Adalah Petitions against the Ban on Gaza Residents from Entering Israel to Access the Courts for Tort Cases against the Israeli Security Forces
On 24 October 2011, Adalah filed a petition to the Jerusalem Administrative Court against Israel's policy of preventing residents of the Gaza Strip who file tort lawsuits against the Israeli security forces, including the army and the General Security Service (GSS), and their witnesses from entering Israel in order to appear in court and completing the necessary legal proceedings. In general, the lawsuits are based on violations of basic human rights, where international human rights law and international humanitarian law demands that states provide legal remedies to the victims, including in cases of killings, home demolitions, torture and/or cruel, inhuman or degrading treatment or punishment (CIDT).
The petition was filed by Adalah in its own name and on behalf of 13 plaintiffs from Gaza, lawyers who represent victims from Gaza, the Al Mezan Center for Human Rights (Gaza), the Palestinian Center for Human Rights (Gaza), and Physicians for Human Rights-Israel. The named respondents are the Israeli Minister of the Interior and the Minister of Defense.
In the petition, Adalah Attorney Fatmeh El-'Ajou argued that the Interior Minister and Minister of Defense's policy of imposing a sweeping ban on Gaza residents with tort lawsuits before the Israeli courts and their witnesses from entering the country prevented them from signing affidavits before their lawyers, as required by law. It also prevents them from taking medical tests administered by Israeli specialists to prove the damage incurred, and from attending hearings at which they have to testify before the court, as required by law. Attorney El-'Ajou brought examples of cases in which lawsuits brought by residents of Gaza were dismissed because of the government's policy of denying the complainants access to the courts. For instance, in case C.C. 183/17,Hajaj v. The Ministry of Defense, Judge Zrankin (Haifa) ruled that:
"In my view, there is no option other than to dismiss the lawsuit… the plaintiffs, as stated, live in Gaza City and are unable to enter Israel. Therefore, they cannot hold meetings with their lawyer or sign various documents in front of him. They cannot stand before the court to give their testimony, in order to prove their case. I believe that because of the aforementioned circumstances, the situation cannot be expected to change in the foreseeable future, and even if the plaintiffs were able to surmount the 'obstacle' of the preliminary procedures, it would not be possible to examine the lawsuit itself." (Decision delivered on 14 December 2009.)
In practice, the sweeping policy of preventing Gaza residents from entering Israel to pursue their legal cases annuls the Supreme Court's decision in HCJ 8276/05, Adalah v. The Minister of Defense. In this case, the court upheld the right of residents of the Gaza Strip to turn to Israeli courts and receive a legal remedy for damages caused to them by the Israeli security forces – without legal authorization.
The Citizenship and Entry into Israel Law – 2003 empowers the Minister of the Interior to grant entry permits to residents of the Gaza Strip for a temporary purposes that are not limited to medical or "humanitarian" purposes. Therefore, the petitioners demanded that the court order the Ministry of the Interior to use its powers to allow Gaza residents to enter Israel to pursue their legal cases, and contended that the ban on their entry contradicted the Citizenship and Entry into Israel Law.
The petitioners further argued that the aforesaid policy contradicted the position adopted by Israel in various international legal for a. In those bodies, the state claims that it allows Palestinian victims of the Israeli security forces to submit compensation claims to the Israeli courts. Furthermore, the petitioners contended, the state has a conflict of interest, since it is both the defendant in these lawsuits and the party with the power to prevent the plaintiffs from accessing the courts. It is also the sole beneficiary when these lawsuits are dismissed because the plaintiffs cannot access the courts. In addition, the sweeping ban violates the principle of the rule of law, and deprives Palestinian victims of the Israeli security forces of their right of access to the courts. The petitioners stressed that this policy was in gross violation of international human rights law and international humanitarian law, and breaches fundamental rights protected by Israel's Basic Law: Human Dignity and Liberty.
