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Condemning the Upholding of the Ban on Family Unification
11، Oct 2010



REF.: 13.2006E

16 May 2006

On Sunday 14 May 2006, the Israeli High Court of Justice upheld the Nationality and Entry into Israel Law (Temporary Order). In effect since July 2003, when the Israeli Knesset passed into law a May 2002 Ministerial Cabinet decision, the law effectively bans Palestinians from the Occupied Palestinian Territories (OPT) from obtaining residency or citizenship in Israel or East Jerusalem. This de facto prevents them from living with their families in these locations and bans them obtaining family unification.

The law severely damages the right to family unity of both Jewish and Palestinian citizens of Israel if they choose to marry a Palestinian form the OPT, excluding East Jerusalem. Moreover, the ban also prevents Palestinian residents of East Jerusalem from achieving family unity if they marry a Palestinian from elsewhere in the OPT.

Article 2 of the law establishes that,

the Interior Minister shall not grant a resident of the region citizenship pursuant to the Nationality Law and shall not grant a resident of the region a permit to reside in Israel pursuant to the Entry into Israel law.

This formulation reveals two fundamental problems. Firstly, a "resident of the region" refers uniquely to Palestinians from the OPT, excluding East Jerusalem. It specifically does not apply to Israeli settlers illegally present in the West Bank, or foreign nationals. As such, the decision of the Court to uphold the Temporary Order represents a clear endorsement of discrimination on grounds of national origin.

Secondly, the law refers to residency "in Israel" and yet applies not only to Israeli nationals and Palestinian Citizens of Israel living within Israel's legally recognised boundaries, but also to East Jerusalem and its Palestinians residents. This reflects Israel's longstanding refusal to recognise the status of East Jerusalem as occupied territory under international law. This point is of particular significance as it serves to situate the ban on family unification within the wider context of Israel's efforts to isolate and undermine the Palestinian character of East Jerusalem, thereby consolidating its illegal annexation thereof. The situation in East Jerusalem is also indicative of wider Israeli efforts to reduce the number of Palestinians present in Israel.

In addition, upholding this law results in the sustained violation of the right to family life under international human rights law. This right receives extensive protection under numerous human rights treaties such as the International Covenant on Social Economic and Cultural Rights, Article 10(1) of which states that "The widest possible protection and assistance should be accorded to the family, which is the fundamental group unit of society" The law considered by the Court clearly fails to meet this obligation, which has been raised as a point of concern by many UN human rights bodies, as well as local and international non-governmental organisations.

Moreover, Israel, as the Occupying Power in the OPT, must respect Article 27 of the Fourth Geneva Convention, according to which, "Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights" In its authoritative commentary, the ICRC defined the purpose of this article as, "Intended to safeguard the marriage ties and the community of parents and children which constitutes a family"

The Israeli authorities contend that that the ban of family unification is justified on the grounds of security. While international law recognises Israel's obligation to protect its citizens, in fulfilling this duty it must act in accordance with the principle of proportionality. The fact that the law implements a total ban that is inherently discriminatory, strongly suggests that it is not proportionate. This is re-enforced by the fact that non-Palestinians seeking residence in Israel or East Jerusalem undergo a 'graduated procedure' which involves extensive security and background checks, which could presumably be applied to Palestinians to reduce any conceivable threat to security. The suggestion that the ban on family unification is based on security is further undermined by the Israeli government's clear statements with regard to maintaining the demographic superiority of the Jewish people within illegally annexed East Jerusalem.

As a final point, it must be noted that the Court's decision to uphold the ban on family unification represents a further instance of the failure of the Israeli judiciary to fulfil its function of protecting human rights in instances where the Israeli authorities allude to the notion of "security." In doing so it cheapens the notion of justice and abets the illegal conduct of the Israeli authorities.

In light of the above, Al-Haq calls for governments, and legal associations and professionals, to publicly condemn the recent decision by the Israeli High Court of Justice.

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