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Administrative Detainee
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Thoughts and Wishes – the High Court of Justice on the Separation between the Gaza Strip and the West Bank: HCJ 2088/10, 4019/10 HaMoked: Center for the Defence of the Individual v. Commander of the West Bank (Judgment of May 24, 2012)
Court Watch | 2088/10, 4019/10 | 1.7.2012 | Adv. Yossi Wolfson
Palestinians crossing the Qalqiliya checkpoint into Israel, 2011. Photo: Ann Paq, ActiveStills
Criticism
Two things can be expected in every judgment: an operative ruling and reasoning. A person who files a lawsuit for 100,000 dollars does not expect to receive at the end of the proceedings a document that says that “it may be appropriate for the Defendant to compensate the Plaintiff”, or a ruling that “the Defendant shall pay the Plaintiff 1,000 dollars” without explaining what happened to the remaining 99,000.

The judgment given by the Israeli Supreme Court in two general petitions filed by HaMoked looks a lot like these two strange examples. It is difficult to identify a format of ruling and reasoning in it. In one petition, the Court provides reasoning and some thoughts, but there is no operative ruling. In the other petition, there is an operative ruling without reasoning. All in all, the judgment in the two petitions gives Israel free rein in one of the most critical issues for the future of the Occupied Palestinian Territories (OPT) –  without any real judicial review.

The two petitions share the same background: an Israeli policy which seeks to create a demographic and political split in the Palestinian population, separating “Gaza Strip residents” from “West Bank residents”. The Gaza Strip and the West Bank are part of historic Palestine. Their separate borders were first created in 1948, when Egypt conquered the territory of the Gaza Strip and Jordan conquered the territory of the West Bank. Nineteen years later, in 1967, the two areas, separated by only 35 kilometers, were conquered by Israel and put under military rule. Israel ruled over the West Bank and the Gaza Strip using two separate administrative mechanisms, but it did so in a coordinated manner. Among other things, there was full freedom of movement between the Gaza Strip and the West Bank. Palestinian residents of the OPT could travel around them and live in any village or town of their choice, without restriction. This freedom of movement was restricted only when closures were first imposed in the 1990s. These closures limited the possibility of traversing the 35 kilometers of Israeli territory that separates the two parts of the OPT. However, this restriction affected only the ability to travel between the areas, not the ability to remain in either one of them once the Israeli territory had been traversed. The Oslo Accords expressly incorporated Israel’s and the Palestinians’ agreement on the principle that the territories of the Gaza Strip and the West Bank form an integral unit. These accords established the Palestinian Authority and regulated – uniformly for the entire OPT – matters such as the population registry, passports, child registration, family unification and more. In order to overcome the geographic divide between the two parts of the OPT, the parties agreed on safe passage arrangements between the Gaza Strip and the West Bank.

All in all, the judgment gives Israel free rein in one of the most critical issues for the future of the OPT, without any real judicial review

Israel’s agreement on the principle that the OPT was an integral unit prevailed after it removed its ground troops from most of the Gaza Strip (as part of the Oslo process) and even after it evacuated its remaining military bases and settlements in the Strip and proclaimed the cancellation of the military administration in the area (as part of the “Disengagement Plan”). In November 2005, after the “Disengagement Plan” was completed, Israel signed an agreement which was meant to reintroduce a safe passage arrangement for travel between the two parts of the OPT.[1] In addition, Israel continues to exercise governmental powers vis-à-vis Gaza residents. These are powers Israel retained under the Oslo Accords, like those it exercises vis-à-vis West Bank residents. The fact that Israel continues to be involved in all matters relating to the Gaza Strip population registry and immigration into the Gaza Strip is highly significant for the matter at hand. For example, a foreign national cannot obtain a Palestinian identity card and be registered in the Palestinian population registry without prior Israeli consent – whether his address will be in the Gaza Strip or the West Bank.

