January 2004, Joint report with HaMoked: Center for the Defence of the Individual, Summary
On 31 July 2003, the Knesset enacted the Nationality and Entry into Israel (Temporary Order) Law, 5763-2003. The law forbids Israelis married to, or who will marry in the future, residents of the Occupied Territories to live in Israel with their spouses. Israelis married to foreign nationals who are not residents of the Occupied Territories are still allowed to submit requests for family unification on their behalf.
The new law also harms children born in the Occupied Territories to parents who are residents of East Jerusalem. The Ministry of the Interior changed its procedures regarding the registration of these children in the Population Registry. Rather than filing a "Request to Register a Child," it became necessary to submit a request for family unification for them. Under the new law, such requests are not allowed. As a result, it is impossible to legalize the children's status in Israel.
The law does not establish a new immigration policy for residents of the Occupied Territories. International law recognizes the right of every state to determine who is entitled to enter its territory, so foreign nationals have no intrinsic right to enter the country. Some countries set immigration quotas, based on varying criteria. However, when foreigners are married to nationals or residents of the state, different rules apply, and there are limitations to the discretion that the government may exercise. As in every case where a state authority exercises discretion, the rules must be reasonable, based on substantive grounds, and applied without discrimination. The issue involved here is not whether the foreign national has a right to enter the state, but the right of citizens and residents of the state to live with their spouses in the country in which they were born.
The law severely infringes the right to family life of Palestinian residents of East Jerusalem. Some residents of East Jerusalem married to residents of the Occupied Territories will now have to live separately from their spouses. Couples that want to live together in Israel, will be breaking the law, and as such will live in constant fear and be unable to lead a normal life. If couples choose to live together in the Occupied Territories, the Israeli spouse will be breaking the law because of the military order that prohibits the entry of Israelis into the Occupied Territories.
Couples who got married before the law was enacted and the spouse from the Occupied Territories did not yet receive a permanent status in Israel, are allowed to live together only if the spouse receives a temporary permit from the Civil Administration. Submitting an application for a temporary permit is difficult and Israel often cancels such permits. Even prior to enactment of the law, couples had difficulty living together in Jerusalem because of the problems entailed in obtaining the permits. Enshrining this situation in law will make the couple's life uncertain, with no chance for favorable change.
The new policy regarding the registration of children creates an unreasonable situation. The Interior Ministry registers some children in the family and allows them to live with their parents in Jerusalem, but forces other children in the family to leave their family or to remain in Jerusalem illegally. The change in policy has turned many children into lawbreakers. Children born in the future will also be breaking the law. Many parents will not obey a law that forbids them to live with their children, so the children will continue to live with their family in Jerusalem, without permits. The children will not be entitled to state health insurance, and the parents will not receive the children's allowance for them from the National Insurance Institute.
Israel contends that the law is necessary for security reasons, because the entry of residents of the Occupied Territories - whoever they are - and their free movement within Israel after receiving a legal status in Israel, endanger the safety of Israeli citizens. The state offers only one statistic to back up this claim - twenty-three Palestinians who received legal status in Israel pursuant to the family unification process were involved in the carrying out attacks against Israelis.
The contention that cancellation of the procedure for family unification of Israelis and Palestinians was based on security considerations was not raised in a comprehensive and detailed manner until the state had to justify the cancellation to the High Court of Justice. Prior to that, the state offered other reasons to justify the policy, among them the "danger to the Jewish character of the state" resulting from family unification, and the claim that residents of the Occupied Territories exploit the family unification procedure to carry out a "creeping right of return." The official reliance on security considerations is an attempt to create an ostensibly legitimate legal basis for the law, on the assumption that the state will have difficulty defending the real reasons before the High Court and the international community.
A serious discussion was never held on the demographic claims, in part because of the state's attempt to conceal the demographic argument. The claims were never proven, and no state official presented any relevant statistics. According to the Interior Ministry, between 100,000 and 140,000 Palestinian residents of the Occupied Territories received legal status in Israel through the family unification process. However, these figures, which were intended to be used to support the demographic justification for the law, are not relevant in a discussion on family unification of Israelis and residents of the Occupied Territories. The Ministry itself admitted that its number included spouses who were not residents of the Occupied Territories (for whom family unification was not cancelled) and the couple's children.
The state was so sure of the strength of its argument that it did not bother to provide a foundation for it. It contended that forty-five Israelis were killed and 145 wounded in attacks in which Palestinians who had received legal status in Israel pursuant to the family unification process had been involved. However, it did not indicate how may attacks were carried out, their location, the nature of the involvement of the Palestinians who had legal status in Israel, and the how having an Israeli identity card benefited them in carrying out the attack. The state also did not mention whether the individuals were tried, the offenses for which they were convicted, or the sentences they received - if, in fact, some of them were tried and convicted.
Even if the state's contention that these twenty-three Palestinians were involved in carrying out attacks is entirely accurate, this statistic is certainly not a sufficient basis for the state's contention that the general population of residents of the Occupied Territories who are married to Israelis constitutes a danger. Some 0.02 percent of them, according to the state, took advantage of their legal status in Israel to assist in attacks.
The state's contention about the threat posed by residents of the Occupied Territories is unconvincing for another reason as well. The law allows the entry of Palestinians into Israel to work, obtain medical treatment, or "any other temporary purpose," and allows the granting of permanent residency to collaborators and their families. The law also allows residents of the Occupied Territories whose requests for family unification have already been approved to remain in Israel, and states that the Interior Ministry will consider requests submitted prior to the government's decision.
The state's logic, whereby isolated cases are sufficient grounds to punish hundreds of thousands of people could be similarly used to justify the imposition of all sorts of other prohibitions. For example, is it not justifiable to forbid Arab citizens of Israel to enter Jewish towns and villages after an Arab citizen carried out an attack and several other Arabs were accomplices? Is it not justifiable to forbid settlers from crossing the Green Line and entering Israel after one of them transported the suicide bomber who committed the attack at the Geha intersection, and after a number of settlers were convicted of selling weapons to Palestinians?
For many years, demographic considerations have indeed affected Israeli government policy. However, the new law adds a particularly grave innovation. This policy was enshrined in law in July 2003, and is the first law that explicitly denies rights on the basis of national origin. The determination that Israelis are allowed to live with the person of their choice and inside the country unless they are married to residents of the Occupied Territories, is racist and discriminatory.
B'Tselem and HaMoked: Center for the Defence of the Individual urge the Israeli government to change its policy and treat its citizens and residents equally, and call on the Knesset to repeal the new law. The Interior Ministry must reinstate the procedures for family unification and the registration of children, and process these requests efficiently and fairly. They must recognize the right of residents of East Jerusalem to marry whomever they choose and to live with their spouse and children wherever they wish.