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Some Reflections on Israel's Temporary Legislation on Unification of Families

Published online by Cambridge University Press:  19 March 2012

Ruth Lapidoth  and
Ofra Friesel
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Abstract

In 2003 Israel adopted the Nationality and Entry into Israel (Provisional Measure) Law, 5763-2003. The Provisional Measure deals generally with entry into Israel; at first it dealt only with entry into Israel of residents of the West Bank and the Gaza Strip, and later it was extended also to nationals and residents of Iran, Iraq, Lebanon and Syria. It is particularly relevant for cases of unification of families and immigration for the purpose of marriage.

The following article offers a short summary of the law as it has been amended in 2005 and 2007, as well as its interpretation by the government (since 2008) and then examines its conformity with international law. The Provisional Measure involves a clash between the right of the individual to marry the person of his choice and establish a family on the one hand, and the right of the state to regulate freely immigration and entry into its territory on the other hand. Since international law has not established a right to family unification nor to immigration for the purpose of marriage, the right of the state prevails in this matter. Yet, the Provisional Measure deviates from international law in a different aspect, as it leads to a de facto discrimination, mostly of Israeli Arabs. This discrimination is not permitted by the Convention for the Elimination of all Forms of Racial Discrimination, to which Israel is a party. It is recommended that Israel amends the law in order to bring it into conformity with international law.

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Articles
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Israel Law Review , Volume 43 , Issue 2 , 2010 , pp. 457 - 467
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 Nationality and Entry into Israel (Provisional Measure) Law, 5763-2003, SH No.1901, p. 544. (Isr.) No authoritative translation is available.

2 See, inter alia, Orgad, Liav, Immigration, Terrorism and Human Rights: Admission Policy and the War on Terror, 25 Mehkarei Mishpat 485 (2009)Google Scholar [in Hebrew]; Medina, Barak & Saban, Ilan, Human Rights and Risk-Taking: On Democracy, Ethnic-Profiling and the ‘Limitation Clause (following the Decision on the Validity of the Citizenship and Entry into Israel Law), 39 Mishpatim 47 (2009)Google Scholar [in Hebrew]; Barak-Erez, Daphne, Citizenship and Immigration Law in the Vise of Security, Nationality, and Human Rights, 6 Int'l J. Const. L. 184 (2008)Google Scholar; Rubinstein, Amnon & Orgad, Liav, Human Rights and National Security—The Case of Israeli Restrictions of Family Reunification during Armed Conflict, 48 Hapraklit 315 (2006) [in Hebrew]Google Scholar; Zilbershats, Yaffa, Coping with the non-Jewish Immigration to Israel (Case Comment), 10 Mishpat U'Mimshal 87 (2006) [in Hebrew]Google Scholar; Kremnitzer, Mordechai & Krebs, Shiri, A Personal View: The Arab Population Targeted by the Knesset, The Israel Democracy Institute: Newsletter (August 16, 2010) [in Hebrew], http://www.idi.org.il/BreakingNews/Pages/252.aspxGoogle Scholar. See also Report of the Committee on the Elimination of Racial Discrimination, U.N. Doc. A/62/18 (Aug. 17, 2007).

3 Proposal of Law no. 1078, submitted to the 18th Knesset on May 11, 2009. As of February 2011, the Knesset has not yet acted upon the proposal. See Basic Law: Human Dignity and Freedom, SH No. 1454 p. 90 (Isr.).

4 Nationality Law, 5712–1952, 6 LSI 50 (Isr.). The law has been amended several times.

5 Entry into Israel Law, 5712–1952, 6 LSI 159 (Isr.).

6 See the explanations in the Collection of Proposals of Laws, 5763 (2002/3), p. 482.

7 Resolution no. 1813 of May 12, 2003.

8 Supra note 1.

9 Ibid, section 3C.

10 Government resolution no. 2734, of January 16, 2011. http://www.pmo.gov.il/PMO/Secretaria/Decisions/2010/07/des2097.htm. This resolution was approved by the 18th Knesset, on January 17, 2011, http://www.knesset.gov.il/plenum/heb/plenum_queue.aspx.

11 HCJ 7052/03, HCJ 7642/03, HCJ 8099/03, HCJ 8263/03, HCJ 10650/03, HCJ 7642/03 Adalah—The Legal Center for the Rights of the Arab Minority in Israel v. The Minister of the Interior (May 14, 2006), Takdeen-Elyon Legal Database 2006, vol. 2, p. 1754Google Scholar.

12 Amended in 5765 (2004/5), SH 2018, p. 730, and 5767(2006/7), SH 2092, p. 295. See also Collection of Proposals of Laws, 5765 (2004/5), p. 624; 5765 (2006/7), p. 182.

13 The Provisional Measure, supra note 1, section 3E.

14 Since June 2008, the government has directed the Minister of the Interior to exclude residents of the Gaza strip from this exemption. See infra note 24.

15 Since June 2008, the government has directed the Minister of the Interior to exclude residents of the Gaza strip from the exemption in part 3A(2) of the section. See infra note 24.

16 The question arises whether the government in its directive to the Minister of the Interior acts in accordance with the text of section 3D, since this provision implies the need for individual scrutiny in each case.

17 HCJ 466/07, HCJ 544/07, HCJ 830/07, HCJ 5030/07 Gal'on v. the Minister of the Interior.

18 Oppenheim's, International Law 897 (Jennings, Robert & Watts, Arthur eds. 9th ed. 1993)Google Scholar.

19 International Convention of Civil and Political Rights, art. 12(4), Dec. 16, 1966, 999 U.N.T.S. 17. Israel is a party to the Convention since January 3, 1992.

