In one of the rulings, the Israeli Supreme Court rejected a petition challenging the constitutionality of a law passed in 2003 banning family reunification for Palestinian citizens and permanent residents of Israel with their spouses from the oPt. The hardship that this law has generated is significant, particularly with regard to East Jerusalem Palestinians. Many are left with no alternative but to live apart from their families, or relocate elsewhere and risk the loss of their Jerusalem ID cards and residency rights. A number of specialized UN human rights treaty bodies, including the Human Rights Committee, have held that the Israeli family unification law is inconsistent with Israel’s obligations under international human rights law.
Although the establishment of settlements is explicitly forbidden under international humanitarian law, thus far, the Supreme Court has refused to rule on the legality of Israel’s settlement policy, arguing that it is a predominately political issue. Paradoxically, an exceptional ruling in 2011, ordering the evacuation of a settlement outpost (Migron) because it was built on privately-owned Palestinian land, triggered a range of Israeli governmental initiatives to retroactively “legalize” outposts under Israeli legislation. As many of these have entailed the forcible takeover of private Palestinian property, the legitimization of outposts is likely to reinforce the current atmosphere of impunity and encourage further settler lawlessness.
Lack of accountability under the law is a key concern with regard to other issues in the oPt. This month marked the third anniversary since the end of Israel’s so-called “Cast Lead” military offensive in Gaza, regarding which, Palestinian victims are still unable to seek compensation for war-related damages through the Israeli legal system. This is the result of the short statute of limitation established in Israeli law (two years from the alleged incident), combined with the access restrictions preventing Gazans from meeting their Israeli lawyers. Moreover, although Israel has opened multiple investigations into allegations of crimes perpetrated by its forces during the war, “the duration of the investigations… could seriously impair their effectiveness and, therefore, the prospects of ultimately achieving accountability and justice”.1 The Hamas authorities in Gaza have also failed to hold credible investigations of actions committed during hostilities.
Despite the aforementioned shortcomings, the Israeli legal system has in some cases facilitated access to information regarding policies implemented in the oPt, by means of the Israeli Freedom of Information Act, that would have been otherwise unavailable. A document released this month through this mechanism revealed that Israeli authorization for internationally sponsored projects in Gaza is given on the basis of political, rather than humanitarian or security considerations. At present some 40 humanitarian projects, including schools and housing, are urgently needed and still awaiting Israeli approval.
Another document released earlier through the same mechanism specifies the categories of people who are eligible for permits to leave Gaza and enter Israel or the West Bank. However, one category is conspicuously absent—students enrolled in West Bank universities. This month, five female students from Gaza challenged the refusal to let them travel to the West Bank to pursue their graduate degrees at the Israeli Supreme Court. Under the access regime implemented in Gaza since September 2000, movement of people out of Gaza is largely prohibited. Although the Israeli authorities do not cite individual security concerns regarding these specific students, the same authorities have refused to allow the students to complete their studies.
On a positive note, this month the first non-agricultural exports since the start of the blockade were allowed out of Gaza for display at a furniture exhibition in Amman. While this is an encouraging development, real economic recovery can only occur if this is followed by a lifting of the ongoing ban on exports to West Bank and Israel markets, which accounted for over 80 percent of all Gaza exports prior to the blockade.
At the core of the protection crisis affecting the oPt is the failure to comply with international law. This chronic lack of respect has led to a range of negative humanitarian consequences for the Palestinian population, including unnecessarily high rates of unemployment and poverty, poor access to services, physical insecurity, and risk of displacement. Israel’s longstanding policy of allowing the judicial review of its actions in the oPt by its Supreme Court has provided Palestinians with additional legal recourse. By ensuring that its rulings are in strict compliance with international law, the Court could reduce the vulnerability of the civilian population who bear the burden of ongoing occupation and conflict.
ISRAEL’S SUPREME COURT RULING ENTRENCHES LEGAL BAN ON FAMILY UNIFICATION
On 11 January 2012, in a 6 to 5 decision, the Israeli Supreme Court rejected a petition filed by a number of Israeli human rights organizations challenging the constitutionality of the Citizenship and Entry into Israel Law. The law, enacted in 2003 and amended several times since, imposes severe restrictions on the right of Palestinian citizens and permanent residents of Israel to obtain a legal status for their spouses from the oPt or from an “enemy state”,2 to reside in Israel. The law applies also to occupied East Jerusalem, which was unilaterally annexed to Israel in 1967, thus affecting the right of its Palestinian residents to family unification. Most of these Palestinians were given the status of permanent residents (as opposed to citizens) of Israel.
