BRIEFING DOCUMENT

HAMAS PARLIAMENTARY LEGISLATIVE COUNCIL (PLC) MEMBERS
IN EAST JERUSALEM	
Ambassador Ngombane:

This is the central issue and the reason for the visit of the Portfolio Committee to Israel and Palestine. This is also the reason our Minister wrote to Parliament advising them to undertake the visit.	

1.	Background:

•	On 9 December 2010, it was reported in the media that an Israeli court freed and expelled a Hamas MP jailed for entering Jerusalem despite the withdrawal of his residence permit. According to the report, Israeli officials escorted Mohammed Abu Teir to the Beituniya crossing point, which connects the northern limits of annexed East Jerusalem with the occupied West Bank. (This had subsequently been confirmed by the Mission in Ramalla.)

•	Mr Abu Teir is one of four senior Hamas officials whom Israel has been seeking to expel, sparking concern among Palestinians across East Jerusalem about their future residency status. The others – Mr Khaled Abu Arafeh, a former Palestinian minister for Jerusalem affairs, and MPs Ahmed Atun and Mohammed Totah – are reportedly staging a sit-in at the East Jerusalem offices of the International Red Cross.

•	In September 2010, DIRCO received a letter from the above Hamas Parliamentary Legislative Council (PLC) members, through our Mission in Ramallah (see Annex A). According to the Mission, the three Parliamentarians were part of 40 Hamas PLC members who were imprisoned by Israel following the capture of the Israeli soldier, Gilad Shalit, by Hamas in 2006. The four were recently released from Israeli prison. Immediately after their release less than two months ago, they were issued with deportation orders (Military Order no. 1650) by the Israeli Interior Ministry. 

•	The Mission in Ramallah also ascertained that several international delegations have visited the protestors, including a group from the United Kingdom’s House of Lords, European Union Ministers and Israeli peace activists.

•	The Branch subsequently recommended that the Parliamentary Portfolio Committee on International Relations and Cooperation consider visiting Palestine, as a follow up to their visit from 21 June – 4 July 2008. Such a visit could signal consistency with South Africa’s foreign policy decisions especially after the Gaza flotilla incident. Most importantly, South Africa’s voice would be added to that of the international community, given the fact that South Africa is highly regarded for its moral authority.

2.	Current Status

•	Mohammed Abu Teir was arrested near his home on 30 June 2010 and spent five months in prison on the grounds that his presence in Jerusalem was "illegal". He was released on 8 December following a judicial order, but the Israeli authorities expelled him on the same day to the West Bank. 

•	The other three men, Khaled Abu Arafeh, Ahmad Attoun and Mohammed Totah, have all sought sanctuary in the grounds of the International Red Cross building in East Jerusalem since 1 July 2010 in order to raise international awareness of their plight. They have announced that they will not leave the compound until their permanent residence status in Jerusalem is restored unconditionally.

3.	Open Letter dated 20101215 

Quote

15 December 2010

RE: The threat to expel us from Jerusalem, our home city

You may know that the last Palestinian Legislative Council (PLC) elections were held on the 25th January 2006. The elections were organized by agreement with all concerned parties and with the full cooperation of national and international observers, who deemed them to be transparent, free and fair in accordance with international criteria.

The results was contrary to the expectations of the Israeli occupation authorities and its Western supporters as a result of which Israel embarked on a campaign to discredit and undermine the Palestinian democratic process. First to be targeted was Palestinian unity followed by extortion of the Palestinian leadership. In an unprecedented move, Israel also detained 64 members of the newly-elected PLC as well as ministers serving in the 10th Palestinian government.

We, the undersigned members of the PLC representing Jerusalem, have endured what our other PLC colleagues and ministers have endured. We have been arrested, detained for 3-4 years and subjected to all forms of extortion and threats to have our residency revoked if we do not resign from the PLC and the government. We have refused to bend before such threats and vow to continue to serve our people and our just cause.

After our release from detention, the Israeli police served us with expulsion orders to get out of Jerusalem. The orders issued on 19th May 2010 were valid for a month, after which our residency in Jerusalem would be considered illegal. The police made it clear that if we did not leave our home city voluntarily they would expel us by force.

Before the end of that period we met Palestinian Authority President Mahmoud Abbas at his request, where he confirmed to us an understanding with the Israeli authorities that they would cancel the expulsion order. However, on 30 June 2010, several days after this meeting, the Israeli occupation forces arrested our colleague Mohammad Mahmoud Abu Teir; at this, we sought sanctuary in the grounds of the headquarters of the International Red Cross in East Jerusalem on 1 July.

