Residency & family separation

Separation of Families - International law

1 Jan 2011

Under international law, the power to decide whether to allow foreigners to enter a country lies within the sole discretion of that country. For this reason, most international human rights conventions do not include unequivocal rights in the matter of immigration, and states did not undertake to allow entry for the purpose of achieving family unification.

The Convention on the Rights of the Child is the only convention that explicitly encourages the signatories to enable family unification of their citizens and residents through allowing entry of family members, as follows:

In accordance with the obligation of States Parties under Article 9, paragraph 1 [to ensure the child's right to live with both parents], application by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. (Article 10(1))

The Convention on the Nationality of Married Women, to which Israel is party, requires signatory states to enable every foreign woman married to a citizen of the state to obtain the citizenship held by her husband, at her request, through special and preferred citizenship procedures.

Furthermore, several fundamental principles of international law, incorporated in various conventions, relate to the obligation of states to protect the rights of the families of its citizens and residents:

  • the right of every person, without any limitation due to race, nationality, or religion, to marry and to found a family.
  • the family is defined as the natural basic unit of society, entitled to protection and assistance by the state. This protection is required especially at the time of the establishment of the family and as long as it is responsible for taking care of children.
  • the prohibition on arbitrary or illegal invasion of the privacy of a person, or the arbitrary or illegal intervention in his or her family or home.

International humanitarian law also requires states to respect the rights of the family in occupied territory. Article 46 of the Hague Regulations of 1907, which deal with the law and customs of land wars, stipulates that, "family honor and rights... must be respected." These regulations, which apply to the military government in occupied territory, are considered part of customary international law and are binding, therefore, on the IDF in the Occupied Territories in all its activities dealing with the civilian population there.

Article 27 of the Fourth Geneva Convention relating to the Protection of Civilians in Time of War, of 1949, stipulates that residents of occupied territory "are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs." This provision is one of the pivotal humanitarian clauses of the Convention, and Israel recognizes its duty to apply such humanitarian provisions in the Occupied Territories.

Article 74 of the First Additional Protocol to the Geneva Convention requires the State Parties to "facilitate in every possible way the reunion of families dispersed as a result of armed conflicts...." Although Israel is not a signatory to this protocol, it indicates the standards established in international law on this subject.

Forcing families to live apart inevitably severely prejudices the right to maintain a proper family life. Since international law grants broad protection to family life, many jurists maintain that states must protect family rights, including the duty to protect family unity, by allowing immigration of family members into their territory.

By not allowing Palestinian residents of the Occupied Territories to live together with their non-resident spouses, Israel leaves them two choices: family separation or leaving the Occupied Territories with the whole family. In doing this, Israel violates its obligation under international law to respect and protect the marriage relationship of Occupied Territories residents, safeguard the family rights of the residents, to refrain from intervening in family life, and respect their right to live in their country.

Furthermore, allowing emigration as the sole possibility for a person to live with his or her family contravenes the Fourth Geneva Convention which states, "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory... are prohibited, regardless of their motive."