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<h1 id="reader-title">DEPORTATION AS POLICY: PALESTINIAN
PRISONERS & DETAINEES IN ISRAELI DETENTION</h1>
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<p align="center"><strong><u>April 18, 2016<br>
</u></strong></p>
<p align="center"><strong><u>DEPORTATION AS POLICY:
PALESTINIAN PRISONERS & DETAINEES IN ISRAELI
DETENTION</u></strong></p>
<p class="rtejustify">Deportation of protected persons
from occupied territory into the occupying state
constitutes an unlawful deportation as per Article 49 of
the Fourth Geneva Convention - as well as constituting a
grave breach of the same Convention under Article 147 –
and is also recognized as a war crime under Article 8 of
the Rome Statute of the International Criminal Court.
More specifically, Article 76 of the Fourth Geneva
Convention – which draws heavily from Article 49 -
stipulates that an Occupying Power may not detain
residents of the occupied territory in prisons outside
of the occupied territory.</p>
<p><strong>SYSTEMATIC DEPORTATION OF PALESTINIAN DETAINEES</strong></p>
<p class="rtejustify">Despite these unequivocal legal
provisions, Israeli occupying forces systematically
transfer Palestinian detainees from inside the occupied
West Bank, including East Jerusalem, to locations inside
Israel. Upon arrest, Palestinians are typically taken to
one of four interrogation centers or one of four
detention centers across the occupied territory and
within the occupying state, and ultimately to one of 17
prisons. Only one of these prisons is located inside the
occupied territory. This systematic and illegal transfer
of Palestinians from the occupied territory also carries
with it a human impact – the consequence is that
Palestinian relatives of prisoners and detainees who
then require a permit to enter Israel are regularly
denied family visitation permits, based on “security
grounds”. From observations by Addameer based on
accounts of family members, these permits are
systematically denied for male family members aged
between 16 and 35. Overall, the ongoing deportation of
Palestinians detainees presents not just significant
human implications, but also operates as part of a wider
Israeli impunity for international crimes which
threatens to erode the relevance of international law
generally.</p>
<p class="rtejustify">Palestinian prisoners who are
transferred from the Gaza Strip and into Israel are
subjected to arbitrary measures depriving them of their
fundamental human rights, arguably as acts of collective
punishment during wars on Gaza and its resident
population. For example, in 2006, Israel denied
Palestinians living in Gaza family visits based on
“unspecified security reasons”. In 2009, the Israeli
Supreme Court (sitting as the High Court of Justice)
rejected an appeal that contested the legality of this
policy claiming that Palestinians from Gaza have no
right to enter Israel.<a id="_ftnref1" title=""
name="_ftnref1"
href="http://www.addameer.org/publications/#_ftn1">[1]</a>
In 2014, these visitations were reinstated but with
restrictions applied, and only up to once a month.</p>
<p><strong>THREATS OF DEPORTATION DURING INTERROGATION</strong></p>
<p class="rtejustify">Threats of deportation are used by
Israel during interrogation as a form of pressure in
order to coerce Palestinian detainees into providing a
confession. On October 25 2013, occupation forces
arrested 21-year-old Rana Abu Kweek, after a night raid
on her home in Ramallah. Rana’s hands were tied behind
her back, and she was blindfolded and taken to a
military jeep. Inside the jeep she was forced to lay
down facing the floor. At an unknown military base she
was blindfolded for three hours and then taken back to
the jeep. Several hours later she arrived at a military
checkpoint, and then transferred to Ashkelon, where she
was denied food and access to the bathroom. She
recounted:</p>
<p class="rtejustify"><em>“I arrived Ashkelon detention
center by the evening. Shortly after arrival, a long
interrogation began. It lasted until the next day. I
would be allowed to have short breaks in between, each
break lasting less than 30 minutes, followed by a new
round of interrogation. I was threatened to get
deported to Gaza if I did not ‘confess’….”</em></p>
<p class="rtejustify">Mohammad Rabe’, who was arrested on
July 27 2014 near Bitar checkpoint in close proximity to
his village in Bethlehem recounted:</p>
<p class="rtejustify"><em>“At the end of the interroga</em><em>ti</em><em>on,
they o</em><em>ff</em><em>ered to transfer me to Gaza
in exchange to stop the interroga</em><em>ti</em><em>on.
The interrogator said if the sentence was not long,
they would transfer me to administra</em><em>ti</em><em>ve
deten</em><em>ti</em><em>on. They advised me to accept
the Gaza Strip transfer o</em><em>ff</em><em>er,
considering it best for everyone.”</em><a
id="_ftnref2" title="" name="_ftnref2"
href="http://www.addameer.org/publications/#_ftn2">[2]</a></p>
<p class="rtejustify">Mohammed Khatib from Hebron, a food
supplies sales agent, a married man and father of a baby
girl, who was arrested on 17 June 2014 and was
subsequently subjected to 39 days under interrogation,
recounted his interrogation at Petah Tikva:</p>
<p class="rtejustify"><em>“I was handcuffed to the sides
of an interrogation chair, and they were threatening
to bring all the members of my family, and demolish
the house, and threatened to beat and imprison me for
long periods and with deportation to Gaza.”</em></p>
<p><strong>DEPORTATION TO GAZA AS A CONDITION OF RELEASE </strong></p>
<p class="rtejustify">Deportation to the Gaza Strip is
also used by Israeli forces as a condition of release.
