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Students from Gaza Studying in the West Bank: HCJ 8731/09 ‘Azam v. Commander of the West Bank (Judgment of December 9, 2009)
Court Watch | 8731/09 | 1.12.2010 | Adv. Alon Margalit
Criticism
In 2005, a young Palestinian woman from the Gaza Strip began her B.A. studies at the Bethlehem University. On October 28, 2009, as she was making her way home to Bethlehem from Ramallah, she was stopped by soldiers at a checkpoint. When they discovered that the registered address in her identity card was in the Gaza Strip, they informed her that without a stay permit by the military commander, she is an illegal alien in the West Bank. The young woman was detained and eventually taken into a military jeep, blindfolded and handcuffed, and transported to the Gaza Strip that same evening.

The following day, the Israeli NGO Gisha filed a petition to the High Court of Justice (HCJ) on the young woman’s behalf, requesting she be allowed to return to Bethlehem and complete her studies.[1] The petitioners stressed that the student had entered the West Bank lawfully and that she had only two months remaining to complete her degree. They further clarified that she had moved to the West Bank four years earlier, a time when no stay permits for the West Bank existed. She had since been unable to update her new address in the Palestinian population registry, due to Israel’s refusal to allow changes in the registry. The state refused to allow her to return to Bethlehem and warned that there was concern that the petitioner would settle in the West Bank permanently upon completion of her studies. The HCJ rejected the petition. The court ruled that the permit to enter Israel which was granted to the petitioner in 2005 for five days for the purpose of passage from Gaza to the West Bank meant that she was not permitted to remain in the West Bank. The HCJ added that at a time when the military commander prohibits Gazans from studying in the West Bank, there was no place to give the petitioner preferential treatment over other petitioners, such as those whose petitions were rejected in the Al-Razi and Hamdan cases.[2]

Despite the HCJ’s criticism of the petitioner, for having remained allegedly unlawfully in the West Bank since 2005, there is no dispute that stay permits for the West Bank were first issued by the military commander in 2007[3] – so at least up to that time, the petitioner was lawfully present in the West Bank, even according to the military commander’s method of reasoning. This position is in line with the traditional approach, anchored in the Interim Agreement and sanctioned by the HCJ, that the West Bank and Gaza Strip constitute a single territorial unit.[4] There is no wonder, therefore, that in the absence of security considerations for limiting passage between the two parts of the territory under occupation, Gaza residents required no permit whatsoever in order to remain in the West Bank.

Beyond the doubts as to the wisdom of the military commander’s decision in this specific case – the petitioner’s transfer to Gaza appears to be simple cruelty – the legal basis for the decision is also rather weak. The judgment also presents no authorities from international law, and with reason. Not only is it difficult to find authorities in support of the military commander’s decision; in fact, expulsion from the West Bank is absolutely prohibited under international humanitarian law. The petitioner enjoys the status of a “protected person” in an occupied territory and therefore has full protection against forcible transfer within the occupied territory or deportation outside of it.[5] Article 49(1) of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War prohibits such expulsion, whatever the motive. Neither security considerations, nor, certainly, a dated residential address, allow the expulsion of Palestinians from the West Bank to the Gaza Strip. The strict prohibition on forcible transfer and deportation from the occupied territory suffices to conclude that the military commander’s actions in the petitioner’s case exceeded authority and violated international law.

The judgment raises a number of additional issues. The demand that protected persons obtain stay permits for the West Bank is baseless. The flip side of the complete ban on deportation under the laws of occupation is that a protected person is entitled to reside and remain in the occupied territory unconditional on any permit by the military commander. This right originates in international law rather than the statutes or policies of occupying powers. Even in cases where protected persons break the law, their trial and possible criminal punishment, including arrest and imprisonment, shall always be carried out in the occupied territory. This is in concert with the fundamental principle of the laws of occupation that the military commander is not a sovereign of the occupied territory, but rather holds and “administers” it temporarily. He has no power to grant permits which are tantamount to granting citizenship or permanent residency status, all the more so when it comes to revoking local residents of their existing status. Such executive acts have a long-term effect. They are often irreversible and are liable to create significant changes in the demographics of the occupied territory. Their harmful effects will outlast the occupation and interfere with any future fulfillment of the right to self-determination.

Another issue which arises in this petition incidentally, is whether it is possible to hold criminal proceedings in the West Bank against Palestinians who reside in an address which is different from their registered address in the Palestinian population registry (without ordering a prohibited deportation). In this context, it should be noted that, as a rule, since 2000 Israel has not allowed to update addresses in the population registry. It seems that in the absence of individual security considerations, the requirement that a protected resident live only in his registered address is unlawful. Without any real possibility of changing an address and considering the fact that presence in the West Bank without a permit puts the individual at risk of prolonged incarceration,[6] the practice effectively amounts to “assigned residence”.[7]

The laws of occupation do allow for the security measure of ‘assigned residence’, but the military commander may use it only in exceptional circumstances, when the person involved poses a security risk. Owing to the severe harm caused to the individual, the military commander must meet additional conditions, such as the duty to provide for the protected residents who are under assigned residence, allowing relatives to live together in the same place and guaranteeing judicial review of the necessity of the measure at list twice a year.[8] In this case, the petitioner poses no security risk, and in any event, none of the other conditions required for ordering assigned residence are met. Since this is a policy which is indiscriminately applied to the entire Palestinian population, it is collective punishment which is prohibited under international law.[9]

In the absence of a security risk posed by the petitioner, the comparison the court drew between her and other Gaza students whose studies in the West Bank were prohibited for security reasons, is perplexing. It should be noted that while the laws of occupation allow restrictions on freedom of movement due to individual security considerations, forcible transfer from the occupied territory is strictly prohibited.

