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Palestine/West Bank and Gaza Israel's Policy of Expelling Palestinian Inhabitants from the West Bank to Gaza

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Palestine/West Bank and Gaza Israel's Policy of Expelling Palestinian Inhabitants from the West Bank to Gaza 288 Palestine/West Bank and Gaza Israel’s Policy of Expelling Palestinian Inhabitants from the West Bank to Gaza Iain GM Scobbie, Sarah L. Hibbin & Alon Margalit * EXPLANATORY NOTE Since 2003 Israel has accelerated the expulsions of certain Palestinian inhabit- ants, residing in the West Bank, to the Gaza Strip. The alleged basis to these expulsions is the Gaza registered addresses of the deportees in the Palestinian Population Registry, rather than specific security threats posed by the individu- als concerned. It is claimed that they do not hold a permit to stay and reside in the West Bank. In addition, expulsions are carried out regardless of whether the individual lawfully entered into the West Bank from Gaza in the first place, during a period when temporary stay permits were not required at all since occupied Gaza and the West Bank are traditionally considered a single territorial unit. Recent decrees of the Israeli military commander determine that people present in the West Bank without a permit are ‘infiltrators’ and subject to imme- diate expulsion and/or criminal sanctions. It was reported that the new military legislation may expose tens of thousands of Palestinians from the West Bank to deportation, however it does not apply to Israeli-Jewish Settlers residing in the West Bank. This amicus brief examines the lawfulness of the Israeli policy under inter- national law. It concludes that by expelling Palestinians from the West Bank to Gaza, Israel, the occupying power, is violating its obligations under international humanitarian law and under international human rights law. Such forced expul- sions are inconsistent with the protections granted to persons living in occu- pied territories. In assessing the Israeli policy through the prism of international law, the brief also provides an opportunity to observe how international law, * Professor Iain GM Scobbie, Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London, Sarah L. Hibbin, Research Associate, Sir Joseph Hotung Research Programme in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London and Alon Margalit, Research Associate, Sir Joseph Hotung Research Programme in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London. Israel’s Policy of Expelling Palestinian Inhabitants from the West Bank to Gaza 289 and how the law of occupation in particular, have been applied in the Israeli jurisprudence. The legal opinion was prepared upon request as anamicus curiae brief, follow- ing a petition submitted to the Israeli Supreme Court in May 2010 on behalf of sixteen Israeli and Palestinian human rights NGOs (HCJ 4019/10 Hamoked, the Centre for the Defence of the Individual v. the Military Commander of the West Bank). The petition challenges the legality of the Israeli expulsions policy and it is still pending in court. Table of Contents 1 Introduction 318 2 The Normative Framework 320 2.1 Local Law 320 2.2 International Law 321 3 International Law in the Israeli Legal System 322 4 Article 49 of the Fourth Geneva Convention 325 4.1 Article 49(1): Interpretation 325 4.2 Can the Israeli Policy Be Considered Lawful Evacuation? 330 4.3 Article 49(1): Customary Status 332 5 Military Commander’s Orders vis-a-vis the Fourth Geneva Convention 334 6 Protected Persons 336 7 Article 43 of the Hague Regulations 341 7.1 Security Considerations 341 7.2 Well-being of the Local Population 343 7.3 Prolonged Occupation 344 8 Interference in Family Life 346 9 Voluntary Waiver of Rights? 347 10 Estoppel 348 11 Human Rights Law 349 11.1 Unlawful Discrimination 353 1 INTRODUCTION 1. This opinion examines the lawfulness under international law of the Israeli Military Commander’s policy of expelling certain Palestinian inhabitants, resid- ing in the West Bank, to the Gaza Strip (‘the Israeli Policy’). These expulsions are based on the Gaza registered addresses of the deportees in the Palestinian Population Registry, rather than on specific security threats 2. posed by the individuals concerned. It is claimed that they do not hold a permit to stay and reside in the West Bank. 3. According to information provided by the Israeli NGO Hamoked—Center for the Defence of the Individual (‘Hamoked’), Israel initiated this policy in approximately 2003, following the outbreak of the Second Palestinian Intifada .
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