P. was born in the West Bank in 1998, and registered in the Israeli-controlled Palestinian Population Registry as a resident of the West Bank. When she was eight, she moved to the Gaza Strip with her family, and at the age of just 15, she was married to a resident of Gaza. In 2014, shortly after the marriage, her parents and siblings returned to the West Bank, and she was the only member of her nuclear family left in Gaza. P. had four children, who were registered in the West Bank, in keeping with their mother’s registred address. P.’s husband has been unemployed for many years. Given that the family had no source of income and faced abject poverty, P. and her husband decided that the children would be better off living and growing up and in the West Bank, where they could be supported by P.’s family.
After reaching this decision, P. submitted an application to return to the West Bank with her children. Though this type of application does meet the narrow criteria set by Israel for travel between the Gaza Strip and the West Bank, given that all the applicants were registered in the West Bank, the Israeli authorities denied her application. On August 25, 2019, Gisha received a response (Hebrew) from the Gaza Coordination and Liasion Administration (the Gaza CLA) to our inquiry on P.’s behalf, stating that the reason for the denial of her application was that the petitioner’s “center of life” was in Gaza, and that she had filed an application for “settlement in the Gaza Strip.” The CLA alleged that by doing so, P. had taken upon herself to comply with Israel’s access policy vis-à-vis Palestinian residents of Gaza, including the procedure according to which a Gaza resident’s relocation to the West Bank is only permitted in exceptional humanitarian cases, which did not apply to her circumstances.
Indeed, when P. returned to the Strip from a visit to the West Bank in 2017, where she had attended her sister’s wedding, she had signed a document after being told that she would not be allowed to reenter Gaza if she did not do so. P., whose writing and reading skills are limited, had signed the document without receiving an explanation of what it was and without understanding its implications. She certainly had not consented to waiving her right to return to live in the West Bank ever again, as the CLA claimed.
In the petition (Hebrew) submitted on behalf of P. and her four minor children on September 24, 2019, Gisha argued that the Israeli authorities’ decision to stop P. from returning to her home was a violation of Article 49 of the Fourth Geneva Convention, which prohibits forcible transfer of populations in an occupied territory. Gisha demonstrated that the accepted interpretation of the terms ‘forcible transfer’ and ‘expulsion’ is broad, including a ban on relocating a person against their will, whether by using direct, indirect, overt or covert pressure, or by exploiting governmental powers. Gisha also stated that any alleged “consent” in these circumstances should be carefully examined in the full context in which it was purportedly given, with special consideration for the person’s level of vulnerability. We also noted that according to Article 8 of the convention, people may in no circumstances renounce the inalienable rights secured to them in the convention. For all these reasons, we argued that the petitioner’s signing of the “settlement” procedure had no validity.
Gisha further argued that the implications of signing the document were not explained to the petitioner, and that, in any event, without thorough knowledge of the respondents’ access policies, she could not have known that they considered her signature to be a waiver of her future right to return to the West Bank, particularly given that the document itself does not explicitly state as much. We referred to a similar petition filed by Gisha in which a mother and her daughters were initially denied access back to the mother’s home in the West Bank, and eventually permitted to return to the West Bank following the court’s remarks. Gisha added that blocking the petitioner from returning home with her children is a severe violation of her fundamental rights and that the army’s decision to do so was unreasonable and disproportionate.
In their preliminary response (Hebrew) dated November 14, 2019, the respondents persisted in their denial of P.’s request, arguing that the petitioner was, factually, a resident of the Gaza Strip, that she had relocated there voluntarily and that her return to the West Bank would fundamentally undermine Israel’s policy of separation and minimal movement between the two areas, Gaza and the West Bank. The respondents also said that in moving to Gaza, the petitioner had exited the occupied territory, and as such, was no longer a “protected person.” The state repeated these arguments in another response to the court (Hebrew), dated December 12, 2019.
In our response (Hebrew), Gisha explained why, given the circumstances in question, the petitioner did not make the choice to sign the “settlement” procedure freely or voluntarily, that her permit application meets the criteria put in place under Israel’s separation policy, and that her travel back to the West Bank would not undermine the said policy. Gisha further explained why the petitioner is, in fact, a “protected person” whose rights the respondents are obligated to respect under international law.
At the conclusion of the hearing held on December 15, 2019, the court suggested that the respondents bring the matter to a conclusion by identifying a practical solution, “given the difficulties highlighted during the hearing and the specific circumstances of the case.” In spite of these remarks, in their response dated January 6, 2020, the respondents stated that they stand by their decision to not allow the petitioner and her children to return to live in the West Bank as she had formalized her relocation to the Gaza Strip and an additional response submitted on behalf of the petitioner.
On January 20, 2021, the court accepted the petition, ruling that the petitioner’s signature on the March 2017 document could not be taken as justification for denying her and her children’s access to the West Bank as they were registered as West Bank residents. The court ordered the state to allow the petitioner and her children to travel back to the West Bank, adding that the respondents had not clarified the meaning of her prior visit to the West Bank, as the respondents had claimed, nor had she waived her right to return there. The court further noted that the conditioning of the petitioner’s return to Gaza on her signing the settlement procedure was inappropriate, and issued a costs order of 5,000 ILS in favor of the petitioners.