Gisha and three other organizations petition High Court on behalf of Gaza patients denied access to medical treatment by Israel due to alleged family ties to “Hamas operative”

August 8, 2018. Following a record low in exit permit approvals for Gaza patients in 2017, Israel’s policy with regard to exit permits for Gaza residents has been further tightened. Figures provided by the Israeli Ministry of Defense in response to a Freedom of Information Act request by Gisha indicate that in the first quarter of 2018 alone, 833 exit permit applications by residents of Gaza were denied by Israel on the grounds that the applicants’ “first-degree relative is a Hamas operative.” For comparison, the Israeli authorities refused 21 applications on these grounds throughout 2017. This marked escalation in Israel’s permit policy is apparently a response to a Security Cabinet decision from January 2017, which has been applied more rigorously since the beginning of 2018.

Among those whose applications have been denied on these grounds are medical patients in need of treatment that is unavailable in Gaza. On July 29, a petition (Hebrew) was submitted by Gisha, Adalah, Al Mezan, and Physicians for Human Rights Israel to Israel’s High Court on behalf of seven medical patients who were openly denied access to treatment because of a claim that members of their family are “Hamas operatives.” The petition demands that the patients be allowed to exit Gaza via Erez Crossing in order to receive the urgent, critical medical care they require and can only receive in hospitals in East Jerusalem, which are subsidized by the Palestinian Authority .

At Gisha’s initiative, Israeli Members of Knesset Dov Khenin, Ayman Odeh, Michal Rozin, Mossi Raz and Issawi Frej signed a letter (Hebrew) calling on the minister of defense to rescind the new policy.

In a written exchange between Gisha and the State Attorney’s Office after the petition had been submitted, the state offered to allow six of the seven patients named in the petition to travel through Erez Crossing to receive medical treatment in the West Bank or abroad. We reminded the state attorney that the treatment needed by the patients is not available in West Bank hospitals and extremely expensive to obtain abroad, without subsidy from the Palestinian Authority. The petitioners need access to medical treatment only available in East Jerusalem, which the state considers to be part of Israel; meaning that the state attorney’s purported solution was entirely irrelevant to the case. As we see it, the state’s proposition essentially means continued denial of critical, extremely urgent medical treatment that could save the petitioners’ lives.

The state attorney also notified us that, on second thought, one of the seven petitioners would be allowed to reach her treatment in East Jerusalem after all, despite initially being denied a permit on the same grounds as the other petitioners. She has been instructed to submit another application in order to obtain a permit from Israel.

In its preliminary response (Hebrew) to the petition submitted to the court, the state said it saw no reason for the court to intervene in its policy, seeing as “no person has a vested right to enter Israel for medical treatment.” A hearing on the petition has been set for August 20.

The petitioning organizations issued a joint statement, stating that: “Once again it comes to light that Israel is using patients in need of medical treatment, including cancer patients, as pawns for political gain. When reviewing permit applications submitted by patients from Gaza, Israel’s chief consideration should be their medical needs, rather than exploiting their hardships as leverage for mounting pressure on the de-facto authorities in Gaza. Denying patients access to medical treatment on the grounds that they have family relations to Hamas members is a breach of international law, and completely immoral. Israel must immediately put an end to this unacceptable practice, which increases the suffering and despair of Gaza residents, and allow patients access to life-saving treatment that is unavailable in the Strip.”

Update: August 27, 2018. Israel’s High Court cancels policy preventing patients’ access to treatment due to alleged family ties to “Hamas members”. In the judgment (Hebrew), the justices stated: “The value of life at its most elementary and cardinal sense is at stake. Denying available medical treatment from a person [who is critically ill and without access to treatment], or significantly and sweepingly limiting access to it without individual examination, in circumstances where there is no feasible option of obtaining treatment abroad, means putting the person in real danger.”

Representatives of the petitioners, Gisha attorneys Muna Haddad and Sigi Ben Ari, argued in court that the decision to deny the petitioners, most of whom have cancer, passage through Israel was illegal, and effectively constituted a punitive death sentence for reasons entirely out of their control. Adv. Haddad clarified that Israel was not being asked to subsidize the medical treatment, but simply to comply with its responsibilities towards Gaza residents given Israel’s ongoing control over the crossings. By virtue of its control, Israel is obligated to enable medical patients to enter Israel in order to access necessary medical treatment, an obligation which Israel only fulfills in the cases of severe and exceptional medical conditions.

The justices ruled that Israel’s decision to impose a sweeping prohibition on exit of Gaza residents in need of urgent medical treatment to serve as leverage over Hamas is invalid, stands in violation of fundamental human rights, and moreover, that it does not promote Israel’s objective of returning captured and missing persons. “Ignoring these, and basing the decision on a relative’s prohibited activity, with no suggestion that the patient herself is involved in or even aware of the activity, is contrary to the basic principles to which we are committed,” concluded Justice Fogelman, the lead justice on the case. “The objective of returning captured and missing persons, despite its great importance, which is not being disputed, cannot serve to justify any measure, in and of itself. The respondents’ decision on this matter does not give adequate weight to the value of human life, which is at stake… The decision is entirely unreasonable.”