Deporting the Enemy Within

Two weeks ago, the Israeli Knesset passed a law that grants the Minister of the Interior powers to deport family members of terrorists, including Israeli citizens. Passed amongst a slew of other headline grabbing laws, it constitutes a significant expansion of current deportation powers that contravenes both Israeli constitutional law and international law. As death, destruction and naked violence overshadow all conversation, legal or otherwise, it may seem ludicrous to shine a light on this particular law and its illegality. But the logic of this law, its instrumentalization of legitimate security concerns to not just deny the rights and membership status of minority groups but attack the foundations of a constitutional system, is not unique to contemporary Israeli politics. As such, this logic needs confronting and refuting, and this law presents an important opportunity to do so.

From ‘Assigned Residence’ to Deportation

The idea of relocating or expelling family members of terrorists for the purpose of deterrence is a long-standing one, with several similar proposals having been debated over the last two years. Indeed, Israel has relevant legal (and historical) precedent regarding the temporary or permanent transfer of family members of Palestinian terrorists. During the Second Intifada, the IDF commander gave orders to the family members of a suspected Palestinian terrorist in the West Bank which “assigned residence” to them in Gaza for a period of two years. The resulting HCJ case, Ajuri v. Commander in West Bank, found that the practice of “assigned residence” of protected persons under occupation does not itself amount to deportation which violates the Fourth Geneva Convention. However, the person subject to the order must themselves be dangerous. Deterrence of others on its own is not sufficient reason. Though there are many valid critiques of this case, in practice the restrictions placed on the use of “assigned residence” limited its application considerably, and it was thereafter not in use for many years.

Notably, the new law goes far beyond what Ajuri deemed legally permissible. It grants the Minister of the Interior the power to deport Israeli citizens who are family members of terrorists, including spouses, children, parents, and siblings, “to the Gaza Strip, or to a different deportation destination which will be determined based on the circumstances.” Significantly, “terrorist” includes not only those convicted of terrorism, but also those who have only been arrested or held in administrative detention. Where Ajuri was concerned with the legality of an occupying power’s practice of assigned residence in accordance with principles of international humanitarian law, the new law introduces the power to deport citizens within Israel’s general constitutional order. It thereby does away with what has, so far, been the core protection of citizenship as a legal status: an unconditional right to residence.

Unbounding the Deportation Power

This exceptionally unbounded vision of the state’s deportation power is further solidified by the shortage of meaningful legal restraints on the Minister’s decision-making power. The Minister may summon a family member to a hearing preceding deportation on the basis of “information indicating the existence of grounds for expulsion.” The grounds are broad: merely knowing about the planned terror attack and failing to act, or, expressing support or admiration for the act or for a terror organization suffices. The law itself is very thin on procedural details or safeguards. It merely grants the family member legal representation and an opportunity to make their case, but little else. Assuming these hearings will adopt standards common in other administrative processes, they will likely incorporate a lower admissibility threshold for evidence and a lower burden of proof than what would be required for a criminal proceeding.

On appeal, judicial review of the Minister’s decision itself would likely be subject to an administrative standard, with there being diverging views regarding the deference that is due. Moreover, the timeframe for the Minister’s decision regarding deportation is stipulated by the law as being no more than fourteen days, with the order being signed at the same time. Thus, no stays are built into the process. Taken together, this framework suggests a fact-finding process that holds very few checks on the executive’s deportation power.

Plainly illegal…  

The law, as enacted, plainly violates both Israeli constitutional law and international law in too many ways to list here. Several, however, are particularly glaring:

First, deporting citizens violates Sec. 6(b) of Basic Law: Human Dignity and Liberty, which entitles every Israeli citizen located outside the country to enter it. There is simply no possible interpretation of this Basic Law which would allow for years-long deportation orders.

Second, it is difficult to see how the law’s violation of the right to citizenship could pass the most basic constitutional tests as they have been interpreted thus far. While not enumerated in a Basic Law, the court has recognized the right to citizenship (e.g. in Alroi v. Minister of the Interior). The extreme act of deporting a citizen to an active war zone for years at a time can hardly be considered necessary nor proportionate given alternative criminal and administrative tools on hand.

Third, deporting family members constitutes collective punishment, which contradicts basic principles in Israeli law and in international law. In the explanatory note presented in committee, the drafters justify the new law by arguing that “[t]here is no doubt that many terrorists will avoid committing terror attacks if they know that their family members will be punished because of their actions.” In other words, the justification for deportation is not the conduct of the deportee, but of their family member. This flies in the face of the most basic principles undergirding criminal law (including Israeli criminal law, which stipulates that a person may not be punished for a crime they did not commit), as well as art. 33 of the Fourth Geneva Convention.

Finally, the law also violates the principle of non-refoulement which prohibits the deportation of individuals to a place or territory where there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.

Yet, lamenting the law’s illegality may be beside the point, for it may be an inevitable even  deliberate feature of the governmental logic that underpins it.

