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Court may decide soon if Hamas leaders can stay in J'lem

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August 1, 2011

In a case that could have far-reaching significance for Israel’s ability to revoke residency rights from east Jerusalem residents with links to Hamas, the High Court of Justice is conducting a judicial review into a 2006 decision by the Interior Minister to deport four Hamas officials.

The four – Khaled Abu Arafa, Mohammed Totah, Ahmed Attoun and Muhammad Abu Tir, all residents of east Jerusalem – were elected to the Palestinian Legislative Council as Hamas representatives in 2006.

The most notorious of the four, Abu Tir, known for his bright orange beard, has spent years in Israeli prisons for various terror activities; mainly possession of weapons and membership in a terror organization.

Following their election as Hamas government representatives, Israel notified the four that they would be deported from Jerusalem if they refused requests to resign their positions in the PLC. All four men immediately appealed to the High Court.

The four told the High Court that Israel had no authority to deport them from east Jerusalem, claiming that Israeli law does not apply there. However, before any deportation order could be issued, the four were among 64 Hamas officials arrested and held in detention following the terror organization’s kidnapping of Gilad Shalit in June 2006.

The 64 were arrested according to the Ordinance for the Prevention of Terrorism, which states that “a person who fulfills a leadership or training role in a terrorist organization; or participates in the deliberations or decision-making process of a terrorist organization; or serves as a member of the court of a terrorist organization; or makes a propaganda speech at a public meeting or radio broadcast on behalf of a terrorist organization will be accused of a crime; and if found guilty, be sentenced to up to 20 years in prison.”

While in prison, the four petitioned the government again to have their residency reinstated on the grounds that as prisoners they were not Hamas government representatives.

The four also claimed that since Palestinian Authority President Mahmoud Abbas had dissolved the Hamas-led unity government and declared a state of emergency in 2007, they could no longer be considered Hamas officials.

However, the government refused their request.

When the four were released last May, they were given a month to leave Jerusalem, but were allowed to remain in the city pending a further High Court hearing.

Abu Tir was finally deported to Ramallah last December, but Abu Arafa, Attoun and Totah remain in Jerusalem. They have barricaded themselves inside a Red Cross compound, where they say they have sought asylum.

The case has attracted much publicity, with Palestinian protests against the threatened deportations this month in front of the Red Cross compound.

In a statement issued earlier this month, Abu Arafa, Attoun and Totah said the threatened deportations are “a grave violation of international law, collective punishment and racial discrimination.”

In their current High Court appeal, the four continue to maintain that the deportation order against them is illegal, because Israeli law does not apply in “occupied East Jerusalem.”

The four men also claim that they have not been Hamas officials since 2006. But, according to the Israel Law Forum (Shurat HaDin), which has added itself to the High Court appeal on the side of the government, the four men remain Hamas leaders.

“We are talking about senior Hamas officials,” attorney Nitsana Darshan-Leitner told The Jerusalem Post on Sunday. “They are still Hamas leaders, even if they are not part of the Palestinian government. And Hamas is a terror organization.”

Darshan-Leitner added that “for five years [the four] have been trying to get the Interior Minister to reconsider his decision to revoke their residence permits.”

She noted that the appellants tried to claim that their residency was revoked because of the kidnapping of Gilad Shalit – even though Shalit was kidnapped three weeks after the four were notified that they would lose their residency if they failed to resign from their posts as Hamas government officials.

Their appeal to the High Court is ironic, says Darshan-Leitner, because the four men refuse to recognize the Jewish state, or any of its official institutions.

Darshan-Leitner added that it was ironic that the four appellants could not be present in the court during the hearing.

“They could not attend because three of them are barricaded into a Red Cross building in Jerusalem,” she noted. “And Abu Tir is in Ramallah.”

State attorney Yochi Gnessin also told the court that the government considers the cancellation of residency permits as a very serious matter. Gnessin said that Palestinian residents of east Jerusalem with permanent residency have a duty to the state in return for rights, including the right to vote in elections and hold a passport.

“This is a case where the breach of trust is so severe that it harms that duty to the State of Israel,” she said. “If a resident violates this, then in extreme circumstances the state may order [residence] to be revoked.”

Gnessin noted that the state had not told the four appellants that it was cancelling their residence permits, but had asked them to resign their role as elected Hamas officials.

“We told them that as parliamentary representatives of Hamas – a terrorist organization that calls for Israel’s destruction – their membership [of Hamas] is not consistent with citizenship and that they were requested to notify us within 30 days if they resigned,” Gnessin said.

Their position as elected members of Hamas was not compatible with permanent residence in Israel, he added.

Attorney Osama Saadi, representing Abu Arafa, maintained that the four appellants are no longer Hamas officials, and argued that Israel could arrest any of the four men if it believed they posed a threat to security.

“Abu Tir has been in Ramallah for seven months – and [the state attorney] is saying that he is a senior official. Meanwhile, there are plenty of Hamas members in administrative detention. So why doesn’t Israel detain Abu Tir if he is so dangerous?” asked Saadi.

Still, Saadi refused to allow the court to examine documents that he claims show that Abu Arafa is no longer a senior official in Hamas.

Attorney Hassan Jabareen, of the Adalah Legal Center for Arab Minority Rights and attorneys from the Association for Civil Rights in Israel (ACRI) have attached themselves to the case as amicus curiae: volunteers who are not a party to the case but who offer information – in this case, expert advice in the form of an amicus brief – to help assist the court in coming to a decision.

Attorney Jabareen told The Jerusalem Post that Adalah had decided to get involved as neutral experts because important human rights issues are at stake in the case.

In the hearing, Jabareen argued that the court should take into account the fact that the four appellants were native residents of Jerusalem, where the center of their lives remain.

The families of the four appellants are also named on the High Court appeal.

Jabareen added that while every country has laws permitting it to revoke citizenship, in Israel the interior minister can also revoke residency at his discretion.

However, the state had decided not to revoke the citizenship of Yigal Amir, the Israeli convicted of assassinating former Prime Minister Yitzhak Rabin, on the grounds that Amir had no second citizenship.

Justice Beinisch called the current case “very extreme and unique” and noted that a judicial review was needed to “look at the very concrete circumstances of these four appellants.”

“We cannot revoke Hamas even if we wanted to, we can only check whether [the four] are active in it,” noted Beinisch.

According to Israel Law Forum’s Darshan-Leitner, the High Court of Justice should rule within a few weeks whether to arrest and deport Abu Arafa, Totah and Attoun from the International Red Cross compound in east Jerusalem, and forbid Abu Tir to return to Jerusalem.