Border Control / Let Him Go to to Haiti

How a judge denied medical treatment to a resident of Gaza, while praising Israel's humanitarian efforts elsewhere.

The moving and important aid provided to the victims of the earthquake in Haiti reminded the world how sensitive Israelis are to human suffering. The timing was just perfect, right before UN Secretary General Ban Ki-moon's announcement of the report on Operation Cast Lead; only anti-Semites and self-hating Jews like Richard Goldstone could besmirch a country that sends doctors across the ocean to rescue black-skinned gentiles.

This argument, it turns out, also made it to the judicial system. The following sentence is taken from a ruling issued by Be'er Sheva District Court Judge Rachel Barkai: "Israel is one of the few countries in the world that extends humanitarian medical aid to citizens of other countries, as we are now witnessing the aid offered to earthquake victims in Haiti."

This was the preface to the judge's decision to reject the petition of Atsem Hamdan, a Gaza resident, who sought a permit to receive urgent medical treatment at a Palestinian hospital in East Jerusalem.Hamdan, 40, has for the past two years suffered from severe back pains that almost completely paralyze his left side. Recently the paralysis spread to his right side. Given his deteriorating condition, and in the absence of appropriate medical treatment in Gaza, he was referred five months ago for neurosurgical treatment at a hospital in East Jerusalem. The referral was supported by the opinion of Dr. Natan Brook, an expert in orthopedic surgery from the Sheba Medical Center, Tel Hashomer. The doctor determined that without urgent surgical intervention, Hamdan could incur irreversible damage.

The judge was convinced that "no one doubts that as of today, the appellant requires surgical intervention that he cannot obtain at a hospital in Gaza." Nevertheless, Barkai suggested that Hamdan look for aid in other countries - Haiti. And why was this so? Because the patient is liable to take advantage of the State of Israel's generosity and reunite with his wife and four children. The family does not live in sovereign Israeli territory, nor does it live in East Jerusalem. They live in the West Bank. "Considering the values that hang in the balance," the judge ruled, the risk that the man will use his entry in order to remain there overrides the humanitarian value of providing medical treatment, for a resident of a hostile country.

In an appeal submitted yesterday to the Supreme Court on behalf of Hamdan, the Gisha Legal Center for Freedom of Movement and Physicians for Human Rights-Israel argue that Judge Barkai's ruling, whereby Israel is not obligated to see to the welfare and health of residents of the Gaza Strip, contradicts an earlier decision of the High Court of Justice. This obligation is a result of the state of warfare, Israel's control of the border crossings, and the Gaza Strip's dependence on Israel due to the long years of occupation.

It is a given that Hamdan is not the only Gaza resident who is paying the price of the siege. He and many others in need of medical treatment have no choice but to hope that the Supreme Court thinks that a country which provides aid to the unfortunate in faraway Haiti is not absolved of tending to the unfortunate people in Gaza.

Who is an absentee?

If the Jordanians had been as smart as us Israelis, the Palestinian families who were evicted from the houses in Sheikh Jarrah, where they had lived since the 1950s, would not now be living on the street. Unlike the Israelis, the Jordanians kept the Jewish property in East Jerusalem as a deposit and were careful not to register the buildings as absentee property. They could have presented the court with the Jordanian version of the absentee property law, and argued that the properties handed over to the settlers based on the claim that they were acquired during the Ottoman era by the Va'adat Edat Hasephardim, were transferred to their ownership. Not only did the State of Israel declare homes in West Jerusalem that some of these families had left in 1948 "absentee property"; it has been using the absentee property law since 1950 also in reference to properties in East Jerusalem that belong to residents of the territories. This refers to hundreds of apartments, businesses and even a hotel. Many of the owners live on the other side of the fence.

The matter in principle was discussed last week in the Supreme Court by a special panel of seven judges, headed by Supreme Court President Dorit Beinisch. In its interim decision, the judges asked the attorney general to present "an updated position" to them, after they noted that the state's behavior with regard to the properties of residents of the territories in East Jerusalem contradicted the attorney general's own position. They were referring to a letter the previous attorney general, Menachem Mazuz, sent regarding this matter to the finance minister in January 2005. The minister at the time was Benjamin Netanyahu.

Mazuz notified Netanyahu that he stands behind the position of Attorney General Meir Shamgar from 1968, whereby the annexation of East Jerusalem does not allow for the acquisition of the property of a person who is in the area under the control of IDF forces. Mazuz warned Netanyahu that the decision to apply the absentee property law to those people might also have serious international ramifications with regard to the separation fence, for which Israel was sharply criticized by the International Court of Justice. "This is a clear issue where it is in the interest of the State of Israel to refrain from opening new fronts in the international arena in general, and in matters of international law specifically," Mazuz wrote.

Attorney Shlomo Lecker, who in the appeal is representing the owners of the Caliph Hotel in Abu Dis, which the route of the fence "annexed" to Jerusalem and to the absentee property law, directed the judges' attention to an interesting passage in Mazuz's letter, where he notes there that security forces agreed that the construction of the fence need not take away the right of Palestinians who owned properties in East Jerusalem to continue using them. It will be interesting to see what the new attorney general, Yehuda Weinstein, will have to say about this important and sensitive matter.