The law sweepingly revokes the eligibility of the oPt spouses to the status of citizen or permanent resident of Israel for the purpose of family unification. Instead, women over 25 and men over 35 year of age can apply for temporary military permits to legally reside with their spouses in Israel or East Jerusalem. Applications for such permits by people who do not meet these age criteria can be approved by a special committee established for that purpose based on “exceptional humanitarian grounds”. Since it began its work in mid 2008, the committee has examined over 600 applications, of which 33 were approved.3
Israel’s State Attorney argued in the court that the purpose of the law is to prevent potential terrorists from obtaining a permanent legal status in Israel. The sweeping nature of the law, under which all Palestinians are considered potential security risks, was justified citing the lack of means to conduct effective security checks of each applicant.
According to the State Attorney’s data, between 1994 and 2008 more than 130,000 Palestinians entered Israel and East Jerusalem for the purpose of family unification. Of those, 54 persons (or 0.04 percent) were allegedly involved in acts of terror against Israel, of whom only seven (or 0.005 percent) were indicted and convicted.4
While all the Justices agreed that the law infringes on the right to family life, which is protected under Israeli law, the majority of them ruled that the potential threat posed by those applying for family unification must prevail over that right. By contrast, the five minority opinion justices declared the law unconstitutional. Some of the minority justices highlighted the discriminatory aspect of the law. This is connected to the fact that Jewish citizens and permanent residents of Israel are able to marry any person of Jewish origin living in other countries, including in an “enemy state”, and live together in Israel or in a West Bank settlement, including East Jerusalem. Under the Law of Return, these persons are entitled to automatic citizenship in Israel.
A number of UN human rights treaty bodies which have examined the law found it inconsistent with Israel’s obligations under international human rights law on a number of grounds, including its violation of the right to family life. These bodies, including the Human Rights Committee, stated that Israel should revoke the law.5
The hardship that the current situation has generated is significant, particularly with regard to East Jerusalem Palestinians. Those who relocate elsewhere in the oPt or abroad to live with their spouses and children, face the risk of having their Jerusalem ID and its associated rights (freedom of movement and health and social security insurance) revoked. Those whose spouses choose to apply for temporary permits to reside in East Jerusalem, if eligible, live under constant uncertainty, and eventual gaps between the expiry of one permit and the issuance of a new one. Temporary permit holders are not eligible for a driving license, or for public health and social security insurance. The Israeli legislation recently endorsed by the Court leaves such families few viable options but to live apart or to live together ‘illegally’ in East Jerusalem or risk losing access to East Jerusalem.6
CONCERNS OVER OFFICIAL INITIATIVES TO LEGITIMIZE SETTLEMENT OUTPOSTS
This month, the Israeli authorities continued to advance a range of initiatives aimed at “legalizing” settlement outposts under Israeli legislation. Outposts are small satellite settlements built since the mid-1990s without official authorization but, in most cases, with the support of various Israeli state institutions.7 As all Israeli settlements, outposts are illegal under international humanitarian law. In the context of the Road Map in 2003, Israel committed to dismantle those outposts built since March 2001.8 However, in practice, no significant settlement outpost has thus far been effectively evacuated.
To date, there are approximately 100 outposts, many of which are partially or totally located on privately-owned Palestinian land that was forcibly taken over by settlers. Recent “legalization” initiatives by the Israeli authorities are focused on the latter.
One of these initiatives entails the relocation of, outposts built on private Palestinian land would to adjacent public land (also known as “State Land”), with the consent of the relevant settlers. The first agreement, , was reached on late December 2011, and concerns an outpost in the Qalqiliya area (Ramat Gil’ad).9 Government efforts are ongoing to promote the plan and convince settlers from Migron outpost, one of the largest outposts, located in the Ramallah area, to accept a similar arrangement.10 This is the only outpost for which the Israeli Supreme Court has ordered evacuation, which is supposed to take place by the end of March 2012.
