Before the Supreme Court HCJ 5148/08
In Session as the High Court of Justice
The Association for Civil Rights in Israel
The Petitioner
Versus
1. Lt. Gen. Gabi Ashkenazi, Chief of General Staff
2. Maj. Gen. Gadi Shamni, GOC Central Command
3. Brig. Gen. Avichai Mandelblit, Military Advocate General
4. Brig. Gen. Noam Tibon, Commander, Judea and Samaria Division
5. Col. Yigal Slovik, Commander, Jordan Valley Division
The Respondents
PETITION FOR AN ORDER NISI
A petition is herewith submitted for an order nisi to instruct the Respondents to show cause as follows:
A. Why they should not remove the Beit Ha’Arava checkpoint (the northern Dead Sea checkpoint), and why they should not rescind the directives prohibiting passage through this checkpoint for Palestinian residents of the West Bank, which prevents their access to the northern Dead Sea beaches region located within the area of the West Bank.
The northern Dead Sea checkpoint is indicated on the map labeled Appendix A/1.
B. Why Respondents 1 and 3 should not order an investigation into the complaint submitted against Respondent 5, commander of the regional division, and against those commanders responsible for issuing the instructions on suspicion that establishment of the said checkpoint and imposition of the said prohibitions were carried out in order to prevent Palestinians from using the area beaches out of concern for harming the income of the Israeli settlements that manage the beaches.
Introduction and Request for Preliminary Hearing
The northern beaches of the Dead Sea are the only stretch of beaches in the West Bank. Over the years, these beaches were one of the main recreational and vacation sites for the Palestinian population in the West Bank, especially since their entry into Israel was prohibited and their access to the Mediterranean beaches was denied.
The northern Dead Sea checkpoint is located at the Beit Ha’Arava junction within the area of the West Bank on the road between Jericho and the Dead Sea. According to directives issued by the Respondents, IDF forces prevent Palestinian residents of the Territories from crossing this checkpoint and using the northern Dead Sea beaches located within the West Bank.
By this action, the IDF expropriates from residents of the Occupied Territories the only stretch of beach in the area, and designates it for the exclusive use of Israelis and the economic benefit of the settlements in the region.
The Petitioner, the Association for Civil Rights in Israel, received a complaint from two IDF officers who performed their reserve duty in May 2007, including deployment in the northern Dead Sea region. During the briefing given by the division commander (GOC) to the brigade commanders, the GOC reviewed the missions of the brigade, including the Dead Sea checkpoint. As an aside, the GOC explained to the officers the reasons for establishing the checkpoint – namely, the damage to the income of the Jewish settlements on the shores of the Dead Sea when Palestinians also use the beaches. In other words, when there is “mixing”, income decreases. During the course of this talk, one of the officers asserted to the GOC that in light of his words, this mission and checkpoint are illegal. Despite this comment and further appeals by officers and soldiers in the brigade, neither the checkpoint nor the instructions were rescinded.
Currently, the checkpoint is staffed primarily during the weekends, when more Israelis spend time at the beaches. When the checkpoint is staffed, the crossing of Palestinian residents of the territories is prohibited.
In response to the Petitioner’s query, the Respondents claimed that the checkpoint was established for coping with terrorist activity and the smuggling of weapons into the sector. However, this claim conflicts with specific statements made by the GOC and is also logically inconsistent – does the risk of smuggling weapons take place only or primarily during weekends? Is it likely that key smuggling suspects would be, for example, schoolchildren who come to the area on organized outings, or families with children? And if indeed the Respondents are concerned about this risk, is a sweeping prohibition against access to the beach the only available means to cope with this?
The illegality of the actions and directives of the Respondents is patently obvious – this is an unequivocal case of security being used to promote other interests, and cited ex post facto to camouflage other purposes, extraneous and illegitimate. Furthermore, this is a matter of movement prohibitions and prevention of entry into public places in the Occupied Territory, acts that are marked by the discrimination characteristic of colonialist regimes. This matter then concerns prohibitions that prevent only the protected residents of the Occupied Territory from using its resources, while these very same resources are granted for the use and welfare of citizens of the occupying power.
Under these circumstances, and in light of the approaching summer vacation, the Court is requested to convene an early hearing of this petition.
The Factual Background
A. The area, checkpoints, and movement prohibitions
1. The northern beaches of the Dead Sea, located within the area of the West Bank, have for years been a primary recreational site for Palestinian residents of the West Bank. Families, schoolchildren, and day-campers were among the many who once used these beaches.
2. Over the years, these beaches have become a recreational and vacation site for Israelis as well. Some of the beaches are managed, to the best knowledge of the Petitioner, by the settlements established in the region.
Today, Palestinian residents of the West Bank are kept away from these beaches by the IDF.