Israel, the Occupying Power, in violation of its obligations under the Fourth Geneva Convention of 1949, wants to banish us from our city. This act is another expression of the Zionist state's policy of "ethnic cleansing" across occupied Palestine. Israel wants to expel as many Palestinians as possible, Muslims and Christians alike, in order to realise its dream of an exclusively Judaised Jerusalem.

United Nations Security Council Resolution 799 dated December 18, 1992, part 2 "Reaffirms the applicability of the Fourth Geneva Convention of 12 August 1949 to all the Palestinian Territories occupied by Israel since 1967, including Jerusalem, and affirms that deportation of civilians constitutes a contravention of [Israel's] obligations under the Convention."

The expulsion of us four individuals creates a dangerous precedent paving the way for the expulsion from Jerusalem of more Palestinian leaders and public figures and thousands of Palestinian citizens. This will lead undoubtedly to a further deterioration in the quality of life for Jerusalemites and will infringe on their rights to live in security and dignity.

This illegal act, coupled with other measures taken by Israel, intend to rip apart the social fabric of Jerusalem's Palestinian community, dividing families and separating children from their parents. If not confronted and stopped, this policy will lead to further forced expulsions from Jerusalem.

The world cannot remain silent while Israel destroys the national identity of the Palestinians and their presence in Jerusalem, demolishes homes, confiscates land and properties, builds settlements, imposes a siege and constructs walls and military check points around the Holy City. These acts create further disruption to the stability of the Jerusalem community and endanger its security.

As elected deputies we believe that we have the full right to live in our city and represent our people on the basis of all international conventions and covenants. We will, therefore, stay in the compound of the ICRC headquarter in Jerusalem until the Israeli Authorities cancel the illegal expulsion order, return our ID documents and residency rights, and return Mohammad Abu Tier to his home in Jerusalem.

International law guarantees the right of occupied people to maintain their legal status and their nationality, including their right to live in their towns and cities, and forbids the occupying power from altering that status. We turn to you and to your organizations, as supporters and defenders of the Palestinians' just and lawful case, to do all that is necessary to stop Israel's arbitrary and illegal measures.

Yours faithfully,

PLC member - Mohammad Mahmoud Abu Teir (expelled to the West Bank)
PLC member – Ahmad Mohammad Attoun
PLC member – Mohammad Imran Totah
Ex Minister of Jerusalem – Khaled Ibrahim Abu Arafeh

Unquote
4.	The legal status of Israel's expulsion of elected Palestinian legislators from Jerusalem (Thursday, 16 December 2010)

Israel has ordered the immediate expulsion from Jerusalem of three elected members of the Palestinian Legislative Council - Mr. Muhammad Abu-Teir, Mr. Ahmad Attoun and Mr Mohammad Totah - along with a former Palestinian Minister of Jerusalem Affairs, Mr Khaled Abu Arafeh. All four are permanent residents of Jerusalem, a legal status imposed on the Palestinian population of East Jerusalem following Israel's occupation and illegal annexation in 1967.

According to the Legal Centre for Arab Minority Rights in Israel (Adalah), the expulsion decision violates Article 49 of the Fourth Geneva Convention, which prohibits the deportation of protected persons from occupied territory. It also violates the constitutional rights of the parliamentarians to continue to live in their normal place of residence and homeland, and their right to family life.

The legal status of Palestinian residents of East Jerusalem:

After the 1967 war Israel occupied all of the West Bank, including East Jerusalem. Although international law prohibits an occupying country from annexing the land it occupies and further prohibits the occupier from transferring its citizens to the occupied land, Israel ignored both of these prohibitions and annexed not only the 6 square kilometres area of East Jerusalem but also another 64 square km of land belonging to 28 villages in the West Bank, including land belonging to the municipalities of Bethlehem and Beit Jala.

Following the annexation, Israel conducted a census and granted permanent residency status to Palestinians living in the annexed areas but only if they were "present" at the time of the census. Thus, Palestinians who are born in East Jerusalem and whose families have lived there for generations have the same status, that of "permanent residents", as non-Jewish foreign immigrants who come to live in Israel.

