Attorney General: Expelling terrorists' families to Gaza 'illegal'

Earlier in February, Public Security Minister Gilad Erdan had expressed frustration that his initiative was meeting opposition from Mandelblit.

Avichai Mandelblit (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Avichai Mandelblit
Attorney-General Avichai Mandelblit has reiterated as of Sunday his vehement opposition to expelling families of Palestinian terrorists living in the West Bank to Gaza as violating both Israeli and international law.
Mandelblit, like Yehuda Weinstein before him, said that any such attempt could play into the hands of adversaries seeking to bring war crimes cases against Israelis in the International Criminal Court.
Public Security Minister Gilad Erdan said earlier in February that he had put forward the plan as a “deterrent measure,” but was met with stiff resistance from the current attorney-general as well as from his predecessor.
The issue has arisen before, including in July 2014 following the kidnapping and murder of three Jewish teenagers that enraged the country.
In an op-ed in The Jerusalem Post on July 6, 2014, former Shin Bet (Israel Security Agency) director Avi Dichter comprehensively articulated all of the potential security benefits of deportation that many politicians were trumpeting at the time and have returned to now.
He and others cited prior Israeli deportations of terrorists, or, in trying harder to satisfy international law, attempted to distinguish between the more disputed expulsion to the territory of another state, such as Lebanon, and expulsion to the Gaza Strip, which is not part of another country and has a connection to the West Bank.
But the legal establishment in Israel is almost uniformly opposed.
The root issue stems from Articles 49 and 78 of the Fourth Geneva Convention, which prohibit forcible transfer of persons from occupied areas, but permit “assignment of a residence” within an occupied area.
In a landmark 2002 case, the High Court of Justice voted 9-0 to explicitly limit deportations of Palestinians living in disputed areas to within such disputed areas.
This distinction enabled sidestepping of the general prohibition of forcible transfer out of a disputed area and allowed Israel to deport West Bank Hamas affiliates to Gaza because Gaza was still part of the same Palestinian disputed area.
But that case was before Israel’s 2005 Gaza withdrawal and Israel’s post-2005 repeated efforts to defend itself from war crimes allegations and other violations on the specific grounds that it no longer occupies Gaza.
In other words, the same High Court ruling that allowed such deportation in 2002, explicitly prohibits deportation to “unoccupied” Gaza post-2005.
Officials have told the Post in the past that many are concerned that any attempt to justify deportation to Gaza will destroy Israel’s argument that its withdrawal from Gaza was complete and freed it from the humanitarian responsibilities of a legal (as opposed to political) “occupier.”
One commentator, former IDF international law division head and head of the INSS Program on Law and National Security Col. (res.) Pnina Sharvit Baruch, wrote a detailed analysis of the issue during the 2014 debate, stating that if deportation to Gaza became official policy it could “be used against Israeli officials, who could be prosecuted under criminal law” before the ICC or other foreign courts.
Sharvit Baruch did not present this possibility as a foregone conclusion, as she did reference various substantial obstacles to Israelis being brought before the ICC, but she did cite it as a serious concern.
Part of what seems to trouble various officials and Sharvit Baruch is that the deportation decisions will be implemented in the (at least partially) post-Palestinian statehood reality, since the ICC Prosecutor recognized Palestine as a state in January 2015, which may finally bring the grim ICC threat to Israel’s doorstep.
Transportation and Intelligence Minister Israel Katz, however, was not deterred by Mandelblit’s position or legal considerations against deporting the families of terrorists, saying on Sunday that he would continue to promote this initiative and that Israeli law needed to adapt itself to the country’s reality.
“I intend to turn to coalition and opposition MKs today and initiate a change in the law” so that deportation will be allowed, he said before Sunday’s cabinet meeting. “Our job as a government is to save lives, and the deportation of families of terrorists will reduce the motivation of those minors who are carrying out attacks,” he said.
Katz said he was certain that after the deportation of a few families, the terrorism being carried out by minors and individuals will come to an end.
“This is our obligation,” he said. “We are fighting for our homes, and our job is to ensure this [wave of terrorism] ends.”
Recently, Katz has tried to present himself as an alternative to Prime Minister Benjamin Netanyahu on the Right.
Though Netanyahu did not respond publicly, his associates neither endorsed nor ruled out the deportation move.
Deputy Foreign Minister Tzipi Hotovely also supported the deportation idea.
“The deportation of terrorists is a necessary step to increase deterrence against lone attackers,” she said.
“When Iran, together with the Palestinian Authority, develop a financing system for families of terrorists, together with giving them compensation for homes destroyed by Israel, it is necessary to send the message that anyone who harms innocent people in a terrorist act will be exiled from his natural surroundings and deported,” she said.
Iran announced last week that it will pay every family of a “martyr” $7,000, while a family whose home was demolished by the IDF will receive $30,000.
In a related development, Hamoked: Center for the Defense of the Individual on Sunday petitioned the High Court of Justice to block Interior Minister Arye Deri’s January 21 decision to cancel the Jerusalem permanent residency status of four Arabs allegedly connected to recent terrorism attacks.
The human rights group argued that east Jerusalem Arabs’ residency status is protected under international law since Israel conquered and occupied the area.
It also said that domestic Israeli law does not empower the interior minister to cancel east Jerusalem residency even if it might create that power regarding others, and that domestic protections and procedures were not followed for the suspects.
Finally, the NGO added that the suspects were at most minor players in the terrorism incidents.
Gil Hoffman and Jerusalem Post staff contributed to this report.