|
By Ido Rosenzweig and Yuval Shany
Introduction
On 9 December 2009, the Israel High Court of Justice (HCJ) rejected a petition requesting that it instruct the State to renew the entrance permits to Israel of Gaza residents, who have family members imprisoned in Israel.[1] The HCJ held that as a sovereign state that is no longer an occupying power in the Gaza Strip, Israel has the right to refuse entry into its territory to foreigners, especially from an area governed by a “hostile entity,” such as Hamas.
In this article, we present a brief summary and discussion of this decision as part of the ongoing coverage by IDI’s Terrorism and Democracy Newsletter of relevant judicial decisions.
Background
On 4 June 2007, as a result of the consolidation of power over the Gaza Strip in the hands of Hamas, the Israeli Government changed its policy of allowing the entry for visitation purposes from Gaza of family members of prisoners held in detention facilities in Israeli territory. Israel had previously allowed such visits after conducting individual security inspections, and in accordance with an objective set of criteria, such as the age of the visitor and his or her relationship to the prisoner. This policy remained in force after Israel completed its withdrawal from the Gaza Strip on 12 September 2005. Still, on 19 September 2007, as part of Israel's counter-terrorism measures against Hamas, the ministerial committee for national security (hereinafter: “Security Cabinet”) decided to impose certain limitations with respect to the Gaza Strip, including traveling restrictions to and from Israel.[2]
The petitioners include prisoners held in Israel, their family members, who are Gaza residents, and several human rights organizations. They claimed that the sweeping restriction on visits by family members constitute “collective punishment”, which is prohibited by international law. The petitioners also claimed that the restriction violates the prisoners' right to family visits according to both Israeli law and international law. Furthermore, the petitioners claimed that the prohibition infringes the constitutional right of the prisoners and their family members to minimal human dignity, since they are no longer able to receive clothing and money from their family members as they used to, and that the harm to the prisoners’ rights as a result of the restriction is excessive.
The State's response focused mainly on the notion of “executive directive”, affirming that the aforementioned decision of the Security Cabinet was based on various foreign relations and state security considerations. Moreover, the State claimed that the Security Cabinet decision constitutes a “basic sanction employed in the context of war”, which is part of its general policy against Hamas’ control over the Gaza Strip. The respondents also claimed that the security considerations underlying the decision are crucial, and that the issuing of entrance permits to family members of prisoners from Gaza would affect the volume of traffic at the Gaza checkpoint, which would facilitate the entry of high-risk members of the population into Israeli territory.
The respondent objected to the petitioners’ claim of “collective punishment” on the grounds that the new policy constitutes an exercise of state sovereignty. Hence, the State may decide who it allows to enter it, and may bar entry to residents of a hostile entity, such as the Gaza Strip. Moreover, the State claimed that it has no humanitarian or legal obligation to allow Gaza residents to visit family members held in Israeli prisons.
On 9 December 2009, the HCJ published its decision to reject the petition.
The Decision
Justice Esther Hayut, who wrote the opinion on behalf of the Court, began by stating that the relevant Security Cabinet decision had already been reviewed by the HCJ, which had concluded that the decision was based on both political and security considerations.[3] With regard to these considerations, the Government has broad discretion and as a general rule, the Court does not interfere.
The point of departure is that no foreigner has a right to enter Israel; foreigners are subject to the discretion of the State in determining who it allows to enter its territory and who it bars from entering. However, this broad discretion is not absolute and efforts must be made to achieve an appropriate balance between the relevant considerations in order to refrain from causing more damage than necessary in order to protect human rights. A pertinent consideration that the authorities must take into account in this regard is Israel’s obligation toward the civilian population of the Gaza Strip. The scope and nature of this obligation have changed significantly over the years. Since Israel's complete withdrawal from the Gaza Strip, Israel does not have effective control over the area and, consequently, its obligation toward the civilian population in that Gaza has been reduced. [4] Therefore, there are no legal grounds to interfere with the decision to prevent the entry of Gaza residents into Israel for visitation purposes. This right is not included in the basic humanitarian needs of the Gaza residents, which Israel is still obligated to satisfy. Nevertheless, according to the Security Cabinet decision, the State may permit the entry of family members from the Gaza Strip for special humanitarian reasons.
With regard to the petitioners' claim that the Israeli policy excessively infringes the rights of the prisoners, Justice Hayut accepted the State's response and held that the international law provisions upon which the petitioners based their claims do not deprive the State of its sovereign right to prevent the entry of foreigners into its territory, even for visitation purposes. This is especially the case when the foreigners are the residents of a territory controlled by a “hostile entity”, such as Hamas.
Furthermore, Justice Hayut also accepted the respondents claim that the Security Cabinet decision does not directly harm the prisoners: while it prohibits the entry of Gaza residents into Israel, it does not deprive the prisoners of their right to receive visits in general. Therefore, the human rights of the security detainees are not restricted more than necessary.
Conclusions
This decision is another ramification of Israel’s disengagement from Gaza. A key justification for barring the right of family visits from Gaza has been the sovereignty argument, which presumably permits Israel to treat Gaza residents as residents of a foreign (enemy) state. Although the Court still invokes the term of “proper balance”, its decision actually confirms the right of the State to adopt sweeping counter-terrorism measures against Gaza, which are based on political considerations as much as on security concerns.
Notes
- HCJ 5268/08 Anbar v. Aluf Pikud Darom, and HCJ 5399/08 Adallah v. Ministry of Defense (Unofficial translation by Adalah)
- www.mfa.gov.il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+territory+19-Sep-2007.htm
- HCJ 9132/07, Al-Basyouni Ahmed v. Prime Minister, 30.1.2008 (hereinafter: "Al-Basyouni Case")
- “In the prevailing circumstances, the main duties of the State of Israel with respect to the residents of the Gaza Strip derive from the state of armed conflict that exists between it and the Hamas organization that controls the Gaza Strip; these duties also derive from the degree of control exercised by the State of Israel over the border crossings between it and the Gaza Strip, as well as from the relationship that was created between Israel and the territory of the Gaza Strip after years of Israeli military rule in the territory, as a result of which the Gaza Strip is currently almost completely dependent upon the supply of electricity from Israel. ” Al-Basyouni Case, para. 12.
|