Reasons given by Israel for revocation of residency:

Israel has a declared policy in East Jerusalem to create a Jewish majority, and uses a variety of administrative pretexts to strip Jerusalem's Palestinians of their permanent resident status. The chief tactic is to revoke the residency rights of Palestinians from East Jerusalem who move to West Bank suburbs of Jerusalem, if they move to the West Bank beyond Jerusalem or if they go abroad to study or work, even if they return periodically to East Jerusalem. Israel claims that its authority to revoke residency is derived from the Entry into Israel Law of 1952, but this law governs naturalization for non-Jewish immigrants. The Palestinians of East Jerusalem are not immigrants; they are the indigenous population of territory occupied by Israel in 1967. According to data collected by Israeli human rights group B'Tselem, since 1967 Israel has revoked the residency rights of more than 13,000 Palestinians born in East Jerusalem, with 4,577 revocations in 2008 alone.

In the case of the three members of the PLC and former PLC cabinet minister, Israel's Interior Ministry claims that as residents of "Israel" (the Israelis consider East Jerusalem to be part of Israel; no other country does) they are obliged to be loyal to Israel but their membership of the Palestine Legislative Council, "a foreign parliament", proves they are loyal instead to the Palestinian Authority. Yet Salam Fayyad, the present Prime Minister of the Palestinian Authority, also has East Jerusalem residency, but has not been threatened with revocation of his residency rights and expulsion from his home city. According to Hassan Jabareen, Director of Adalah, under Article 45 of the 1907 Hague Convention (IV), an occupying power cannot demand loyalty from the people it occupies. "Palestinians in East Jerusalem," he says, "are 'protected persons' in law and cannot be expelled."

It is clear that the four men are being punished by Israel because of their political affiliation. In response to Adalah's petition against the revocation of their residency, the government said that because the petitioners had been elected to the PLC "on behalf of the Hamas terror organization, which is hostile to Israel… they very seriously violated their minimal obligation to the State of Israel".

Legal objections to Israel's actions:

Adalah and the Association for Civil Rights in Israel (ACRI) argue that the Entry into Israel Law cannot be applied to individuals born in Israel, which means that it is illegal to demand occupied people to be loyal to the occupier. Article 49 of the Fourth Geneva Convention prohibits the deportation of protected persons from occupied territory, and that deportation violates the right to family life. As noted above, Adalah also argues that Article 45 of the 1907 Hague Convention (IV) prohibits an occupying country from demanding loyalty from the occupied population.

In 2007, Osama Alsadi and Fadi Qwasmi, the lawyers acting for the four men, along with Adalah and ACRI as amicus curiae, argued before the Israeli Supreme Court that the Interior Minister's decision to revoke the residency of members of the Palestinian parliament gravely violates their rights and that the law does not grant the minister the authority to cancel permanent residency for "breach of trust" or due to membership of a foreign parliament.

On 15 June, 2010, lawyers for the four men filed for an urgent injunction from the Israeli Supreme Court; the request was denied on 20 June. Hassan Jabareen of Adalah said, "It is a central tenet of law not to expel someone before a hearing... This is the first time a court has refused to issue an injunction before hearing a petition against the injunction."
According to an article in Al-Jazeera (30 June 2010), Richard Falk, the UN Special Rapporteur on Human Rights in the Palestinian Territories, said that he saw the expulsions as part of "a larger, extremely worrying pattern of Israeli efforts to drive Palestinians out of East Jerusalem - all of which are illegal under international law".

International Humanitarian Law

•	Right to freedom of movement and residence:

All the Israeli measures applied to change the legal status of the city and its residents are null and void as they violate the principles of international law. Such measures against the Palestinians make them suffer, especially women and children, and make the lives of many residents miserable; spouses, for example, may not live in the same house if one is in Jerusalem, inside Israel or abroad and the other is in Gaza or the West Bank so children are raised by one parent. Many are afraid of travelling abroad for medical treatment in case they are not allowed back into Jerusalem to rejoin their families.

Human rights in anyone's country are inherent and basic and, as recognized by article 13 of the Universal Declaration of Human Rights 1948, "Everyone has the right to freedom of movement and residence within the borders of each state". Article 12 of the Covenant on Civil and Political Rights 1966 confirmed this right: "Everyone lawfully within the territory of a State shall, within that territory, has the right to liberty of movement and freedom to choose his residence".

•	The prohibition of discrimination for any reason:

By using such policies, Israel has violated its obligations toward international conventions and law which ban discrimination. In this context, the Israeli policies are apparently discriminatory against the Palestinian residents of Jerusalem, and a violation of the principle that provides that "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination" (The covenant on Civil and Political Rights 1966, article no. 26).