On 31 January 2012, occupation forces re-arrested 38
year old Ayman Al-Sharawneh from Hebron, in the West
Bank, under article 186 of Israeli Military Order 1651 -
which allows the re-arrest of prisoners who were
released under prisoner exchange deals - based on
“secret information”. Al-Sharawneh had been released in
the Wafa Al-Ahrar exchange deal after spending 10 years
in Israeli prisons. He was sentenced to serve the
remainder of the 28 years of his original sentence,
based on information to which he and his attorney did
not have access. Al-Sharawneh announced a hunger strike
on 01 July 2012, and after a partial hunger strike of
260 days, he was released on 17 March 2013 and deported
to Gaza for a period of 10 years, as a term of his
release.</p>
<p class="rtejustify">Iyad Abu Fannoun, from Battir
village in Bethlehem, was also arrested on 24 April
2012, by Article 186 of Military Order 1651, after
having been released under the 2011 prisoner exchange
deal, and having spent eight years in Israeli prisons.
He was deported on 04 July 2013 to the Gaza Strip after
completing a deal for release stipulating deportation of
10 years to the Gaza Strip. Hunger Striking
administrative detainee Hana Shalabi from Jenin, who was
on hunger strike for 43 days in protest at her continued
detention without charge or trial, was deported on 01
April 2012 to the Gaza Strip as a condition of her
release. This period of deportation was set at three
years. By the end of 2013, occupation forces had
deported the following four Palestinians to the Gaza
Strip: Hana’ Shalabi, Ayman Al- Sharawneh, Iyad Abu
Fannoun, and Ayman Abu Daoud, following long periods on
hunger strike.</p>
<p><strong>PROPOSED DEPORTATION OF FAMILY MEMBERS</strong></p>
<p class="rtejustify">Currently, as of March 2016, the
Israeli Knesset is seeking approval of the deportation
of family members of Palestinians who allegedly
committed attacks against Israeli police forces,
soldiers, settlers, or civilians to the Gaza Strip, in
contravention of the prohibition against the deportation
of protected individuals as stipulated in Article 49 of
the Fourth Geneva Convention. This policy would also
constitute a measure of collective punishment, which is
prohibited under international human rights and
humanitarian law.</p>
<p><strong>GROUNDS PERMITTED UNDER INTERNATIONAL LAW</strong></p>
<p class="rtejustify">Though Article 49 of the Fourth
Geneva Convention does provide certain, limited grounds
under which temporary evacuations of civilians are
permitted, “[s]uch evacuations may not involve the
displacement of protected persons outside the bounds of
the occupied territory except when for material reasons
it is impossible to avoid such displacement.”<a
id="_ftnref3" title="" name="_ftnref3"
href="http://www.addameer.org/publications/#_ftn3">[3]</a>
The requirement that “any sentence of imprisonment must
be served in the occupied territory itself [as per
Article 76] is based on the fundamental principle
forbidding deportations laid down in Article 49”.<a
id="_ftnref4" title="" name="_ftnref4"
href="http://www.addameer.org/publications/#_ftn4">[4]</a>
In the case of Israel’s deportation of Palestinian
detainees from the West Bank, it cannot be reasonably
contended that material reasons exist which render the
imprisonment of Palestinians inside the West Bank an
impossibility. To the contrary, Israel’s ability to
detain Palestinian prisoners inside the West Bank is one
clearly demonstrated by the presence and use of Ofer
prison, for instance, for this precise purpose.</p>
<p><strong>ISRAEL’S ‘LEGALIZATION’ OF ITS UNLAWFUL
DEPORTATION POLICY</strong></p>
<p class="rtejustify">In response to petitions submitted
by human rights groups, highlighting the illegality of
Israel’s deportation of Palestinian detainees, the
Israeli Supreme Court has held that such deportations
are lawful insofar as Israeli domestic law – which
permits such deportations – takes primacy over
international law in the event of any direct conflict
between the two. Such a position, however, represents a
clear contravention of Article 27 of the Vienna
Convention on the Law of Treaties, which asserts that a
party may not invoke the provisions of its internal law
as justification for a failure to perform a treaty
obligation.</p>
<p><strong>LEGAL OBLIGATIONS OF THIRD PARTY STATES</strong></p>
<p class="rtejustify">Unlawful deportation is an act which
confers legal obligations on third party states, with
Common Article 1 of the Fourth Geneva Convention
stipulating that “The High Contracting Parties undertake
to respect and to ensure respect for the present
Convention in all circumstances”. Commentary from the
International Committee of the Red Cross develops this
provision further, concluding that Common Article 1 is
“generally interpreted as enunciating a responsibility
on third States not involved […] to ensure respect for
international humanitarian law by the parties to an
armed conflict by means of positive action. Third States
have a responsibility, therefore, to take appropriate
steps — unilaterally or collectively — against parties
to a conflict who are violating international
humanitarian law, in particular to intervene with states
or armed groups over which they might have some
influence to stop the violations.”<a id="_ftnref5"
title="" name="_ftnref5"
href="http://www.addameer.org/publications/#_ftn5"><sup><sup>[5]</sup></sup></a>
Furthermore, as a grave breach of the Fourth Geneva
Convention and thus one of the most heinous
classifications of war crime, High Contracting Parties
are obligated to search for individuals alleged to have
committed – or to have ordered to be committed – acts of
deportation, and to bring such persons before a domestic
court or, alternatively, to hand such persons over to
another High Contracting Party so that they may be
brought before a court of law.<a id="_ftnref6" title=""
name="_ftnref6"
href="http://www.addameer.org/publications/#_ftn6"><sup><sup>[6]</sup></sup></a></p>
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