On July 29, 2018, A petition (Hebrew) filed by Gisha together with Al Mezan, Adalah, and Physicians for Human Rights-Israel was brought to Israel’s High Court of Justice on behalf of seven critically ill women from Gaza whose applications to enter Israel to receive life-saving treatment had been denied on the grounds that they were relatives of Hamas members.

Israel prohibits travel to and from Gaza other than in rare cases in which applicants meet its narrow criteria. For example, Gaza residents may enter Israel in order to receive life-saving medical treatment, provided the treatment is not available in the Gaza Strip. While the seven petitioners met this criterion, according to a Security Cabinet decision, relatives of Hamas members were to be denied exit for medical treatment in Israel as a means of applying pressure on  Hamas to return the bodies of two soldiers as well as two civilians allegedly held in the Strip. The petitioners argued that the Cabinet decision in general and the denial of the permit requests at the center of the case, in particular, fail to comply with Israel’s obligations under international humanitarian law, constitute collective punishment, and violate the rights to dignity, life and health.

After the petition was filed, it came to light that two of the petitioners were not, after all, relatives of Hamas operatives and their entrance into Israel was approved.

In its response (Hebrew), the state argued there was no cause for the court to intervene in the decision to deny the petitioners entry into Israel for treatment. The state also notified that the petitioners would be permitted to transit through Israel to receive treatment in the West Bank or abroad. The petitioners clarified that this option was not helpful to them, as the treatment they need is not available in the West Bank and they could not afford to receive it abroad.

Following the hearing held on August 20, 2018, the state filed a supplementary notice (Hebrew). It stated that according to the current policy implemented by the minister of defense, a first-degree relative of a Hamas member who needs life-saving or life-altering treatment (such as the five petitioners) would be permitted to enter Israel solely for the purpose of passage to the West Bank (not including East Jerusalem) or abroad. The statement included three exceptions to this rule: Urgent life-saving treatment, life-saving treatment that cannot physically be obtained abroad (excluding “purely financial” reasons), and life-saving treatment for minors under 16 that is not available in the West Bank or abroad. In these cases, treatment in Israel would be permitted.

During a second hearing on the petition, held on August 23, 2018, the petitioners presented the court with several documents, including an expert opinion from Dr. Bella Kaufman, President of Oncological Support at Sheba Medical Center, in which she stated that travel for treatment abroad would put the lives of the petitioners in immediate danger. The petitioners also submitted a document issued by the World Health Organization stating that the required treatment is not accessible abroad, and a letter from the head of surgery at Augusta Victoria Hospital confirming that the required treatments are only available in East Jerusalem, not in West Bank hospitals.

On August 26, 2018, the Court, with Justices Vogelman, Amit and Grosskopf presiding, issued its judgment (Hebrew), accepting the petition and instructing the state to allow the petitioners to enter and receive medical treatment in East Jerusalem immediately.

Justice Vogleman wrote the main judgment, in which he ruled:

“… Based on the normative framework developed in the jurisprudence of this court, given the balance between the aforesaid considerations, the State of Israel permits entry for life-saving treatment, other than in cases in which the person seeking treatment personally poses a security threat. In this petition, the state seeks to depart from the aforesaid and follow a new sweeping rule, whereby even when life-saving treatment is at issue, if the person seeking said treatment is a first-degree relative of a Hamas operative they will be denied entry to Israel to receive life-saving treatment, solely because of this family connection, unless one of the three exceptions applies. This position cannot pass judicial scrutiny under the criteria determined in our jurisprudence.”

“…The value of life at its most elementary and cardinal sense is at stake. Denying available medical treatment to 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. We recall that as a rule, the respondents grant residents of the Gaza Strip who have life-threatening medical conditions permits to enter Israel to receive treatment. On the other hand, immediate relatives of Hamas members who are in the same predicament, are not granted entry as stated, even in cases in which there is no dispute that they pose no security threat whatsoever.”

“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, or to the full set of considerations we have addressed, including the fact the patient had no involvement whatsoever in prohibited activities. As such, the decision is entirely unreasonable.”

Justices Amit and Grosskopf concurred, with Justice Amit adding:

“The state is not being asked to provide the petitioners with medical treatment. The state is not being asked to pay for the petitioners’ medical treatment. The state is not being asked to find a facility where the petitioners could get medical treatment. The state is not being asked to take action to save the petitioners’ lives. The state is not being asked to allow a person who poses a security threat to enter Israel. All the state is being asked to do is not to prevent the petitioners from receiving medical treatment in a Palestinian hospital, at the expense of the Palestinian Authority, in a facility where Palestinian patients from all over the West Bank receive treatment. True, the two hospitals (Al Makassed and Augusta Victoria) are located in East Jerusalem, and if the treatment had been available in Ramallah, some 20 km away, the issue would not have arisen. However, there is no other alternative. The decision to deny the petitioners life-saving treatment at a Palestinian hospital in East Jerusalem literally means putting a woman to death for the sins of her brother/husband/son in contravention of the basic Jewish edict: ’Each man shall die for his own iniquity‘ (Jeremiah 31:29) …”

Justice Grosskopf remarked:

“The possibility of using a patient who desperately needs life-saving treatment and who is not alleged to have been herself involved in activities designed to harm Israel as ’leverage‘ does not conform with the values of the State of Israel and cannot legally stand, all the more so given that this is a sweeping policy aimed at an unknown number of patients in critical condition whose only sin is that they are immediate relatives of Hamas members, whether senior or junior.”