On 29 August 2007, HaMoked submitted a petition on behalf of an Israeli resident who lives in the city of Rehovot, and who wishes to enter the Gaza Strip in order to visit his wife and his eighteen-month old son. The Petitioners married in 2004 and lived in the Gaza Strip for almost a year. In 2006 the Petitioner decided to return to Israel in order to make a living for his family. The Petitioners maintained frequent and regular contacts. Once a month the Petitioner entered the Gaza Strip and visited his family. Since February 2007, all the Petitioner’s requests to enter the Gaza Strip have been denied. Each time the Petitioner submitted a request he was informed orally that it had been rejected. Intervention by HaMoked on the Petitioner’s behalf also went unanswered for a long period. Accordingly, HaMoked submitted the petition in August 2007, arguing that denying the Petitioner permission to enter the Gaza Strip and preventing his meeting with his wife and son constitute a violation of his basic rights to a family life and to freedom of movement.
In its response to the petition the State argued that there is a “security impediment” to granting the Petitioner permission to enter the Gaza Strip, due to “connections between his relatives and terrorists.” In other words, the State does not have any security concerns regarding the Petitioner, his partner, or even his relatives. The State argued that, as an Israeli resident, the Petitioner’s right to freedom of movement does not include entry into the Gaza Strip, flagrantly ignoring the Petitioner’s right to family life, and the fact that entry into Gaza is merely the means enabling the realization of this important and substantive right. In its response, HaMoked opposed the extension of the scope of a “security prevention” to include second- and third-degree relatives, emphasizing that this constitutes collective punishment.
Less than 24 hours before the hearing, the State changed the principal argument it had presented until that point, and now claimed that the prevention actually relates to “contacts between the Petitioner himself and terrorists.” On 12 March 2008 a hearing was held at the High Court of Justice (HCJ). During the course of the hearing, the State maintained its opposition to the Petitioner’s entering the Gaza Strip, and added that it was also opposed to enabling his wife to enter Israel. The State continued to ignore the fact that the decision in the petition will also have a direct impact on the Petitioner’s wife and on their eighteen-month old son. Preventing the Petitioner from meeting his wife and son constitutes an injury to the basic right to family life of all three individuals. The Petitioners argued that the State cannot seek to destroy a family and separate a husband from his wife and a father from his young son on the grounds of security arguments relating to the actions of others. The Petitioners emphasized that the Petitioner is an Israeli resident; were there even the slightest suspicion that he was involved in any type of unlawful activity he would have been detained and interrogated immediately. The Petitioners further argued that some form of proportionate solution must be identified in order to enable the maintenance of family life even in the presence of security considerations, insofar as such considerations exist in this case.
Regarding the issue of the Petitioner’s right to family life and, particularly, his right to meet with his son, the Court raised the suggestion that the meeting might be held in a room at Erez Crossing. In other words, the Petitioner’s wife and eighteen-month old son would only be able to meet the father in a “visiting room,” as if those involved were prisoners. However, even this suggestion was forcefully rejected by the representative of the State, who claimed that this was impossible “due to the security situation at Erez.”
The Petitioner’s family begged to inform the Court that Petitioner's brother is married to the sister of the Petitioner’s wife. The brother’s family also lives in Gaza, and the brother receives permits on a regular basis to visit his family in the area. Unfortunately, the judges replied, after a confidential hearing, that the security authorities were aware of this fact, and had announced that the brother had received the permits due to a mistake, which would shortly be corrected. The outcome of this situation is that the Petitioner’s brother, who is currently staying with his family in the Gaza Strip, must now cope with the knowledge that the next time he leaves his wife and children will be the last time.
After the hearing, and after the Court reviewed the classified security material, the Petitioners were obliged to delete the petition. In its ruling, however, the Court asked the State “to give positive consideration to the possibility that […] the young son of Petitioner 1 be permitted to visit him in Israel, accompanied by a person (other than Petitioner 2) regarding whom there is no security prevention.” This is the creative solution the Court was able to offer – one that is tantamount to adding insult to injury, and which was presented as no more than a mere “request.”
It should be noted that the right to family life is a central and substantive right in international law, and has been recognized by the HCJ as a primary human right. The Court ruled in the past that “in ranking constitutional human rights, after protection of the right to life and person, comes the constitutional protection for the right to parenthood and family… This right thus ranks high among constitutional human rights […] It embodies the essence a human's being and the epitome of the realization of his self” (the Dobrin case). In the ruling relating to the Nationality and Entry into Israel Law, the judges described the right to family life as “part of the dignity and the essence of the personality of the individual.” Injury to this right was described as “touching on the very roots of the substance of the human as a free citizen.” Accordingly, this right may be injured only by law, and only in the context of significant and particularly portentous security considerations. Even in such cases, the injury must be proportionate and as limited as possible. In this case, the Court deviated from this principle, enabling fatal injury to family life; and it did so on the basis of security arguments that do not relate directly to the Petitioners, and which did not even warrant the questioning of the Petitioner.
The Petitioners are currently considering whether and how to realize the Court’s proposal and to send their eighteen-month old son to meet his father – whom he has not seen for over a year and, accordingly, whom he does not recognize – without his mother’s presence and in the company of a stranger.