1 1Ph.D. candidate in Sociology at the University of California, Santa Cruz; a 1986 Associate Fellow of the Transnational Institute in Amsterdam and the Institute for Policy Studies in Washington, D.C.; and a volunteer researcher with Law in the Service of Man/alHaq, Ramallah, West Bank.
* This paper was published by Law in the Service of Man (Al-Haq) in 1986 as Occasional Paper No. 2. It is being reproduced in part herein with permission of the author and Law in the Service of Man with some editorial changes. Ed.
1. Jerusalem Post, 5 Aug 1985. 2. Leaders of "illegal organizations" included a newspaper editor, trade unionists, a journalist, a deposed member of the al-Bira municipal council, stu- dent leaders and several others. 3. Black's Law Dictionary 131 and 394 (5th ed. 1979). 4. See the text of these orders, supra at 146, 148. 5. See Kassim, Legal Systems and Developments in Palestine, I Pal. Y.B.Int'l L. 19 (1984). ).
6. Id. 7. Cited by Shapiro-Libai, Territories Administered by Israel Military Proclama- tions, Orders and Judicial Decisions: Extracts, Isr. Y.B.H.R. 419 (1971). 8. Government of Palestine, The Defence (Emergency) Regulations, 1945 (As Amended Until 2nd March, 1945) (Jerusalem: Government Printing Press, 1945). See supra, at 134 9. Abou Awad vs. the IDF Commander of Judea and Samaria, excerpted in 9 Isr. Y.B.H.R. 343 (1979).
10. Id. at 344. 11. Cited in Id. at 343. [The date of issue was May 24 and not May 19 as the Court stated. Ed.] The Egyptian authorities continued to apply the 1945 Defence Reg- ulations in a similar way in Gaza, according to the Israeli point of view. 12. Id. at 343-4.
13. Attorney General's Directives Re: Application of British Defence (Emergency) Regu- lations, 1945, to Judea and Samaria. (Unpublished document in Hebrew, 1969). * General Hashem is Ibrahim Pasha Hashem who was the Jordanian Military Governor of the West Bank. Ed. 14. Affidavit submitted to the Israeli High Court by Attorney Aziz Shehadeh in 1980 in the case against Qawasmi and Milhem. See the text of the Affidavit, supra, at 150.
15. Nazzal et al. vs. the ELF Commander of Judea and Samaria, HCJ 513/85 and Jayousi vs. the 1DF Commander of Judea and Samaria, HCJ 514/85 (in Heb- rew). 16. 12 POA-WB, June 16, 1968, at 466. The Interpretation Order for Gaza Strip No.300 in 16 POA-GS, Jan. 18, 1970, at 1157. This Order, 1969 which repealed all Orders related to this matter was issued on Aug. 7. 17. 8 POA-WB, December 29, 1967, at 329. 18. Official Gazette (Palestine), March 24, 1937, at 268. 19. Rosenthal, The 1945 Defence Regulations: Ualid Law in West Bank?, (hereinafter "Rosenthal"), [Unpublished paper, 1986].
20. Text in the Palestine Gazette (Palestine) No. 1400, Supp. 1, April 2, 1945, at 48. See also 1 Laws of the State of Israel ("LSI"), at 5 (new version). 21. Rosenthal, at 14. The quoted text corresponds substantially with Article 17 of the Interpretation Ordinance (new version) supra, note 20. Ed. 22. Article 3(2) reads: The provisions of the Interpretation Ordinance, 1945, other than those of paragraphs (b) and (d) of section 19 and those of sections 20, 35, 36 and 37 thereof, shall apply, save as otherwise provided, to all emergency legisla- tion and, for the purposes of such application, Regulations made under the Order in Council shall be deemed to be Ordinances. 23. See supra, note 16.
24. Rosenthal, at 14. 25. "The issue of whether legislative enactments by the military governments enjoy the status of primary law, which are unchallengeable, or can be viewed as secondary by-laws and administrative action, which are reviewable, has never been decided by the High Court and has only been the subject of obite dicta. Shehadeh, Occupier's Law Israel and the West Bank (1985), at 96 (hereinafter "Shehadeh"). 26. Before 1970, the Israeli authorities employed the Regulations in administra- tive detention situations. In 1970, specific provision was made for administra- tive detention in Military Order No. 378 of April 20, 1970. The text in 21 POA - WB, at 733. See text of Articles 85-87 inclusive supra, at 142. Finally, in 1980, Military Order 815 was issued, amending Order 378 to reflect legislation newly enacted in Israel itself. Text in 46 POA-WB, Aug. 31, 1981, at 249. See Playfair, Administrative Detention in the Occupied West Bank, at 11 (1986). 27. Jiryis, The Arabs in Israel, at 12 (1976).