3. A military checkpoint was established at the Beit Ha’Arava junction on the road between Jericho and the Dead Sea. The location of the checkpoint is in the midst of the West Bank (hereinafter “the northern Dead Sea checkpoint” or “the Beit Ha’Arava checkpoint”).
A map indicating the location of the northern Dead Sea checkpoint is attached and labeled Appendix A/1.
4. In accordance with directives given by Respondent 5, soldiers staffing the checkpoint prevent the passage of Palestinian residents of the territories through the checkpoint, and hence their access to the northern beaches of the Dead Sea. Prevention of passage through the checkpoint is determined on the basis of one factor only – the ID card of the individual. The soldiers send back all Palestinians, whether students on a school outing, day-campers, or families with children.
5. Thus testifies Mr. Naser Muhammad Ahmad Nuaj’a, resident of the village of at-Tuwani in the south Hebron Hills, driver of a transport vehicle of schoolchildren from the village of at-Tuwani, about how soldiers at the checkpoint prevented him and the schoolchildren from accessing the Dead Sea beaches:
“As part of the cultural and educational activities of the school, we planned an outing to the Dead Sea so that the students would see the sea, which they had never seen before, but only heard about.
“The children in our school are elementary school students aged 6 to 12. We set the outing for Monday the 5th of May 2008 in coordination with the southern Bureau of Education in the Palestinian Authority.
“On Monday, 5 May 2008, we left the village in two buses in which there were 73 girls and boys, 10 teachers, and 15 accompanying parents. We arrived at the Dead Sea checkpoint at about 11:30 a.m., where soldiers stationed at the checkpoint stopped us. The soldiers boarded the bus and told me that we are prohibited from continuing and must leave the checkpoint immediately. I tried to explain to them that these are small children who came especially from a very distant location in order to fulfill a big dream for them – to see the sea – but the soldiers were aggressive and started to yell at us that we had to leave the checkpoint because the crossing of Palestinians is prohibited, whether they are small children or adults. The students began to beg the soldiers to allow them to cross even for 10 minutes just to see the sea and return, but nothing helped. Having no choice, we turned around and made our way to the city of Jericho where we spent the day. At the end of the day we thought we would try again to reach the Dead Sea. We arrived at the checkpoint at 4:30 p.m., but again we were met by soldiers who showed no compassion and did not allow us to cross. We were all greatly disappointed, and the students returned very angry.”
The testimony of Naser Muhammad Ahmad Nuaj’a is attached and labeled Appendix A/2.
6. At first, the checkpoint was staffed regularly – 7 days a week at all hours of the day; currently the checkpoint operates mainly on weekends. Sometimes the checkpoint operates during other days of the week.
B. Complaints of IDF reserve duty officers who served in the area
7. Maj. (res.) Doron Karbel and Lt. (res.) Na’aman Falah served in reserve duty from 6 May 2007 until 31 May 2007, which included deployment in the area of the northern Dead Sea. On 10 May 2007, they arrived at the northern Dead Sea area after training for several days.
8. During the course of the training before the deployment, the officers of the brigade had a briefing with the area division commander of the Jordan Valley Division, during which the brigade’s missions were reviewed, including the northern Dead Sea checkpoint. The GOC explained to the soldiers that the reason for placing the checkpoint was reduced income for the Jewish settlements along the Dead Sea beaches when Palestinians also use the beaches.
9. Thus testified Maj. Karbel about what was said by the GOC during the course of this briefing:
“When the orders were given, the GOC reviewed the missions of the brigade. Among the missions and forces located in the brigade sector, the Beit Ha’Arava checkpoint was mentioned.
When the orders were given, it was explained that the purpose of the checkpoint was to prevent the passage of Palestinians coming from the Jordan Valley into the Dead Sea beaches.
As an aside, the reason for establishing the checkpoint was explained, and the reason is – damage to the income of the Jewish settlements on the Dead Sea beaches when Palestinians vacation at the beaches together with Jewish vacationers. In other words, when there is “mixing”, there is less income.
During this conversation, I told the GOC that this mission and the checkpoint are illegal.
The answer of the GOC was that it was his understanding that this was legal.”
Affidavit of Maj. (res.) Doron Karbel is attached and labeled Appendix A/3.
10. Lt. Na’aman Falah also describes the orders they received, and what was said during the briefing by the GOC with the brigade officers:
“The checkpoint orders were not to allow anyone with a green or orange ID (i.e., a Palestinian resident of the territories) to cross the junction in the direction of the Dead Sea, unless they had the correct work permits. These were permits to work in the various settlements south of the junction.
In the exercise carried out before the deployment, the GOC of the sector held a talk with the brigade commanders. Among the GOC’s words to us during this talk: Some of the Dead Sea beaches are held privately by the settlements. The beaches are a private economic business. The presence of Palestinians from the territories at the beaches harms the tourism and economy of those who own the beaches. The Regional Council approached the Ministry of Defense about this and therefore a checkpoint was placed at the Beit Ha’Arava Junction.
