Supreme Court rejects petition by five students wishing to study in the West Bank, HCJ 495/12
On September 24, 2012, the Supreme Court rejected a petition filed by human rights groups Gisha and Al Mezan (HCJ 495/12 Izzat v. Minister of Defense) on behalf of five women students from the Gaza Strip who had asked to travel to the West Bank to continue their academic studies. The five students were enrolled in gender, democracy and law programs at Birzeit University. Israel banned Gaza students from studying in the West Bank in 2000, and since then, only three students from Gaza were able to take up academic studies in the West Bank in the framework of an American scholarship program.
Four of the petitioners are women over the age of 37. They are leading civil society leaders in Gaza and run women’s organization that work toward empowering women both socially and economically. They began their Master’s studies at Birzeit University but were unable to complete their programs because of the travel ban. The programs they wish to complete are unique in the Middle East. They are tailored to the circumstances of Palestinian society and are available only at Birzeit University.
In a majority opinion, against the dissenting opinion of Justice Rubinstein, Justices Naor and Zylbertal held that the state was not obligated to set up an exceptions committee that would pave the way for the petitioners to study in the West Bank for a number of reasons (according to the opinion of Justice Naor):
1. Foreign nationals have no vested right to enter Israel.
2. There is no room for intervention in the respondents’ policy whereby only applications that present exceptional humanitarian grounds are individually examined.
3. There is no way to individually screen people who seek entry into Israel from Gaza.
4. Establishing an exceptions committee will lead to allegations of discrimination. The fact that Israel makes “exceptions” that allow entry into its territory for policy related issues, does not constitute a departure from the respondents’ policy.
Justice Zylbertal added that:
1. Establishing criteria without a mechanism for exceptions constitutes a reasonable policy.
2. Compelling the state to establish a mechanism for exceptions would be a material change in the respondents’ policy.
3. A mechanism for exceptions would undermine the “separation policy”, which is based on political and security grounds – a policy that was not found to be unreasonable.
By contrast, Justice Rubinstein thought that a mechanism for exceptions should be established, as ruled in a 2007 HCJ judgment (HCJ 1120/07 Hamdan v. OC Southern Command), based on the respondents’ own official policy. Justice Rubinstein ruled that an order absolute instructing the state to establish an exceptions committee should be issued. He believed that it was possible to establish such a committee as part of the existing policy of reducing the number of Gaza residents entering Israel and in the framework of what is called the separation policy. For the sake of argument, Justice Rubinstein presumed that Israel’s humanitarian obligations toward Palestinian residents did not include upholding the right to study in the West Bank and to travel through Israel. Yet, even given this premise, Justice Rubinstein found that there was room to establish an exceptions committee because the state had declared that all applications, not just humanitarian ones in the narrow sense, are reviewed in any event; and, since there may be exceptions to the criteria for passage stipulated by the state, there ought to be an official exceptions committee to which individuals can turn.
Petition on behalf of five women from the Gaza Strip wishing to take up academic studies in the West Bank, HCJ 495/12 (Hebrew)
State’s response to the petition
Excerpt from state response in HCJ 495/12, 16.8.12 (Unofficial translation)