28. Al-Awdah Weekly (Jerusalem), 22 Dec. 1985. 29. High Court Justice Haim Cohen advanced the argument in the Qawasmi case that these Regulations could only be interpreted as being applicable to the deportation of aliens, since the deportation of nationals is strictly forbidden in international customary law. 30. See Shehadeh. 31. See Military Order No. 297 in 17 POA-WB, Mar. 23, 1969, at 609 as amended Order No. 396 in 23 POA-WB, Aug. 30, 1970, at 817. 32. The exact number of family reunion applications is not known. Thomas Fried- man of the New York Times reported that in 1985 only 300 family reunion applications of Palestinians wishing to rejoin their families in the West Bank had been granted, as compared with 900-1200 on average in previous years. New York Times, 5 January 1986. See also Shehadeh, at 114-5.
33. See text supra, at 146, 148. 34. Compare this Order with the text of the Israeli Prevention of Infiltration Law of 1954, supra, at 139. 35. See Military Order No. 68 concerning the General Census Law in 5 POA-WB, Nov. 15, 1967 at 178; and for Gaza, see Military Order No. 79 in 3 POA-GS, Dec. 31, at 233.
36. Shaheen vs. the IDF Commander in the Gaza Strip HCJ 159/84. See text, supra, at 107. 37. Kasrawi et al. vs. the Minister of Defence, HCJ 454/85, and Hanini et al. vs the IDF Commander of Judea and Samaria, HCJ 456/85 (in Hebrew).
38. Text in 1 POA-WB, Aug. 11, 1967, at 26. This Order was issued on June 8, 1967 and became effective on the same day.
39. Information obtained by al-Haq (formerly Law in the Service of Man). 40. Al-Fajr, Palestinian Weekly (Jerusalem), 10 Jan. 1986. 41. Ahmad Radad vs. The State of Israel, The Minister of Defence, and the Milit- ary Commander of Toulkarm, HCJ 449/85 (in Hebrew). 42. See also Jerusalem Post, 10 Mar. 1986. 43. Country Reports on Human Rights Practices for 1985, at 1270. The United States Department of State, Feb. 1986. The State Department is incorrect in saying that the ICRC helped negotiate the prisoner exchange: it merely agreed to supervise it.
44. See the amicus curiae brief that was submitted to Israel's Supreme Court in a deportation case by the American National Lawyers Guild and the National Conference of Black Lawyers, in II Pal. Y.B.Int'l.L. 174-181 (1985). 45. Documents on the Laws of War, Roberts & Guelff, (ed. 1982) (hereinafter "Roberts & Guelff"), at 556. 46. II Schwarzenberger, International Law as Applied by International Courts and Tribunals, The Law of Armed Conflict 227 (1968) (hereinafter "Schwarzen- berger"). Schwarzenberger also remarked: "To argue in this case that what is not prohi- bited is allowed would mean to ignore the general prohibitory rule taken for granted by all parties to the Hague Conventions and interdicting deportation even on grounds of necessities of war. This is one of the rare cases when com- plete silence on a subject in the preparatory material of the Hague Peace Con- ferences can be confidently adduced as evidence of a self-understood rule." Id. at 2278. See also, 4 Pictet, Commentary to the IV Geneva Convention, at 279 (1958) (hereinafter "Pictet").
47. Charter of the International Military Tribunal at Nuremberg, 1945. See Scwar- zenberger at 164-5. 48. Roberts and Guelff, at 155. 49. See International Military Tribunal, Vol.1, at 227, 293, 296. 50. The Attorney General of the Government of Israel vs. Adolf Eichmann 36 Int'l. L. Rep. 277 at 296 (1962). On the adoption by the High Court of the Hague Con- vention, see its judgment in the Elon Moreh case (HCJ 390/70), published in I Pal. Y.B. Int'l.L. 134 at 144 (1984). 51. Basic Documents on Human Rights, Brownlie, (ed., 1981) (hereinafter "Brownlie"), at 23. 52. Brownlie, at 132. Israel has signed but not yet ratified this convention.
53. Pictet, at 279. 54. Shamgar, The Observance of International Law in the Administered Territories, 1 Isr. Y.B.H.R. 262, at 263 (1971). (Notes in the text omitted). 55. Id. at 266. 56. Id. at 266-7. 57. Id. at 274.