In 2002, years after Israel removed its ground troops out of most of the Gaza Strip as part of the Oslo process, the Supreme Court of Israel ruled that the Gaza Strip and the West Bank were a single, integral, territorial unit. The finding, made in the judgment in the ‘Ajuri case,[2] was used to uphold the forcible transfer of Palestinians from the West Bank to the Gaza Strip. Article 78 of the 4th Geneva Convention permits holding protected persons in administrative detention or assigning their residence within the occupied territory, even if this involves forcibly removing them from their ordinary place of residence. In contrast, deportation outside the occupied territory is prohibited and is even considered a war crime. In ‘Ajuri, the State argued that removing Palestinians from the West Bank to the Gaza Strip is simply “assigned residence” within one, integral occupied territory and the Court adopted this position based on the history of the territory, the agreements and the “societal, linguistic, cultural, social and political unity of the territory”.[3]

The State’s position on this matter, that the West Bank and the Gaza Strip form a single integral unit, was inconsonant with a policy that was already taking shape on the ground at the time – a policy of effective separation between the areas. The special arrangements for safe passage between the areas were suspended and permits to enter Israel in order to travel from one part of the OPT to the other have scarcely been given. Israel is not just denying Palestinians passage through its own territory, but preventing Palestinian Authority passport holders from entering the West Bank via the border crossings with Jordan if their registered address is in the Gaza Strip. Palestinians living in the West Bank with a registered address in the Gaza Strip are treated by Israel as foreigners, illegal aliens destined for deportation. Israel refrains from deporting individuals who moved from Gaza to the West Bank before 2000 only out of alleged consideration and only provided there are no security allegations against them. How can a Palestinian member of the new Gazan nation acquire West Bank status? For this, Israel has instituted immigration procedures.

The two petitions filed by HaMoked challenged two aspects of this policy. One was directed against the protocol according to which individuals who wish to relocate from Gaza to the West Bank are granted permits to travel from Gaza to the West Bank via Israel.[4] The other was directed against the deportation of Palestinians from the West Bank simply because their registered address is in the Gaza Strip.[5]

The first petition challenged the “Procedure for Handling Applications by Gaza Strip Residents for Settlement in the Judea and Samaria Area”.[6] The procedure, dated March 2009, establishes the manner in which applications by Palestinians living in the Gaza Strip and wishing to relocate to the West Bank are processed. On this issue, a distinction must be made between traveling from the Gaza Strip to the West Bank (through Israel) and remaining in the West Bank over time. HaMoked's position is that Palestinians have a right to transit through Israel while travelling between the two parts of the OPT. Israel may circumscribe this right and subject it to permits. However, a Palestinian needs no permit to establish his residence in any community in the OPT. Thus, those who are already in the West Bank may continue to reside there even if they previously lived in the Gaza Strip. The petition focused on the first aspect, the transit, and the proportionality of the restrictions imposed on it by Israel.

The main points of the procedure are presented in the judgment:

With respect to criteria, a prerequisite for entering the process was established – the absence of a security preclusion – relating to both the Gaza resident and the Judea and Samaria Area resident – to be determined by security officials. An additional prerequisite was established – entering the approval process would be possible only if the applicants are first degree relatives: spouses, a parent of minor children, minor children, parents of Judea and Samaria Area residents who are over 65 years of age and concerning whom there are objective humanitarian reasons that impede them from continuing to live in the Gaza Strip and these needs can only be met in the Judea and Samaria Area.

On the assumption that the application meets these prerequisites, the procedure stipulates that it may be approved only if it meets one of the following criteria:

The person in question is a Gaza resident who has an ongoing medical condition which requires care from a relative who is a resident of the Judea and Samaria Area, and there is no other relative who is a resident of Gaza (not necessarily a first degree relative) who can care for the patient.

The person in question is a minor who is a resident of Gaza (under 16 years of age) whose one parent, a Gaza resident, passed away, the other parent is a resident of the Judea and Samaria Area and there is no other relative who is a resident of Gaza who can take the minor under his wing.

An elderly person (over 65 years of age) who is a resident of Gaza and who requires nursing care by a first degree relative who is a resident of the Judea and Samaria Area and there is no other relative who is a resident of the Gaza Strip who can provide nursing care for said person.

The procedure also contains a “basket” clause which grants the Coordinator of Government Activities in the Territories discretion to consider any application on its merits according to its individual circumstances, even if it does not come under one of the aforesaid alternatives, but does fulfill the prerequisites.[7]

In other words, a boy who lost his father in the Gaza Strip will not be able to live in the custody of his mother in the West Bank if his uncle in Gaza could care for him. A lonely, sick elderly person who lives in the Gaza Strip will not be able to move to the West Bank and be cared for by his son if there is a security preclusion against his son (who already lives in the West Bank). The family life of spouses and children, in and of itself, does not constitute sufficient grounds for allowing passage. Humanitarian situations relating to other family relationships (such as a sister wishing to reunite with a sister), or non-family relationship will never be considered.

