Petition by human rights organizations against the procedure for settlement in the West Bank denied, HCJ 2088/10 HaMoked: Center for the Defence of the Individual v. Commander of the West Bank
The premise for the procedure – which is entirely contrary to Israeli and international law – is that family ties, in and of themselves, do not constitute humanitarian grounds for unification. As such, the procedure blocks almost any possibility that Palestinians from Gaza could move to the West Bank and makes exceptions only for people suffering from chronic diseases, orphaned children and elderly individuals in need of nursing care, who have first degree relatives in the West Bank and who have proven that there are no other family members (of any degree) who can care for them in the Gaza Strip.
The petitioners argued that the procedure disproportionately infringes on the rights to family life and freedom of movement and the right of transfer/transit between Gaza and the West Bank. This right is recognized in international law and arises from the fact that the two parts of the Palestinian territory were recognized as a single territorial unit in the Oslo Accords. It was further argued that this policy inflicts deliberate harm on the civilian population due to extraneous and unacceptable considerations related to exerting political pressure on families, parents and children who serve as bargaining chips. It was also argued that the procedure discriminates against the Palestinian population, compared to Israeli settlers in the West Bank and that it represents an extreme departure from the principle of proportionality.
The respondents asked that the petition be dismissed in limine (at the outset) due to its general nature and the absence of individual petitioners. The respondents also emphasized that the position that the West Bank and the Gaza Strip should be viewed as a single territorial unit is no longer valid as disengagement has brought about a significant legal-political-security change in the Gaza Strip. According to the respondents, the political-security situation in the Gaza Strip further justifies employing a restrictive access policy. The respondents maintain that this position is reasonable and does not give cause for intervention and that the petition concerns a foreign policy issue which is not the type of matter in which the court tends to intervene.
In the judgment, given by former Court President Beinisch with Justices Naor and Hayut concurring, the petition was rejected. “[T]he restrictive policy that has been declared by the respondents has a particularly harsh result for residents who are not involved in terrorist activities and are forced to be separated from their relatives”, the court said. “[T]his policy separates, sometimes artificially, between Palestinians who live in the two areas and who wish to maintain or create normal family relations”. Despite these findings, the court saw no reason to intervene in the respondents’ policy with respect to Gaza-West Bank access as “this policy includes dominant political aspects which are the sort of issue in which this court does not normally intervene”. However, the court did express the opinion that the policy should be revisited from time to time and that inasmuch as it can be relaxed, there was no reason for the respondents not to do so.
The petition was initially heard jointly with HCJ 4019/10 HaMoked: Center for the Defence of the Individual v. Military Commander of the West Bank which addressed the complementary issue of Palestinians who are registered in the population registry as residing in Gaza but have in fact been living in the West Bank for some time and have been deemed “illegal aliens” by military authorities. After reviewing the parties' arguments, the court decided to hear the petitions separately. Therefore, the hearing of HCJ 4019/10 was postponed subject to the issuance of an order nisi against the respondents, ordering them to explain why they do not apply the policy of refraining from removing Palestinian residents of Gaza who entered the West Bank prior to the incidents of October 2000 also to Palestinians who entered the West Bank prior to the termination of the military administration in the Gaza Strip (disengagement).