Gisha files motion to join High Court petitions on the confiscation of goods destined for Gaza as amicus curiae
March 27, 2017
On March 20, 2017, the Israeli High Court of Justice held a hearing on petitions filed by two merchants who are residents of the Gaza Strip. The petitions were filed in response to confiscation orders issued by the Minister of Defense for goods the residents had ordered into Gaza (namely: bearings, welding instruments, spare parts for auto-rickshaws and car motors). Entry of the goods into Gaza was coordinated ahead of time with the Israeli authorities at the Gaza Coordination and Liaison Administration (CLA). However, upon arrival the shipments were seized at Kerem Shalom Crossing by Israeli officials and confiscation orders were later issued for the goods.
In the petitions filed with the High Court of Justice against the confiscation orders, the petitioners argued they did not know the equipment was considered “dual-use” and therefore did not take the steps to obtain a permit ahead of time, as is customary. It was also argued that the merchants had acted in good faith, and had not attempted to smuggle the goods or conceal the fact they were due to arrive at the crossing, as evinced by the fact they had coordinated their arrival there ahead of time. The petitioners argued that the confiscation would severely violate their right to property and their ability to continue engaging in trade. In response, the state argued that the confiscation was justified, both because the goods were dual-use equipment that did not receive approval in advance, and because there was reason to suspect that they would be used by terrorist organizations.
Ahead of the hearing of the petition, on February 22, 2017, Gisha filed a motion to join proceedings as amicus curiae in order to present the court with information gathered by Gisha on the practice of confiscating goods intended for residents of Gaza. In the motion, Gisha argued that these petitions raise a broad and important issue relating to the list of dual-use equipment requiring prior approval in order to be brought into Gaza and the state’s authority to seize and confiscate equipment defined as dual-use which has not received prior approval. Given Gisha’s expertise on movement of people and goods between Gaza and Israel, and given the vast amount of information it has collected, analyzed and published on this issue, the court was asked to allow Gisha to present an expert opinion before delivering its final verdict on the petitions.
Gisha asked to call the court’s attention to the fact that the state had, for years, restricted shipment of items it considered dual-use into Gaza without such items properly listed in the Defense Export Control Order 2008 (Controlled Dual-Use Goods Transferred to Areas under Palestinian Civilian Control 5769-2008) (Hebrew). And so, suppliers from Gaza, Israel and the West Bank had no way of knowing what types of equipment Israel considered to be dual-use and require prior approval for transport into Gaza.
The order currently includes a very long list of items, materials and goods considered by Israel to be “dual-use,” a list which has grown in recent years. In addition, some of the items listed in the order are defined in such vague, broad terms, that a reasonable person would not be able to know if any specific item falls under the category of dual-use equipment. Worse still, in practice, the state takes liberty to further expand the list, treating materials and goods that are not included on the list as dual-use equipment. For instance, Israel does not stop at restricting the entry of “4-wheel-drive vehicles and two-wheeled vehicles” into Gaza (item no. 34 in the second addendum to the order), but prohibits the entry of spare parts for such vehicles, including motors, without prior approval. Similarly, under the heading “uniforms, insignia and badges,” Israel also prohibits camouflage print fabric, even if such garments are clearly meant to be sold for regular wear.
Gisha also informed the court that the state had not published the list of dual-use equipment contained in the order in either Arabic or English, nor was the list available on either COGAT’s or the Ministry of Defense’s websites, meaning that the public in Gaza had no access to it. An Arabic version of the list was prepared only as a result of Gisha’s efforts. In addition, the state has no valid administrative protocol on bringing dual-use equipment into Gaza, which leaves Gaza residents with no official information on how to submit applications for permits to bring dual-use equipment in, how applications are handled by the various COGAT officials and how to contact COGAT officials. Though Gisha has managed to obtain copies of some of the forms Gaza residents are required to fill out when applying to bring in dual-use equipment, the forms themselves were never published by the state and are not available to Gaza residents. In any case, the majority of the forms are only available in Hebrew.
On the issue of confiscation, Gisha argued that the Defense Export Control Law (Hebrew) from 2007 does not include confiscation as a sanction in cases in which no prior approval is received for bringing dual-use goods into Gaza. In order to strike a proper balance between Israel’s security interests and individuals’ freedom of occupation and right to property, the legislature instituted a closed set of penalties available in such a case – criminal indictment, civil fine or monetary sanctions. Since the relevant law does not provide for confiscation, Israel relies on the confiscation powers conferred in the Defense (Emergency) Regulations of 1945 or the Counterterrorism Law of 2016, even when the only wrongdoing on the part of the supplier who ordered the goods was failure to obtain a permit ahead of time. Gisha noted that, of late, Israel had been confiscating large amounts of equipment destined for Gaza, and that appeals against confiscations are very rarely accepted.
Regrettably, the court dismissed Gisha’s amicus curiae application in the beginning of the hearing on March 20, 2017, stating that the principled issues related to the state’s authority to confiscate goods destined for Gaza had been ruled on in HCJ 3023/15 Access Overseas v. State of Israel and Ministry of Defense (May 30, 2016) (Hebrew), and need not be revisited.
Gisha will continue to work to promote proper, transparent proceedings for the entry of goods into Gaza and their confiscation by state authorities.
*Update: shortly after the hearing, COGAT uploaded a current version of the dual-use list to its website in Hebrew, Arabic, and English.