The justices were aware of these problems and committed their doubts to paper:

These exceptions [to the policy of barring passage] are indeed appropriate, yet it seems that a restrictive approach was employed in selecting them, which, in certain circumstances, is overly rigid. This is all the more so considering that these exceptions mainly involve populations in need of special care and support (the sick, the elderly and minor children). Therefore, it may be appropriate to apply these exceptions in a manner that would allow these groups to maintain contact with their first degree relatives – even if there are more distant relatives in the Gaza Strip.

Furthermore, we note that the procedure contains a “basket clause” which grants the Coordinator of Government Activities in the Territories discretion to consider any application on its merit, even if it does not meet the criteria stipulated in the procedure but does meet the prerequisites regarding the absence of a security preclusion (sec. 8 of the procedure) and the applicant’s being a first degree relative (sec. 9 of the procedure). It seems to us that subjecting the discretion of the Coordinator of Government Activities in the Territories to the condition set in sec. 9 of the procedure, which requires that the person seeking to travel be a first degree relative, may, in the real world, turn this clause into a dead letter. Considering the severe injury caused by the application of the restrictive policy, it is appropriate that the Coordinator of Government Activities in the Territories exercise the discretion granted in this clause in such a manner that would minimize the injury as much as possible within existing security constraints. So, for example, though we have not found cause to intervene in the general policy not to permit travel and settlement in the context of a marriage in which the spouses live in the two areas; it seems that there is no room to place a flat ban on all such applications. Thus, in the scope of the discretion of the Coordinator of Government Activities in the Territories in this context, before making such a decision, the overall circumstances relating to the couple should be considered, including their age, the overall family relations and the location of the extended family unit. All these should receive their due place in reaching a final decision on the matter.[8]

The Court ultimately denied the petition “subject to our comments”. But what does this mean? Is the procedure unconstitutional? What is the legal validity of the justices’ remarks that it “is may be appropriate” to implement the procedure in the manner to which they alluded? What exactly is the operative meaning of the concern the justices express that the restrictions written into the “basket” clause would turn it into a dead letter? What meaning should be read into the justices’ instruction (or perhaps wish) expressed in the words “it seems to us” that “it is appropriate” for the Coordinator of Government Activities in the Territories to “exercise the discretion granted in this clause in such a manner that would minimize the injury”? It is not the Court’s role to write down thoughts and wishes, but to issue operative judgments. In this case, it appears the Court wrote the reason for (partially) granting the petition, but stopped short of issuing any clear and operative order, as was called for.

Ten times worse is the manner in which the bench approached the other petition, which was heard jointly with the “settlement procedure” petition. This petition concerned the status of Palestinians who live in the West Bank and whose registered address was previously in the Gaza Strip. As far as the military is concerned, these Palestinians are members of a foreign nation who are illegally present in the area, fated for deportation. The petitioners asked for an order nisi that would instruct the respondents (i.e., the State) to explain:

A.Why they should not refrain from removing Palestinians from the West Bank to the Gaza Strip based on their registered address in the Palestinian population registry held by Israel;

B.Why they should not register in the copy of the Palestinian population registry held by Israel the correct addresses of residents of the OPT, in accordance with the notices and updates transferred to them by the Palestinian Authority, in such a manner that the copy of the population registry in their possession conforms both to the original registry and to reality.[9]

In its petition, HaMoked expounded on the factual and legal history relating to relocation within the OPT. HaMoked demonstrated that though both the West Bank and the Gaza Strip were proclaimed “closed military zones” (and in fact, the entire OPT is made of individual enclaves that are closed military zones), the only restrictions imposed on Palestinians related to entering and exiting these areas. There were no restrictions on Palestinians with Gaza addresses living in the West Bank (or vice versa). On the contrary, the only order restricting settlement in the West Bank is the one regulating the entry of Israelis into the territory. According to the order, an Israeli’s settlement in the West Bank requires a special, personal permit!

The Court wrote the reason for (partially) granting the petition, but stopped short of issuing any clear and operative order, as was called for

With respect to address registration, HaMoked demonstrated that military legislation never required any permit for relocation, whether relocation within the West Bank (including between separate closed zones in the West Bank) or relocation from a community in the Gaza Strip to one in the West Bank. The only existing provision required individuals who changed their place of residence to notify the military administration of this change within 30 days of the effective move. Under the Oslo Accords, the administration of the population registry (including the updating of addresses) was transferred to the Palestinian Authority, which was to notify Israel of the changes it made to the registry after the fact so that Israel may have a current copy. The petitioners presented official state documents showing that changing an address from the Gaza Strip to the West Bank was the sole purview of the Palestinian Authority.