Moreover, the judgment is an example of a ‘slippery slope’ in which injuries to protected residents are permitted on security pretexts. While the HCJ itself clarified, more than once, that security considerations or military necessity are not magic words,[10] in practice, general arguments or merely the existence of a “security charged atmosphere” suffice to legitimize injury without real security cause.

Thus, in 2004, in the Al-Razi case, the petitioners, students from Gaza who wished to study occupational therapy in Bethlehem, were prohibited from leaving Gaza after security information was revealed to pertain to some of them. As for the others, the ‘risk profile’ to which they belonged was enough to restrict their freedom of movement and right to education. In 2007, in the Hamdan case, it was sufficient for a person to be in the 16 to 35 age demographic in order to justify violation of his rights with no need for an individual examination at all. In this petition, the court takes another step and legitimizes the injury without any security reason. It seems that the fact that the petitioner is Palestinian is all it takes to allow her rights to be violated. In this context, the authorized interpretation of the Fourth Geneva Convention by the International Committee of the Red Cross should be noted:

The mere fact that a person is a subject of an enemy Power cannot be considered as threatening the security of the country where he is living; it is not therefore a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures the [Occupying] State must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security […] All considerations not on this basis are strictly excluded All considerations not on this basis are strictly excluded.[11]

Restrictions on freedom of movement and on obtaining an education which lack security reasoning contravene the military commander’s duty to ensure public order and safety, as far as possible.[12] Possibly against the court’s original intention, the only two references in the judgment – Al-Razi and Hamdan – call attention to the dire situation of Gaza students and to Israel’s responsibility toward residents of the Gaza Strip.

The general restrictions Israel imposes on the freedom of movement of Gaza students are a feature attesting to the depth of Israel’s control over the lives of the Gaza population, and bolsters the claim that the Gaza Strip remains under occupation even after the disengagement.[13] Consequentially, Israel carries certain responsibilities toward the local population. There is uncertainty as to the extent of Israel’s responsibility to provide for the right to education within the Gaza Strip, especially given the questions concerning Israel’s effective control there. But considering the length of the occupation until the disengagement, the remaining control, and the heightened applicability of international human rights law in a situation of protracted occupation, it may be argued that in the absence of a possibility to study in the Gaza Strip, Israel must allow for an appropriate alternative – and in the very least, that it has the negative obligation, in the absence of individual security considerations, not to disrupt and hamper freedom of movement for the purpose of acquiring education.


Adv. Alon Margalit
The author is a lawyer, formerly on staff at HaMoked: Center for the Defence of the Individual. He is currently a PhD candidate at the Institute of Advanced Legal Studies, University of London.


[1] 
For a description of the events, see HCJ 8731/09 ‘Azam v. Commander of the West Bank, petition of October 29, 2009.
[2] 
See HCJ 7960/04 Al-Razi v. Commander of IDF Forces in the Gaza Strip (2004), judgment of September 29, 2004; HCJ 11120/05 Hamdan v. GOC Southern Command (2007), judgment of August 7, 2007.
[3] 
See response of the Coordinator of Government Activities in the Territories to HaMoked’s freedom-of-information application, May 18, 2008.
[4] 
See Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (1995), Art. XI; HCJ 7015/02 Ajuri v. IDF Commander in the West Bank (2002), judgment of September 3, 2002, para. 22. This principle remains valid after the disengagement; see, e.g., above note 2, Hamdan, para. 14; UN Security Council, Resolution 1860 (2009).
[5] 
The question whether the Gaza Strip remains under occupation is irrelevant in this context, as Article 49 of the Geneva Convention prohibits the deportation of protected persons from occupied territory to “any other country, occupied or not …”.
[6] 
See pending petition of May 25, 2010, HCJ 4019/10 HaMoked: Center for the Defence of the Individual v. Military Commander of the West Bank, filed by HaMoked and other human rights organizations; also see Sections 299-300 to the Order regarding Security Provisions [incorporated version] (the Judea and Samaria Area) (No. 1651), 5770-2009.
[7] 
This analysis presupposes that protected persons must reside, as a rule, in their registered address, whether inside the West Bank or inside Gaza. It is also presumed that the Gaza Strip remains part of the Israeli occupied territories, as otherwise this would constitute prohibited deportation; see on this issue above note 4, Ajuri, para. 20.
[8] 
[9] 
[10] 
See, e.g., HCJ 7957/04 Mara’abe v. Prime Minister of Israel (2005), judgment of September 9, 2005, para 31.
[11] 
See Jean S. Pictet (ed.), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), Article 42.
[12] 
See above note 9, Art. 43.
[13] 
The legal status of the Gaza Strip after the disengagement is disputed; see, e.g., HCJ 5841/06 Association for Civil Rights in Israel v. Minister of Defense (2007), judgment of March 13, 2007; Yuval Shany, “Faraway, So Close: the Legal Status of Gaza after Israel’s Disengagement” (2006), Yearbook of International Humanitarian Law, Vol. 8, 359.
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