Court rejects Gisha’s petition to allow runner Nader Masri to exit the Gaza Strip in order to participate in the Palestine Marathon in Bethlehem, 2486/14 Masri v. Defense Minister
On April 3, 2014, Gisha filed an urgent petition to the High Court of Justice on behalf of Nader Masri, a marathon runner from the Gaza Strip whose request to exit the Strip in order to race in the Palestine Marathon in Bethlehem had been denied by the military.
The military initially rejected Masri’s application for allegedly failing to meet the criteria for approval of entry to Israel from the Gaza Strip. However, the authorities changed their arguments after Gisha informed the State Attorney’s Office that it was planning to take legal action. Gisha clarified that Masri’s application met the requirements of Section 16 of the document entitled Policy on Movement of People between the State of Israel and the Gaza Strip. According to this section, travel from Gaza to participate in events sponsored by the Palestinian Authority is permitted. The respondents then retracted their earlier argument, and claimed that they had not received a request from the Palestinian Authority regarding the petitioner. However, this argument was also refuted after the court was presented with evidence that a request from the Palestinian Authority had been received by the Israeli authorities.
In their response to the petition, dated April 6, 2014, the respondents abandoned their previous procedural claims and focused on the substantive argument that even when requests are filed according to all the required conditions and meet the criteria, they are still subject to the discretion of the relevant officials and that this discretion is extremely broad and includes political interests. On the merits, the respondents claimed that “approval of the application depends on the status of relations between Israel and the Palestinian Authority and not on the status of relations between the individual applicant and the State of Israel”.
During the hearing held on April 7, 2014, it came to light that the decision to deny Masri’s request for political reasons had not been made by policy-makers but rather by military officials only. Following this revelation, the court took a two-hour recess, during which the respondents were instructed to obtain the defense minister’s confirmation that he had approved the decision. After the recess, counsel for the respondents notified the court that the matter had been brought to the attention of the defense minister, and that he approved the decision not to allow the petitioner to participate in the race.
“Due to the circumstances described above, we cannot accept the petition”, wrote Justice Barak-Erez in her judgment dated April 7, 2014. The minister of defense allegedly acted according to the discretion vested in him by the policy document, and as is known, room for intervention in this discretion is very limited”. Though the court rejected the petition, it did express its dissatisfaction with the respondents’ conduct in the petitioner’s case, and suggested the criteria for allowing athletes to exit Gaza be expanded in future. Justice Barak-Erez further wrote: “It is not superfluous to note that the policy document includes reference to a criterion of ‘soccer players’, in relation to the Palestinian national soccer team and the Palestinian Olympic team, and so, it stands to reason that, even according to security officials, passage for the purpose of athletic activities is worthy of consideration. It would be good if the respondents weighed the possibility of expanding this exception to other athletic fields, in the same spirit, and considering appropriate cases that might arise in the future. In any event, inasmuch as the review of the decision is limited to the legal aspect – under the current circumstances, we are unable to provide the petitioner with a remedy”. In light of this, the petition was dismissed without a costs order.