is listed as the Gaza Strip (with Israel refusing to register changes of address of people who move from Gaza to the West Bank);
b) Persons `without status`, mainly the spouses of residents of the West Bank who hold Palestinian identity cards, who entered with visitor permits that Israel refuses to extend, and;
c) Foreign nationals, including businesspeople, employees of international organizations and others who received visas for Israel (allowing presence in the West Bank as well) or special visas for the West Bank, but the visas expired and Israel refuses to renew them.
3) How will the new order change the policy that has been in effect until now?
Because the order is worded in vague language, it is hard to know exactly what the intentions are for its enforcement. However, the new order indicates two main and worrisome changes: first of all, for the tens of thousands of Palestinians who live in the West Bank and whose residency Israel refuses to recognize, the order imposes up to seven years in prison for a person`s very presence in his or her own home. Secondly, the order indicates an attempt to `legislate` or codify the policy of deportation andthe separation between Gaza and the West Bank into the military legislation of the West Bank. Even though there were deportations before the order went into effect, issuing the order indicates an intention to `enforce` the policy of deportation among groups Israel has promised in the past not to deport. For instance, as part of a petition by HaMoked: Center for the Defence of the Individual (HCJ 6685/09 Kahouji vs. Military Commander of the West Bank), the State declared that even if it believes that a Palestinian resident whose address is listed in Gaza but resides in the West Bank is doing so unlawfully, it currently does not intend to deport such people if they entered the West Bank before the outbreak of the Second Intifada in September 2000, barring any security claims against them. The new order seemingly signals for every soldier at every checkpoint to detain and deport anyone who cannot prove he or she is lawfully present in the West Bank, in contrast to the declaration made in the Kahouji case. The very fact that the new order was issued results in severe restrictions on the movement of Palestinian residents who, for fear of arrest, forego visiting family, seeking medical treatment or reaching economic and educational opportunities in neighboring cities or abroad.
4) Does a Palestinian identity card in which the registered address is in the West Bank constitute a valid `staying` permit for the West Bank? Is the place the identity card was issued relevant?
Even though the new order does not state so explicitly, it implies that anyone holding a Palestinian identity card, whose address, listed on the ID card and according to the Israeli-controlled Palestinian population registry, is in the West Bank, will be considered `lawfully present`. The place the card was issued is not relevant, only the address listed on the card.
5) Is place of birth relevant to the new order?
No. If a person was born in the Gaza Strip but changed his or her address to the West Bank, and that change was registered by Israeli authorities in the Palestinian population registry, the definition of `infiltrator` would appear not to apply to him or her.
6) What kind of permit regime does the order introduce into the West Bank?
The new order requires every single person present in the West Bank to possess a permit explicitly indicating his or her lawful presence in the West Bank. This includes `staying` permits, a kind of permit which did not exist until 2007 and which Israel instituted to distinguish between persons it considers to be lawfully present in the West Bank (without indicating a change in address) and those it does not consider to be lawfully present. Until then, Israeli authorities and the military commander neither demanded nor issued `staying` permits to Palestinian residents whose addresses in the Palestinian population registry controlled by Israel are listed as being in the Gaza Strip. Therefore, a Palestinian resident whose address is registered in the Gaza Strip but moved to the West Bank before 2007 relied on the fact that no permit was needed and that such a permit did not exist. Gisha believes that the bearer of a Palestinian ID card needs no permit to be present in the West Bank, irrespective of where his or her address is listed. Furthermore, since 2000, Israel has refused to register changes of address from Gaza to the West Bank, except for very limited gestures, and has frozen the process of issuing identity cards for the spouses of residents of the West Bank who entered with visitor permits that expired. A wave of identity cards was issued for spouses of West Bank residents in a one-time gesture in recent years as an exception to the freeze. The new order, therefore, requires that thousands of people residing in the West Bank possess a kind of permit that is nearly impossible to receive because of Israel`s own unwillingness to issue it; if they do not have the right permit they face the possibility of imprisonment and deportation.
7) How do the provisions of the order compare with the requirements of international law?