…and unjustifiably so.

The impetus for the law was ostensibly a series of attacks on civilians and security service members committed by Israeli citizens and Palestinian Permanent Residents that have occurred over the course of the last several years, but especially since October 2023. The explanatory note argues that because present counter-terrorism tools do not provide sufficient deterrence, “we must […] find new and extreme tools to fight [terrorism].”

Safeguarding the citizenry from wanton violence and targeted terrorist attacks is a core responsibility of any government. It is also true that the weight and urgency of this task increases with the scale and immediacy of a threat thereto. As such, it is neither impermissible nor unreasonable for lawmakers to devise strategies designed to deter further attacks. But whilst security imperatives ought to be given appropriate weight, within a constitutional system of government, one that is committed to the rule of law and the most rudimentary principle of equality, the goal of security cannot legitimate every conceivable policy with potential deterrent effect.

There are certain strict limits on how far governments may go in their quest for assuring security: they cannot torture, they cannot deny due process, and they cannot deport their own citizens to a war zone that all but guarantees their death, especially not on the basis of a discretionary decision that is difficult to appeal. These limits are neither optional nor random: they are foundational to the very idea of the rule of law. As such, when governments cease to adhere to them, they are repudiating not just the particular norm in question but also the very idea that law, whether it be through its institutions, norms, or procedures, imposes meaningful restraints on their authority.

The Corrosive Logic of Security

To seek to justify this move in the name of security rests on a perverted conception thereof, one that posits that our security is only achievable if we erode theirs. It suggests that all that seemingly stands in the way of us being safe are the rights and territorial presence of those we can easily identify – that we just know – are mistaken citizens in wolf’s clothing. These minority citizens’ status is constructed as temporary in a way that the majority’s is not. To achieve security, this reasoning goes, we must first strip them of their rights, their citizenship, and then deport them, those they have associated with and finally all those who look like them.

As we trade their security against abusive state power for what are at best incremental gains in security from violent attack, we are granting the state ever more power, and thereby erode the very basis upon which anyone’s security ultimately rests: a system of legal rights, norms and institutions that channels and conditions arbitrary governmental power. In this sense, for the ruling coalition, this new law kills two birds with one stone– it not only further erodes the legal status of citizen and non-citizen Palestinians, it also undermines the rule of law.

The Trap of Strategic Illegality  

It is important to highlight, in this regard, the political moment in which this law has been passed. While many eyes are on Israel’s action in Gaza, and rightfully so, as a matter of domestic politics, the governing coalition has returned to its original plans related to the judicial overhaul.

In August, MK David Amsalem called for enacting relevant laws “by brains or by brawn,” citing the “dictatorship” of the Supreme Court, which “constrain[s] moves by the cabinet, the Knesset and the security services and rules against soldiers, against civilians and also against Israel.” This view extends to government legal advisors as well. It should therefore be of no surprise that amongst the various proposed versions of the law, it was the most extreme one that was adopted. In doing so, the Knesset’s majority deliberately eschewed any attempt by legal advisors to render the proposal compatible with legal requirements.

The law’s plain illegality renders legal challenges against it highly likely and the subject-matter renders any such challenge an easily politicized one. Even in the best of time, the rights of terrorists are far from popular and incredibly difficult to uphold, but in a time of war, reeling from the trauma of an unparalleled terrorist attack, any attempt by the court to cabin what is a gross executive overreach can be easily spun as the judiciary overstepping their own constitutional role. Put more concretely, by passing plainly unconstitutional laws which speak directly to security concerns, the coalition is setting the court up, yet again, as a gatekeeper that unjustifiably blocks populist laws.

In line with this, sources close to the government have already signaled that this will be the direction they are going to take during this session of the Knesset, explaining to journalists that “we will change course and enact security laws to the end… if the [government] legal advisors have a problem – they should go to the HCJ. The judges will need to explain to the public cases where they’re preventing the expulsion of terrorists and denial of stipends.”

A Race to the Bottom

Seen in this light, this law may be seen as case study of a wider phenomenon: the strategic instrumentalization of what are legitimate governmental concerns and popular anxieties to abrogate not just long-entrenched legal norms but also the institutions and procedures designed to protect them. Hostility to the rights of minority groups and a willingness to sacrifice them to advance populist ends is nothing new, especially in times of national emergency. The very same impulse underpinned the excessively harsh and racially discriminatory measures passed in the aftermath of 9/11. Yet, what is new is the use of this strategy to attack the institutional basics of a constitutional system itself: to delegitimize the courts and the constitutive constitutional role they have to play. To make matters worse, the court can only lose: if it insists on the law’s illegality, it opens itself up to further attacks on its legitimacy and with it whatever is left of its checking power. If it upholds it, it will have eradicated the most foundational protection against abusive state power an Israeli citizen of Palestinian ethnicity still had: the unconditional right to residence.

* Unless linked directly in English, all quoted translations from Hebrew were unofficially translated by Stav Zeitouni.