No Treatment in Gaza, No Security Risk, but Israel Prevents a Seriously ill Man from Getting Treatment
· Gisha and Physicians for Human Rights-Israel appealed to the High Court of Justice on behalf of Issam Hamdan against a District Court ruling blocking his exit from Gaza for emergency medical treatment.
· The State refuses to allow him out of Gaza based on its claim that he may settle in the West Bank after treatment.
· Mr. Hamdan requires immediate surgical intervention; suffers from severe pain and paralysis of his left side.
· Israel will bear no cost for the treatment, to be performed in a Palestinian hospital in east Jerusalem, and admits that it makes no security claim against Mr. Hamdan.
· Mr. Hamdan’s case is part of a new trend in which Israel blocks treatment for Gaza patients, even in the absence of a security claim.
Tue., February 9, 2010 – Gisha – Legal Center for Freedom of Movement and Physicians For Human Rights-Israel filed an appeal today (February 9, 2010) in the Supreme Court on behalf of Issam Hamdan against a District Court ruling declining to intervene in a decision by the Israeli military to prevent him from exiting the Gaza Strip in order to receive emergency medical treatment.
Mr. Hamdan, a 40-year-old resident of Gaza, has been suffering for two years from severe back pain due to a protruding disk in the vertebra of his neck, which has caused the almost total paralysis of the left side of his body. Recently, the paralysis has begun to spread to his right side.Due to his deteriorating medical condition and the unavailability of appropriate treatment within the Gaza healthcare system, he was referred five months ago for emergency neurosurgery at a Palestinian hospital in east Jerusalem. The referral was supported by an Israeli specialist in orthopedic surgery from ShebaHospital in Tel Hashomer, who determined that without immediate surgical intervention, Mr. Hamdan is likely to sustain permanent damage.
For months, the Coordinator of Government Activities in the Territories (COGAT) claimed that its refusal to issue a permit was due to the availability of the necessary medical treatment within the Gaza Strip – even though Palestinian and Israeli doctors determined that the treatment was not available there.Indeed, after Gisha’s Adv. Tamar Feldman filed a petition on Mr. Hamdan’s behalf to the Beersheva District Court, COGAT admitted that the treatment is not available in Gaza but instead justified its refusal with a stated concern that Mr. Hamdan would decide to settle in the West Bank after receiving medical treatment.
Mr. Hamdan has children and family in both Gaza and the West Bank. He has committed to return to Gaza, where he lives with his parents and his oldest daughter, of whom he has sole custody, after completion of treatment.He is also willing to commit to refrain from entering the West Bank, where his wife and four of his children live.
Judge Rachel Barkai, who presided over the case in the District Court, conceded that, “There is no dispute that at this time the petitioner needs surgical intervention unavailable in a Gaza hospital.” However, despite this and the fact that the State did not provide any evidence in support of its claim, Judge Barkai denied the petition anyway, writing that:“In balancing the values on both sides of the scales – on one hand, the need for medical treatment, and on the other hand, the concern that he will take advantage of his entry permit in order to relocate, the respondents’ refusal to permit the petitioner’s entry to the territory of the State of Israel does not justify judicial intervention.”
Judge Barkai also ruled that Israel bears no duty to concern itself with the welfare and healthcare of residents of the Gaza Strip.That determination contradicts the judgments of the Israeli Supreme Court,which expressly stated that Israel bears humanitarian obligations towards the residents of the Gaza Strip stemming from the law of combat, the control that Israel exercises over Gaza’s crossings, and the Gaza Strip’s dependence on Israel resulting from the long years of Israeli occupation in Gaza. The position of Gisha and Physicians for Human Rights-Israel is that Israel also owes obligations to Gaza residents under the law of occupation.
"In light of the absence of any security claim whatsoever against approving the request, it is not clear to the appellant why the respondents refused his request and why the lower court rejected his petition, preventing him from receiving urgent and vital medical treatment," Gisha’s Adv. Tamar Feldman wrote in the appeal. "The extended proceedings in the appellant’s case are prolonging his suffering and frustrating his chances of treating his serious ailment."
Physicians for Human Rights–Israel is aware of two other cases of patients who, like Mr. Hamdan, have recently been refused permission by Israel to leave Gaza in order to receive medical treatment based on the claim that they may settle in the West Bank.This is a new phenomenon that reflects an escalation in Israeli policy toward residents of Gaza who require medical treatment.The policy violates the basic rights of patients to receive medical care, including in emergency cases, putting political considerations ahead of Israel’s duty to safeguard the health of residents of Gaza.