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Israel’s Obligation toward Gaza Strip Residents in Need of Medical Treatment Unavailable in Gaza: HCJ 5429/07 Physicians for Human Rights-Israel v. Minister of Defense (Judgment of June 28, 2007)
Court Watch | 5429/07 | 27.5.2010 | Adv. Alon Margalit
Erez Crossing. Photo: Oren Ziv, ActiveStills
Criticism
Israel has been enforcing a closure on the Gaza Strip since Hamas took control of Gaza in June 2007. As a result of the tight closure, the already dire condition of the local healthcare system has deteriorated further and many medical procedures are unavailable to Gaza residents. Palestinians wishing to travel out of Gaza to receive vital and urgent medical care in Israel, the West Bank or abroad, discover that Israel either makes exit from Gaza very difficult or entirely prevents the passage of patients. Exit from Gaza for the purpose of medical treatment is often made possible only following a petition to the High Court of Justice (HCJ), and often, even this does not help.[1]

In the framework of the petition discussed here, the State was asked to allow 13 Palestinian patients to exit Gaza into Israel to receive treatment – including radiotherapy, chemotherapy, complex surgery and treatment for gunshot wounds.[2] The petition included comprehensive medical documentation and medical expert opinions by senior Israeli physicians attesting to the urgent need for treatment. Before the petition was filed, these documents were sent to the State representatives, along with records of the scheduled appointments in Israeli hospitals and monetary guarantees to pay for the treatments from the Palestinian Ministry of Health. Israel delayed processing the applications, refused to accept some and denied others. In addition to challenging the refusals, the petition also challenged Israel's insistence on processing only applications submitted through the “coordinating body” in the Gaza Strip. This “coordinating body” is a solitary employee of the Palestinian Ministry of Health, who was then working only part time, sometimes from his own home, and could not handle the volume of applications.

The State Attorney’s Office stressed before the HCJ that it was no longer responsible for the condition of the healthcare system in Gaza. It claimed that after the implementation of the disengagement plan and the revocation of the military government in the Gaza Strip, Israel no longer had obligations toward Gaza under the law of belligerent occupation. It further claimed that none of the patients had a vested right to enter Israel. Israeli policy allowed for travel of Palestinians in need of medical treatment, if such treatment was lifesaving, unavailable in the Gaza Strip and provided that the patient-applicant did not pose an individual security threat.[3] In this context, the State Attorney’s Office distinguished between “lifesaving” treatment and “quality of life” treatment, maintaining that only the former merited approval.

Following the petition’s submission, most of the petitioning patients received permits to enter Israel. With regards to two others, the State claimed a security ban precluded their entry to Israel. The State added that since the petition was filed, dozens of similar applications had been filed and a few had been approved.[4] The HCJ settled for this update and rejected the petition without reviewing the principle issue arising from it, namely Israel’s legal responsibility toward patients trapped inside the Gaza Strip and in need of urgent medical care unavailable there.

The scope of Israel’s responsibility stems primarily from the status of the Gaza Strip, specifically, whether or not it is still under Israeli occupation. Israel's official position is that following the disengagement, Israel is no longer responsible for what transpires in the Gaza Strip or the condition of local services there. This position gained support later on in an judgment by the HCJ which ruled that “the State of Israel bears no general obligation to concern itself with the welfare of the residents of the [Gaza] Strip… according to the international law of occupation…”, and that “the primary obligations borne by the State of Israel with regards to the residents of the Gaza Strip stem from the state of armed conflict that prevails between it and the Hamas organization”.[5] However, even in a state of armed conflict, the sick or the wounded, whether they are military personnel or civilians, who find themselves in the hands of the enemy – and take no part in hostilities – are entitled to “receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition”.[6] In addition, there is a general duty (subject to certain reservations), to allow free passage of medical supplies for use by the civilian population of the enemy.[7]

In addition to its obligations under the law of war, it can be argued that Israel has further obligations under the law of occupation. Israel imposes a land, air, and sea closure on Gaza and imposes restrictions on the passage of medical equipment and skilled manpower.[8] This Israeli control, which according to some amounts to continued occupation of the Gaza Strip, means that Israel is still responsible for the welfare of the local residents and it is this responsibility which underlies the duty to supply the residents with a suitable alternative for medical care unavailable in the Gaza Strip.

