In July, 2008,
HaMoked: Center for the Defence of the Individual filed a petition to the High Court of Justice (HCJ) on behalf of a Palestinian, living in the West Bank, who wishes to visit her ailing husband, living in the Gaza Strip. Israel qualified the entry permit on the woman's pledge never to return to her home in the west Bank.
Following the petition, the state approved the visit without a pledge. However,
the court demanded that the state shall nonetheless respond to HaMoked's arguments of principle regarding the pressure exerted on West Bank Palestinians to permanently relocate to the Gaza Strip.
In a supplementary notice submitted for the upcoming hearing, HaMoked stated that Israel exerts undue pressure on West Bank Palestinians to permanently relocate to the Gaza Strip by, inter alia, exploiting their predicament and threatening to devastate their family life, in order to extort their "consent" never to return to their homes in the West Bank. HaMoked claims this is a wholly unacceptable policy, which exceeds the bounds of reasonableness and proportionality and contradicts the essence of Israel's role in the Occupied Territories.
HaMoked supplemented to its notice the
expert opinion of Dr.Yutaka Arai, senior lecturer in international humanitarian law in the University of Kent, and a world renowned expert in international humanitarian law and the law of occupation in particular. In the amicus brief he explicates that the Israeli policy is entirely illegal, grossly exceeds the authority of the military commander, and constitutes a clear and grave violation of international law - that may amount to a war crime proper.
HaMoked argues that under international law, a person's right not to be transferred from his home and community is a fundamental and essential human right. Forcible transfers can be carried out in diverse forms, not only directly but also indirectly, without physical removal or manhandling, but instead, through various coercive and oppressive measures - these are as severe as direct forcible transfers. In his brief, Dr. Arai clarifies that “forcible transfer” encompasses any method of coercion or duress. Even where a transfer is at the request of the person concerned, it does not exclude a forcible transfer.
Furthermore, HaMoked recalls in its notice that "political" or "state" considerations do not come under the military commander's authority and, therefore, necessarily constitute extraneous considerations and are ultra vires.
In conclusion, HaMoked claims Israeli policy severely violates the basic rights of the residents of the Occupied Territories, through extreme ultra vires and gross violation of humanitarian law – this constitutes an acute violation of the rights of protected persons, through the exploitation of their distress.
In the hearing of July 12, 2010, the court ruled the petition had been rendered moot, claiming that "the concrete issue of the petitioner was resolved" therefore this is "a question that turned theoretical and general ". Justice Grunis added an outrageous comment to the effect that "If all cases are resolved – it is excellent. There is a policy, and a problem is resolved concretely. Since you take care of everyone, the problems are resolved ". The court rejected the petition despite HaMoked's clarification that the state maintains the policy which it itself admits is wrongful – and exempts only those who petition the HCJ, to avoid judicial review.
