Australian activists put Palestine travel ban on trial

Sylvia Hale and Vivienne Porszolt at a demonstration in Jerusalem.

Sylvia Hale

In July, a large group of international activists tried to enter Palestine by flying into Israel’s Ben Gurion airport as part of the Welcome to Palestine initiative.

Hundreds of those who tried to challenge Israeli control of Palestine’s frontiers were prevented even from boarding their planes in Europe, as Israeli blacklists were implemented by several airlines. Others were stopped by Israeli border controls at Ben Gurion airport and deported for declaring that they wanted to visit Palestinians in the occupied territories.

But to their own surprise as much as anyone else’s, two Australian women, Sylvia Hale and Vivienne Porzsolt, managed to have their deportation order overturned in an Israeli court. They were among only six participants in Welcome to Palestine who were finally granted admission, the others being Dutch and German activists who “pledged not to participate in violent protest activities,” as Haaretz reported (“Israel to deport pro-Palestinian ‘fly-in’ activists within 48 hours,” 9 July 2011).

But did their case also set a legal precedent for future visitors to Palestine?

Spur of the moment decision

Hale and Porzsolt, both aged 69, are respectively a former Green Party member of the New South Wales upper house of parliament, and a spokesperson for Jews Against the Occupation. Joining Welcome To Palestine was, both say, a spur of the moment decision.

They had planned to join the Gaza Freedom Flotilla II aboard the Canadian-organized vessel Tahrir. Indeed, both women only became aware of the so-called “flytilla” several days after it started, when fellow flotilla members started to mention friends who had been deported after the initial wave of arrivals at Ben Gurion airport on 8 July.

“By the morning of 10 Sunday it was obvious that the Tahrir wasn’t going anywhere,” says Sylvia Hale, referring to the measures taken by Greece to block all Gaza-bound vessels from leaving its ports. “Although most of the people on Welcome to Palestine had already been, it was billed as a week-long effort, so we decided to go”.

Both women had already attracted a certain amount of coverage for their flotilla role – including a Haaretz profile by Amira Hass (“Gaza-bound / From Aborigine to Palestinian rights,” 29 June 2011).

Held at Ben Gurion Airport

Despite this, they had no trouble boarding an Aegean Air flight from Athens which arrived at Ben Gurion Airport at 4:30am on Monday, 11 July. “I think we took them totally by surprise,” says Hale. “When they said, ‘What is the purpose of your visit to Israel?’ And we said ‘We don’t want to visit Israel, we want to go to Palestine,’ the border official’s jaw dropped. There was absolute consternation.” As they were led to the holding area at the airport, both women called out, “We want to go to Palestine – Free Gaza! Free Palestine!”

Like other participants in Welcome to Palestine, Hale and Porzsolt were held at Ben Gurion airport, separated from their belongings and denied pens and paper, although they were permitted reading materials. “Then we were taken to have a shower in an area used for children,” says Hale. “There were crayons there, which we managed to use to keep a detailed record of times and dates.”

After repeatedly being told that they would be deported back to Athens, the women were given access to an official from the Australian Embassy in Tel Aviv, who offered them a list of lawyers who handle immigration cases but were, says Hale, “discouraging.” Recognizing the name of Leah Tsemel, who has represented many Palestinians and Palestine solidarity campaigners over the years, Porzsolt elected to contact her and she and Hale were passed on to Omer Shatz.

Shatz, a Tel Aviv-based lawyer who recently scored a landmark victory on behalf of Palestinian defendants from Silwan, was “keen” to take on the case. Visiting the detention center late at night, he warned Hale and Porzsolt that they would have to trust him to rapidly prepare an affidavit in Hebrew and to apply for a stay to their deportation order. The women were in court by late morning of the following day.

An unusual ruling

This is where Sylvia Hale and Vivienne Porzsolt’s experience of the Welcome to Palestine project diverges from that of other participants. Arriving at the Central District Court in Petah Tikva, they were “surprised” to find several TV crews and other journalists waiting for them, including representatives of The Australian newspaper and the Australian Broadcasting Corporation (ABC). Attempts to prevent the women speaking to the media and push them into a side-room “made for great TV,” one journalist later told them.

The prosecution in State of Israel vs Hale and Porzsolt claimed, according to the court transcript, that “The refusal to allow entry stems from a decision at government levels based on evaluation by security sources … The defendants requested to visit Judea and Samaria [West Bank]. There is a procedure of the Government Coordinator of Activities in the Territories whereby foreigners interested in entering those areas must make a request before entering Israel or to request a permit whilst in Israel.” Any flotilla participants, however, would by definition be refused entry by the Israeli army, the prosecution went on to say.

But following the proceedings via an unofficial translator from the Australian Embassy, Hale and Porzsolt discovered that Judge Avraham Yaacov had come up with an unusual proposal — that, in the words of the trial transcript, “Defendants will be permitted to enter Israel on condition that they will sign an undertaking not to disturb the peace … Within 24 hours of their release they will request approval from the relevant IDF [Israeli army] authorities to enter the West Bank. Until such approval is given they will not enter this area. If their request is refused, they will leave the country within 24 hours from the time the refusal is delivered to their legal representatives. The defendants will be permitted to appeal to the appropriate court if their request … is refused.”