Other efforts, led by the Israeli Civil Administration, focus on outposts built on privately-owned Palestinian land not registered in the land registry. An interpretation of the Ottoman land Law of 1858, which was inherited from Jordanian legislation, holds that these lands could be declared “State land” if found that they were not cultivated for more than three consecutive years. Following that declaration, outline plans and building permits can be issued. Regarding two of the outposts (Hayovel and Harasha), these efforts go against prior commitments given by the State to the Supreme Court to dismantle them.11
An additional set of initiatives involve the enactment of new legislation. These include, for example, a proposed bill currently under review, which holds that if a settlement is built on private land whose owners do not claim back over the four years following the settlement’s establishment, it will not be evacuated, but the owner may be entitled to compensation.12
Alongside these initiatives, this month the Israeli authorities demolished a number of structures in three settlement outposts in Hebron (Mitzpe Avihai) and Ramallah (Isa Bracha and Oz Zion) governorates. The demolitions triggered violent clashes between settler and Israeli forces, followed by settler attacks on Palestinians and their property. Such attacks are part of a deliberate strategy (known as “price tag”) aimed at discouraging the Israeli authorities from dismantling outposts. During January, OCHA recorded a total of 18 settler attacks resulting in Palestinian injuries or property damages. One of these attacks, reportedly perpetrated by armed settlers residing in an outpost next to the Yitzhar settlement (Shalhevet Estate), involved a raid into ‘Asira al Qibliya village that resulted in damage to a bakery and a vehicle (for background on the impact of Yitzhar and adjacent outposts on nearby villages see map below).
Inadequate law enforcement and lack of accountability are key features underpinning the phenomenon of settler violence. The ongoing efforts to legitimize settlement outposts, which were built in violation of Israeli and international law and entailed the takeover of private Palestinian property, are likely to reinforce the current atmosphere of impunity, and encourage further violence.
ISRAELI HIGH COURT REJECTS PETITION CHALLENGING THE LEGALITY OF ISRAELI-OWNED QUARRIES IN THE WEST BANK
Five of the quarries are owned by or operate in Israeli settlements
In late December 2011, the Israeli Supreme Court, sitting as the High Court of Justice (HCJ), rejected a petition submitted in 2009 by the Israeli human rights organization Yesh Din, challenging the legality of Israeli-owned quarries operating in the occupied West Bank.13 In response, this month, the organization submitted a request to the HCJ requesting an additional hearing, with an expanded panel of judges, and seeking further clarifications of the ruling.
The petition identified 10 quarries established following the beginning of Israel’s occupation in 1967. According to data provided to the Court by the Israeli Civil Administration, 94 percent of the products of these quarries are taken from the West Bank for use in Israel.
Yesh Din argued that the operation of these quarries violate a range of provisions in international humanitarian law (IHL) and international human rights law (IHR), particularly the obligation of an occupying power to administer the occupied territory for the benefit of the local population, and to limit its use of the natural resources of that territory for the benefit of the local population or for urgent military needs only. In its response, the HCJ based its dismissal on a number of grounds, including its rejection of the main IHL arguments presented in the petition. The Court did not address any of the petition’s arguments regarding IHR.
In response to the ruling, seven prominent Israeli legal scholars issued an expert opinion, which was included in the recent request for an additional hearing, arguing that the HCJ ruling “stands in direct contradiction with the laws of occupation in light of their wording, spirit and purpose.” 14 These scholars, along with other critics of the opinion, argue that the ruling also contradicts previous rulings by the HCJ.15
An important aspect of this phenomenon ignored by the HCJ is the connection between the quarries and Israeli settlements. Historically, the HCJ has refused to rule on the legality of settlements, arguing that it is a predominately political issue.16 At least three of the 10 quarries in question are either owned by, or operated within, an Israeli settlement in the West Bank and contribute to their viability. The clearest case concerns the settlement of Beit Haggai, regarding which, dividends from the quarry – one of the largest in the West Bank – account for over 80 percent of its revenues.17 There are at least two additional quarries in the West Bank that are either owned by a settlement or operating within a settlement’s municipal boundary, not named in the appeal.18
Settlements are not only illegal under international law, they are the root cause of much of the humanitarian vulnerability of Palestinians. Attacks by Israeli settlers on Palestinians and their property, which have been on the rise since 2009, are only one element of this vulnerability. Israeli civil law is de facto applied to all settlers and settlements across the occupied West Bank, while Israeli military law is applied to Palestinians, except in East Jerusalem, which was officially annexed to Israel. As a result, two separate legal systems and sets of rights are applied by the same authority in the same area, depending on the national origin of the persons, discriminating against Palestinians. Seizure of land for settlement building and future expansion has resulted in the shrinking of space available for Palestinians to sustain their livelihoods and develop adequate housing, basic infrastructure and services.19
THREE YEARS AFTER: “CAST LEAD” VICTIMS STILL WAITING FOR JUSTICE
This month marked the third anniversary of the end of the Israeli ‘Cast Lead’ military operation in Gaza. With approximately 1,400 Palestinians killed, most of them civilians, and thousands of homes destroyed, the devastating effects of the war are still felt today. A UN Fact-Finding Mission found evidence indicating that both sides committed serious violations of humanitarian and human rights law, and recommended the conduct of genuine investigations.
