25-DEC-1992
TEMPORARY EXCLUSION ORDERS - LEGAL ASPECTS
In weighing the issuing of exclusion orders, as in all aspects of the
administration of the territories, there is a need to balance the
freedoms of the local population against vital interests of security.
The orders issued by the Regional Commanders in the territories provide
for the exclusion from the areas of members of terrorist organisations
whose actions endanger human lives or who incite others to engage in such
actions. The exclusion orders are for limited periods of up to two years
and can be appealed within 60 days.
The question of whether such orders are lawful is currently subject to
judicial review before Israel's Supreme Court sitting as the High Court
of Justice. The Court rescinded a temporary injunction restraining the
implementation of the orders but ordered the Government to show cause
within 30 days.
In considering the lawfulness of this measure the Court will have regard
to the fact that in dealing with cases of terrorist activity and
incitement, it is frequently impossible to bring offenders to trial
without divulging privileged intelligence information which will endanger
lives and hamper Israel's effort to prevent future terrorist actions.
Additionally, in considering the necessity for this measure as against
imprisonment of the inciters, one of the factors in the Court's decision
will be the fact that it has been repeatedly found that imprisonment has
not prevented terrorist inciters from continuing their hostile
activities, and that they have even used prison as a base for
recruitment. In the past the Supreme Court has held that where
imprisonment did not provide a satisfactory answer to the security needs
of the state, expulsion was a lawful alternative.
If the Court holds that the exclusion orders are a lawful measure, those
individuals subject to the orders may still submit an appeal to an
Appeals Committee headed by a military judge. This committee has full
authority to cancel the order or reduce the specified period of
exclusion. The appellant may be represented at the appeals proceedings by
a family member or any lawyer he chooses.
As with all measures taken by the military authoritites, decisions of the
Appeals Committee are themselves subject to review by the Supreme Court.
This right of review is available to all those subject to exclusion
orders, as it is to all residents of the areas.
The temporary exclusion of individuals who constitute a danger to public
safety is not restricted to Israel. In Britain, for example, the
Prevention of Terrorism (Temporary Provisions) Acts empower the Secretary
of State to issue exclusion orders against those involved in the
commission or instigation of terrorist acts. As in Israel, this is an
administrative measure; unlike Israel however, there is no right of
appeal. Similar legislation is currently being considered in the United
States.
In confronting the dangers of disorder, violence and murder that are
deliberately fueled by incitement and threats, Israel is not prepared to
practice such drastic measures as capital punishment, which are
sanctioned by the Geneva Convention. Instead, with no other choice
available, Israel has chosen to use the exclusion order as a necessary
security measure within its authority under local and international law.