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HaMoked’s response to the state’s position in the petition against the permit regime implemented by Israel in the “seam area”: The regime creates a clear separation between Israelis and holders of Israeli visas and Palestinians from the Territories and as such, constitutes the crime of apartheid

The response which was submitted to the court on 1 November 2009 was penned by Att. Michael Sfard in the framework of HaMoked’s 2006 amended petition against the discriminatory permit regime implemented by Israel in the area known as the “seam area” which spans the territory between the separation wall and the Green Line. In its response, HaMoked joins the response submitted by the Association for Civil Rights in Israel (ACRI) which also petitioned the court on this matter. In the response, ACRI stresses the illegality of the permit regime and its severe harm to Palestinian residents in this area. HaMoked also reiterates that it is a dark regime of separation that falls under the definition of the crime of apartheid which is classified in international criminal law as a crime against humanity.

The origin of the current petition is a petition on issues of principle filed by HaMoked on 6 November 2003 challenging the legality of the separation wall’s route and the permit regime which accompanies it. However, even as the justices left the petition pending before the court, a judgment was delivered in HCJ 2056/04, following which HaMoked decided to file an amended petition to the court.

In the judgment which led to the amended petition, the court ruled that the reason for erecting the wall was security rather than state related, and as such – legal. It is worth noting that several days after the judgment in HCJ 2056/04 was handed down, the International Court of Justice also delivered its opinion regarding the legality of the separation wall in the Occupied Territories, which determined that the wall’s route and accompanying permit regime contravene international law.

The amended petition dated 6 April 2006, focuses on the discriminatory permit regime policy implemented by Israel in the territory between the separation wall and the Green Line, an issue which the court did not address in the judgment on the legality of the separation wall’s route. An identical petition on the same issue was filed with the court by ACRI.

In its petition, HaMoked noted that the policy was illegal and immoral, that it implemented a regime of separation based on nationality and civil status. In the case of Palestinian residents of the Territories wishing to enter, leave, work or sleep in the seam area, the proclamation regarding closure of the “seam area” applies and they must therefore obtain various types of permits, whereas Israelis and tourists visiting Israel enjoy an undisturbed right to travel freely within the very same area, with no need for any type of permit. Therefore, HaMoked claims, there is no substantial difference between the permit regime implemented by Israel and the notorious apartheid regime, and the former entirely contradicts the principles of administrative law, basic rights in Israeli law, as well as the principles of international humanitarian law and international human rights law. The permit regime directly infringes on many of the rights of the protected residents of the occupied territory, including the right to freedom of movement, property, family life etc.

In the 13 November 2006 state response to the petitions filed by HaMoked and ACRI, it claimed, in its defense, inter alia, that the permit regime is not discriminatory and that the closing of the area and the permit regime are an “inherent part” of establishing the route of the fence, while entirely ignoring the fact that this was not preordained but rather created by the state, and it is the state that decided the discriminatory nature of the permit regime. The state also ignored the petitioners’ arguments regarding the blanket prohibition on Palestinian entry into the seam zone without permits and claimed this was a “permissible distinction for security purposes”. This position did not change in later notices submitted by the state in response to the court’s demand to receive updates regarding the status of proclamations of areas as seam areas and the scope of the territory and population included in said proclamations.

In their responses to the state’s updates, HaMoked and ACRI counter the state’s claims that the permit regime was meant to balance Israel’s essential security needs and the need and desire to ease Palestinians’ routine lives. The updates presented by the state indicate that contrary to its assertions regarding actions taken by the security establishment with the purpose of improving the fabric of life of the protected residents in the seam area, the state expanded the permit regime and applied it to vast new areas around the seam line. The state has also further restricted the permit granting policy in reducing the number of permits granted to landowners wishing to work their lands in the seam area. (02) 627 1698   (02) 627 6317

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