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Administrative Detainee

The Court issued an Order Nisi instructing the State to explain the deportation of a Jenin resident to the Gaza Strip: On 28 September 2005, the HCJ held a hearing on HaMoked's petition. The Justices ordered the State to explain, within 60 days, why the resident was deported without a court order or any guarantees for minimizing the injury to his rights. The petitioner was deported on the claim that his registered address was in Gaza, and that he was thus "an illegal alien in the West Bank"

The Justices instructed the State – explain the expulsion of a Jenin resident to Gaza with no court order or guarantees minimizing the injury to his rights.

The State claimed that Palestinian residents who live in the West Bank while their registered address is in Gaza, are "illegal aliens" and may be deported to Gaza.

On 28 September 2005, the HCJ heard HaMoked's petition on behalf of a Palestinian resident of Jenin, who was deported to the Gaza Strip on the claim that his registered address was in Gaza, and he was therefore "an illegal alien" in the West Bank.

The petitioner is a 20 year old man. He arrived in the Occupied Territories with his family when he was 9, and received resident status. The family lived in Gaza for a year and a half and in early 1996, relocated to Jenin due to the father's employment.

The change of residence was made by means of a travel permit granted by the army, as part of the safe passage arrangements. However, the army refused to update the family's registered address.

In June 2004, the petitioner was arrested by force of an administrative detention order issued by the Commander of the Military Forces in the West Bank. In the order, the petitioner's address was listed as "Jenin." In February 2005, the Military Commander decided to release the petitioner as part of the Israeli government's gesture to the head of the Palestinian Authority. The Commander of the Military forces in the West Bank decided, however, to release the petitioner in the Gaza Strip, and exploited the fact that the latter's registered address was in Gaza, thus sentencing him to exile from his neighborhood, home and family in Jenin.

The petitioner's deportation to Gaza, and the application of the term "illegal alien" to Palestinians who reside in the West Bank, but whose registered address is in Gaza, reflect Israel's attempt to divide the Palestinian population into separate units. In the 'Ajuri case, discussed by an extended panel of Justices, Israel sought to deport relatives of persons who perpetrated attacks against Israel to Gaza. At that time, Israel did not hesitate to make the opposite claim, namely, that the Gaza Strip and the West Bank form a single territorial unit and therefore the act constituted "assigned residence" within the same territory rather than deportation.

When the petitioner was released in Gaza, HaMoked contacted the authorities, requesting they return the petitioner to his home. As these requests were not answered, the petition (HCJ 3519/05) was filed on 10 April 2005. In its response, the State claimed that the petitioner had no right to live in the West Bank without a military permit, and that it was, therefore, permissible to deport him to Gaza, even without a court order. The State added that there were security reasons for preventing the petitioner's return to the West Bank.

In the response submitted to the HCJ, as well as in the hearing held on 28 September 2005, before Justices Beinisch, Procaccia and Jubran, HaMoked's attorneys, Gil Gan-Mor and Yossi Wolfson, claimed that the army lacked the authority to remvoe the petitioner and that his removal circumvented the guarantees to which he would have been legally entitled under an order for assigned residence. The Court's extended panel in the 'Ajuri case (HCJ 7501/02) specifically noted these guarantees. HaMoked's attorneys also claimed that an extended panel had recently ruled that the forcible removal of a person from his home constituted a violation of human dignity, in the framework of HCJ 1661/05, concerning the legality of the evacuation-compensation bill [a bill regulating financial compensation for settlers removed from the Gaza Strip as part of the disengagement plan].

The attorneys further claimed  that residents of the Occupied Territories do not require a permit in order to reside in the Territories or to change their place of residence between Gaza and the West Bank. These areas form a single territorial unit, in which freedom of movement and the freedom to change residential address must be upheld (unless denied under an assigned residence order).

In the hearing, Justice Procaccia addressed the State to enquire why an order for assigned residence had not been issued, along with its guarantees, considering that the petitioner has ties to the West Bank and resides there de facto.

The Justices also stated that the issue of the requirement to obtain a permit in order to reside in the West Bank raises complex questions which demand further study.

The Justices decided to issue an Order Nisi and instructed the State to explain the measure it had taken, as well as the ramifications of Israel's disengagement from the Gaza Strip on the case, within 60 days.

To view the petition (Hebrew)

To view the State's response (Hebrew)

To view the petitioners' response (Hebrew)

To view Amira Hass' story in Haaretz, dated 1 October 2005 (02) 627 1698   (02) 627 6317

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