State admits it has never viewed amalgam as requiring a permit to enter Gaza, yet insists on confiscating it from a supply company
September 5, 2017
As previously reported, in February and March of 2017, Israel confiscated dental equipment destined for Gaza dental clinics that had arrived at Kerem Shalom Crossing. After the fact, it became clear that the reason for the confiscation was amalgam capsules contained in the shipment. Amalgam is a substance used for dental fillings, containing mercury. The state claims the shipment was confiscated because there was no special permit issued for the amalgam, which is considered a “dual-use” item.
One of the confiscations was challenged in a petition to the Tel Aviv Court for Administrative Affairs (Hebrew). The supplier, represented by Gisha, argued that he had not obtained a special permit to bring in amalgam since, in all the years he had been importing dental equipment into the Strip he had never been required to obtain such a permit. In fact, throughout recent years, general coordination with the Gaza Coordination and Liaison Administration (CLA) to bring in the equipment, including the amalgam, had been sufficient for Israel; the amalgam was allowed into Gaza upon arrival with no further requirements. The petition acknowledged Israel was entitled to change its policy and treat amalgam as dual-use equipment, but contended it must do so henceforth, and not confiscate the supplier’s order, particularly given that it is humanitarian equipment Gaza residents urgently need.
In its response (Hebrew) filed on July 9, 2017, the state admitted it had not treated amalgam as dual-use equipment that requires a special permit to enter Gaza until February of 2017. The response read: “It was only last February that crossing officials and security agents raised the fact that amalgam is, in fact, a mercury-containing substance, which constitutes a dual-use item as stated, and therefore requires a permit.” However, instead of admitting its error and requiring suppliers to obtain permits going forward, allowing the shipments that have already been coordinated to proceed into the Strip, the state insists on impounding the dental equipment, which is being held by the state treasury.
Gisha believes this position is inappropriate, and, in fact, embarrassing. The state is effectively asking Gaza residents to be more diligent than the state itself about what constitutes “dual-use” equipment, and obtain a permit even if the state itself is unaware that it is meant to issue permits for that item. This position is completely contrary to the principles of good governance and administrative fairness, which state authorities must uphold. The position is particularly untenable when it means impounding property that belongs to Gaza residents and is designated for humanitarian needs. Given Israel’s humanitarian obligations toward residents of the Strip, it should have allowed the amalgam to enter and begin implementation of the new decision henceforth.
Israel’s decision to treat amalgam as a dual-use item beginning February 2017, without notifying Gaza residents, while fully intending to confiscate any amalgam to arrive at Kerem Shalom Crossing is a wrongful decision, made in bad faith. Unfortunately, it joins a long list of recent decisions and policy changes undertaken by the Coordinator of Government Activities in the Territories (COGAT), which alter the existing situation with respect to bringing goods into the Gaza Strip, without informing residents and giving them a chance to make necessary preparations. For instance, COGAT has expanded the dual-use list beyond what is officially and plainly included in it, and confiscates goods named on a list that only COGAT has access to. COGAT has also recently decided to alter the duration of dual-use equipment permits and has implemented the change retroactively, such that permits already issued suddenly expire and have to be renewed. This conduct, which is incongruent with the legal provisions on what COGAT may and may not do, stems partly from the fact that there is still no protocol defining COGAT’s work with respect to dual-use items. The victims of these unlawful circumstances are Gaza residents who rely on goods arriving through the crossings.
The District Court is scheduled to hold a hearing in Gisha’s petition regarding the amalgam on September 6, 2017.
