Revocation of permanent status from East Jerusalem residents: HCJ 282/88 ‘Awad v. Shamir (judgment dated June 5, 1988)
Court Watch | 282/88 | 3.5.2012 | Adv. Yossi Wolfson
The separation wall in Shuafat, East Jerusalem. Since the construction of the wall, the policy of revoking residency from families forcefully disconnected from the city center has been significantly accelerated. By 2010 residency was revoked from 13,000 jerusalemites. Photo: Ann Paq, Activestills
The Mubarak ‘Awad judgment ostensibly contains exemplary legal analysis, marked by all the virtues of simplicity, consistency and conciseness. The judgment enlists its ingenious legal thinking to serve the suppression of the Palestinian uprising against the Israeli occupation (in the short term) and Israel’s demographic aspirations in East Jerusalem (in the long term). With the legal backing supplied by this judgment, Israel has made reality of life intolerable for generations of Palestinian residents of East Jerusalem.
The personality of Dr. Mubarak ‘Awad forms the background for this judgment; an academic and activist who promoted the use of non-violent techniques against the Israeli occupation in the Territories. He preached non-violent resistance by boycotting Israeli products, putting a stop to Palestinian labor in Israel, going on tax strikes and the like. In other words: He pointed to the possibility of resisting the occupation by undermining its economic basis and practicing non-cooperation with the bureaucratic mechanism on which it relies. ‘Awad called for the establishment of a Palestinian state and peace between the nations. In the early days of the first intifada he was relatively influential and some of his ideas were implemented on the ground with the support of the uprising leadership. ‘Awad is now a lecturer at the American University in Washington D.C. His nephew, Sami ‘Awad is following in his footsteps in Bethlehem.
With the legal backing supplied by this judgment, Israel has made reality of life intolerable for generations of Palestinian residents of East JerusalemHowever, the facts pertinent to the legal analysis in the judgment do not pertain to ‘Awad’s worldview, but to his legal status. ‘Awad was born in Jerusalem in 1943. At the time, the city was still part of Palestine-Eretz Israel, under British Mandate rule. Before ‘Awad reached the age of five, the British left the city and the Hashemite Kingdom of Jordan took control of its eastern part. ‘Awad became a Jordanian subject. In 1967, Israel seized East Jerusalem along with the rest of the West Bank and annexed the former (in contravention of international law). ‘Awad, like the rest of the residents of East Jerusalem, received an Israeli identity card, but was not forced to become a citizen. Imposing citizenship was against Israel’s interests, international law and the political position of the occupied population. In 1970, ‘Awad went to the United States to take up academic studies. He completed his PhD thesis in 1982. According to the judgment, during his studies, ‘Awad visited Jerusalem three or four times. Between 1983 and 1987, he entered Israel some fifteen times, sometimes for short periods, sometimes for a few months. The judgment does not note if ‘Awad spent more time in Israel than abroad. In January 1985, ‘Awad established the Institution for the Study of Non Violence in Jerusalem. He last entered Israel in 1987 and remained in the country uninterruptedly from that point until the judgment was handed down (some ten months later). While in the USA, ‘Awad acquired American citizenship. In 1985, he married an American citizen in Jerusalem.
In May 1988, the interior minister ordered ‘Awad be deported from Israel on the grounds that he was in the country illegally coupled with his activities against Israel’s rule over the Territories. The main question addressed by the court was whether ‘Awad’s presence in Israel was indeed illegal considering the fact he was granted an Israeli identity card in 1967.
Justice Barak’s legal maneuver is, as stated, smooth and elegant. He determined that the law regulating the status of East Jerusalem residents is the Entry into Israel Law. True, this sounds odd given that these are people who never entered Israel, but it is Israel that entered their territory. However, the title of the law does not describe its substance. The law stipulates that the presence in the country of any person who is not an Israeli citizen or an oleh [i.e. a Jewish immigrant who entered by force of the Law of Return] is regulated by the Entry into Israel Law. Residents of East Jerusalem are not the only ones whose status is determined by this law despite never having entered Israel. The law also governs the status of children born in Israel, if, for instance, they are the children of tourists. ‘Awad’s lawyers proposed that residents of East Jerusalem should be considered as having a special status, not that of a citizen but also not pursuant to the Entry into Israel Law. Yet, why build complex legal constructs, wonders Barak, when the status of East Jerusalem residents could be analyzed with methodological conciseness through the Entry into Israel Law?
Once it was established that the status of East Jerusalem residents is determined by the Entry into Israel Law, it was necessary to examine what this status was. The law offers several kinds of permits to remain in Israel with the most appropriate being a permit for permanent residency. However, in 1967, East Jerusalem residents were not given papers stating that they possess permits for permanent residency in Israel. Instead, they were simply given identity cards. This is a minor issue for Barak: it is well known that permits can be granted by implication.
And how does the permit, entitled a “permit for permanent residency” in the law, turn from permanent to temporary? And how did Mubarak ‘Awad’s permit for permanent residency evaporate into thin air without anyone in the ministry of interior ever bothering to officially and explicitly revoke it? Barak has two answers. First, there are the regulations issued by the minister of interior stipulating that a permit for permanent residency expires if its holder leaves Israel and settles in another country. Is the minister of interior empowered to turn the permanent residency permit stipulated in the law into a temporary permit using secondary legislation? Certainly, writes Barak. After all, the law empowers the interior minister to set conditions for the permits granted in accordance with it. This provision, established in the secondary legislation, should be regarded as a condition which the interior minister has incorporated into each and every permit for permanent residency.