•	The right to protection of the family:

Israel's residency revocation and the reunification policies practiced against the Palestinians are considered a grave violation of international standards which provide that "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and the right of men and women of marriageable age to marry and to found a family shall be recognized" (Covenant on Civil and Political Rights 1966, article 23).

•	Rights of the Child:

The Convention on the Rights of the Child confirms that the child shall be registered immediately after birth and shall have the right from birth to a name, right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. Also, "States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference" (The Convention on the Rights of the Child, article 7 and 8).

•	The prohibition of forced transfer and deportation:

Forced population transfer is one form of collective punishment; it is a grave violation of the 4th Geneva Convention, specifically article (33): "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible."

The residency revocation of the Palestinian MPs and former minister and consequently their forcible transfer out of Jerusalem is considered a crime against humanity in accordance with Article 7 (par.2) of the Rome Statute of the International Criminal Court Provisions, which consider the deportation or forcible transfer of population as a crime against humanity in the context of a large-scale or systematic announced attack against any civilian population. Additionally, it violates Article 8 (par.2) of the Rome Statue that forcible transfer is a war crime due to its grave violation of the 4th Geneva Convention.

Forcible expulsion and transfer is understood in international law as the "involuntary and unlawful evacuation of individuals from territory in which they reside… Deportation presumes transfer beyond state borders, whereas forcible transfer relates to displacement within a state." As such, the transfer of Palestinians from Jerusalem to the West Bank or Gaza, both within the Occupied Palestinian Territories (OPT), is prohibited.

Expulsion of protected persons is permissible in only very exceptional circumstances, where there exists military necessity or the security of the civilian population demands it. If no such exceptional circumstances exist, the expulsion is unlawful and a grave breach of the Geneva Convention attracting the most severe penalties, with individual criminal liability for those responsible for the act.

Israel's Minister of the Interior has stated that the parliamentarians can retain their permanent residency status if they resign from the positions to which they were democratically elected. There can be no doubt, therefore, that the revocation of their status and the impending forced expulsion is unlawful as the reason for transfer is purely political and not as a result of any military necessity or the security needs of the population.

•	The right to self-determination:

The right of the Palestinian people to self-determination in the OPT is firmly established and pertains to all territory occupied by Israel during the 1967 war; that is, to the West Bank, including East Jerusalem, and Gaza Strip as a single territorial unit. The right to self-determination is, in the most general sense, the right of a population to sovereignty over a given territory. It includes the right of the population to function normally within the territory, to move around in it freely, to develop international relations, to determine who enters and stays within the territory, and to participate in the democratic process.

Article 1(1) of the International Covenant on Civil and Political Rights provides that "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development". Article 25 of the Covenant provides that "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors". Article 2 (1) further confirms that these rights are to be enjoyed without discrimination as to "political or other opinion".

By revoking the permanent residency status of the Jerusalemite parliamentarians and the former minister, and preventing them from exercising their fundamental civil and political rights in their home city, the Israeli occupation authorities are acting in flagrant violation of their obligations under international human rights law. The denial of the parliamentarians' rights is but another far-reaching step being taken by Israel to ensure that Palestinians can never exercise their right to self-determination, nor end the occupation of their territory by Israel. Whereas the current revocations of status are being directed against individuals whom Israel accuses of being members of Hamas, it is clear that such a process could be set in motion against any Palestinian, regardless of his or her political affiliation.

The right to self-determination and to exercise legitimate civil and political rights must be read in light of the prohibition under international humanitarian law of forcing persons living under foreign occupation to switch their allegiance to the foreign power. Article 45 of the Fourth Hague Convention of 1907, which even the Israeli courts have recognized as customary law that is binding on Israel, provides that "It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power".

5.	Current status of the Legislative Council Members and former Cabinet Minister:

Mohammed Abu Teir was arrested near his home on 30 June 2010 and spent five months in prison on the grounds that his presence in Jerusalem was "illegal"; he was released on 8 December following a judicial order, but the Israeli authorities expelled him on the same day to the West Bank. The other three men, Khaled Abu Arafeh, Ahmad Attoun and Mohammed Totah, have all sought sanctuary in the grounds of the International Red Cross building in East Jerusalem since 1 July 2010 in order to raise international awareness of their plight. They have announced that they will not leave the compound until their permanent residence status in Jerusalem is restored unconditionally.