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1.12.2004

New arrangement regarding family visits to the Gaza Strip: following petitions filed by HaMoked, the military promised to allow Israelis to enter the Gaza Strip and visit their relatives of the first degree for the holidays, provided there are no security reasons for denying the approval

The military's policy on entry of Israelis into the Gaza Strip
The military has declared the Gaza Strip a “closed military area,” and since 1994, entry of Israelis into the areas of the Gaza Strip that are administered by the Palestinian Authority has been prohibited. The military contends that citizens of the state do not have a right to enter the Strip, but may enter only after obtaining a visitor’s permit, the granting of which lies solely within the discretion of the military commander.

Since the beginning of the second intifada, the military has cut back sharply the number of permits it issues to Israelis wanting to visit in the Gaza Strip. The policy is sweeping: no Israelis are allowed to enter, other than in exceptional cases. The exceptional cases involve the spouses of residents of the Gaza Strip, and their children, who want to visit or live with their spouse in the Strip (the case of divided families). Other relatives are allowed entry to visit a relative of the first degree who is in critical medical condition, or to attend his or her funeral, or in matters of similar gravity. As a rule, relatives of the second degree are not allowed to enter.

The military contends that its policy results from its fear for the safety of Israelis who enter the Gaza Strip, and its concern that the permits would be exploited to give aid to hostile groups and individuals. The first reason formed the basis of its argument in HCJ 9293/01, Barakeh et al. v. Minister of Defense et al. The court accepted the argument, mostly because of the fear that the petitioners would be harmed because they are Knesset members. This point does not apply to Israelis who are Palestinians and have relatives and acquaintances in the Gaza Strip (some of whom even lived there at various times in their lives), and do not hold any official state position. They are not the target of actions aimed against Israel. Also, insofar as the hypothetical attacks on them would have no implications for state security, it is improper to act paternalistically and protect them against their will.

Regarding the second reason for the military’s policy, it is indisputable that the military has the authority to reject requests to enter the Strip when there are prevailing security reasons, such as where it has information that the visit will be exploited to advance violent activity that is liable to lead to the loss of innocent civilian lives. However, refusal to permit entry must be made on individual grounds, and be based on evidence against the person wanting to enter.

The petitions filed by HaMoked
In 2004, HaMoked filed a number of petitions on behalf of Israelis who wanted to visit their relatives in the Gaza Strip for a specific reason (such as the poor health of their relative) and for general reasons. The petitions emphasized the need to allow visits during holidays. In none of the cases were there personal grounds for denying entry. The petitioners’ requests to enter were denied as a result of the military’s sweeping policy, and not for individual reasons relating to the applicant.

The petitions emphasized the irrelevance of the military's reasons for rejecting the requests to enter the Gaza Strip. In it petitions, HaMoked pointed out that, in November 2003, the military permitted Israelis, together with their spouses and children, to enter the Strip for the Eid al-Fitr holiday to visit first degree relatives. Five thousand Israelis entered the Strip at the time, refuting the military’s arguments.

But that visit during the Eid al-Fitr holiday remained an exception. Following an attack in Jerusalem, the Minister of Defense decided to change his mind and not allow visits to the Strip for the Eid al-Adhah holiday this year. It goes without saying that the attack in Jerusalem, which was committed by a resident from Bethlehem District in the Occupied Territories, had no connection with Israelis entering the Gaza Strip to visit their relatives. The Defense Minister’s action was vindictive and unacceptable, and for no reason at all harmed citizens and residents of the state who had no ties whatsoever to the attack. The petitions also raised the fear that the military’s policy was based on extraneous considerations, such as a political agenda aimed at splitting the Palestinian people into isolated social groups, each restricted to a narrow piece of territory. Another explanation for the policy was the desire to collectively punish residents of the Strip by isolating them and restricting their ties with relatives in Israel.

These explanations also explain the incredible discrimination between the policy on entry of Israelis into areas of the Strip that are administered by the Palestinian Authority, and the entry of Israelis to the settlements in the Gaza Strip. Clearly, Israelis entering the settlements face a much greater threat than do Palestinian residents or citizens of the state who visit their relatives in Gaza. Despite this, the military places no restrictions on Israelis entering the settlement areas.

The sweeping and arbitrary policy severely violates the right of Israelis denied entry to family life, and contravenes the fundamental precept that human rights may be violated only for a proper purpose and to an extent that is no greater than necessary.

Developments following the filing of the petitions
The filing of the petitions led to resolution of the personal requests of the petitioners, and the military permitted them to enter the Gaza Strip to visit their relatives. However, HaMoked continued its demand for an overall solution to the problem.

On 27 August 2004, the state filed its supplemental response in HCJ 10043/03. Also, on 25 November 2004, the State Attorney’s Office sent a letter to HaMoked that dealt with that file and another petition that HaMoked had filed on the same issue. In these two documents, the State Attorney’s Office consented to an arrangement permitting Israelis to visit their relatives who are residing in the Gaza Strip. The arrangement is restricted to holidays.

According to the arrangement, where no security reasons exist to deny approval, Israelis will be allowed to visit their first degree relatives living in the Strip for the Eid al-Fitr and for the Eid al-Adhah (for Muslims) or Christmas and Easter (for Christians) holidays. Israelis who qualify will be permitted to take their spouses and children up to age 18, provided there are no security reasons to deny their entry. Permission to be accompanied by family members also applies to persons permitted entry in what the military refers to as cases of  “exceptional humanitarian need” (meaning weddings, engagements, serious illness, funerals, and the like) involving a first-degree relative living in the Strip.

Following the State Attorney’s Office’s supplemental response and letter, HaMoked consented to a dismissal of the petitions, with the intention of testing the implementation of the new rules. However, the arrangement is restrictive and insufficient. Under the arrangement, the military can still refuse entry to the Gaza Strip for the holiday because of some event (such as, for example, the death of Palestinian Authority President Yassir Arafat, just prior to Eid al-Fitr). Also, the rules do not solve the needs of Israelis whose relatives in the Gaza Strip are of the second degree.

mail@hamoked.org.il (02) 627 1698   (02) 627 6317

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