The law of occupation places on the occupying power significant responsibility for the welfare and health of the residents of an occupied territory. In addition to the general obligation to ensure “public order and safety”, set forth in Article 43 of the Hague Regulations of 1907, the occupying power has a positive obligation to ensure “to the fullest extent of the means available to it” the supply of medical services to the population, and even to ensure that any shortage in medical supplies in the occupied territory is resolved, including by using its own sources.[9] From this, it possible to deduce about the obligation to allow residents to exit Gaza in order to obtain medical treatment lacking there, using even Israel's own medical resources for the purpose.

It is clear that over the course of a long occupation, this obligation becomes doubly important, considering the responsibility of the military commander, who acts on behalf of the occupying power, to take “all necessary measures to ensure growth, change and development”, including, according to the HCJ, the development of “industry, trade, agriculture, education, health and welfare and other such matters which are related to good governance and are required in order to ensure the changing needs of the population in an area under belligerent occupation”.[10] The right to health and medical care is recognized as a basic right also in international human rights law, and the military commander must respect and uphold it, at least in the context of a stable and long occupation.[11]

In the circumstances created following the formation of the Hamas government, it is difficult to accurately define the scope of Israel's obligations toward Gaza's residents under the law of occupation, because of the lack of clarity concerning the extent of Israel’s effective control over the Gaza Strip. While Israel imposes the closure and controls the movement of people and goods, facts which have a tangible impact on day-to-day life in the Gaza Strip, the Hamas government and, to a certain degree, also the Palestinian Authority, carry out governmental functions and provide services to the local population in many areas in which no control or involvement can be attributed to Israel. The HCJ has emphasized in this context, in a different matter, that Israeli soldiers are not permanently stationed in the Gaza Strip and that Israel has no effective ability to maintain order and manage civilian life in the Gaza Strip.[12]

Even if it is impossible to attribute to Israel overall responsibility as an outright occupying power for what transpires in the Gaza Strip, it does appear that the responsibility under the law of occupation continues to be Israel's, at least in the areas in which powers have not been handed over to the local authorities, inter alia, due to Israel’s objection.[13] This holds true in all matters relating to the provision of supplies, services and medical expertise entailed in affording appropriate medical care to the local population. At the same time, it is possible to establish ongoing Israeli responsibility toward the residents of Gaza, at least in some areas, pursuant to Israel' status as a “former occupier”. This principle is also expressed in the HCJ’s rulings, whereby though Israel does not have a general obligation to ensure the welfare of the residents of the Gaza Strip under the overall law of occupation, there is responsibility that stems “from the relationship created between Israel and the territory of the Gaza Strip after the years of Israeli military rule in the territory, as a result of which there is currently almost complete dependence” of the Gaza Strip on Israel.[14]

Like the scope of the obligations that stem from effective control over the Gaza Strip, the scope of the obligations that stem from the status of “former occupier” is not entirely clear. This is not a responsibility that continues indefinitely, but rather for a transitional period, until the local government assumes governmental powers and is able to exercise them independently. The rationale for establishing such an obligation is the desire to avoid a governmental vacuum and gaps in the protections afforded to the local population during the transition. Additionally, it appears that the responsibility that remains after the occupation ends relates mainly to those areas in which the duty to “ensure public order and safety” has been neglected during the occupation.[15] And in our matter – the failure to develop an efficient and properly functioning healthcare system in the occupied area.

The judgment lacks a clear normative statement regarding Israel's obligations toward the population of the Gaza Strip, even if just with respect to medical treatment. The judgment also lacks a substantive discussion of other elements of Israel's practice. The HCJ finds that the limited coordination mechanism – that single official who has difficulty handling urgent applications for medical treatment – is acceptable and reasonable. The HCJ remains indifferent to the argument that bureaucratic complexity has already left seriously ill patients without treatment and that it continues to threaten their lives.