HaMoked demonstrated that in practice, tens of thousands of Palestinians traveled between the two parts of the OPT – some for the purpose of relocation. Some of those who moved used the safe passage; others were Palestinian police officers, many of whom entered the OPT via the Rafah crossing, received temporary addresses in the Gaza Strip and were subsequently stationed throughout the OPT. Israel issued a “stay-permit for the West Bank” to a Palestinian for the first time in December 2007, without any amendment to the military legislation and based solely on an internal decision which was never made public.

In conclusion, HaMoked indicated that defining individuals as illegal aliens in a specific part of their own country and removing them from it is a violation of protected human rights and a breach of international law. The power to forcibly remove does exist, but it may be used only for imperative security reasons. Therefore, it is impossible to remove a person to the Gaza Strip simply because that is where he is registered as living. This is true even when there is “negative security indications” against him. Negative security indications can justify such removal in certain cases, but in order to do so, the relevant powers granted by military legislation must be invoked, and the guarantees established in both this legislation and international law must be provided.

The justices make absolutely no reference to these arguments. With respect to this petition, the justices issued an order nisi which reads as follows:

Based on the petition brought before this court, the court orders that an order nisi be issued which is directed at the respondents instructing them to appear and show cause why they will not apply the policy currently in effect toward residents of Gaza who entered prior to the outbreak of the October 2000 incidents and against whom there is no negative security information also to residents of Gaza who entered the Judea and Samaria Area up to the date on which the military administration of the Gaza Strip was terminated (“the disengagement process”) on September 12, 2005, and who are still present there [in the Judea and Samaria Area].[10]

Indeed, an order nisi – which is nothing more than an interim decision in a petition – is not normally reasoned: the order transfers the burden of proof to the State, which then must demonstrate that its actions are lawful. It is followed by further submissions, hearings and a reasoned judgment that either dismisses the petition or renders the order absolute. Yet, comparing the order sought in the petition to the one given shows that even as they issued the order, the justices in fact dismissed the core of the petition and all the legal and principled arguments presented in it.

The order indicates that the justices reject the petitioner’s position that Israel has no authority to remove Palestinians from the West Bank based on their registered address. They reject the petition inasmuch as it relates to Palestinians against whom there are negative security indications (even if this does not justify assigned residence under security military legislation). They reject the petition inasmuch as it relates to Palestinians who entered the West Bank after September 2005, and it seems they accept that the power to remove exists with respect to other Palestinians who are originally from the Gaza Strip as well, but that these individuals should benefit from a lenient policy of refraining from exercising this power. Finally, they seem to attach special importance to the date on which disengagement was completed and the military administration of the Gaza Strip was brought to an end. Yet, they do not explain why this date is significant. Do they think that on this date the OPT split in two like a single-cell organism? Do they make a distinction between those who arrived at the West Bank from Gaza as a “resident of Palestine” (prior to disengagement) and those who arrived as a resident of “Gazastan” (after disengagement)? If so, what is the source of the authority to deport people who came to the West Bank before disengagement when there are negative security indications against them? How is this thesis consistent with the accords which continue to view the OPT as a single integral unit, or with the fact that Israel continues to control population-related issues in the Gaza Strip? What about the myriad arguments presented by the petitioners?

It seems that it is much easier to issue an unreasoned order nisi about a fraction of a fraction of the petition than to write a reasoned, consistent judgment which would explain the Court’s decision to dismiss the main thrust of the petition , a judgment whose legal logic would have to stand up to scrutiny.

The unreasoned dismissal of the main thrust of the second petition joins the noncommittal decision in the first petition. Together, they leave Israel’s policy of separating the West Bank and the Gaza Strip and treating their populations as two separate nations, exempt from judicial review.

Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.



[1] 
See Agreement on Movement and Access, November 15, 2005.
[2] 
HCJ 7015/02 ‘Ajuri v. IDF Commander in Judea and Samaria (2002), judgment of September 3, 2002.
[3] 
Ibid., para. 22.
[4] 
HCJ 2088/10 HaMoked: Center for the Defence of the Individual v. Military Commander of the West Bank (2012), petition of March 15, 2010.
[5] 
HCJ 4019/10 HaMoked: Center for the Defence of the Individual v. Military Commander of the West Bank, petition of May 25, 2010.
[6] 
See “Procedure for Handling Applications by Gaza Strip Residents for Settlement in the Judea and Samaria Area”, published March 8, 2009. The procedure was revised later on.
[7] 
See above note 4, judgment of May 24, 2012, para. 8.
[8] 
Ibid., para. 19.
[9] 
See above note 5.
[10] 
See above note 7.
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