During this talk, brigade commanders raised various arguments expressing disapproval of the checkpoint, but these claims were brushed aside and no reasoned response was received.”
Affidavit of Lt. (res.) Na’aman Falah is attached and labeled Appendix A/4.
11. The brigade officers were ill at ease on the matter of the checkpoint, and repeatedly raised the subject during their deployment, either in talks with the GOC or other officers, or during a meeting of the brigade officers and soldiers with the Chief Reserve Officer (see parags. 12, 14, 15 of the affidavit of Maj. Karbel, Appendix A/3).
C. Inventing a security justification for the checkpoint (ex post facto)
12. During the course of another conversation with Maj. Doron Karbel, the GOC said that if necessary, he could give a security justification for establishing the checkpoint retroactively:
“In other conversations I had with the GOC after we took up positions, I understood that this was not his personal decision, but that he got orders to establish the checkpoint, and that the order came from those above him…
In a later conversation with the GOC during the course of the deployment, he made clear to me that he could give or find a security justification or rationale for the checkpoint if this were needed… ”
[Emphasis added – L.Y.]
Paragraphs 9 and 12 in the affidavit of Maj. Karbel, Appendix A/3.
13. And so it was, when the Petitioner approached the Chief of Staff and a reply was required, the true considerations disappeared and a security justification was found (retroactively, as noted) for establishing the checkpoint.
14. And this is what was written by the Office of the Chief of General Staff (Lt. Col. Galit Aberjil, Secretary to the General Staff) in her response to the Petitioner’s query:
…”I wish to update you that establishment of the Dead Sea blockade was based on security considerations and its purpose is to provide an inspection point to hamper the passage of terrorist elements and hostile terrorist activity from the northern Jordan Valley sector into the southern sector, which constitutes a tourist region in the Dead Sea area.”
In light of the above, the northern Dead Sea checkpoint has become a permanent blockade.
And this was the response concerning the GOC’s words cited in the letter of complaint:
“In the incident cited by Lt. (res.) Na’aman Falah and Maj. (res.) Doron Karbel, the military commander’s words were taken out of context; the military commanders have no connection with the economic needs of the Jordan Valley residents or the owners of the Dead Sea beaches, but only give consideration to security issues.”
A copy of the response of the Office of the Chief of General Staff is attached and labeled Appendix A/5.
15. This response, however, is inconsistent with the facts:
15.1 With regard to the security justification cited, that this is an inspection point intended to hamper the passage of terrorist elements – This response contradicts the clear facts on the ground, since (and about this there is no dispute) this is not an inspection checkpoint as noted in the response of the Office of the Chief of General Staff, but a checkpoint that prevents the passage of Palestinians to the northern Dead Sea region by virtue of their being Palestinian.
15.2 With regard to the claim that the GOC’s words were taken out of context – We wonder how such clearly articulated statements could have been interpreted differently?! The reserve officers testified that during the briefing with the brigade officers, the GOC explicitly stated that the reason for establishing the checkpoint was fear of hurting the income of the Jewish settlements on the Dead Sea beaches. Moreover, the GOC did not deny this reason even in later conversations with Maj. Karbel, only adding that, if required, he would be able to state or find a security justification for the checkpoint, coming up with this justification retroactively.
Under these circumstances, the Petitioner again sought a response on 17 September 2007, this time from the Military Advocate General, pointing out the fundamental flaws in the response received from the Office of the Chief of General Staff.
A copy of the Petitioner’s letter to the Military Advocate General is attached and labeled Appendix A/6.
16. Instead of fixing and terminating this illegitimate deed, the Respondents again sought to legitimize an improper act. In the response given by the MAG, they no longer made do with denying that establishment and operation of the checkpoint “did not derive from economic reasons” [emphasis in the original], but added that according to the GOC, “establishment of the checkpoint could do harm to the economic interests of those managing the beaches in the northern Dead Sea, whose income is dependent on Palestinian visitors as well.” (If indeed the military commanders have nothing to do with the economic needs of the beach owners [as noted in the response of the General Staff], from where does the GOC derive his apparent understanding about the sources of income and possible harm to the livelihood of the beach managers?)
17. Nevertheless, in response to our letter, another change appears in the Respondents’ version:
The Commander of this sector examined the issue and recognized the security need for operation of a checkpoint. This is for purposes of coping with terrorist activities and weapons smuggling in the northern Dead Sea region.
Nevertheless, the hours of activity of the checkpoint were reduced, and now it operates only some hours of the day and on weekends…
[Emphasis added – L.Y.]
The response of Lt. Gurtler in the name of the MAG is attached and labeled Appendix A/7.
