Israel: High Court Rulings Undermine Human Rights
|Publisher||Human Rights Watch|
|Publication Date||30 January 2012|
|Cite as||Human Rights Watch, Israel: High Court Rulings Undermine Human Rights, 30 January 2012, available at: http://www.refworld.org/docid/4f27ff622.html [accessed 27 May 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Recent decisions by Israel's high court aim to legitimize clear violations of Israel's international legal obligations, Human Rights Watch said today. In one decision, the court disregarded international law prohibiting discrimination, and in another, it ignored international law on the use of resources in an occupied territory. Israel should annul a law preventing Israeli citizens from living with their Palestinian spouses and end policies that permit private Israeli companies to strip rocks and other construction materials from quarries in the occupied West Bank for their own economic gain.
"With these rulings, Israel's highest court has veered seriously off course in serving as a final bastion for upholding human rights," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "For the system of legal checks against rights abuses to break down like this is one more indication of the unraveling of protections for rights and freedom in Israel."
The Citizenship and Entry into Israel Law
On January 11, 2012, the court upheld the constitutionality of the Citizenship and Entry into Israel Law, which bans the entry of Palestinians from the West Bank and Gaza, Syria, Lebanon, Iran, Iraq, and any "area in which operations that constitute a threat to the State of Israel are being carried out" for the purpose of family unification with their Israeli spouses.
The law primarily affects Palestinian citizens of Israel and their Palestinian spouses, who are prohibited from living together in Israel. About 20 percent of Israel's citizens are of Palestinian Arab origin, and many have married Palestinian residents of the West Bank and Gaza.
Israel's Interior Ministry first banned family unification between Israeli citizens and Palestinians in 2002, at the height of the second Palestinian intifada, or uprising; the Knesset enacted the policy into law in 2003, and amended it in 2005 and 2007.
The petitioners said the law violates the right to family life and personal autonomy, and discriminates on the basis of nationality. Adalah noted that, by contrast, Jewish foreigners can gain Israeli citizenship automatically under the Law of Return (1950), and non-Jewish foreigners who marry Jewish citizens can obtain Israeli residency or citizenship status over a four-year period, such that the law creates classifications based on national background.
The ruling upheld the blanket ban on the basis that Palestinian spouses of Israeli citizens were potential security risks because some had carried out attacks on Israeli civilians. The majority of justices held that Israeli citizens had the right to family life, but that this right does not have to be realized in Israel.
From 2001 to 2010, the ruling said, 54 Palestinians who had received residency status in Israel or whose parents received such status were "involved in terrorist activities," but the state did not provide specific information about these cases or whether any of those "involved" in such activities had been indicted or convicted of any crime. During hearings on the case in 2011, the state acknowledged that since 2001, only seven Palestinians who received residency status had been convicted and sentenced for security crimes, of whom two had already been released from prison. According to the ruling, about 135,000 Palestinians were granted Israeli citizenship or permitted temporarily to enter Israel on the basis of marriage to Israelis between 1994 and 2002.
The sweeping ban, which prevents all Palestinians from the West Bank, Gaza, and "enemy countries" from living with their Israeli spouses in Israel, without any individual assessments of whether the person in question could threaten security, is unjustified, Human Rights Watch said, and imposes severely disproportionate harm on the right of Palestinians and Israeli citizens to live with their families. As measured by its effects on Palestinian citizens of Israel as opposed to Jewish citizens, the law is also discriminatory, given the difference in treatment and impact on those citizens, and the lack of justification for such a blanket prohibition.Justices in the minority argued that the law should have required individual examinations of whether an applicant's Palestinian spouse posed a security threat and that the right to a family life includes both the right to marry a foreigner and to live with the foreign spouse in Israel.
Under the law, Israel's interior minister may grant exemptions for Palestinian men older than 35 and women older than 25, to work in Israel, or for humanitarian reasons, if they are from the West Bank, but Palestinians from Gaza or "enemy states" are not eligible for the exemptions. The law states, however, that the fact that an Israeli citizen is separated from "his or her spouse, or that the couple have children, shall not, of itself, constitute a special humanitarian reason." Since 2005, some 4,118 Palestinians were granted residency in Israel under the law's exemptions, including 33 on humanitarian grounds.
The High Court had upheld the law in 2006, in a split 6-5 decision. Justices in the minority had argued that the law conflated security issues with demographic concerns about maintaining Israel's Jewish majority. One justice noted that the law was based on a government decision (no. 1813) from 2003, which provided that the government would examine "possibilities of determining quotas for giving approvals for family reunifications." Since quotas have "no connection with security considerations," he wrote, this aspect of the decision appeared to be "based merely on demographic considerations." Another justice in the 2006 ruling noted that "the demographic issue" dominated some parliamentary discussions about amending the law in 2005. The Chairman of the Knesset, for instance, "warned against family reunifications as a mechanism that was designed to implement de facto a right of return."
