Gisha files petition with the High Court to allow a three-year-old child to return to the West Bank from the Gaza Strip with his mother and four siblings
September 6, 2017
On May 22, 2017, Gisha submitted a petition (Hebrew) to the High Court against the minister of defense and the Coordinator of Government Activities in the Territories (COGAT), on behalf of a Gaza resident and her three-year-old son, requesting that the young child be allowed to travel from Gaza to the West Bank together with his mother and her four older children (who are also minors). The mother is asking to exercise her right to travel with her five young children to the West Bank, based on the fact that the official address listed for her and her four older children is in the West Bank. The respondents refused to let the youngest child travel with them because his registered address is in the Gaza Strip.
The respondents’ position is that in order to travel to the West Bank, the three-year-old must file a special application under the Procedure for Handling Applications by Gaza Strip Residents for Settlement in the Judea and Samaria Area (the procedure for settlement in the West Bank). This position stems from Israel’s separation policy which distinguishes between residents of the West Bank and the Gaza Strip, and actively minimizes the options of Palestinian movement between the two areas. This policy manifests itself in the severely limited criteria for travel out of Gaza, which are listed in a military document entitled the Unclassified Status of Palestinians Authorizations of Entry into Israel, their Passage between Judea and Samaria and the Gaza Strip and their Travel Abroad, which is periodically updated “to meet security needs,” according to the state.
In the petition, the petitioners address two central legal issues:
The first question is how the official address of a Palestinian child born to parents with different addresses is determined. This issue is related to Israel’s control over the Palestinian population registry. In the case at hand, the petitioner’s registered address is in the West Bank, but the child’s father is registered with a Gaza Strip address. The petitioners argued that the addresses of minors are entered in the registry in an arbitrary manner, and there are no clear guidelines on the subject, despite the fact that the respondents are well aware of the need to regulate this matter, and undertook in 2010 (Hebrew) to draft a protocol for the registration of minors’ addresses. The petitioners argue that the only policy that exists on this issue is the one announced by the respondents in 2015 (Hebrew), whereby, minors under the age of 16 may be registered under the official address of either parent, as per the notice given by the Palestinian side. Therefore, the petitioner must be permitted to have her young son’s address listed as the West Bank, and accordingly, he must be allowed to return to the West Bank with her and the rest of his siblings. In fact, that is exactly what the petitioner did in the case of her four older children, who were originally registered with a Gaza address. The petition listed examples of cases in which minor children’s addresses were changed by their parents even without notice from the Palestinian side.
The second legal issue raised in the petition pertains to the de-facto implementation of the procedure for settlement in the West Bank. The petitioners argued that the respondents’ demand to have the petitioners make a request under the procedure for settlement in the West Bank was unfair and was made in bad faith, since the child does not meet the procedure’s criteria. Moreover, the procedure is effectively a dead letter, rarely implemented and inherently unaccommodating to the tens of thousands of Palestinians who need it. According to figures presented to the court, since the procedure was published in 2009, only five applications made under it were processed (two of which were processed in error), and that too, only after the applicants submitted petitions to the High Court.
In response to the petition (Hebrew), which was submitted only once several extensions were granted, the respondents argued that the petition should be rejected as the available remedies had not been exhausted, and repeated their position that the petitioners should have applied for a change of address under the procedure for settlement in the West Bank. In a decision penned by Justice Hendel, the court accepted the respondents’ position and dismissed the petition outright (Hebrew), noting that the petitioners can reassert their claims should the application under the settlement procedure fail. In response to a request for clarification (Hebrew) made by the petitioners (given that they did not meet the eligibility criteria under the procedure for settlement in the West Bank), Justice Hendel remarked (Hebrew): “Given that the respondents declared that in this case that the petitioners should have taken the route of filing an application under the settlement procedure, it is assumed that they will consider the application based on its merits, and with due diligence.”
