Israeli Supreme Court approves obstruction to freedom of worship: Israel refuses to consider requests from Gaza Muslims wishing to pray in Jerusalem

Tuesday, August 7, 2012: Israel's Supreme Court today approved a governmental policy that allows Christians from Gaza to access holy sites in Israel and the West Bank on holidays, but categorically prevents Muslim residents of Gaza from doing so. In its verdict rejecting an appeal of last year's ruling by the Beersheva District Court declining to interfere in the policy, the Supreme Court reduced but did not cancel unusually high costs imposed on the appellants, six Muslim women from Gaza and Gisha – Legal Center for Freedom of Movement. The women worshippers, all over the age of 40, had been denied permission to pray at the Al Aqsa Mosque in Jerusalem during a Muslim holiday.

Israel recognizes the right of Christians living in Gaza to freedom of worship by allowing travel to Jerusalem and the West Bank during holidays, subject to age restrictions and numerical quotas. Similar requests by Muslims are categorically rejected. Israel bans Muslim worshippers from Gaza from accessing Jerusalem, even as it allows Muslims from the West Bank to pray in Jerusalem on Fridays and holidays, also subject to age limits and numerical restrictions.

In their appeal, Gisha and the worshippers argued that Israel is obligated to set reasonable criteria that will allow Muslims from Gaza to travel to Jerusalem for purposes of prayer. While Muslims make up the overwhelming majority of Gaza's population of 1.6 million, their majority status in the West Bank has not prevented Israel from finding a way to allow Palestinians of both religions to access their holy sites, subject to security checks. Each Friday during the current Ramadan holiday, Israel has permitted 46,000 Muslims from the West Bank to enter Jerusalem for prayer.

In the ruling, the court rejected the appellants' argument that religious belief cannot be used as a criterion in considering requests from Palestinians in Gaza to enter Israel in order to access holy sites. The panel, composed of Justices Miriam Naor, Uzi Fogelman and Uri Shoham, found that it was permissible to discriminate between Muslims and Christians for purpose of access to holy sites because "the Christian residents in Gaza are a minority group, and according to the respondents, their freedom of worship is infringed upon under the Hamas regime in Gaza". The court accepted the state's argument that Israel's obligations to residents of Gaza are limited to permitting travel in "exceptional humanitarian cases".

Gisha had noted in its appeal that the policy not to allow Muslims from Gaza to access holy sites in Israel and the West Bank pre-dates the 2007 takeover of Gaza by the Hamas. Gisha had also submitted documents showing that each month, Israel allows 4,000 exits of Palestinians from Gaza to Israel and the West Bank, including football players, merchants, wedding guests, and numerous other people who are not "exceptional humanitarian cases".

The court partially accepted the appeal of the District Court's decision to impose court costs on Gisha and the would-be worshippers in the extraordinarily high sum of 25,000 NIS ($6,250), accompanied by derogatory remarks about the work of Gisha as a "human rights organization" (the quotes appear in the original verdict). The majority decision expressed disapproval of the District Court's failure to consider the identity of Gisha as a human rights organization, holding that "the district court significantly deviated from the acceptable standard for costs in petitions of this nature". Noting precedent requiring an appellate court to exercise restraint in intervening in a lower court's imposition of costs, the majority decision reduced the sum to 12,000 NIS ($3,000). Justice Naor dissented from the decision to reduce the court costs.
The appellants had argued that the unusually high court costs amounted to punitive costs designed to deter human rights organizations and Palestinian residents from requesting judicial oversight of the decisions of the military authorities.

According to Gisha Legal Director Nomi Heger, who wrote the appeal; "Today the Supreme Court approved a policy discriminating between Christian and Muslim worshippers for access to the holy sites of Jerusalem, which are under Israeli control. We believe that people of all religions should be permitted to access the sites holy to them within the territory controlled by Israel, by balancing the principle of freedom of religion with security needs. We also believe that Israel's control over Gaza, in the past and the present, imposes obligations to allow access in more than just exceptional humanitarian cases".

To read an English translation of the Beersheva District Court decision upheld today, click here.
To read the appeal submitted against the District Court decision (Hebrew), click here.
To read today's Supreme Court verdict (Hebrew), click here.