In
a six to five decision released on May 14, the Supreme Court of Israel upheld the
2003 law enacted by the Knesset (Israeli Parliament) which bans Palestinians
living in the Gaza Strip, West Bank or East Jerusalem who are married to
Israeli citizens from living in Israel
or receiving Israeli citizenship.
The Nationality and Entry into Israel Law
(Temporary Order) was enacted in July 2003 as a temporary measure but has
since been extended every six months or so. The law was introduced by the Sharon
government to prevent family reunification for Palestinians holding Israeli
citizenship and living within Israel,
and their spouses and children living in the occupied territories. At the time
the law was introduced there was no pretence that it would serve any other
purpose. Ariel Sharon stated openly that this was a necessary security policy
to keep tens of thousands of Palestinians from claiming Israeli residency and
then having the right to move freely within Israel where they might engage in
terrorist activity that would put Israeli citizens at risk.
Immediately
after the law was enacted, Adalah, the largest Palestinian human rights
organization, joined with six other Palestinian and Israel human rights organizations
to petition the court for its annulment on two grounds.Firstly, they argued that the law violated the
rights guaranteed to citizens under the Israeli constitution, including the
right to human dignity.Secondly, they argued that the law violated
the right to equality of all Israeli citizens as it was enacted to apply
specifically to Arab citizens of Israel, who comprise the vast
majority (over 99 percent) of Israelis with spouses and children living in the
occupied territories.
During
the petition process, Israel’s
Attorney General testified before the Supreme Court that Palestinians from the
occupied territories who become Israeli residents are “increasingly involved in
terror activity”.Adalah successfully
challenged this assertion – under cross examination the Israeli Attorney
General could point to only 25 individuals, from a group of thousands, who were
interrogated for alleged involvement in terrorist activities.In response, Adalah argued that 25
individuals represented a minority of residents of the occupied territories who
were the children of or married to Israeli citizens, which made the law
completely disproportionate to its stated goals.Even without the law, Adalah noted, the state
has a “graduated procedure” for awarding legal status to non-Palestinians
seeking residency in Israel,
including criminal and security background.
However,
the majority of Supreme Court justices disagreed.Justice Mishael Heshin, representing the
majority, argued that the right to human dignity “does not include any
constitutional obligation on the state to allow foreigners married to Israeli
citizens to enter the state.”He added
that, in his opinion, the aim of the law – preventing the entry into Israel of
“hostile elements to the security of the state” – was justified given the
“state of war against the Palestinian Authority”.While two of the Supreme Court justices who
upheld the law agreed it was unconstitutional, they also argued that while it
violates constitutional rights, it is proportionate.
The
justices arguing the minority position said not only did the law violate the
premises of the basic guarantee to human dignity and liberty, but that the
violation of rights was directed “against Arab citizens of Israel … and therefore, is a violation of the
right of Arab citizens of Israel
to equality”.Supreme Court Chief
Justice Aharon Barak, who articulated the minority position, also rejected the
majority view that the violation of rights was proportionate, because it does
not allow for a case-by-case decision on whether non-Israeli citizens can enter
Israel
for reunification with their Israeli spouses and instead strips the rights of
all in a “collective and sweeping manner”.
Responding
to the Supreme Court Decision, the lead lawyer for Adalah, Hassan Jabreen,
noted that the court “has instituted three tracks of citizenship on the basis
of ethnic background:a direct track for
Jews under the Law of Return; a middle track for foreigners according to the
graduated procedure; and the harshest track, for Arab citizens.”