In another worrying judgment generated by the Israeli HCJ, the Court upholds that the occupying power can restrict the basic human right to leave one’s country and the freedom of movement (Article 12 of the UN Covenant on Civil and Political Rights, inter alia) of the occupied population by obliging persons seeking to leave their country to sign assurances that they would not return to their homes for a period of whole one year (a restriction that the UN Committee has considered in the General Comment on the right to be in violation of Article 12). Most appallingly, this judgment also validates Israel’s practice of limiting the occupied population’s right to return to their country, which amounts in many cases where assurances ‘not to return to the region’ are for longer time periods, to measures pursuing a ‘quiet transfer’ of persons out of their homes and away from their homeland.
In the recent judgment in HCJ 7996/08 Dr. Ala-Aldin Amro v Commander of the armed forces in the occupied territories(judgment of 6 October 2008), Justice Rivlin declared unequivocally that “if indeed the concern arises out of short leaves for the purpose of prohibited contact” then “there is logic in such an arrangement” obliging an assurance to be signed. The Court arrived at this conclusion without questioning the legal basis for the State’s actions or the policy reasoning behind such a rationale which claims that a person’s barring from his home and family for one whole year would assure that he would also not engage in any “prohibited contact” that could ‘endanger the region’s security’ (terminology regularly used by the Court).
For the Court the matter seemed very clear, since “according to the statement of the [state] the petitioner is a Hamas activist and there is concern that he would use his leave to coordinate crimes with terror organizations, [the state] proposes that he sign an obligation not to engage in terror activities and not have contact with terror organizations, as well as for him not to come back to the region for the duration of a year.” The petitioner is a dentist who had been offered a position at a hospital in Abu Dabi, United Arab Emirates, whose family and whole private life remains in the West Bank. When the petitioner’s attorney requested that the Court examine the secret evidence in the hands of the state, which brought it to the conclusions that Dr. Amro is a “Hamas activist”, the Justices refused to examine the material and responded that since the authorities had come to a concessionary agreement with the petitioner that they would be allowed to leave as long as he does not return for a period of one whole year.
Furthermore, the Court states, despite the fact that the petitioner’s whole life remains in the West Bank, that “the petitioner claims that he has an employment contract for a year, therefore, in any case, he does not have any intention to return before the end of this period.” Nevertheless, the judgment reserves the petitioner’s right to challenge the assurance “in case an unpredictable event would take place which would oblige him to return to his country.” The state informed that if such a situation would occur, “it would consider a request to return without committing ahead of time that it would receive a reply.” Of course what the Court meant, but did not bother to carefully express, was rather “a positive reply”.
The Court concluded by holding that “in these circumstances the petitioner went back from his petition and it is deferred.” This is although the petitioner’s representative never requested to withdraw the petition voluntarily, as this was a decision that was imposed upon him by the Court.