The Israeli Supreme Court’s decision to uphold a law barring Israeli citizens and their Palestinian spouses from the Occupied Palestinian Territories from living together in Israel constitutes unlawful discrimination that cannot be justified by the country’s security interests, Human Rights Watch said today.
Human Rights Watch said that the legislation, the Citizenship and Entry into Israel Law (Temporary Order) 2003, discriminates against Palestinian citizens and permanent residents of Israel on the basis of their ethnic or national origin. Palestinian citizens of Israel constitute the vast majority of Israelis who are married to Palestinians from the Occupied Palestinian Territories.
“The Supreme Court has upheld a law that unfairly targets Israeli citizens of Palestinian origin,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “This ruling undermines the rights of thousands of Israelis to live together with their families, and the rights of certain Israeli children to live with both parents.”
The law denies spouses from the Occupied Palestinian Territories who are married to Israeli citizens or permanent residents the opportunity to acquire Israeli citizenship or residency rights. Normally, foreign nationals married to Israeli citizens undergo a graduated process of residency statuses, with security checks along the way, before ultimately being considered for citizenship after a minimum of four years. If the foreign spouse is Jewish (or the child or grandchild of a Jew), Israeli citizenship is granted automatically.
In a 6-5 decision on Sunday, a Supreme Court panel dismissed a petition calling on the court to overturn the temporary law banning family reunification. The original petitioners, including Adalah (the Legal Center for Arab Minority Rights in Israel), affected families, and members of the Knesset, argued that the law was unconstitutional in its denial of family rights based on national origin.
A majority of the justices did find that that the current law violates the constitutional right of Israelis to equality and to family life, including the right to live with a foreign spouse in Israel. However, only a minority of the justices felt that the appropriate remedy was to overturn the temporary law.
The Israeli Ministry of Justice has argued that Palestinians who gained residency status inside Israel through family reunification have been involved in attacks against Israeli civilians. However, Israeli authorities claim to have questioned only 26 people who entered Israel under family reunification proceedings on suspicion of abetting terrorism. It is unclear whether any of those questioned have been charged with an offense.
The ministry also failed to explain why other more targeted security measures, applied on a case-by-case basis, could not adequately address this threat without stripping thousands of families of their rights on the basis of their nationality.
Supreme Court Chief Justice Aharon Barak, in his opinion for the minority, wrote that “the law is a violation of the right of Arab citizens in Israel to equality.”
Demographic concerns also cannot justify the discrimination. The Israeli daily, Ha’aretz, reported that during a special meeting to discuss the law on April 4, 2005, then-Prime Minister Ariel Sharon stated: “There is no need to hide behind security arguments. There is a need for the existence of a Jewish state.” At the same meeting, then-Finance Minister Benjamin Netanyahu said, “Instead of making it easier for Palestinians who want to get citizenship, we should make the process much more difficult, in order to guarantee Israel’s security and a Jewish majority in Israel.”
Israel cannot pursue a desire for a Jewish majority at the expense of the equal rights of its non-Jewish citizens, Human Rights Watch said.
Background and Israel’s Legal Obligations
Israeli Government Decision #1813 of May 12, 2002 placed a moratorium on applications for family reunification between Israeli citizens and Palestinians from the Occupied Palestinian Territories. In July 2003 the Knesset enacted the Citizenship and Entry into Israel Law (Temporary Order) 2003, turning the government decision into legislation. The Knesset renewed the “temporary order” three times, most recently in July 2005. The 2005 extension includes exceptions to the law based on age and gender. The current law permits Palestinian women over the age of 25 and Palestinian men over the age of 35 to apply for temporary visitor permits to be with their Israeli spouses.
In specifically targeting Israeli citizens with a Palestinian spouse, and having a disproportionate impact on Palestinian citizens of Israel, the law is discriminatory under international law in the absence of reasonable and objective criteria which will achieve a legitimate purpose. The law has the effect of nullifying or impairing the recognition, enjoyment and exercise of the right to family life of many Israeli citizens of Palestinian origin, on an equal footing with other Israeli citizens.
While preventing genuine security threats is a legitimate aim, security measures that restrict rights must be reasonable and objective. The broad scope of the ban on spouses from the Occupied Palestinian Territories affects thousands of families and Israel has offered limited quantifiable evidence to justify penalizing all members of the target group on security grounds. The ban thereby fails to meet reasonable and objective standards.
The exclusions, in setting different and ultimately arbitrary age thresholds for permitting spouses to apply for visitor permits, and by still blocking the possibility for families to permanently live together, fail both to eliminate the broad nature of the ban and to bring Israeli law in line with international human rights standards.
Moreover, the exclusions in practice affect only a minority of the couples, as most marry at an earlier age.
Furthermore, Israel may refuse applications for visitor permits from persons within the age and gender exceptions if anyone from their extended family or in-laws is deemed by the Israeli authorities to pose a security risk. Israel may also revoke the current residency status of Palestinian spouses already living in Israel for the same reason. Israeli authorities are not required to inform those whose residency is revoked or application denied about the basis of why their relatives are considered a security risk or to give them the opportunity to challenge the decision.
Over the past four years Israel has not accepted any new applications for family reunification in the case of marriages between Israeli citizens and spouses from the Occupied Palestinian Territories, and has frozen the status of such applications submitted prior to the enactment of the law. This jeopardizes the status of couples already living together in Israel, placing at risk their right to continue to do so and forcing other families to live apart. In 2004, the Israeli daily Ha’aretz reported that the law affected between 16,000 and 24,000 families.
Even before the May 2002 freeze, obtaining permanent Israeli residency and citizenship for Palestinians from the Occupied Palestinian Territories married to Israelis was an arduous and drawn-out process that took an average of five years from the submission of an application for the application to be granted or refused. Successful applicants then spent another five years in various statuses before receiving permanent residency or citizenship.
Israel’s obligations under international human rights law include the obligation to respect the absolute prohibition on discrimination set out in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR), Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 2 of the Convention on the Rights of the Child (CRC), and Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Israel has ratified all of these treaties.
The U.N. Human Rights Committee, which monitors state compliance with the ICCPR and provides an authoritative interpretation of the ICCPR, has stated that the term “discrimination” as used in the covenant means any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. Specifically the prohibition on discrimination in law requires that when legislation is adopted its content should not be discriminatory.
In addition, under the International Covenant on Civil and Political Rights, which Israel ratified in 1991, all persons are entitled to enjoy the rights protected by the covenant, including the rights to marry and to family life. Israel is also obliged to protect the family as a fundamental unit of society, as set out in Article 10 of the ICESCR, Article 23 of the ICCPR, and Articles 7 through 10 of the Convention of the Rights of the Child. Article 17 of the ICCPR prohibits arbitrary interference with the family.
The U.N. Human Rights Committee has set out that, in addition to the obligation on states to protect the family, “the right to found a family implies... the possibility to... live together.... Similarly, the possibility to live together implies the adoption of appropriate measures... to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.” The committee also noted that policies that impact on families must be “compatible with the provisions of the covenant and should, in particular, not be discriminatory” (General Comment 19).
Any state is permitted limited derogations to certain rights “in time of public emergency which threatens the life of the nation.” However, Israel has not sought to derogate from any of the prohibitions on discrimination and in any event any derogation must be “limited to the extent strictly required by the exigencies of the situation.”
