Center for the Defence of the Individual - Changing residence from the Gaza Strip to the West Bank: HaMoked petitioned the High Court of Justice to allow a family staying against their will in Gaza to return to their home in the West Bank. The petition also deals with the military’s sweeping policy that denies Palestinians who are registered as residents of the Gaza Strip to move to the West Bank, and from residents registered as residents of the West Bank to move to the Gaza Strip. The military authorities are not empowered to institute this unlawful policy
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חזרה לעמוד הקודם
24.11.2004

Changing residence from the Gaza Strip to the West Bank: HaMoked petitioned the High Court of Justice to allow a family staying against their will in Gaza to return to their home in the West Bank. The petition also deals with the military’s sweeping policy that denies Palestinians who are registered as residents of the Gaza Strip to move to the West Bank, and from residents registered as residents of the West Bank to move to the Gaza Strip. The military authorities are not empowered to institute this unlawful policy

The specific case involved in HaMoked’s petition (HCJ 10676/04)
The case involves a married couple and their children, who lived, until 1998, in the Gaza Strip. As a result of the poor economic conditions in the Gaza Strip, and a job offer that the husband received from the West Bank, the family, which was composed of four persons at the time, moved in 1998 to the West Bank, first to Al-Ram and later to Bitunya. In accordance with the law, the husband changed his registered address in the Palestinian population registry and in his identity card, a process that was completed in 2001. The change in the registration of the wife’s place of residence was made a few months later.

Although the family was living in the West Bank, the wife decided to give birth to her children in the bosom of her extended family in the Gaza Strip. In August 2000, she went, with her children, from the West Bank to the Gaza Strip to give birth. After giving birth to her fourth daughter, on 28 September, she wanted to return to the West Bank. However, the intifada began at that time. When she checked on her request to the District Coordinating Office at the Erez checkpoint, and her husband checked on his request to the DCO in Ramallah, they were told time and again that there was “no response.” As a result, the couple remained apart. She and her children stayed at her husband’s parents’ home in Gaza. Her father-in-law had difficulty supporting them. At first, the husband was able to send money to his family in Gaza. However, following severe actions taken by the military in the Ramallah area, he had to close the two businesses that he had opened. He remained unemployed and could only send minimal sums of money to support his family. At this stage, the couple turned to HaMoked: Center for the Defence of the Individual. When the military continued to ignore their requests, the husband reached a point at which he could no longer wait alone in the West Bank. In early 2003, he went to the Erez checkpoint with the intention to enter the Gaza Strip. He waited hours, until the soldiers acceded to his request, and he entered Gaza and joined his family. Because of the poor economic conditions in the Gaza Strip, the financial situation of the family deteriorated further. Now, they are living in overcrowded conditions with their children in his parents’ home in Gaza. The husband barely makes a living from temporary jobs. In recent months, he has been unable to find any work. They want to return to the West Bank.

As mentioned, when the husband was still living in the West Bank, the couple turned to HaMoked. HaMoked had contacted, on their behalf, the military authorities in the Gaza Strip and in the West Bank. The only response came in one telephone conversation, in which a staff member of HaMoked was informed that the wife was registered as a Gazan on the terminal of the Population Administration, a clear indication that the army had not recorded the change of residence. From the first request made by HaMoked, in October 2002, to the end of September 2004, no less than eight reminder letters were sent to the Israeli authorities. No reply was received.

On 24 November 2004, HaMoked petitioned the High Court of Justice on behalf of the family. The petition emphasizes the infringement of the fundamental right of residents of the Occupied Territories to change their place of residence. This right is recognized in Israeli law and in international law. However, in its sweeping policy, the military refuses, despite its lack of authority to do so, to let Palestinians move from the Gaza Strip to the West Bank, and vice versa.

The military argues that the petitioners are registered as residents of the Gaza Strip, so they do not have the right to live in the West Bank. This argument cannot stand. Restriction on the right to move from one place to another, in other words “assigned residence,” is only permitted as a preventive measure, for imperative security reasons. The prohibition on the family to return from the Gaza Strip to the West Bank does not profess to be based on their authority to assign residence, nor is it contended that the family constitutes a security threat.

This prohibition also contradicts the state’s consistently held position whereby, pursuant to Article 11 of the Israeli-Palestinian interim agreement, the West Bank and the Gaza Strip constitute a single territorial unit, an argument that was made in Ajuri and accepted by the HCJ. Thus, if the state believes that the West Bank and the Gaza Strip constitute a single territorial unit, so long as the military commander has not ordered assigned residence, Palestinians are entitled to change their place of residence as they wish, also between the West Bank and the Gaza Strip.

The military improperly and unlawfully conditions exercise of the right to change place of residence from the Gaza Strip to the West Bank, whereby the person wanting to move must be registered as a resident of the West Bank. Now, in the present case, even when the petitioners properly changed their residence, the army refuses to respect the revised registration. This refusal violates the law applying in the Occupied Territories, whereby sole authority to change residence of Palestinian residents lies with the Palestinian Authority. The Palestinian registration is determinative.

The petition also notes the grave harm suffered by the family as a result of the restrictions placed on their right to freedom of movement. Right after the wife gave birth, when she especially needed her husband, the military imposed a long and harsh separation on the couple, during which the husband was unable to see his children. The wife and her children were kept far away from their home, their surroundings, their friends. Now, because of the grave situation in Gaza, the family’s economic condition fell drastically.

For the petition filed by HaMoked, HCJ 10676/04, Shamlah et al. v. Commander of IDF Forces in the West Bank et al., click here.