The law violates Israel's obligations under the Convention on the Elimination of All Forms of Racial Discrimination, which applies not only to race but also to national or ethnic origin and among enumerated rights protects "the right to marriage and choice of spouse." In 2007, the committee that monitors compliance with the convention urged Israel to revoke the law because of its "disproportionate impact on Arab Israeli citizens wishing to be reunited with their families in Israel," and noted that restrictions "targeting a particular national or ethnic group" are in violation of "the obligation … to guarantee to everyone equality before the law." The Committee recommended that Israel "reconsider its policy with a view to facilitating family reunification on a non-discriminatory basis," and "ensure that restrictions on family reunification are strictly necessary and limited in scope, and are not applied on the basis of nationality, residency or membership of a particular community."
"The court should never have approved a law that treats the desire of Palestinians to marry Israelis and live with their families in Israel as if it were automatically a security threat," Whitson said.
Israeli-Owned Quarries in the West Bank
On December 26, 2011, the High Court of Justice rejected a petition to stop the operations of Israeli-owned quarries in the West Bank on the basis that they violated Israel's obligations as an occupying power. Israeli companies currently operate eight quarries for construction materials, all of which opened after Israel occupied the West Bank in 1967. They export around 94 percent of their production to Israel with no compensation to the occupied population for this natural resource.
The Hague Regulations of 1907, which set out basic international rules for military occupations, require an occupying power to "safeguard the capital" of state land and buildings in the occupied territory and administer them only for the needs of the occupied population or as necessary for the occupying army.
The ruling, by Chief Justice Dorit Beinish, held that an occupier may lawfully make "reasonable use" of state-owned natural resources in the occupied territory if it did not wastefully deplete or exhaust them. However, the court ignored the legal prohibition on any exploitation of resources, wasteful or not, for the occupying power's economic gain rather than its military needs or the benefit of the occupied population, Human Rights Watch said. As Yesh Din's petition noted, the profits from the quarries benefit the Israeli economy, not the Palestinian economy, because Israel granted the quarrying concessions without tender to Israeli companies, rather than Palestinian companies.
The court ruled that the "unique circumstances" of Israel's "prolonged occupation" of the West Bank "requires the adjustment of the laws of occupation," although it stated this should be ostensibly for the benefit of the occupied population. Israel's operation of quarries, the court said, helped prevent both the degradation of quarrying infrastructure and the stagnation of the local economy, because the Israeli companies that operate the quarries employ around 200 Palestinian workers. However, the fact that an occupier pays members of the occupied population to help it remove and profit from natural resources cannot under any reasonable interpretation of the law of occupation be considered as "safeguarding the natural resources" of the occupied territory, Human Rights Watch said.
In addition to permitting the exploitation of natural resources in an occupied territory for the economic benefit of the occupying power, the court's presentation of the facts of the case concerning the supposed benefit to the Palestinian population at times stretched credulity, Human Rights Watch said. The quarries pay royalties and leasing fees to the Civil Administration, the Israeli military's administrative authority in the West Bank. The court characterized the Civil Administration as operating "for the benefit of residents of the Area [the West Bank],"contrary to the findings of Human Rights Watch and others that the Civil Administration's policies and practices consistently harm Palestinians while benefiting settlers. For instance, in 2011 the Civil Administration demolished a record number of Palestinian homes, forcibly displacing around 500 people, according to the United Nations, while Israeli settlers in the same area began building 1,850 new homes, according to the Israeli organization Peace Now.
The court also cited procedural reasons for dismissing the petition, including that the issue was a "political" matter outside its jurisdiction. The 1995 Oslo accords between Israel and the Palestinian Authority, the ruling said, allowed for Israel's continued operation of West Bank quarries during an interim period, after which they were to be transferred to Palestinian control. However, local agreements such as the Oslo accords, which were due to expire in 1999, do not justify Israeli acts that violate international law, Human Rights Watch said. The Geneva Conventions state that residents of occupied territory cannot consent to waive their rights.
In January, Yesh Din filed an extraordinary petition for the court's 11 justices to reconsider the decision by a three-member panel, on the basis that the judgment relied on errors of fact and law.
"Adding to the litany of abuses by Israel in its occupation in the West Bank, we now have an affirmation of plunder by Israeli companies by none other than Israel's high court," Whitson said. "It is not for this court or any domestic court to disregard the rules that have governed occupations for over a century."