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16.5.2011

The Supreme Court orders the state to pay NIS 7,500 in trial costs: the military permitted a 16 year old Palestinian to enter the West Bank for her registration in the population registry only after HaMoked’s petition

Under the Oslo Accords, the Palestinian Authority (PA) gained exclusive power to register children under 16 in the population registry of the Occupied Palestinian Territories (OPT), regardless of whether the child was born abroad and provided that at  least one of his or her parents is an OPT resident. In reality, however, Israel has blatantly deviated from the Interim Agreement by qualifying that children must be present in the OPT during their registration. Thereby, Israel has retained de facto control of the registration procedure, since – except for children under 5, who enter the OPT as the accompanying dependants of their parents - minors must apply to Israel for visitor permits in order to enter the West Bank. Since 2000, Israel has completely stopped issuing visitor permits.  

A Palestinian who lives in Jordan wanted his children to be entered in the OPT population registry. In 1996, when he applied to the Israeli District Coordination Office in Hebron, he was told – incorrectly and for no apparent reason – that since they were over the age of 5, they could not be registered. As a result of the answer, during his subsequent visits, he made no further attempts to have his children registered. In early June 2006, his brother went to the Palestinian Ministry of Interior in Hebron, to apply for visitor permits for the children, in order to have them registered in the OPT. The PA clerk, however, informed him that the Israeli side now refused to accept such applications, as part of the boycott of the PA, declared by the Israeli government.

On June 20, 2006, HaMoked contacted the military legal advisor for the West Bank, in an urgent request to issue the man's daughter, soon to turn 16, a visitor permit for the purpose of her registration. The military advised in response, that the application should be transferred by the PA "via a junior clerk, unassociated with Hamas, for approval by the Israeli side".  

In October 2010, the man finally entered the West Bank with five of his children, to have them registered, but without his daughter who had already turned 16. HaMoked's communications with the legal advisor for the West Bank bore no result. HaMoked was therefore obliged to petition the High Court of Justice to instruct the military to allow the girl’s entry into the West Bank for the purpose of registration. In its pleadings, HaMoked argued that Israel’s policy of boycotting the PA administration - thereby renouncing its responsibilities and violating the petitioners' rights - constituted a blatant breach of international and domestic law. HaMoked added that the suggestion to send the application "via a junior clerk, unassociated with Hamas" was cynical, impractical and also unlawful, and further still, that the requirement that the applicant must be present in the OPT during registration, was inconsistent with the Interim Agreement or any other official document. 

In the hearing, the justices clarified that they did not accept the state's position, and advised counsel to reconsider, "in order to avoid judgment being issued against your position". Thus, a few days later, the state announced its willingness to allow the petitioner, "ex gratia", to enter the West Bank in order to be listed in the OPT population registry.

Following the petitioner's entry to the West Bank and her registration there, HaMoked deleted its petition and requested that trial costs be ruled in its favor. The state objected to the latter request on the grounds that the petition would have been dismissed in any event - based on non-exhaustion of remedies, undue delay and on its merits - whereas the remedy had been granted only to this specific case. The Supreme Court determined that the petition itself and the justices' remarks in the course of its hearing, contributed significantly to the military's progress towards its ultimate decision. The court also ruled that the claim that the relief was granted ex gratia, does not, per se, exempt the state from paying trial costs. The state was ordered to pay trial costs and legal fees in the total sum of NIS 7,500.
mail@hamoked.org.il (02) 627 1698   (02) 627 6317

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