3 July 2006: Revocation of residency of Hamas members from Jerusalem is illegal

Published: 
3 Jul 2006

On 30 June 2006, Interior Minister Roni Bar-On revoked the permanent residency and identity cards of Khaled Abu 'Arfeh, who is a minister in the Palestinian Authority, and three members of the Palestinian Legislative Council, Muhammad Abu Tir, Muhammad Totah, and Ahmad 'Atun, all members of Hamas and residents of East Jerusalem .

The four legislators, along with other Palestinian ministers and members of parliament, were detained on 30 June following the abduction of Cpl. Gilad Shalit on grounds of suspicion of membership in a terrorist organization. They remain in custody .

On 29 May 2006, Bar-On informed the four officials that if they do not resign their positions within thirty days, he would revoke their permanent-resident status. Bar-On's letter comes in the wake of Prime Minister Olmert's decision taken in April, which he made, according to media reports, "following the terrorist attack in Tel Aviv," and because "Hamas leaders did not condemn the attack and some even justified it ."

Following revocation of their residency status, the four officials will have their identity cards taken from them and will be forbidden entry to Jerusalem . The action will expel them from their homes and from the city whose residents elected them as their representatives. It should be noted that, despite Israel 's annexation, East Jerusalem is an integral part of the Occupied Territories , so its Palestinian residents are protected by the Fourth Geneva Convention, which prohibits the occupying power from forcibly transferring civilians from their homes. Israel 's action flagrantly violates Israel 's obligations under the Convention.

Legal background

In 1967, Israel annexed East Jerusalem and granted its Palestinian residents permanent-residency status in the State of Israel. In annexing the territory, Israeli flagrantly breached international law, which prohibits "acquisition of territory by force" and change in the legislation in occupied territory. The UN Security Council on several occasions condemned the annexation, and all countries have refused to recognize the annexation. Therefore, although Israeli law considers Jerusalem part of the State of Israel, under international law, East Jerusalem continues to be occupied territory, whose status is the same as that of other areas in the West Bank .

Thus, the provisions of international humanitarian law, the Fourth Geneva Convention in particular, apply to East Jerusalem . Article 49 of the Convention prohibits the "forcible transfer" of protected persons within the occupied territory, as well as their deportation to places outside occupied territory. This prohibition is absolute, and applies "regardless of their motive."

Article 78 of the Convention permits the occupying power to "assign the residence" of a civilian within the occupied territory, that is, to confine the person to a particular area. This power is considered an exceptional action, and can be taken only "for imperative reasons of security."

The Supreme Court has held that assigned residence is permitted only when the person himself or herself constitutes a threat that can be eliminated by the measure of assigned residence. In any event, it is forbidden to assign the residence of a person as a means of punishment; it may only be used as a preventive measure. Therefore, the Supreme Court held, that to exercise this power, there must be "administrative evidence that - even if inadmissible in a court of law - shows clearly and convincingly that if the measure of assigned residence is not adopted, there is a reasonable possibility that he will present a real danger of harm to the security of the territory."

Media reports indicate that the cabinet's decision was not made because of a danger of harm from the persons themselves, and was only a protest measure following the attack in Tel-Aviv, and was taken along other measures against the Palestinian Authority's Hamas government. Thus, even if Israel argues that the measure is not a "forcible transfer" within the meaning of Article 49, but "assigned residence" according to Article 78, the action would be illegal because the motivation for the measure was purely political and not "imperative reasons of security."