18. Again, and not as an aside, we wonder at the logic of this response – is it possible that the Respondents have information indicating that terrorist activity, including the smuggling of weapons, takes place only or primarily on the weekends?
Does the information they have also suggest that the primary suspects in the smuggling of weapons are families with children or schoolchildren on an organized outing?
19. It is interesting to make note of the nature of the investigation undertaken by those to whom we sent the complaint, on which the Respondents based their final position. As written in the response from the MAG:
“Pursuant to your communication, we further checked this matter with the commander of the relevant division. The GOC repeated and emphasized…in any event, the GOC explained unequivocally that it was not economic considerations that underpinned the decision to establish a checkpoint.”
[Emphasis added – L.Y.]
Thus, investigation of the serious claims raised by two reserve officers was exhausted by “checking with” the division commander, a primary defendant against whom the complaint was submitted.
D. Publication and additional information
20. On 30 March 2008, news items appeared in various media about Israeli promises to ease constraints on Palestinians, including an announcement about removal of the northern Dead Sea checkpoint. An article by Amir Rappaport, which appeared on the NRG website, noted:
“Following American pressure, more decisions are expected today about a series of palliative measures for the Palestinians. Among the improvements, it seems that the Palestinians will receive free access to the Dead Sea for the first time since the outbreak of the second Intifada, after the IDF removes the checkpoint that separates the sea from the city of Jericho.”
A copy of the article from NRG is attached and labeled Appendix A8.
21. Following publication of this information in the Palestinian media as well, some Palestinian residents of the West Bank, including families with children, made their way toward the Dead Sea. In complete opposition to the published information, however, the residents encountered soldiers stationed at the checkpoint who forbade them from crossing.
22. Assaf Peled, a volunteer with the Association for Civil Rights in Israel who was at that location on Saturday, 12 April 2008, testifies:
“On Saturday morning, 12 April 2008, I arrived at the Dead Sea checkpoint. As I approached the checkpoint, I saw that the soldiers at the checkpoint were sending back the Palestinian car that had been traveling in front of mine…
I and the photographer that was with me continued to stand beside the checkpoint and we saw how soldiers were sending back all the cars belonging to Palestinians who arrived there. I stopped several drivers to ask where they were from, where they were going, and whether they knew about the checkpoint. I encountered people and families who came from all over the West Bank to rest and enjoy the Dead Sea. One family came all the way from Jenin only to be turned back at this checkpoint.
“The people were very surprised that they were not allowed to cross the checkpoint, as they had all read in the newspaper that Israel announced the checkpoint would be removed. They said that the soldiers told them they needed a special permit for the Dead Sea. Many of them had work and entry permits into Israel, but these permits also did not help, and the soldiers did not allow the passage of even those who had such permits.
“I called the Civil Administration offices to find out why the soldiers were detaining two taxi drivers at the checkpoint that the army announced it was removing in the framework of the recent security “palliative measures”. In response I was told that although a request was submitted to remove the checkpoint, it was rejected and a Palestinian who wishes to cross the checkpoint must have a commercial permit.
Several minutes after my conversation ended with the Civil Administration office, I talked with Palestinians in a car that had been turned back at the checkpoint. All held commercial permits. They related that they showed the permits to the soldiers, who responded that they could shove these up their ass (a verbatim quote).”
The affidavit of Assaf Peled is attached and labeled Appendix A/9.
A video taken on Saturday, 12 April 2008 by a B’Tselem fieldworker is attached and labeled Appendix A10. (The video shows a family with children who tried to vacation at the Dead Sea beaches, but was prevented from crossing the checkpoint by soldiers stationed there.
23. Even announcements published by the IDF Spokesperson on 18 May 2008 and 3 June 2008 declared that the Beit Ha’Arava/northern Dead Sea checkpoint was removed and passage would remain open even during weekends.
A copy of the IDF Spokesperson announcements from 18 May 2008 and 3 June 2008 are attached and labeled Appendix A/11.
24. Nevertheless, during the recent weekends, including 6 June 2008 and 8 June 2008, the checkpoint remained in operation, preventing Palestinian residents of the West Bank from passageway.
25. Firas Alami, a fieldworker of the Association for Civil Rights in Israel, who was at that site on Sunday, 8 June 2008, testifies:
“On Sunday morning, 8 June 2008, the eve of the Shavuot holiday, I arrived at the northern Dead Sea checkpoint around 9:00 a.m. I remained there for several hours, during which I saw how soldiers at the checkpoint were sending back all Palestinian cars, including families who came by car, taxis, and buses.
