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 The Court rescinded a temporary injunction restraining the implementation of the orders but ordered the Government to show cause within 30 days.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.