The second answer lies in the interpretation of the term “permit for permanent residency” itself. Barak writes:
[A] permit for permanent residency – as opposed to the act of naturalization – is a hybrid. On one hand, it has a constituting nature, creating the right to permanent residency; on the other hand, it is of a declarative nature, expressing the reality of permanent residency. Once this reality disappears, the permit no longer has anything to which to attach, and is, therefore, revoked of itself, without any need for a formal act of revocation. (p. 433)
There you have it, a perfect geometric structure: An abstract legal fixture – a permanent residency permit – with a built in self-destruct mechanism. Upon fulfillment of the conditions preprogrammed into the permit, it revokes itself without human intervention. Thus, by an incredibly simple, logical formula which infuses ‘Awad’s identity card with the substance of a permit with a built-in terminating condition, everything can be explained: both the granting of the identity card and what this means, and the loss of status in Israel without that status being formally revoked.
This perfect legal maneuver ignores one important legal problem. A verdict on the status of the residents of East Jerusalem cannot overlook the fact that they are protected residents of an occupied territory. Article 47 of the Fourth Geneva Convention stipulates that no change in the status of an occupied territory introduced after it has been occupied may impinge on the rights of residents protected under the Convention. Article 47 specifically refers to the annexation of occupied territory by the occupying power as one of the changes which may not impinge on the rights of the residents of that territory. The Geneva Convention does not address the question of the legality of the annexation. The annexing country will obviously claim the annexation is legal. Arguing against that position would foil the goal of protecting the population. What was important for the authors of the Convention was to guarantee the rights of the civilian population in this scenario as well. One of these rights is the right of members of the population of an occupied territory not to be deported from the area. When ‘Awad was born in Jerusalem and became subject of the Mandate, his status was not conditional. He was able to leave the country and return to it whenever he wished. Under Jordanian rule too, there was no self-destruct mechanism concealed in the depth of his legal status. The Israeli occupation cannot insert a self-destruct mechanism into the legal status of a person like a hacker inserts a self-destruct virus into someone’s computer. The Israeli occupier may not turn the inhabitants of East Jerusalem from full-fledge permanent residents into probationary permanent residents, who are, in fact, probationary deportees.
The ‘Awad judgment is based on legal analysis that takes place in an abstract reality, detached from life. One of the marvels in the judgment is the attempt to ostensibly claim that the logic mechanism it creates is, in fact, a validation of lived reality:
[I]t is often difficult to point to a specific point in time at which a person ceased from permanently residing in the country… there is certainly a span of time in which a person’s center of life seemingly hovers between his previous place of residence and his new place of residence… [T]he decisive test is reality of life as it transpires in practice. According to this test, the petitioner transferred his center of life to the USA at some point, and he is no longer to be considered as permanently residing in Israel. (p. 433)
This perfect legal maneuver ignores one important legal problem. A verdict on the status of the residents of East Jerusalem cannot overlook the fact that they are protected residents of an occupied territoryHow perfect in the abstract and how detached from reality. Perhaps Barak's statements were true in the past. In the 19th century and in the early 20th century people would uproot themselves from their homes in Poland, Russia and Ireland, pack their belongings, board trains and ships and immigrate to the “New World” for good. In time, their Polish, Russian or Irish identities became no more than a component of their ethnic roots, a lost past. Not so in our day and age. Today, people leave their home countries for many years – to study, work, or even emigrate – without severing contacts with their homeland. When the time comes, they return home, be it when the children reach school age, in a time of financial crisis, when they retire or at some other time. Sometimes, people who have lived abroad for many years return to their country to, among other reasons, take part in its political life: thus for example ‘Awad and like him, previously, Mahatma Gandhi, and, same but different, Binyamin Netanyahu.
This right, to a homeland that will always take you back, was denied to residents of East Jerusalem in the ‘Awad judgment. A resident of East Jerusalem is not entitled to seek his fortune in the world. He may not study, acquire an occupation or make money and then, after a decade or two, return and build his home in the homeland. A resident of East Jerusalem who marries abroad, cannot return to her country if, years later, her marriage flounders. She must continue to live in the country where she has “settled”. An East Jerusalem resident who goes out into the world, cannot return to his family if his luck turns and he needs their support. The self-destruct mechanism in the identity card of an East Jerusalem resident is forever ticking. One night, the mechanism will spring into action and the residency will expire with an inaudible puff. This person will wake up in the morning, having heard nothing, and even if he thinks he is still Palestinian and Jerusalem is his hometown, in Barak’s abstract world, he no longer has ties to the city or a right to return to it.
When rendered, the ‘Awad judgment served to remove from Israel a man who threatened Israel’s administration of rule precisely because of the non-violent popular resistance which he preached and succeeded to instill. However, the importance of this judgment to Israel is far wider reaching. This judgment provides legal backing for Israel’s demographic policy in East Jerusalem, a policy which encourages Palestinian emigration from the city. With the aid of this legal infrastructure, Israel reaps the benefits of the physical displacement of Palestinians from Jerusalem: Those who were driven away from the city, or have chosen to leave it because of the hardships, in time lose their right to return. The denial of Palestinians’ right to live in Jerusalem is one component of Israel’s policy aimed at guaranteeing Jewish control over all parts of the "reunited" city.
Att. Yossi Wolfson
The author is an attorney and an activist for human and other animals’ rights, previously staff at HaMoked: Center for the Defence of the Individual.