Judgment in two general petitions filed by HaMoked: HCJ recommends broadening the criteria for “settlement” in the West Bank by Palestinians from the Gaza Strip and instructs the state to explain why it should not refrain from forcibly removing to Gaza Palestinians who moved to the West Bank before 2005 המוקד להגנת הפרט
30.05.2012
Judgment in two general petitions filed by HaMoked: HCJ recommends broadening the criteria for “settlement” in the West Bank by Palestinians from the Gaza Strip and instructs the state to explain why it should not refrain from forcibly removing to Gaza Palestinians who moved to the West Bank before 2005
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The West Bank and the Gaza Strip are a single territorial unit. Palestinians from these two areas share the same national identity, language and history. Their lives are interwoven through familial, cultural and economic ties. Despite this, Israel takes unilateral, drastic measures designed to separate between Palestinians living in the Gaza Strip and those living in the West Bank.

In 2010, HaMoked filed two general petitions against Israel’s separation policy. Despite the fact that the petitions addressed different issues, the court decided to hear them together.

On March 15, 2010, HaMoked petitioned the High Court of Justice (HCJ) along with 12 other organizations, asking it to order the state to revoke the military procedure that limits travel by Palestinians from Gaza to the West Bank and determines that Palestinians from Gaza would be allowed to “settle” in the West Bank only in extreme, exceptional humanitarian cases and only if they fulfill a number of rigid, almost impossible, prerequisites.

On May 25, 2010, HaMoked petitioned the HCJ along with 15 other organizations, asking it to order Israel to cease the forcible removal to Gaza of Palestinians who live in the West Bank and whose address was not updated by Israel in its copy of the population registry.

On May 24, 2012, the court issued its judgment in the two petitions.

The court dismissed the first petition regarding the procedure for “settlement” by Gazans in the West Bank. The court found no cause for intervention in Israel’s policy. However, the court did find that the military must use its discretion in a manner that would reduce the injury caused to Palestinians and that it must act in accordance with a number of comments made by the court and intended to broaden the criteria for “settlement”.

The justices held that Israel’s restrictive policy causes harm to Palestinians who are not involved in terrorism and that it “separates, sometimes artificially, between Palestinians who live in the two areas and who wish to maintain or create normal family relations”. Though they ruled that Israel must hold on to its discretion with respect to travel between the two parts of the Occupied Palestinian Territories, the justices held that travel from Gaza to the West Bank must not be entirely blocked and that restricting travel to a limited number of  “humanitarian exceptions”, such as orphans and people who require nursing care, is too rigid, particularly in light of a clause in the procedure which makes settlement even by these “humanitarian exceptions” subject to them having no other relatives in Gaza.

The court also expressed reservations about the section of the procedure that stipulates that family ties, even of the first degree, do not, in and of themselves, constitute humanitarian grounds for settling in the West Bank. The court ruled that applications for settlement in the context of marriage should not be automatically blocked. The justices recommended the army consider the overall circumstances of the couple and give these circumstances their proper weight when making a decision whether the Gazan spouse would be allowed to move to the West Bank.

In the second petition, regarding the updating of addresses in the Israeli copy of the population registry, the court issued an order nisi instructing the state to explain why it would not refrain from forcibly removing to Gaza Palestinians whose registered address is there, but who moved to the West Bank before the disengagement in 2005. The court issued the order after the army clarified that it does not remove Palestinians who are registered in Gaza but moved to the West Bank before 2000 and after it reviewed figures provided by the army, which indicate that there are tens of thousands of Palestinians living in the West Bank today with outdated addresses. The court’s decision makes no reference to Palestinians who moved to the West Bank after 2005 and does not explain why that year was chosen as the determinant of whether someone would be forcibly removed from the West Bank to Gaza simply on the basis of his or her registered address.
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