However, while Israel has opened dozens of criminal investigations, so far only four soldiers have been indicted. As stated by the Committee of Experts appointed to follow up on the investigation of issues identified by the UN Fact-Finding Mission, the length and duration of ongoing investigations into allegations of misconduct,“could seriously impair their effectiveness and, therefore, the prospects of ultimately achieving accountability and justice”. Moreover, no mechanism has been set to investigate “those who designed, planned, ordered and oversaw Operation Cast Lead”, according to the Committee. Hamas has also failed to hold any credible investigations.20
Palestinian victims of ‘Cast Lead’ operation have been prevented from seeking compensation via the Israeli legal system. Following an amendment to the Israeli Civil Wrongs Law adopted in 2002, the period during which a resident of the oPt can sue the State for damages (statute of limitation) was shortened from seven to two years since the occurrence of the alleged damage. Due to the severe restrictions preventing Gazans from meeting with their Israeli lawyers to evaluate evidence and prepare claims, most victims have been unable to meet such a short deadline.
GREATER CLARITY, BUT FEW CHANGES, IN ISRAEL’S POLICY FOR GAZA GOODS ACCESS
New COGAT documents released; Karni crossing dismantled
COGAT approval process for restricted materials entry to Gaza
Following a petition filed under the Freedom of Information Act by the Israeli Human Rights NGO Gisha, the Israeli authorities released a series of documents this month clarifying their policy guidelines for regulating the entry and exit of goods to and from the Gaza Strip. One of the documents addresses procedures that apply to international organizations when implementing projects requiring the import of materials designated as “dual use” items. According to the document, the project implementer should receive a response to their project request within two months. However, once a project is approved, it is not immediately released to the implementing entity but is held in a “bank” of projects to be released, “periodically and purposely with the objective of preserving continuity of and legitimization for Israeli policy towards the Gaza Strip.”21
According to current data on pending project approval requests from UN agencies, there could be as many as 45 projects held in the “bank”, including the construction of badly needed schools as well as water and sanitation projects worth hundreds of millions of dollars. This procedure runs counter to Israel’s obligations under International Humanitarian Law (IHL), which specifies that States can only restrict access for aid and assistance due to “imperative military requirements”, as opposed to, as is currently the case, political considerations.
Kerem Shalom crossing’s capacity has been recently expanded and can now handle up to 450 truckloads of imports and exports a day. Because of the ongoing Israeli restrictions on exports and imports, together with the limited number of international projects that are approved, this capacity is currently underutilized, with just over 220 daily truckloads this month. However, if the restrictions on exports and imports was to be lifted and pending projects approved, Kerem Shalom would not be sufficient to meet demand.
Dismantling of the Karni crossing
Prospects for reactivating goods access through additional Gaza crossings were diminished this month when Israeli forces completed the dismantling of the Karni crossing. Demolition began on the Gazan side of the crossing in late 2011 with the clearance of an area of up to 300 meters from the wall dividing the Gaza Strip and Israel. This month Israeli forces leveled all the structures on the Israeli side of the crossing, although the status of the crossing’s equipment remains unclear.
