Israel’s Supreme Court sets precedent: A person may be removed to the Gaza Strip based on criminal allegations

April 5, 2012. The Supreme Court rejected (Hebrew) a petition (Hebrew) filed by Gisha on behalf of Mr. Hamada, a Palestinian prisoner who requested that the Israel Prison Service (IPS) release him to his home in the West Bank. In rejecting the petition, the court held that it is possible to remove a person to the Gaza Strip solely on the basis of a criminal preclusion. The bench was headed by Justice Asher Grunis with Justices Noam Solberg and Hanan Meltzer also presiding.

Mr. Hamada was born in the Gaza Strip and has lived in Tulkarem in the West Bank for the past 12 years. He is engaged to a young woman from the city. Since 1998, Mr. Hamada has been imprisoned five times for illegal presence in Israel and other offenses.  At the end of each of the prison terms, he was released to his home in the West Bank. To his surprise, after serving another prison sentence, he was informed that the IPS was going to release him to the Gaza Strip rather than to his home in the West Bank.

In a hearing held on March 21, 2012, the Supreme Court set a precedent according to which Mr. Hamada’s criminal record was enough to remove him to the Gaza Strip. The court ruled that if Hamada remained in the West Bank, it would be easy for him to enter Israel illegally. Until now, only prisoners against whom the security establishment alleged a security preclusion or who were unable to prove a center-of-life in the West Bank have been removed to the Gaza Strip. The court ruled that it would not take a security claim made against Hamada into consideration, as his right to due process was denied in the course of a prison hearing which took place prior to the court hearing, but that the criminal preclusion was sufficient cause to refrain from intervening in the military commander’s decision to remove him from the West Bank, his residence and center-of-life, to the Gaza Strip.

The court also ordered Gisha to pay 3,000 Israeli shekels to cover the respondents’ costs. Issuing a costs order in a petition such as this, i.e., an individual petition by a prisoner, without any claim regarding misconduct on the part of the petitioners, in contrast to the misconduct on the part of the state (not holding a hearing in time, not including the security material at the hearing) also marks a departure from the Supreme Court’s routine practice.