Israel’s High Court cancels policy preventing patients’ access to treatment due to alleged family ties to “Hamas members”

Erez Crossing, 2017. Photo by Gisha

Erez Crossing, 2017. Photo by Gisha

August 27, 2018. Yesterday evening (Sunday), a petition (Hebrew) filed by Gisha together with Al Mezan, Adalah, and Physicians for Human Rights Israel was accepted unanimously by Supreme Court Justices Uzi Fogelman, Isaac Amit, and Ofer Grosskopf, who ordered Israel to allow five medical patients from Gaza to travel via Israel in order to reach medical treatment unavailable in the Strip. The justices also ruled that the Israeli Security Cabinet’s 2017 decision to deny Gaza patients access to medical treatment as a means of leverage over Hamas was ineffective and illegal.

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.”

The petition was submitted on July 29 on behalf of seven critically ill women from Gaza in need of urgent medical treatment at Palestinian hospitals Augusta Victoria and Al Makassed in East Jerusalem. Israel had denied their applications for exit permits on the grounds that they were “first-degree relatives of Hamas members.” The state argued before the High Court that the patients’ refusals reflected a decision made by Israel’s Security Cabinet in January 2017 which orders “several operative measures to serve as leverage over Hamas with respect to returning captured and missing persons.” The state also confirmed that the patients themselves did not pose any threat to Israel’s security. After the petition was filed, Israel admitted that it had mistakenly identified two of the seven patients as “relatives of Hamas members” and would allow them to reach medical treatment, which had already been greatly delayed. One of the two petitioners is in such a grave condition that she has opted to forgo the bureaucratic process of re-submitting her application for an exit permit from Israel.

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.”

According to information received by Gisha following a Freedom of Information request, since the beginning of the year, Israel has denied several hundred permit applications submitted by Palestinians in Gaza on the grounds that the applicants’ “first-degree relative is a Hamas member.” Among those whose applications were denied on these grounds were patients in need of medical treatment unavailable in the Strip. When reviewing permit applications submitted by patients from Gaza, Israel’s chief consideration, beyond immediate security considerations, should be the medical needs of the patient, rather than exploiting their hardship as leverage for mounting pressure on the de-facto authorities in Gaza. There can be no justification for using patients in need of medical treatment as pawns for political gain.