“I spoke with some of the people who were turned back from the checkpoint. They reported that the moment the soldiers saw a car with a Palestinian license plate, they told them to pull over to the side of the road … Palestinian cars at the checkpoint were detained for more than half an hour in the blazing sun. After that whole process, the soldiers told them, ‘Go back, no passage’…
“Some time after I arrived at this location, at approximately 9:30 a.m., I called the office of the Civil Authority to clarify whether the soldiers were acting in contravention of their orders, since the press releases of the IDF Spokesperson had said that the checkpoint was removed and would remain open to Palestinian traffic at all hours. At approximately 12:00, Adina from the Civil Administration office called me back, noting that, “Palestinians are not allowed to pass .through the northern Dead Sea checkpoint by order of the Minister of Defense”
See the affidavit of Firas Alami attached to the petition.
E. Petitioner’s Appeals to the Respondents
26. Most of the Petitioner’s queries and the Respondents’ responses were reviewed above. The following is a full listing of the correspondence:
26.1 On 3 July 2007, following the receipt of complaints by the officers, the Petitioners wrote to the Chief of General Staff.
26.2 When no response was received, a reminder was sent on 6 August 2007.
26.3 The response of the Office of the Chief of General Staff dated 7 August 2007 was received by the Petitioner on 16 August 2007.
26.4 In light of the response of the Chief of General Staff, the Petitioner wrote to the MAG on 17 September 2007.
26.5 On 28 November 2007, a response was received from the MAG.
26.6 Following this response and in light of the change in how the checkpoint operated (consistently on weekends, irregularly on weekdays), the Petitioner again wrote on 28 January 2008 to clarify whether an official order was given to authorize the actions of the security forces in the area – preventing West Bank residents from moving within the Occupied Territory. In addition, the Petitioner brought to the attention of the Respondents that notwithstanding what had been written in their response – “The division commander even assumed that if requests were submitted to cross the checkpoint during its operation, they would be examined on a case-by-case basis, in coordination with the DCO parties” – to the best of our knowledge, the prohibitions were never publicized to the relevant public, nor how they could obtain such permits.
26.7 No response to this letter was received by the date of submission of this petition.
The entire correspondence is attached and labeled Appendix A/12.
The Legal Argument
27. This petition deals with the matter of directives issued by the Respondents that have resulted in violations of the rights of protected residents of the Occupied Territory to freedom of movement and the use of resources of the Occupied Territory for purposes of allocating these resources to the citizens of the occupying power. The denial of rights is based on one and only one factor – the ID card of the individual.
28. According to the testimonies described in the factual background section, the actions of the Respondents are rooted in the economic motives of the beach owners, residents of settlements in the region, who are concerned about harm to their income if Palestinians, not just Israeli vacationers, also use the beaches. Denials by the Respondents, and claims that the prohibitions on movement are imposed for security reasons, are not consistent with either the known facts or common sense.
29. The actions of the Respondents prevent all Palestinian citizens – who have the status of “protected persons” in the Occupied Territory – from exercising their right to visit and vacation at the northern Dead Sea beaches, which is the only stretch of beach in the West Bank. Even though these directives violate the rights of the protected, they have been enforced in the region for a very long time without being announced or formulated as an order and without being made public as required.
30. The decision to establish the checkpoint and impose a sweeping prohibition against passage to the Dead Sea beaches within the Occupied Territory on Palestinian residents of the Occupied Territory by virtue of their being Palestinian is illegal for several reasons, each one of which would be sufficient to have the decision rescinded:
30.1 First, because the decision is contaminated by extraneous and illegitimate considerations;
30.2 Second, because the decision reflects discrimination against protected persons in contrast with Israeli citizens, who are citizens of the occupying power;
30.3 Third, because preventing the passage of Palestinian residents of the region into an area within the West Bank was done without legal authorization and constitutes an illegal violation of fundamental rights.
A. Deviation from Authority – Purpose and Extraneous Considerations
31. International law applicable to occupied zones authorizes the military commander to act in two regards: one, ensuring the legitimate security interests of the occupier in an area under belligerent occupation; and, two, ensuring the needs of the protected persons in the area (Art. 43 of the Annex to the Hague Convention on Laws and Customs of War on Land from 1907). The point of departure is that the military commander is not sovereign in the region occupied by him, and his entire authority consists of administering the area temporarily in accordance with the principles of international law, which reflect a compromise between the two cited “magnetic poles”. These principles were enshrined in diverse rulings by this Court ever since deliberations began on petitions from residents of the territories:
We have seen that the considerations of the military commander are to ensure his security interests in the region and to ensure the interests of the civilian population in the region, both these focused on the region. The military commander is not authorized to weigh the national, economic, or social interests of his state, to the extent that they do not impinge on his security interest in the region or on the interest of the local population. Even military needs are military needs and not national security needs in the broad sense of the term (HCJ 390/79, p. 17). A territory belligerently occupied is not an open arena for economic or other exploitation.
HCJ 393/83 Jamy’at Askan v. Military Commander in Judea and Samaria, PD 37(4) 785, 794 (1983).
