Overruling Cabinet, Court Allows Gazan Relatives of Hamas Members to Receive Medical Treatment in Israel

Justices reject a compromise pushed by the Defense Ministry that would permit patients to travel through Israel to seek treatment abroad

Palestinians in the Erez border crossing, August 2018.
Eliyahu Hershkovitz

The High Court of Justice nixed Sunday a Defense Ministry directive preventing Gazans with ties to Hamas members from receiving lifesaving treatment in Israel.

The justices determined that, while the goal of applying pressure on Hamas to release two Israeli civilians who entered the Gaza Strip years ago and to return the bodies of two killed soldiers is appropriate, the end does not always justify the means.

>> Israel bars Gaza mother from accompanying 3-year-old son to chemotherapy ■ Opinion: The Goldins’ revenge on Gaza’s cancer patients ■ Opinion: What it's like being a cancer patient in Gaza

The directive, issued by Defense Minister Avigdor Lieberman and stating that family relationship to a Hamas member is sufficient cause to prevent patients from leaving the Gaza Strip for treatment, is relatively new. It was issued following a demand by the family of Lt. Hadar Goldin, who was killed in the 2014 Gaza war and whose remains are still being held by Hamas.

The directive is a more extreme rendition of a decision issued by the security cabinet in January 2017 that voted to cut the number of humanitarian exit permits to Hamas members and their relatives. That decision, however, allowed cases that needed lifesaving care to enter Israel for treatment.

The High Court judges who deliberated the case, Uzi Vogelman, Isaac Amit and Ofer Groskopf, unanimously accepted the petition filed on behalf of five seriously ill women whom Israel had barred from receiving lifesaving treatment at hospitals in East Jerusalem.

Because the treatments the women need are not available in West Bank hospitals, the Palestinian Health Ministry refers those requiring such treatments to hospitals in East Jerusalem. The PA funds these treatments, but not treatments abroad if there is an alternative in the Palestinian healthcare system.

Justice Groskopf wrote that "the possibility of using a patient in desperate need of lifesaving medical treatment, who no one claims is herself involved in activities against the State of Israel, as a 'pressure lever' is not compatible with the values of the State of Israel and cannot stand legally. When it comes to a sweeping policy directed at a group of patients in critical condition, whose only crime is that they are first-degree relatives of Hamas members, it is even clearer that this cannot stand."

Cancer patients in Gaza protest the denial of their permits to leave and get treatment
עמותת הסיוע והתקווה לחולות סרטן

The justices also rejected a compromise proposed by Lieberman and backed by Attorney General Avichai Mendelblit recommending that the petitioners be permitted to travel via Israel to receive treatment abroad, and that minors younger than 17 who are related to Hamas members be permitted treatment in Israel, in cases where there is no alternative treatment available abroad. The justices ruled that making such exceptions was only a theoretical gesture.

The justices found there was no substantive reason to alter a previous court decision on this matter. The previous decision accepted the strict restrictions Israel placed on Gazans following the 2005 disengagement and Hamas's rise to power, but said that in cases of mortal danger, cases should be determined on an individual basis to see if a patient presented a security risk.

Vogelman wrote that the response by the authorities to the petition "does not place appropriate weight on the value of human life nor on the absence of any involvement by said patient in illegal activities of any sort. Therefore the decision [by Lieberman] does not fall within the bounds of reasonableness."

The petition was filed in late July, and joined by human rights groups Adalah - The Legal Center for Arab Minority Rights in Israel, al-Mezan Center for Human Rights, Physicians for Human Rights and Gisha. The petitioners were represented by Gisha attorneys Muna Haddad and Sigi Ben-Ari. Attorney Arin Safdi-Atilla represented the state on behalf of the State Prosecutor’s Office.

The last session held on Thursday was attended by representatives of the Shin Bet, defense ministry and the Civil Administration's District Coordination and Liaison Office, who submitted documents to the state attorney, which were later provided to the justices.

Haddad and Ben-Ari submitted to the justices three professional opinions by Dr. Omar Abdul Shafi, head of surgery at Augusta Victoria Hospital in East Jerusalem and Prof. Bella Kaufman, Head of the Breast Oncology Institute at Sheba Hospital, explaining why the state's proposed compromise, allowing patients to seek treatment abroad, wasn't reasonable.

In his decision, Vogelman quoted Kaufman's opinion almost in its entirety, which explains how "the condition of the petitioners (cancer patients) continues to deteriorate while treatment is delayed. Travel to a distant country - whether Jordan, Turkey or any other country - would prevent reasonable treatment, harm the continuity of treatment and put their lives in immediate danger. The same goes for petitioners suffering from conditions requiring complicated brain surgery, which cannot be done in Gaza but can be carried out East Jerusalem. Their condition does not permit much movement, (the headaches, convulsions, blindness and infection)."

The petitioners welcomed the High Court decision: "The High Court's ruling is the obvious choice, but it's regrettable that three justices had to intervene in order to wave a black flag against the directive, which was cruel and illegal to begin with. The High Court did well also to overrule the state's outrageous claim that you can use seriously ill people as bargaining chips, and determined that such a policy violates basic values. Prevention of lifesaving treatment from patients in mortal danger is a shameful escalation of the collective punishment policy against Gaza's residents, which is immoral and violates all international norms with respect to human rights, and fails time and time again."