58. Id. at 275. 59. Nazzal et al. vs. the IDF Commander of Judea and Samaria, HCJ 513/85; and Jayousi vs. the IDF Commander of Judea and Samaria, HCJ 514/85. 60. Abou Awad vs. the IDF Commander of Judea and Samaria, HCJ 97/79, at 345. 61. Qawasmi et al. vs. the Minister of Defence et al., HCJ 698/80, at 350-1.
62. See also the outstanding legal arguments advanced by Mallison & Mallison, The Palestine Problem in International Law and World Order, 252 and passim (1986). 63. Qawasmi et al., HCJ 698/80, at 352-3. See also the interview with Justince Cohen who had a dissenting opinion in Al-Awdah Weekly, Dec. 22, 1985. 64. United Nations Security Council Resolution No.446, (1979) of Mar. 22, 1979 and Resolution No.592 (1986) of Dec. 8, 1986. 65. See for example, U.S. St. Dept., supra note 43, at 1267. 66. The Eichman case, supra note 50, at 38. 67. 1 POA WB, Aug. 11, 1967, at 5. 68. 8 POA - WB, Oct. 29, 1967 at 303. Gaza had witnessed identical developments. See 1 POA - GS, Sept. 14, 1967 at 21, and Amendment No.8 cancelling Article 35 in Order No.107 issued on Oct. 11, 1967. See Shahadeh and Kuttab, The West Bank and the Rule of Law, at 105 (1980).
69. Pictet clarified the ICRC Commentary: "By undertaking at the very outset to respect the clauses of the Convention, the Contracting Parties drew attention to the special character of that instrument. It is not an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engage- ments solemnly contracted before the world as represented by the other Con- tracting Parties". It went on to say: "[I]t is clear that Article 1 is no mere empty form of words, but has been deliberately invested, with imperative force. It must be taken in its literal meaning." Pictet, at 15, 17. 70. Zu HaDerekh, 26 Feb. 1986, (in Hebrew).
72. Jerusalem Post, 2 Sept. 1985. 73. Id. 13 Sept. 1985. 74. Kasrawi et al. vs. the Minister of Defence, HCJ 454/85; Hanini et al. vs. the IDF Commander of Judea and Samaria, HCJ 456/85. (in Hebrew).
75. Id. 76. Conversation with lawyer Andre Rosenthal (a lawyer in Lea Tsemel's office), Jerusalem, Spring 1986. 77. Phone conversation with lawyer Ibrahim Abou Ata, Jerusalem, Spring 1986. 78. See text supra at 134. 79. NLG Report, at 76. 80. Id.
81. Pendhazour, Ha'aretz, 19 Sept. 1985 82. Conversation with lawyer Lea Tsemel, Jerusalem, Spring 1986. 83. Conversation with lawyer Ahmad Nazzal (a lawyer in Felicia Langer's office), Jerusalem, Spring 1986.
84. Id. 85. Conversation with lawyer Lea Tsemel, Jerusalem, Spring 1986. 86. Jerusalem Post, 12 Aug. 1985. 87. Shehadeh, at 95.
88. The Rule of Law in the Areas Administered by Israel, at x (1981), Israeli National Section of the International Commission of Jurists. 89. Qawasmi et al. vs. the Minister of Defence et al. HCJ 698/80, II Is. Y.B.H.R., 352 (1981). In the case of the eleven released prisoners who were given a deporta- tion order in 1985, the High Court held, inter alia: "There is no need for us here to discuss the implementation of an order given at some time in the past, an order whose legality ought, of course, to have been tested according to the legal situation with regard to that action at the time it was carried out in the past,... but rather by the authority invested by the legislation as it is now in effect and which it is now desired to exercise. [sic]". See supra note 74. And in the case against Walid Nazzal, Amin Maqboul and Bahjat Jayoushi, the High Court argued that "in light of all the information submitted to us, we conclude that there is no cause to put in doubt the veracity and credibility of the respon- dent's arguments. That is to say, we have clear, convincing and explicit infor- mation... and [we feel that] the plaintiffs have indeed benefited from all the conditions mentioned in Article 108 of the Defence Regulations." See Nazzal et al. vs. the IDF Commander of Judea and Samaria HCJ 513/85, and Jayousi vs. the IDF Commander of Judea and Samaria, HCJ 514/8 (in Hebrew).
