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Security Detainee
Administrative Detainee
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23.9.2007

The response of HaMoked - Center for the Defence of the Individual to the State’s reply, in the matter of the series of HaMoked petitions on the issue of family unification in the territories: The State relies on political arguments which army commanders are forbidden from considering; It ignores the right to a family life and chooses a circular argument – a ruling of the court ordering the army to receive applications for the resolution of the status of spouses of the residents of the territories will obligate the state to honor interim agreements, and a ruling to implement a new mechanism for resoling the status of the petitioners implies according to this claim  a breach of the agreements

On 19 September 2007, the Center for the Defence of the Individual received the respondent’s reply to HaMoked’s petition, a petition in which the petitioners request that the army be commanded to receive applications for family unifications in the West Bank, and to recognize a family relationship in and of itself as a criterion for approving the applications. The State avers that the petition should be denied, a petition to which eight additional human rights organizations have joined, since it deals with essentially political matters. In its reply the State has disregarded the right to a family life, which has been recognized as a constitutional right in HCJ 7052/03.

On 20 September, 2007 HaMoked filed its reply to the state’s reply. HaMoked mentions that the state does not at all claim that there is a security risk - not even slight or hypothetical – that is foreseen by the petitioners. Opposition to the petition is entirely based on political foundations. These considerations are completely forbidden to be taken into account by an army commander, since he is obligated to focus exclusively on the security ramifications of the petitioners’ applications.

The respondents base themselves on the HCJ Shahin judgment, which was handed down 20 years ago. However, even within the framework of the Shahin case, the court determined that it is the respondents’ obligation to examine in detail each and every application – but until today even this elementary thing has not been done. In addition, HaMoked claims that since the Shahin judgment was handed down there have been changes to Israeli and to International Law – the Convention on the Rights of the Child has been signed, the Basic laws have been enacted, and the right to a family life has been recognized as a constitutional right. In practice, later rulings have completely overturned the decision in the Shahin case that was passed twenty years ago.

The state avers that the “freeze policy” that has been implemented since 2000, has been approved by the court on various occasions. The state is not accurate. There has never been a reasoned decision, and the court has been wary of establishing hard and fast rules in the matter, and of examining the question of the reasonableness of the army policy.

Additionally the state has chosen a form of circular reasoning. On the one hand, if the court rules that the army must accept applications for family unifications it will counterclaim that it is the state’s obligation to abide by the agreements that they have signed. On the other hand should the court rule that the State of Israel must adopt an alternate mechanism for resolving the status of the petitioners it shall constitute according to the respondents, a breach of the agreements.

To view HaMoked’s reply to the respondents reply dated 20 September, 2007

To view the state’s reply of 19 September, 2007

To view the court’s decision on joining the Association of Civil Rights in Israel to the petitioners of 6 August, 2007

To view the additional petition dated 11 April, 2007

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

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