Israeli government lawyer “unprepared”

The Israeli government lawyer was, says Sylvia Hale, “totally unprepared.” He had arrived in court, she says, in a T-shirt and jeans — which, as Shatz commented to the women, no defense lawyer would get away with. The state lawyer had apparently arrived without papers and had to leave the court to take instructions on how to respond to the judge’s idea. He did attempt to argue that calling out “Free Gaza, Free Palestine” as they were led to the airport holding cells was a “provocative” act, but the judge asked if they had been warned not to shout, and if they stopped when told.

“Yes, they did,” Yaacov was told, and he ruled that the act had not been provocative. The judge also denied the state’s request for bail to be set at 50,000 shekels ($14,000), cutting the sum to just 2,500 shekels ($700) per woman. “Our lawyers seemed as surprised as us by the outcome,” says Hale. “One of them turned and gave me a high-five.”

“He seemed to take everything we said at face value, but simply not to understand the possible implications of his decision,” says Sylvia Hale of the judge in Petah Tikva. The following day, she says, German activists from Welcome to Palestine faced the same official and had their deportation order upheld.

“He was splitting hairs, talking about how they had said they wanted to go to both Palestine and Israel and that this was a ‘provocative act,’” says Hale. “We think that this was probably an excuse — that he was leaned on.”

But neither Hale and Porzsolt seem to have a clear idea as to why their judge handed down their unusual ruling. “I think it was partly just good luck,” thinks Hale. “Good luck that we found a lawyer who wanted to pursue the case, that we got a judge who just wasn’t on the ball, that the state’s counsel was unprepared, and that our support people in Australia responded quickly and notified the Australian embassy.”

The “grey hair factor,” Porzsolt suggests, of facing two “respectable older women” might also have influenced the court’s ruling.

A legal precedent?

Welcome to Palestine co-organiser Mazin Qumsiyeh told The Electronic Intifada that “All actions that stir the pot or challenge the status quo are important — the status quo of aparthied and isolation must be challenged.”

In relation to the Petah Tikva court’s decision, he confirmed that “lawyers from [Palestinian human rights organizations] Addameer and Adalah did not think it was an extremely useful legal precedent.” But, Qumsiyeh added, Welcome to Palestine’s coordinators believed that it was useful and important to exhaust all the possible legal procedures available to them in Israel, before taking their cause to higher international courts.

Omer Shatz agrees in documents passed to The Electronic Intifada that the case probably does not constitute a useful precedent for future visitors to Palestine trying to pass through Israel’s border controls. “I wish the judge was … coherent … The truth is he came with a prepared verdict and seemed scared after your release,” he told Hale in response to queries about the possible impacts of their case.

Shatz speculates that Yaacov “didn’t understand” the potentially explosive nature of the decision he made, and says that Yaacov never explained why he handed down a ruling in Hale and Porzsolt’s case which “contradicted” the decision he made just a day later regarding other Welcome to Palestine activists.

On the other hand, claims Shatz, this decision, made in a district court, “[overcame] the Supreme Court’s decision regarding Irish Nobel Peace laureate Mairead Maguire which Adalah took to the district and then appealed to the Supreme Court.” Maguire, who was deported after taking part in the 2010 Freedom Flotilla, was jailed and deported following a further attempt to enter Palestine via Ben Gurion airport in September 2010.

Israeli army fails to respond to request to enter West Bank

In the end, neither Hale nor Porzsolt visited the West Bank. Despite following the court’s orders and applying to the Israeli army for formal permission, they never received a reply. Both women believe that this was a deliberate move by the Israeli military coordination, allowing the army to claim that it did actually not deny them entry; instead, they took part in demonstrations against Israel’s colonial policies in Jerusalem.

But for Hale and Porzsolt, the effort and expense of pursuing their case were worth it, even if the legal precedents set are slender. According to Hale, the “parochial” Australian press would have paid little attention to the Welcome to Palestine initiative if Australian citizens hadn’t been involved, and she believes that the reporting of her “two days in the cooler, just for saying that you want to go to Palestine, crystallized a few things for some people.”

And, Porzsolt believes, it is vital to raise awareness among the general public that the Israelis still control every means of access to Palestine — a situation she calls “legally ridiculous.”

“What Welcome to Palestine emphasizes is the issue of access, rather than trying to talk about aid and humanitarian cargoes,” she declares. “Freedom of movement is the real issue here.”

Sarah Irving is a freelance writer, author of the Bradt Guide to Palestine and co-author with Sharyn Lock of Gaza: Beneath the Bombs. She worked with the International Solidarity Movement in the occupied West Bank in 2001-02 and with Olive Co-op, promoting fair trade Palestinian products and solidarity visits, in 2004-06. She is currently working on a biography of Leila Khaled.