العربية
HE
العربية
HE
The divided-families procedure and changes in the procedure since October 2000
Beginning in 1994, the IDF prohibited Israeli citizens and residents from entering the Gaza Strip, except to go to the settlements there, or pursuant to special permits. The permits were issued in exceptional cases based on criteria that were never published, and became harder and harder to meet over the years. An exception to this rigid policy is the divided-families procedure, which enables Israeli residents and citizens whose spouses are residents of the Gaza Strip to receive permits to stay there. According to the procedure, these permits were renewable every three months through the Israeli District Coordinating Office in Erez [on the Gaza Strip-Israel border]. For the most part, the procedure remained in operation until October 2000.
Since the outbreak of the current intifada, implementation of the procedure has broken down. Following severe restrictions on movement, the cutting up of the Strip, numerous shooting incidents and the fear that seized the population, many spouses refrained from going to the Erez DCO to renew their permits, and remained in the Strip without a permit. A large number of Israeli spouses then staying in the Strip did not return to Israel for a long time. Others, who returned to Israel, were unable to return to their families in the Strip. The fear of a similar fate induced those who remained in Gaza not to leave for Israel, although their permit had expired, on the chance that they would find themselves in even a worse situation. In addition, the military made frequent arbitrary changes in the procedure, usually as a punitive measure following attacks perpetrated by Palestinians, and did not publish the changes. These changes included, for example, reduction of the period of validity of the permits, sweeping cancellation of the procedure, and additional demands, such as a requirement that the Israeli spouse sign an undertaking not to leave the Strip for three months. Requests made by HaMoked, and petitions that the organization filed with the High Court of Justice led in many instances to cancellation of the changes.
The case of the petitioner in HCJ 8947/04, Sharab et al. v. Commander of IDF Forces in the Gaza Strip
The petitioner in this case, a mother of four children, is a resident of East Jerusalem whose husband and children are residents of the Gaza Strip. Until now, she visited them in accordance with the divided-families procedure. From the time that the intifada broke out, in September 2000, to June 2004, she did not leave the Strip to visit her relatives in Israel. During that period, she did not renew her permit to stay in the Strip, for the reason that the harsh situation in the Strip made it very dangerous for her to go to the Erez checkpoint, where the office that extends the permits was found, and which was far from Khan Yunis, where she lived. Aggravating the problem was the checkpoints that she had to pass on her way and the army’s frequent cutting up of the Strip, which completely blocked movement between the different sections of the Gaza Strip. The petitioner was also concerned that, if she went to the checkpoint, she would be removed from the Gaza Strip and would not be able to return to her children, who depend on her daily care. In retrospect, her concern was well-founded.
In June 2004, she decided to visit in Israel. She made the decision after hearing that a woman in her situation managed to go to Israel and return to the Strip, and after she heard that the Erez checkpoint was operating in some degree of normalcy. For quite some time she had wanted to visit her widowed and ill mother, who lived in Jerusalem. On 27 June 2004, the petitioner went with her youngest child, a toddler, to the Erez crossing. The officials there told her that she was not allowed to take her son with her. She had to leave him behind and enter Israel alone. At the end of her visit, when she submitted a request for a permit to enter the Strip in accordance with the divided-families procedure, she was informed that her request had been rejected. Clarification by HaMoked indicated that the request had been rejected because the petitioner had “violated a commander’s order” by not renewing the permit and by not leaving the Strip for four years.
Despite requests by HaMoked to the legal advisor for the Gaza Strip, to the Defense Ministry, and to the Office of the Coordinator of Government Operations in the Territories, the army did not alter its decision. HaMoked pointed out, among other things, that arranging the petitioner’s entry into the Strip was an urgent special humanitarian matter, in that a son of hers was epileptic and needed his mother’s supervision and care. HaMoked’s requests were to no avail.
On 5 October 2004, HaMoked petitioned the High Court of Justice in the matter. The petition argues that the Gaza Strip military commander’s decision constitutes extra-judicial punishment. The military does not even make a claim that security needs are involved: the only reason it gives to defend its action is that the petitioner “violated a commander’s order.” The commander’s action is arbitrary, is unlimited in time, and did not give the petitioner an opportunity to state her case.
Most importantly, the military commander’s decision infringes the petitioner’s right to family life. Her Gazan husband is forbidden to enter Israel and is not entitled to any status in Israel following enactment of the Nationality and Entry into Israel Law (Temporary Order) 2003. As a result, refusing to allow the Petitioner to enter the Gaza Strip decrees the absolute separation of her family and, in practice, destruction of the family unit. This infringement of the right to family life, which is recognized in Israeli law and international law, violates human dignity and is contrary to Israel's Basic Law: Human Dignity and Liberty.
Developments since the petitions were filedIn a letter of 9 November 2004, the legal advisor for the Gaza Strip informed HaMoked that, when a permit cannot be renewed because the individual is unable to get to the Erez checkpoint because of the security situation at the time (for example, because of an army roadblock that prevented movement from one part of the Strip to another), the failure to appear will not be considered a violation of the conditions of the permit. However, as soon as the obstruction is removed, the individual must go to the Erez checkpoint and request renewal of the permit. According to the legal advisor, each case will be examined individually, and a check will be made to determine if passage had been restricted. Where a decision is made not to approve the extension, the Israeli applicant must leave the Gaza Strip – if the permit in his possession has expired – immediately, or not later than the expiration date as set forth in his permit.
Also, the legal advisor’s letter indicates that the military intends to continue to use the administrative sanction that was the subject of the petition, i.e., refusal to grant entry permits on the grounds of failure to extend the permits. This sanction is without legal basis. Imposition of the sanction constitutes punishment for a past act. In that the military authorities are allowed to refuse granting the permit only when the applicant represents a future threat, the army officials exceed their authority by refusing the request. Also, the punishment is disproportionate, and, as stated, harms the family unit and the best interest of the children.
In light of the legal advisor’s letter, HaMoked informed the HCJ that it reserves the right to return to court to oppose administrative penalties that relate to past acts. HaMoked also requested the HCJ to impose substantial court costs on the military.
From the application filed with the HCJ:
"In our case, all the case law tests are met to require the Respondent to pay Petitioners’ costs: the petition was filed following the proper (and even more than that) exhaustion of remedies, and, following submission of the petition, the Petitioners obtained all the relief they sought… As stated above, notwithstanding the urgency in unifying the family and the great hardship entailed in the separation forced on them by the Respondent, the Petitioners gave the Respondent, time and time again, the chance to resolve the matter without the Petitioners resorting to court action. However, the Respondent’s legal advisor failed to respond. Clearly, the Petitioners received the desired relief only after they filed the petition…This is not the first time that the Respondent chose to resolve the specific problem raised in the petition, and thus avoid judicial review. The Respondent acted in the same manner as it did herein in three petitions that HaMoked: Center for the Defence of the Individual filed on behalf of three different women. This method is unacceptable, for it discriminates against those women who are not represented by legal counsel and whose matters do not reach the courts. Also, it is unacceptable that the Supreme Court serve as a “branch” of the Respondent, through which it alone a person is able to receive a reply from the Respondent."
