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Decision of the Israeli High Court of Justice on expulsion of Hamas Members

(December 22, 1992)

Lawyers representing Hamas suspects appealed to the Supreme Court to issue an interim order calling on the Government to care for those expelled to the buffer zone in Lebanon. Statements were heard, including one from the chief of staff. The court saw no reason to intervene as it concluded that those expelled were in an area under Lebanese control, and not in no man's land or a buffer zone. Text:

1. The petitioners again appealed to the Supreme Court with a plea for an interim order. This order, according to the plea, must relate to the continuing obligation of the State of Israel to continue to care for the lives and existence of the petitioners who were expelled from Israel by the power of the expulsion orders which are the subject of these petitions, against which this court issued an interim order.

2. According to the claim of the learned representatives of the petitioners, the deportees are staying at this time in a sort of buffer zone extending from the security zone in Lebanon, which is under control of the SLA and the IDF, to that part of Lebanon under the control of the Lebanese government and its authorities, including its army. In other words, since the deportees did not enter territory under Lebanese sovereignty and its effective control, the expulsion was neither completed nor realized, and in addition, the Lebanese publicly announced that they will not permit the deportees to move north via the passes controlled by its forces.

In light of the fact that the deportees are staying in an area which they claim is not under the effective control of Lebanon, they are expected to suffer from shortages, and even danger to their lives and health, unless the duty to ensure their lives and security is upheld in all senses of these concepts. According to the claim under consideration, this duty is still pending on the State of Israel.

The petition is, that since the deportees were thrown into a situation whereby they were not allowed to enter Lebanon, they must immediately be returned to Israel, or alternatively, measures must be implemented to secure their existence in a protected and safe place until the petition is completely clarified.

3. The state dissents with the factual description presented thereto by the learned representatives of the petitioners. The claim of the state is that the deportees left the area under control of the SLA and IDF at a passage point known as the "Zumriya" pass and entered Lebanese territory. In this respect, the Supreme Court was informed that after the IDF escort left the deportees at the aforementioned passage point (which also serves the residents of Lebanon requesting to travel from the security zone to other parts of Lebanon), they got on trucks driven by Lebanese drivers, which were placed at their disposal, and travelled north until the point known as Beit Nofal, where a Lebanese army checkpoint is stationed. They were not allowed to go past this checkpoint, and they returned to the Zumriya pass, and when they were refused entry back into the security zone, they again returned to Beit Nofal . It is not known whether the site where they settled was chosen by the deportees themselves or by a Lebanese element.

Regarding the status of the area, this area is not under the control of the IDF, because all of the area north of the security zone is Lebanese territory and is under the authority of its government. The Lebanese army is free to move there as it wishes, although it is somewhat restricted, like in many other places in Lebanon. The IDF has no status there. It does not enter there except if the government decides on a military action north of the security zone directed against terrorists. In principle, this area must be regarded as Lebanese territory. Placing a Lebanese army roadblock in Belt Nofal does not denote the boundary of Lebanese control, but is rather an action with military intelligence purposes, allowing the Lebanese army to observe movement to and - from the security zone. The roadblock was placed there owing to tactical reasons - it is not even manned permanently, and is situated where it cannot be seen from inside the security zone.

Since the beginning of the deliberation on the requests, another incident took place on December 21, 1992: The deportees marched towards the Zumriya pass, warning shots were fired, and the deportees claim, as reported in the international media, that three of them were injured.

We have listened to the statements of Chief-of-Staff Lieutenant-General Ehud Barak. He states that warning shots were fired in order to halt the march of the deportees. If they remain in the camp that they have erected, then by his assessment, they are in no danger.

The IDF has no intention of allowing their return, and the IDF and SLA forces in the area intend to thwart any intention of this kind.

4. In light of the data presented to us, we have reached the following conclusion: a. The deportees are now in an area under Lebanese control, and the fact that they are not permitted to pass north of the Beit Nofal roadblock, does not detract from this fact.

b. Blocking the Beit Nofal passage does not indicate that the area South of the said roadblock and north of the Zumriya pass, is a no man's land, or a buffer zone.

Under these circumstances and in light of the facts presented to us, we see no reason for our intervention. In any case, we saw no reason to issue an order as requested, and the pleas are rejected.

Source: Israeli Ministry of Foreign Affairs