Practice Relating to Rule 126. Visits to Persons Deprived of Their Liberty
In its decision in the Diriya case in 2003, Israel’s High Court of Justice stated:
The state does not dispute the right of the prisoners to receive family visits. The supplemental response made orally by respondent’s counsel indicates that suitable arrangements are already being made to transport relatives to visits with the prisoners, beginning on 9 March 2003 and continuing thereafter, from the cities of Jericho, Qalqiliya, and Ramallah, and that it is the state’s intention to expand the transportation to other places as well, to the extent that the situation in the field allows. It appears to us that, in the absence of a dispute regarding the existence of the right, there are no grounds – at least at this time – to issue an Order Nisi. However, we shall leave the petition pending, for the purpose of examining, in another three months, if the transportation arrangements were expanded to other places throughout the region. Also, we request the respondents to check if it is possible to allow visits in Ofer Detention Facility, which is located inside the region, other than by means of the transportation that is arranged by the International Red Cross.
In its judgment in the Anbar case in 2009, concerning Israeli policy that forbids residents of the Gaza Strip from entering Israel for the purpose of visiting immediate relatives incarcerated there, Israel’s High Court of Justice stated:
6. One of the considerations the competent officials must weigh in establishing the policy concerning entry into Israel from the Gaza Strip relates to the duties applicable to Israel vis-à-vis the civilian population therein. Over the years, substantial changes have occurred in the scope and nature of these duties. When Gaza was held under “belligerent occupation” the legal regime applicable therein was determined in accordance with the rules of international public law and the law, jurisprudence and administration of Israel were not implemented therein (for a review see HCJ 1661/05 Hof Aza Regional Council v. Knesset of Israel, Piskey Din 59(2) 481, 514–516 (2005)). On 12 September 2005, following the implementation of the disengagement plan from the Gaza Strip and northern Samaria, the GOC Southern Command issued a proclamation regarding the termination of the military administration and since then, the Gaza Strip is no longer under “belligerent occupation” as far as international law is concerned, and Israel has no effective control over what transpires in this territory (see the Al Bassiouni case, Sec. 12; CrimA 6659/06 John Doe v. State of Israel A v State of Israel, Sec. 11 (not yet published, 11 June 2008)). …
7. Considering all the aforesaid, I have not been convinced that in our matter there is cause to intervene in the decision of the competent officials, which established a general policy preventing the entry of Gaza residents into Israel for the purpose of prison visits. Permitting residents to enter Israel for this purpose is not among the basic humanitarian needs of Gaza residents which Israel is obliged to allow even today. What lies at the foundation of the policy implemented by the respondents are clearly considerations of state and security and it conforms to and effectively implements the cabinet decision made for these reasons. In this context, it would not be superfluous to stress that Israel’s control over the border crossings with the Gaza Strip does not provide a solution to all the security risks involved in continuing the visits in light of the expected increased traffic through the crossings as a result of holding the visits and in light of the crossings’ being a constant target for terrorist activities (compare, HCJ 7235/09 HaMoked: Center for the Defence of the Individual v. GOC Southern Command, Sec. 2 (not yet published, 16 September 209) (hereinafter: the HaMoked case)). Thus, as far as the rights of Gaza residents are concerned, we have not found a reason to strike down the policy practiced by the respondents (for similar cases where the general policy regarding Gaza and West Bank residents was under review see and compare: HCJ 7960/04 Al Razi v. Commander of IDF Forces in the Gaza Strip (unpublished, 29 September 2005); HCJ 11120/05 Hamdan v. GOC Central Command, Sec. 16 (not yet published, 7 August 2008); HCJ 5539/05 ‘Atallah v. Minister of Defense, Sec. 10 (not yet published, 3 January 2008); the HaMoked case). At the same time, it must be recalled that according to the cabinet decision, the sanctions on the Gaza Strip are to be implemented while considering humanitarian aspects and in this context, the state noted that in exceptional cases, the competent officials do allow Gaza residents to enter Israel, for instance in order to receive medical treatment or for other exceptional humanitarian reasons. One cannot rule out that the respondents would allow visits to prison facilities if there are humanitarian reasons justifying the same. The anchor for this is found, as stated, in the cabinet decision.
8. The petitioners further claim that the policy practiced by the respondents infringes on the rights of prisoners who are residents of the Gaza Strip beyond necessity, among these are the right to family life and to live in dignity and they refer, in this context, inter alia to various provisions of international law which regulate the status of prisoners of war, inmates and detainees and their right to have contact with relatives and meet with them in the location where they are held. These claims must also be rejected. As for the provisions of international law to which the petitioners referred, we accept the state’s claim that these provisions do not deny a sovereign state the power to prevent foreigners, much less foreigners who are among the population of a hostile entity, from entering its territory even if such entry is meant for visiting relatives who are incarcerated by it. We also accept the state’s claim that the policy which is the subject matter of this petition directly concerns a restriction on Gaza residents’ entering Israel for the purpose of visiting relatives incarcerated here and not the prevention of the theoretical possibility of prisoners from the Gaza Strip receiving visitors in prison. In other words, inasmuch as the policy practiced by the respondents pursuant to the laws governing entry into Israel harms the prisoners, it is an indirect harm and the question is whether this indirect harm in and of itself justifies intervention in the respondents’ policy. Indeed, security prisoners incarcerated in Israel have human rights and these must not be infringed beyond necessity. However, we do not think that the alleged harm to the prisoners justifies a revocation of or change to the practiced policy. This, given the fact that we are concerned, as stated, with indirect harm which is the result of a legitimate policy that restricts entry from the Gaza Strip to Israel at the present time, a policy in which we have found no cause to intervene, as well as given the fact that the possibility to receive visits in prison, regarding each prisoner, is subject to the existence of certain conditions and the broad discretion given in this context to the competent officials at the Israel Prison Service (see Sec. 47(b) of the Prison Ordinance [new version] 5732-1971).
In its judgment in the Yesh Din case
in 2010, concerning the matter of Palestinian detainees from the West Bank who are incarcerated in detention facilities situated in the territory of Israel, Israel’s High Court of Justice stated: “It is necessary to take into account also the geographic proximity of the region to Israel, and that holding the detainees in Israel does not automatically deny them family visits”.