The HCJ rejected HaMoked's petition to allow a woman to enter Gaza to join her husband, who was among the Palestinians removed from the Church of the Nativity: the justices ruled so long as the woman was unwilling to separate permanently from her parents and permanently relocate to the Gaza Strip, she and her young children could not meet the husband
The petitioner, West Bank born, divides her life between her parents' home in the West Bank and the Gaza Strip, where her husband was deported in the aftermath of incident in which Palestinians barricaded themselves in the Church of the Nativity in 2002. The couple has three children. In May 2009, the woman and children left Gaza for her parents' home in the West Bank and have since not seen the husband and father. When she appealed to the military requesting to allow her and the children to rejoin him in Gaza, the military subjected the passage on the woman's signing a pledge never to return to the west Bank The woman refused to sign such a pledge, which is a manipulation of her distress for the purpose of forcing her permanent transfer to Gaza.
Arrangements for family visits to the deportees of the Church of the Nativity were put in place in the context of Al-‘Abayat case
. The state undertook to allow visits for relatives of Gaza deportees, subject to the absence of a specific security preclusion. The state also pledged to allow their return to their homes in the West Bank, subject to several qualifications. HaMoked petitioned on behalf of the woman and children
, demanding to allow them to travel from Bethlehem to Gaza, without subjecting the same to signing a pledge to relocate permanently.
At the start of the hearing, the justices instructed HaMoked's representatives to formulate the woman's request according to the stern categories Israel dictated: a time-limited visit or an application for permanent settlement each regulated separately. Visit applications, other than those Israel defines as the most exceptional humanitarian cases, are rejected in a sweeping manner, whereas, applications to enter the Gaza Strip for the purpose of settlement are approved, as long as they are one way. HaMoked's representatives emphasized that the petitioner intends to move with her children for a period of at least two years, such that she will not seek to travel back and forth through Israel. This, despite the fact that the military never claimed a security threat is involved in allowing her passage. The state counterclaimed that the current policy banning visits to the Gaza Strip is based not only security grounds but also on political grounds, and its ramifications serve as leverage on the current regime in Gaza. According to Israel, the harms stems from the Hamas regime in Gaza rather than Israel.
Two weeks after the hearing, on March 25, 2010, the court rejected the petition on the grounds that it found no cause to intervene in the state's position in the matter. In a single paragraph judgment, the court ruled the policy of banning visits issues from a ministerial committee regarding restrictions imposed on the Gaza Strip, and that "this decision has previously been reviewed in court and no cause was found for intervention therein".
Certain aspects of this decision have indeed been reviewed in court in the context of petitions regarding the reduction in electricity and fuel supplied to Gaza (the Al-Basyouni case
) and the prohibition on Gaza residents' entering Israel to visit relatives incarcerated therein (the 'Anbar case
). When reviewing the government decision in these cases, the court ruled that the considerations made by the ministerial committee were political and military, in which the court does not tend to intervene. Nonetheless, the issue of travel restrictions ensuing from this government policy, pertinent to the current case, was never judicially reviewed as such.
The court did more than leave the specific case and the policy of travel restriction at its root unexamined, it also completely validated the state position that the petitioner intends to "visit" Gaza, whereas she in fact requested to remain with her husband for a lengthy period of at least two years. The court refrained from deliberating the petitioner's claim that a prolonged stay constitutes satisfactory alternative that mediates the gulf between a ban of visits and enforced permanent settlement. Thus in a case in which the state's position explicitly rests on extraneous considerations of collective punishment.