32. Safeguarding the public order and civilian life for the benefit of the protected residents of the Occupied Territory is a basic obligation of the military commander. He bears responsibility for the lives of the residents and their quality of life in all aspects of human life in modern society. It is the obligation of the military commander to carry this out reasonably and with integrity (ibid., pp. 797-798; HCJ 202/81 Tabib v. Minister of Defense, PD 36(2) 622, 629; HCJ 3933/92 Barakat v. GOC Central Command, PD 46(5) 1, 6; HCJ 69/81, 493 abu-‘Itta v. Commander of Judea and Samaria, PD 37(2) 197, 309-310).
33. In the Gaza Coast case, the High Court of Justice again stated:
Belligerent occupation turns around two central axes: ensuring the legitimate security interests of the occupier in an area under belligerent occupation; ensuring the needs of protected persons by the laws of belligerent occupation…These are the two “magnetic poles” (in the language of Dinstein, ibid.). Between them, the laws of belligerent occupation strike a delicate balance. The point of departure is that in exercising his authority, the military commander has not inherited the defeated regime. He is not sovereign in the occupied territory…
HCJ 1661/05 Gaza Beach Regional Authority v. Israel Knesset, PD 59(2) 481, 520 (2005).
34. Promoting the economic interests of citizens of the occupying power constitutes an extraneous and illegitimate consideration for the military commander, and deviates from the authority vested in him by international law. It is therefore clear that the commander must not make use of his special security authority for promoting the economic interests of the occupying power or its citizens.
35. This is particularly true when done while violating the rights of the protected residents – the right to freedom of movement within the Occupied Territory and the right to use and enjoy public resources within the Occupied Territory.
36. As seen in the Factual Background section from the testimonies of officers who served in the area, it is actually these factors – the economic interests of Israelis who manage beaches in the northern Dead Sea, and who are interested in keeping Palestinians away out of concern that their presence would harm their income – that led the military commander to impose the said movement restrictions. This factual claim is based on the explicit words of the commander of the Jordan Valley Division, stated when he was giving directives to the soldiers. The claim is supported by the detailed affidavits of officers.
37. The pattern of activity of the Respondents in the region – imposing movement prohibitions mainly during the weekends (the main days that Israeli vacationers visit these beaches) – adds to and reinforces this conclusion.
38. This evidentiary foundation makes clear that no significance or credibility should be ascribed to the denial of the Respondents.
39. The fact that extraneous purposes or factors were a dominant element in the considerations of the authority is sufficient to rescind the decision (see HCJ 390/79 Dweikat v. State of Israel, PD 34(1), 1, 17; HCJ 10356/02 Hess v. Commander of IDF Forces in Judea and Samaria (2004), Parag. 12).
40. In light of the above, the matter before us is that of a decision marked by extraneous considerations that deviate significantly from the authority of the military commander as set by international law.
B. Discrimination against Protected Persons in Using Resources of the Occupied Territory and Access to Public Places
41. This matter concerns the right to freedom of movement, the use of natural resources, and entry to public places in the Occupied Territory – rights accorded to protected residents of the area. The Respondents’ orders to allow the free entry of Israelis to the northern Dead Sea beaches, but to prevent the passage and access to these same beaches from protected residents of the Occupied Territory, are marked by wrongful discrimination. So long as preventing passage and access to the beaches is not based on concrete suspicions, distinguishing between “a Palestinian” and “an Israeli” cannot be considered a relevant distinction.
42. International law in effect in the Occupied Territory prohibits the military commander from engaging in discriminatory conduct. Even international human rights law establishes this prohibition. Therefore, if it is found that the act undertaken by the military commander is discriminatory – it must be invalidated. In this case, the question of whether the act is discriminatory or one of proportionate harm does not arise and is not relevant. The situation of a military commander differs from that of an Israeli body authorized to enact primary legislation in the Knesset to sanction discriminatory behavior (such as the Citizenship Law). In the matter before us, the military commander has no legal authority to discriminate.
43. The Fourth Geneva Convention establishes as one of the basic principles of the rules of war the obligation of the military commander to treat the civilian population without discrimination:
…
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
Art. 3 of the Geneva Convention (emphasis added – L.Y.). Also see the third paragraph of Art. 27 of the Convention.
44. The International Covenant on Civil and Political Rights instructs states to ensure equality before the law to all those under their jurisdiction and prohibits discrimination on the grounds of race or national origin, inter alia (Art. 26).
45. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of 1966 defines “racial discrimination” in Article 1 as “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
Article 3 of the Convention states, “Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”.
While Article 5 of the Convention states:
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
…
(d) other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
…
46. The prohibition on discrimination is so central to human rights in international law that one cannot diverge from it even in emergency situations (see General Recommendation No. 30 of the ICERD Committee; also see Human Rights Committee, General Comment 29, States of Emergency (Article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001)).