Karni had historically been the main cargo crossing of Gaza. According to the November 2005 Agreement on Movement and Access, up to 400 export trucks per day were supposed to go through the crossing by mid-2006, and the international community invested millions of dollar on equipment and infrastructure improvements to meet this target. With the imposition of the blockade in June 2007, Israel unilaterally closed the crossing, except for a conveyor belt, which operated on two days per week for the transfer of aggregates and grain until March 2011, when it was also closed. The closure of the Karni conveyor followed the closure of two additional Gaza crossings, Nahal Oz and Sufa, in January 2010 and April 2011, respectively. After the closures, all movement of cargo to and from the coastal strip is now limited to the Kerem Shalom crossing at the southeast border between Gaza, Israel and Egypt. With the announcement on the easing of the blockade in June 2010, Israel committed to opening additional land crossings as demand requires, given that security needs are addressed. The demolition of Karni, the only other major cargo crossing for Gaza, severely limits the ability to do so.22
The destruction of Karni and the restriction of all access of goods to a single crossing point have raised several concerns. The increased travel distance and cumbersome crossing procedures associated with the Kerem Shalom crossing have increased operating costs for both humanitarian and private sector actors forced to use the crossing. More importantly, if trade from tunnel activities were to be factored out, by itself, Kerem Shalom, Gaza’s sole lifeline for goods, does not have the capacity to meet the needs of the Gaza population, and if it were closed unexpectedly (a high likelihood given the unstable security situation and Israel’s past willingness to do so) it could further jeopardize the already vulnerable humanitarian situation in the Gaza Strip.
First non-agricultural exports in almost five years
On 22 January, one truckload with 15 pallets of furniture left Gaza through the Kerem Shalom crossing and was subsequently transferred to Jordan via the King Hussein (Allenby Bridge) crossing in the West Bank. The goods, coming from six Gazan businesses, did not represent actual sales but were showcased in a furniture exhibition in Amman. These were the first non-agricultural exports that left Gaza since the start of the Israeli-imposed blockade in June 2007. This comes after more than a year of Israel’s announcement to, “expedite increased exports from the Gaza Strip,” beginning with the agricultural, furniture and textiles to international markets.
While this is a positive step, real economic recovery can only occur if this is followed by a lifting of the almost total ban on exports to the West Bank and foreign markets, which prior to the blockade accounted for over 80 percent of all Gaza exports.
The Gazan economy has been devastated after four and half years of blockade, one of the main factors underpinning the fragile humanitarian situation and continuing high levels of aid dependence. Currently, over 75 percent of Gaza’s population rely on international aid.
SEVERE RESTRICTIONS ON MOVEMENT OF PEOPLE BETWEEN GAZA AND THE WEST BANK
Access of UN local staff improves
This month the Israeli human rights organization Gisha petitioned the Israeli Supreme Court on behalf of five women from the Gaza Strip, challenging the Israeli authorities’ refusal to let them travel to the West Bank to complete their Master degrees. Four of the women, who are now in their 40s, were forced to discontinue their studies in 2000 following the advent of the second Intifada and Israel’s subsequent revocation of all travel permits between Gaza and the West Bank. All four hold various positions in civil society organizations promoting women’s rights. The Israeli authorities have not cited in any of the five cases individual security concerns.
Under the access regime implemented since September 2000, movement of people out of Gaza is prohibited, unless a person meets the Israeli criteria for an exceptional permit. An official document recently released following a petition under the Freedom of Information Act specifies 16 categories of people who are eligible for permits to leave Gaza and enter Israel or the West Bank. These include, among others, patients in need of life-saving treatment, merchants, first-degree relatives of the very ill, journalists, and staff of international organizations. Students enrolled in West Bank universities, however, are not included.
The permit application process is time consuming, arduous and uncertain. Applications by people meeting the established criteria can be denied on security grounds. The burden of proof falls always on the individual, and often requires lengthy and costly follow up, when the initial request is denied.
According to the June 2010 announcement on the easing of the blockade, Israel would ‘streamline’ its permitting policy regarding movement of people for humanitarian purposes and ‘will consider additional ways to facilitate’ such movement. In practice, while the average volume of travelers in 2011 was some 34 percent higher than in the first five months of 2010 (before the easing of the blockade), it remained only a fraction of the equivalent figure prior to the start of the second Intifada in September 2000.
Regarding UN national staff, while the overall rate of permit approvals to leave Gaza or access it (by West Bank staff) did not change from 2010 to 2011 (approximately 72 percent), there was a 26 percent increase in the absolute number of permits granted: from 436 to 585 permits respectively. The latter increase was the result of an overall increase in the number of applications. The most significant increase concerns permits for UN Palestinian staff who are West Bank and Jerusalem ID holders to enter Gaza: in 2010, only 27 of 48 permits were approved (56 percent), while in 2011, 146 of 198 were approved (74 percent).