Can Israel legally deport families of Palestinian terrorists?

The cabinet proposed the idea to deport terrorists' families on Saturday night following a series of terrorist attacks in Jerusalem.

  Signs proclaiming Israel to be practising apartheid put up by B'tselem ahead of Biden's visit, July 13,2022 (photo credit: B'TSELEM)
Signs proclaiming Israel to be practising apartheid put up by B'tselem ahead of Biden's visit, July 13,2022
(photo credit: B'TSELEM)

As the Knesset Internal Affairs and Environment Committee on Monday proposed a bill to allow for the deportation of terrorists who receive financial compensation from the Palestinian Authority, calls for the deportation of their families continued.

The cabinet proposed to deport terrorists’ families on Saturday night following a series of terrorist attacks in Jerusalem.

While the proposal to revoke citizenship and deport terrorists has received broad support in both the coalition and the opposition, it would be on uncertain legal ground.

Shurat HaDin head: New bill may not be accepted internationally

It would be the first time such an idea was proposed, Shurat HaDin president Nitsana Darshan-Leitner said.

“Israel is a sovereign state,” she said. “It can legislate any law it deems needed in order to defend itself and defend its citizens. However, there are principles in international law; they don’t overrule internal law, but it may not be accepted internationally.”

According to former state attorney Talia Sasson, “Deporting families isn’t humane; it does not prevent a security threat. What danger do the families present? It is a collective punishment in its most distinct sense.”

 Shurat Hadin director Nitsana Darshan-Leitner. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST) Shurat Hadin director Nitsana Darshan-Leitner. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

The 1949 Geneva Conventions maintain that people cannot be punished for an act they did not commit. Collective punishment is widely considered a war crime.

“To deport the family members of the terrorists is already a different principle,” Darshan-Leitner said. “You can’t punish innocent people for someone else’s wrongdoing. You can’t punish them even if it’s a heinous matter against innocent people.”

Sasson said collective punishment was illegal in internal Israeli law as well.

Under the Geneva Conventions, “you have an obligation as the person who controls the territory to maintain the right to life and security in your residential area,” she said.

Under the Fourth Geneva Convention, when there is a military occupation, it is forbidden to carry out forcible mass transfers of civilians who are not of the nationality of the controlling state. Some consider the West Bank as occupied territory, and it could be argued at international forums that Israel is violating this tenet.

Monday’s bill for revoking terrorists’ citizenship established that the payments from the Palestinian Authority to terrorists constituted the establishment of an authoritative relationship.

“If you deport a terrorist, you have a full right to do so,” Darshan-Leitner said. “Anyone who acts against the interests of the state and sovereignty can be expelled, especially if they have another place to go to. ‘Pay for slay’ undermines Israel’s sovereignty and justifies expelling these terrorists to those that contract them. The payment creates a tie.”

Data presented at Monday’s committee session showed that about 70% of terrorists have received salaries from the PA. However, families also receive salaries if the terrorist was killed in action – potentially opening them up to deportation under this same tie.

“There may be legal justification if the family itself receives the reward for the acts of terrorism,” Darshan-Leitner said. “If you receive money for killing innocent people, you don’t belong in this country. Under this clause it may become legal.”

Sasson rejected the idea that this connection would or should allow for deportation, as they did not commit the actual act.

“I don’t understand what the connection is at all between one and the other,” she said. “Receiving money – you can say it’s wrong, and you, the government, can take this money and transfer it to the victims. You can look at it one way or another, but expel them? By virtue of what?”

Palestinian families 'would not break the law by accepting money'

Sasson said they had still not broken any law and were just accepting money. There was no such thing in civil law as a spouse breaking the law by merit of their spouse doing so.

Other arguments for the law contended that it would act as a major deterrent for terrorists to commit attacks.

“I believe terrorists don’t care about anything,” Darshan-Leitner said. “He’s willing to sacrifice his whole life, his entire being to carry out the attack – except for the family. They still have great respect for family honor. There is no doubt if you impact the parents of the terrorist, it influences terrorists. There are incidents in which people have considered it twice because of the concern that his parent’s house would be demolished.”

However, critics of Israeli demolition policies have decried it as collective punishment. The counterargument has been that this was the direct possession of the terrorist and would offset financial gains to his estate.

On the contrary, Sasson said, such a law would not act as an incentive not to engage in terrorism but would foster more violence from the area.

“Let’s assume for a moment that it’s true, and it’s still an extreme tool that’s disproportionate, improper and wrong,” she said. “But you can look and completely reverse it. You can think how the Palestinians there, the neighbors of these people, will react when they see that they are being kicked out of there.”

The neighbors would likely rise up in violence, Sasson said.

According to Darshan-Leitner, a law for the deportation of terrorists’ families could work, “but it would need to be legal internally and internationally,” and it would need to be written smartly to avoid litigation before international and local forums.

Sasson said there was no justification for it.

“Certainly, it is disproportionate,” she said. “There is no real reason why they want to do it except for revenge. It’s revenge insurance.”