The provisions of the order violate both international law and the agreements Israel undertook in the Oslo Accords. The Fourth Geneva Convention completely forbids the forced deportation of protected residents from their homes. Violating that prohibition is considered a particularly severe breach of the convention. Likewise, the International Convention on Civil and Political Rights safeguards the right of every person to move freely in his or her territory and to choose his or her place of residence. The Oslo Accords safeguard the right of Palestinians with Palestinian identity cards to live either in the West Bank or in Gaza at their choosing.
8) Doesn`t the order actually improve the previous situation, by providing due process to those slated for deportation?
No. The order reinforces and perpetuates the policy of deportation and expulsion, while exposing tens of thousands of people who reside and live in the West Bank to deportation and arrest. Even the procedural protections that it purports to introduce are extremely problematic. The order allows the army to detain any person for up to eight days prior to even bringing him or her before a military committee to challenge the threatened removal, if the person cannot prove, at the time of arrest, that his or her presence in the West Bank is lawful. A child under the age of 18 may be detained for up to four days before being brought before the military committee. As opposed to the law in Israel, the order does not establish a procedure for judiciary review of the deportation orders, but rather review before a military committee comprised of officers in the Israeli army. After the military committee approves the deportation, there are no provisions in the order requiring a stay of execution until the case can be brought before the Supreme Court. Past experience shows that the army does not `volunteer` to respect the rights of Palestinian residents to access the court. An example of that is the State`s conduct as part of HCJ 8731/09 Azzam vs. Commander of West Bank (unpublished, given on December 9, 2009), a petition filed after representatives of the army violated a promise to Gisha`s lawyers not to deport a student from Bethlehem University to the Gaza Strip before she was given the opportunity to petition the Supreme Court. A person who is not deported but rather charged with the `crime` of infiltration will find him or herself indicted in a military court, which lacks basic procedural protections and in which judges are military officers. Although the order provides that a person shall not be deported for 72 hours after the deportation order is issued – seemingly an improvement upon the previous situation – the order also allows immediate deportation in cases where the person entered the West Bank `recently` and a soldier or border police officer has `reasonable grounds to think that person infiltrated the area`.
9) Doesn`t Israel have the right to deport anyone who is in the West Bank unlawfully?
Israel, as the occupying power in the West Bank, has the authority to take measures to maintain the security of the area, while at the same time facilitating normal life there, as well as safeguarding protected residents living under occupation in the West Bank and their rights. The vast majority of the tens of thousands of Palestinians facing the threat of deportation entered the West Bank lawfully, with either visitor permits provided by Israel or with entry permits to Israel given to Palestinian residents who requested to travel between the Gaza Strip and the West Bank over the years or through the `safe passage`, which allowed travel between Gaza and the West Bank from 1999 to 2000. These are people who made their homes in the West Bank, started families, enrolled for studies, opened businesses, advanced in their careers and otherwise put down roots there. This, relying on the permits given to them by Israel and on the basis of a guarantee in the Oslo Accords to allow Palestinians to choose their places of residence in the West Bank or Gaza. The new order paves the way for Israel to remove or to deport them, not on security grounds but rather as part of a policy aimed at preventing Palestinians whose addresses are registered in Gaza from residing in the West Bank and preventing Palestinians who are not in the Palestinian population registry from residing in the West Bank. Therefore, the order exceeds the powers of the military commander, who is not permitted to use his power to advance political aims at the expense of the rights of protected residents.
10) If a person is arrested in the West Bank, what can he or she do to prevent deportation?
According to the order, a deportation order can only be issued after a person is given the opportunity to present his or her claims to a military officer or border police officer, and after the claims are brought before a military commander. As a general principle, every detainee, upon being arrested and even before the issuing of a detention/deportation order, has the right for his or her family to be notified immediately, and to retain a lawyer if he or she so desires. The army and military police must be required to give such notice and even allow the detainee to give notice of the detention him or herself. The deportation cannot be carried out for 72 hours after the deportation order is given in writing. The intended deportee must be brought before a committee for the examination of deportation orders within eight days (for minors: within four days) from the date the deportation order was issued.
For background information:
Fact sheet, Gisha, `Restrictions and Removal: Israel`s double bind policy for Palestinians holders of Gaza IDs in the West Bank`, Gisha site, www.gisha.org.
Press release, HaMoked, `A new military order defines all residents of the West Bank as `infiltrators` who may be jailed and deported`, April 11, 2010, HaMoked site www.hamoked.org.il (with links to orders and letter sent to the defense minister about the order).