90. Nigbe, Symposium on Administrative Punishment in theAdministered Territories. Jerusalem, 10 Dec. 1985. (in Hebrew) (hereinafter "Symposium"). 91. Id. 92. See the picture released by the Washington Post, Sept. 17, 1985, at A18 which shows 18 Palestinians who were deported to Jordan through a minefield in the desert south of the Dead Sea. 93. This is the case of Akram Haniyeh, editor of the East Jerusalem daily Al Sha'ab, who was deported on December 28, 1986. See the Jerusalem Post Int'I. Jan. 10, 1987, at 6.
94. Pamphlet signed by the petitioners and distributed in the Israeli High Court on the day of the hearing, 30 January 1986. 95. From a statement read by advocate Lea Tsemel at a press conference in Jerusalem. Al-Awdah Weekly (Jerusalem), 15 Dec. 1985. 96. 2 LSI, at 198 (New Version). Article 44 reads: (a) A person is not bound to give, and the court shall not admit, evidence regarding which the Prime Minister or the Minister of Defence, by certifi- cate under his hand, has expressed the opinion that its giving is likely to
impair the security of the State, or regarding which the Prime Minister or the Minister of Foreign Affairs, by certificate under his hand, has expres- sed the opinion that its giving is likely to impair the foreign relations of the State, unless a Judge of the Supreme Court, on the petition of a party who desires the disclosure of the evidence, finds that the necessity to dis- close it for the purpose of doing justice outweighs the interest in its non- disclosure. (b) Where a certificate as referred to in subsection (a) has been submitted to the court, the court may, on the application of a party who desires the dis- closure of the evidence, suspend the proceedings for a period fixed by it, in order to enable the filing of a petition for disclosure of the evidence or, if it sees fit, until the decision upon such a petition. 97. LSI - Special Volume, Penal Law -1977. Article 128 reads: Where the court which tries an offence under Article Two or Four is of the opinion that the security of the State requires the maintenance of secrecy to an extent which cannot be achieved by the means provided by any other law, it may order- (1) that the accused or his counsel shall not be present at a particular proceeding or shall not inspect some particular evidence; (2) that in a particular proceeding the court shall sit in a place other than the court building; (3) that something said or some evidence produced in a particular pro- ceeding shall be kept secret in such manner and to such extent as the court shall prescribe; but the court shall not exercise its power under paragraph (1) unless the accused is assured, to its satisfaction, of a full defence, including defence coun- sel appointed by it or chosen by him instead of the counsel who will be absent or will not inspect evidence as aforesaid. 98. Singer, Symposium, supra note 90.
99. Zu HaDerekh, 19 Feb. 1986. (Translated and distributed in English by Israel Shahak). 100. Haim Cohn, Symposium, supra note 90. 101. Nazzal et al. vs. the IDF Commander of Judea and Samaria, (HCJ 513/85) and Jayousi vs. the IDF Commander of Judea and Samaria, (HCJ 514/85).
102. Id. 103. Nazzal et al. (HCJ 513/85).
* NOTE: This list does not include those Palestinians who have been deported fol- lowing the expiry of their prison term, and who at the time of their conviction sup- posedly agreed to be deported in order to receive a reduced term in jail, nor Palesti- nian residents of the Occupied Territories who were not allowed to re-enter the area following a stay abroad.
ABBREVIATIONS: FP: Palestinians freed during the prisoners exchange on 20 May 1985. MO: Deported by virtue of Military Order 329 for the West Bank, or Military Order 290 for Gaza. DR: Deported by virtue of the British Defence (Emergency) Regulations of 1945. APP: Appealed (YES, NO, or Y/N - see below). APPEALS: In the appeal category, some deportees are listed as Y/N. In case 2, this means that the deportee appealed to the High Court, but that an agreement was reached before the Court convened, and that both the deportation order and the appeal were subsequently withdrawn. (Number 2 was deported for a period of three years, with no certainty that he may return at the end of that period). In cases 28, 29, 30, 36 and 37, this means that the deportees appealed to the High Court, but then withdrew their appeal. In cases 32 and 33, this means that the deportees only appealed to the Advisory Committee. LIBERATED PRISONERS: Numbers 3-20, 24, 27 and 35 are all Palestinians freed during the prisoners exchange on 20 May 1985, who were later told that they were being considered as infiltrators and that deportation order had been issued against them, based on either M.O. 329 (West Bank) or M.0.290 (Gaza Strip). Numbers 25, 32, 33, 34 and 36 are also Palestinians freed in the exchange, but they were deported for "security" reasons, and henceforth, by virtue of the British Defence (Emergency) Regulations of 1945.