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Israeli journalists have been forbidden to enter the Gaza strip for more than two years. Amira Hass and Shlomi Eldar, two well-known Israeli reporters, who entered Gaza before the military operation and reported from there were immediately arrested upon returning to Israel. Foreign journalists have been denied access since the beginning of November 2008, because of the interruption of the cease fire with Hamas and the restrictions on the opening of the Erez crossing. The Foreign Press Association’s first petition The Foreign Press Association petitioned the HCJ on the 24th of November 2008 against this new policy and requested that free access be allowed. The petitioner declared that the reporters demanding to enter the Gaza Strip are willing to exempt the state of Israel from responsibility for their safety. Although the petition was filed on November 24th , the first hearing was set only on January 31st (5 days after the operations in Gaza started) and after the petitioner filled an urgent request for an interim decree, pleading that in light of the new circumstances - the IDF military operation in the Gaza Strip – and the great interest it aroused worldwide, foreign correspondents should be allowed to enter the Gaza Strip in order to cover the events.
On the 2nd of January 2009 the Court rendered its ruling (HCJ 9910/08) and stated that
“Indeed, the freedom of speech and the freedom of the press, as for the public's right to know, remain unchanged even in times of war, and in a period such as this, they have an all the more special importance; however, these rights are not absolute and under the circumstances of the situation in question they are to be balanced against the predicted risk to human lives as a result of opening the crossing points between Israel and the Gaza Strip”
and completely endorsed the State’s proposal to let eight correspondents – a “pool”– enter Gaza when the crossing was already made possible for humanitarian purposes, and that the entry of the foreign correspondents was to be coordinated a day prior to the requested entry date with the relevant authority. In addition the Court endorsed the state position that the above procedure was “to be subject to changes according to circumstances. However, we expect the respondents to act, as much as possible, according to the procedure they established, and in consideration of the rights and interests represented by the petitioner”. However, a day after this ruling the ground operation in Gaza started. The State saw in that a fundamental change of condition which rendered impossible for security reasons to implement the decision. Thus, the procedure which the state had agreed on just a day before was never implemented. The Foreign Press Association’s second petition
On January 20th, after the end of the operations, the State was ready to grant journalists access to Gaza. Nonetheless the Foreign Press Association filed another petition requesting full access to journalists, as it was prior to November 2008, because they were not satisfied with a mere declaration of intention by the State and wanted a Court ruling on the issue. In the course of the hearing the State agreed to give access, but only to foreign journalists and not to Israeli journalists holding a foreign passport; and said that on January 23rd more than 100 foreign journalists had already entered Gaza. The declaration of the state was endorsed in a ruling rendered on January 25th. Did the State violate the first ruling?
In its second ruling the Court stated that it would not decide whether there had been a violation of its previous decision as it was not a relevant question to this petition. The State claimed that there were no violations, because all restrictions were only imposed for security reasons. The petitioner did not ask that the State be held in contempt of the Court. They did not have yet the following information that was published a day after the filing of the second petition : Haaretz revealed a letter from the Ministry of Defense’s legal advisor to its counterpart at the Prime Minister’s office showing that the ministry of Defense had already stated for more than a week (since the 11th of January) that security conditions did not prevent journalists from entering, but that the Prime Minister’s office along with the Foreign Minister’s office had continued to block access for public relations reasons, using security as an excuse. In this letter the Defense legal advisor warned that if the Prime Minister’s office continued to block access, the State could be held in contempt of the Court. It is to be noted that the State did not deny the existence of this letter and what it contained. (The original article was published only in Hebrew in the printed edition of Haaretz of 21 January 2009. A partial translation of the article was published in Haaretz online ).
The Israeli High Court rendered in 2008 two decisions in which it ruled that Gaza is not occupied since the Israeli disengagement in September 2005. Nevertheless, the Court ruled that Israel still has some obligations towards Gaza. These obligations derive from the law governing international armed conflicts, control over borders and the dependency that was created during 38 years of occupation. "... [S]ince September 2005 Israel no longer has effective control over what takes place within the territory of the Gaza Strip... Under these circumstances, the State of Israel bears no general obligation to concern itself with the welfare of the residents of the Strip or to maintain public order within the Gaza Strip, according to the international law of occupation... Under the current circumstances, the primary obligations borne by the state of Israel with regards to the residents of the Gaza Strip are derived from the state of armed conflict that prevails between it and the Hamas organization which controls the Gaza Strip; its obligations also stem from the degree of control that the state of Israel has over the border crossings between it and the Gaza Strip; and also from the situation that was created between the state of Israel and the Gaza Strip territory due to years of Israeli military control in the area (HCJ 9132/07 para. 12)."
- The Unlawful Combatants Law
The Unlawful Combatants Law (2002) authorises the state of Israel to detain "illegal combatants" until the end of hostilities. Illegal combatants are defined as foreign nationals who belong to a hostile organisation or have participated directly or indirectly in hostile actions against the state of Israel, and who do not benefit from the protection of the third Geneva Convention. The detention is an administrative one which aims to prevent future hostile actions. Detainees may be held for 14 days before seeing a judge. On 11 June 2008 the Supreme Court rendered a decision on the appeal of detainees from Gaza and ruled that the law is constitutional (A. v. State of Israel, Crim. App. 6659/06, 11 June 2008). On 30 January 2008 the Winograd Committee delivered its final report. The Winograd Committee was appointed in September 2005 by the Government to inquire into the events that took place during the second war in Lebanon (July-August 2006). This is a contribution by Sharon Weill.
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