20 Goodwin-Gill, Guy S. & McAdam, Jane, The Refugee in International Law 248 (3d ed. 2007)Google Scholar. Opinions are somewhat divided on the exact scope of the right to receive asylum and on the obligation of non-refoulement. Zilbershats, Yaffa, Nationality and Entry into Israel, in International Law 221, 229–34 (Sabel, Robbie ed., 2d ed. 2010)Google Scholar [in Hebrew].

21 Statute of the International Court of Justice, & 38, June 26, 1945.

22 Orgad, supra note 2 at 491-504, and Rubinstein & Orgad, supra note 2, at 328-346.

23 International Convention for the Elimination of all Forms of Racial Discrimination, art. 1(3), Dec. 21, 1965, 660 U.N.T.S. 195. On the Convention, see Lerner, Natan, The U.N. Convention on the Elimination of All Forms of Racial Discrimination (1980)Google Scholar. Israel is a party to the Convention since February 2, 1979.

24 Government resolution no. 3598, of June 15, 2008, http://www.pmo.gov.il/PMO/Archive/Decisions/2008/06/des3598150608.htm. Government resolution no. 600, of July 19, 2009, http://www.pmo.gov.il/PMO/Archive/Decisions/2009/07/des600.htm. Government resolution no. 2097, of July 18, 2010, http://www.pmo.gov.il/PMO/Secretaria/Decisions/2010/07/des2097.htm. Government resolution no. 2734, of January 16, 2011, http://www.pmo.gov.il/PMO/Secretarial/Decisions/2010/07/des2097.htm. The question arises whether this interpretation contradicts article 1(3) of the Convention.

25 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J Reports 136, paras. 104-106. One should note that human rights law continues to apply also in the relationship between a state and its own inhabitants in time of emergency or war, see Ben-Naftali, Orna & Shany, Yuval, International Law Between War and Peace 242 (2006)Google Scholar [Hebrew] subject to the possibility to derogate from certain provisions according to certain treaties.

As to the existence of a state of armed conflict between Israel and the “area,” see HCJ 769/02, The Public Committee against Torture in Israel v. The Government of Israel, Takdeen-Elyon 2006, vol. 4, p. 3958 para. I, President Barak; and HCJ 9132/07, Jaber Al-Bassiouni Ahmed v. The Prime Minister, Takdeen-Elyon 2008, vol. 1, p. 1213Google Scholar, para. 21, President Beinisch (regarding Gaza alone). See also Rubinstein & Orgad, supra note 2, at 317; Orgad, supra note 2 at 498, Zilbershats, supra note 2, at 96.

26 For conflicting attitudes in this matter, see, e.g., Orgad, supra note 2, at 501-504, Medina & Saban, supra note 2, at 75-77; and Kagan, Michael G., Destructive Ambiguity: Enemy Nationals and the Legal Enabling of Ethnic Conflict in the Middle East, 38 Colum. Hum. Rts. L. Rev. 263, 286–287 (2007)Google Scholar.

27 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 28. Israel is a party to the Convention since 1951, see KA 1 no. 30, p. 453. See also Protocol Additional I to the 1949 Geneva Conventions, art.74, June 8, 1977, 1125 U.N.T.S. 3. Israel is not a party to the Protocol.

28 Adalah v. The Minister of the Interior, supra note 11.

29 Ibid para. 17. For comment regarding President Barak's attitude, see Zilbershats, supra note 2, at 92-102.

30 See, e.g., The UN Charter, 1945; The Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948(, European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov.. 4, 1950, 21 U.N.T.S. 220; Convention on the Elimination of All Forms of Racial Discrimination, supra note 23; International Covenant on Civil and Political Rights, supra note 19; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

31 Adalah v. Minister of the Interior, supra note 11. Regarding international law and the right to family life, see ibid President Barak, paras. 33-34, Justice Cheshin, para. 47, and Justice Joubran, paras. 4-15; regarding reunification of families and international law, see President Barak, paras. 36-38, Justice Cheshin, paras. 48-57,75-83, and Justice Naor paras. 4-5. For a comprehensive analysis of the different opinions in Adalah v. Minister of the Interior: supra note 11, see Medina & Saban, supra note 2. For a discussion on the relation between Israeli law and the International Covenant on Civil and Political Rights, 1966, see Medina & Saban, supra note 2, at 72-73.

32 For an examination of the Convention within the Israel legal system, see Lapidoth, Ruth, Ben-Naftali, Orna, & Shany, Yuval, The Incorporation of International Human Rights Treaties into Israeli Law, 26-27, 44–48Google Scholar. (College of Management Academic Studies: The Concord Research Center for Integration of International Law in Israel, Position Paper no. 1, 2004) [in Hebrew].

33 Nathan Lerner pointed out that in the negotiations regarding this article these four terms were agreed upon in light of an understanding that they would cover all aspects of discrimination. See Lerner, Natan, Group Rights and Discrimination in International Law 52 (2d ed. 2003)Google Scholar

34 Ibid.

35 Convention for the Elimination of all Forms of Racial Discrimination, supra note 23, art. S(d)(iv).

36 The Provisional Measure deals with permission to reside in Israel. Although Israeli law, jurisdiction, and administration have been extended to the Golan Heights (Golan Heights Law, 5742-1981, SH 1034, p. 6), the question may arise whether this means that the Golan Heights are part of Israel. This question is beyond the scope of the present article.

37 “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups … requiring such protection … to ensure … equal enjoyment or exercise of human rights … shall not be deemed racial discrimination, provided … that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups …”

38 See Orgad, supra note 2, at 487.