47. The decision of the military commander to privilege Israelis who seek to vacation in the northern Dead Sea beaches located in the Occupied Territory over the “protected” residents of the Occupied Territory is unequivocally a discriminatory decision. This is true regarding the decision whose intent was discriminatory (giving priority to Israeli interests over those of the local residents) and whose results are discriminatory.
48. In this situation, the individual receives differential treatment on the basis of one fact – his ID card. This distinction is suspect:
Differential treatment on the grounds of religion or nationality is “suspect” and ostensibly constitutes discriminatory treatment (Cf. HCJ 4541/94 Miller v. Minister of Defense (hereinafter “the Miller case”), pp. 136-137; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare, p. 659). We said that this was “ostensible” discrimination because circumstances could exist – such as affirmative action (from the perspective that views affirmative action as promoting and not detracting from the principle of equality – see Justice Matza’s opinion in the Miller case) – in which differential treatment due to religion or nationality would not be discriminatory.
HCJ 6698/95 Ka’adan v. Israel Lands Authority, PD 54(1) 258, 276.
49. In the matter at hand, the discrimination is prima facie evident:
First, the military commander distinguished between two groups of citizens – in one group are the protected residents of the Occupied Territory and, in the other, the residents of his state.
Second, he decided on separate and differential treatment for each group: For the protected residents, who are “foreigners” to the military commander but “rights holders” in terms of international law, the military commander decided to deny the right to use the region’s resources, while he “bestows” use of these resources upon residents of his state.
50. The UN Committee on the Elimination of All Forms of Racial Discrimination also found that Israel’s practice of distinguishing between Israelis and Palestinians in the Occupied Territories is discriminatory, and not a legitimate distinction:
…The Committee is concerned at the State party’s assertion that it can legitimately distinguish between Israelis and Palestinians in the Occupied Palestinian Territories on the basis of citizenship. It reiterates that the Israeli settlements are illegal under international law.
The Committee recommends that the State party review its approach and interpret its obligations under the Convention in good faith, in accordance with the ordinary meaning to be given to its terms in their context, and in the light of its object and purpose. The Committee also recommends that the State party ensure that Palestinians enjoy full rights under the Convention without discrimination based on citizenship and national origin.
Parag. 32 of the Committee’s Recommendations (emphasis added – L.Y.)
Committee on the Elimination of Racial Discrimination, Concluding Observations, Israel, Consideration of reports submitted by states parties (Seventieth session, 2007), CERD/C/ISR/CO/13 (14 June 2007) Article 32, 34.
51. The Committee also stated that Israel must not impose movement restrictions in the territories intended for one specific national or ethnic group:
The Committee is deeply concerned that the severe restrictions on the freedom of movement in the Occupied Palestinian Territories, targeting a particular national or ethnic group, especially through the wall, checkpoints, restricted roads and permit system, have created hardship and have had a highly detrimental impact on the enjoyment of human rights by Palestinians, in particular their rights to freedom of movement, family life, work, education and health…
The State party should review these measures to ensure that restrictions on freedom of movement are not systematic but only of temporary and exceptional nature, are not applied in a discriminatory manner, and do not lead to segregation of communities. The State party should ensure that Palestinians enjoy their human rights, in particular their rights to freedom of movement, family life, work, education and health.
Parag. 34 of the Committee’s Recommendations (emphasis added – L.Y.)
A copy of the UN Committee’s Conclusions is attached and labeled Appendix A/13.
52. In light of the explicit comments of the Committee, the Respondents should very carefully examine their views and actions in accordance with the injunctions of the Convention as these are also understood and interpreted by the international community, and in the matter at hand by the committee responsible for implementation of the Convention.
53. The actions of the Respondents in separating people and denying fundamental rights from, of all people, protected persons in Occupied Territory are acts marked by discrimination that is wrongful and illegitimate.
54. It is important to reiterate that the military commander does not have at his disposal a legal source of authority that permits him to discriminate. In the matter at hand, the legitimacy and legality of a public authority’s actions are measured by the aforementioned sources of authority on international law. These sources of authority prohibit the military commander from discriminating, and do not constitute a legal source that could authorize harm to the principle of equality, i.e., allow for discrimination. In such a case, the action or decision is invalid.
55. In summary, the military commander’s decision to deny the right to freedom of movement and use of the northern Dead Sea beaches, which are public resources, from persons for whom this is a protected human right in order to enable the use of these resources by Israelis, residents of the state of the military commander, for whom no acquired right exists, is unequivocally a discriminatory decision that should be ordered revoked.
56. Providing legal sanction for the type of separation and discrimination at issue here has ramifications beyond the specific case at hand. Accepting the claim of the Respondents would provide dangerous legal validation and reinforcement to the institutionalized, routine, and deliberate discrimination against Palestinian residents of the West Bank vis-à-vis Israelis in this region. This risk is particularly acute because it is not an isolated incident of the Respondents. The issue of separating and discriminating against the protected residents of the region has arisen in several petitions pending before this honorable Court (see HCJ 639/04 and HCJ 9961/03 regarding the legality of the legal regime imposed on the “seam area”, which imposes movement prohibitions on Palestinians alone; and HCJ 3969/06 and HCJ 2150/07 regarding roads within the West Bank, on which Israeli vehicles are allowed to travel, but Palestinian vehicles are prohibited.)
57. When it is an accepted and routine policy, separation and discrimination against the Palestinian population can diverge from being acts of wrongful discrimination and become the practice of apartheid as defined by international law (Convention on the Suppression of the Crime of Apartheid; the Statute of the International Criminal Court (ICC); and customary international law). This concern is even greater in light of the separation between Palestinians and Israelis in the territories in many additional areas, including the existence of two legal systems for the two populations (see Amnon Rubenstein, “The Changing Status of the ‘Territories’ (West Bank and Gaza): From Escrow to Legal Mongrel”, TAU Studies in Law, 59 (1988), 63-67; Orna Ben-Naftali, Aeyal Gross and Keren Michaeli, “Illegal Occupation: The Framing of the Occupied Palestinian Territory”, Berkeley Journal of International Law, 23 (2005), p. 551.
58. The prohibition on discrimination is a moral injunction of the first order. While there is a price for safeguarding it, this price is worthy, in addition to the fact that it is necessary given the obligation that falls on the military commander. The authorities always have an alternative for carrying out its duties without discrimination, if only it so wished. This is also true in the matter at hand.
C. Imposing prohibitions on movement without legal authorization – illegal damage to protected fundamental rights
59. To the best knowledge of the Petitioner, the movement prohibitions imposed on the Palestinian population preventing their access to the northern Dead Sea beaches have been executed by the security forces without any legal authorization. To this day, no official order was issued that clearly and unequivocally specifies the source of authority from which directives were issued to establish this checkpoint, the scope of the directives, the period of their validity, and the identity of the person issuing the directives and his authority.
In addition, no signs or other indications were placed in the area to warn the relevant public about the movement prohibitions, their boundaries, and their exceptions.
This is true even though it concerns a decision to establish a permanent checkpoint and movement prohibitions imposed for an extended period, not an immediate and unforeseen military need that did not allow for issue of an order and putting up warning and explanatory signs in the area.
It should be noted that in the Petitioner’s appeals to the Respondents from 28 January 2008, the Respondents were asked whether the said order was issued, and asked to be shown it, but no reply was received by the time of submission of this petition (see Appendix A/11).
60. The actions of the Respondents harm fundamental rights – to freedom of movement and to entering and visiting areas of nature that are open to the public. The principle of lawfulness obligates the Respondents and those they dispatch, who are actively thwarting fundamental rights, to show a clear official source of authority for this injury to human rights (HCJ 3267/97 Rubinstein v. Minister of Defense, PD 52(5) 481, 520-521; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Internal Security, PD 58(2) 746, 762).
61. Even the rulings of this honorable Court have emphasized the importance of having an order in writing when the military commander denies someone from the region access to his land:
It should be noted that closing off areas must be done by way of a written order by the military commander, and in the absence of a closure order, the Palestinian residents should not be prevented from access to their land.
HCJ 9593/04 Rashed Murar v. Commander of Military Forces in Judah and Samaria, Parag. 21.
62. Just as invoking the authority to declare an area a closed military zone requires an order in writing, so too in a matter in which the right of Palestinian residents to move and enjoy the sights of nature in the West Bank are denied, the military commander was obligated to issue orders in writing and ensure publication of the directives in appropriate and reasonable ways to the relevant public.
63. Abrogation of a fundamental right by instructions given orally contravenes the basic principles of administrative law and undermines the rules of proper governance. The practice of issuing directives that constrain and harm freedom of movement – given orally and not anchored in a written order that specifies the precise details, times and terms – creates a governing system in which the use of authority is arbitrary and not accountable. Thus the ground is prepared for arbitrary violations of human rights.
64. This kind of practice does not enable monitoring of the actions of the security forces, and does not allow those who are harmed by them to challenge their legality. It thus also contributes to fostering immunity from responsibility. Denying rights by oral directive also flouts the obligation of the authorities to make directives public that alter the legal situation and violate human rights.
Therefore, the Court is respectfully requested to issue an order nisi as requested at the beginning of this Petition, and after receipt of the response from the Respondents, to make the order absolute.
Today, 10 June 2008
Limor Yehuda, Attorney, Representing the Petitioners