In addition, the HCJ refrains from determining whether the distinction made by the State between “lifesaving” and “quality of life” treatments is valid.[16] This distinction is entirely baseless and it is not recognized in humanitarian law. Thus, for instance, in armed conflict, when fierce battles may make it difficult to provide medical care, the requirement is that sick or wounded who fall into the hands of the enemy are entitled to “receive, to the fullest extent practicable… the medical care and attention required by their condition”, with the aim of “ameliorating” their condition, not necessarily to save them from death. The “sick” and the “wounded” are anyone in need of medical care and attention due to a physical or mental handicap (and who do not participate in hostilities), with no restriction on the type of ailment or handicap.[17] It follows that the right to medical care is fundamental and such care is to be given in any case of illness, injury or medical necessity, subject to the means available to the relevant party to a conflict. There is no requirement that the patient be at risk of dying. Any distinction between patients is permitted solely on medical grounds, in the sense that a medical crew may treat urgent cases first and then proceed to treat – rather than refrain from treating – less urgent cases.[18]

Indeed, distinctions on medical grounds are for medical crews to make. It is no coincidence that counsel for the State avoided explicitly stating what cases they regarded as “quality of life” treatments. Careful reading of the response to the petition suggests that these are likely treatments designed to save eyes and limbs. But can the petitioners' applications really be rejected on the claim that such treatments are a luxury?! While counsel for the State were making distinctions based on expertise they did not possess, physicians, both Israeli and Palestinian, determined that these were necessary and urgent treatments.

In the absence of a clear normative statement about Israel's obligations on the issue of exiting Gaza for medical treatment, the decision on this important issue remains in the hands of the security officials. In the judgment, the HCJ assumes, but does not demand, that the security officials’ approach will be humane and that very severe cases, where life would be entirely altered in the absence of treatment, will be “taken into consideration” (but not necessarily approved). In this manner, the variety of cases that will get processed is limited in advance to very severe cases. Humanitarian law, in contrast, stipulates as a principle eligibility for treatment to anyone suffering from a disease or injury and in need of care or treatment, on condition that he or she refrain from taking part in hostilities.

The HCJ does appear to feel somewhat ill at ease when reviewing the petition. It does, for instance, admit that “if eyesight or limbs can be saved, it is of great significance”. However, it hastens to clarify that: “it is neither we – nor the petitioners – who stand at Erez Crossing, and are exposed to the risks of terrorism upon every opening thereof, and therefore it would not be fair and proportionate of us to expose, by a stroke of a pen, the IDF soldiers and the civilians at the crossing to its being opened beyond the necessary”.[19] But, is opening the crossing for the purpose of receiving urgent and vital medical treatment in Israel not a “necessity”? Is the role of the HCJ confined to blocking the gate to Israel and protecting only the soldiers? It is obvious that its role is to ensure, that alongside security needs, the State respects the rights of Palestinians who are under its control and upholds its obligations under international law.

At the end of day, it seems that security considerations leave no room for the rights of two of the petitioning patients. After reviewing, ex parte, the confidential material in their cases, HCJ was satisfied that they were to be denied medical treatment in Israel for security reasons. According to the documents submitted with the petition, one patient had his leg amputated due to lack of treatment and his other leg was also at risk of amputation. It is difficult to accept the conclusion that this person poses a real threat to the State of Israel and the safety of its soldiers. The HCJ does comment that “Some of these people are also neutralized, by their medical condition, from performing direct terrorist damage”, but does not continue to find, as required, that Israel must allow their entry into its territory for the purpose of medical treatment unavailable in the Gaza Strip.[20]

It is difficult to see how a patient can be denied medical treatment in advance, because he is classified as a permanent security threat. In humanitarian law, the exclusion to the obligation to provide medical treatment exists only for individuals who do not “refrain from any act of hostility”. The example given in the ICRC's official interpretation is of a combatant who breaks a leg during hostilities but continues to shoot at a soldier, putting him at risk.[21] In such a situation, aside from the fact that providing medical treatment is impossible, the behavior turns the wounded combatant into a legitimate target of attack. Protection is thus denied in a situation of armed conflict, provided that the patient is taking direct part in hostilities while requiring medical treatment. But combatants who no longer take part in the fighting (hors de combat), and refrain from acts of hostility are protected and entitled to medical treatment.[22]

It is all the more so in a situation of occupation – when no active fighting is taking place on the ground – that security threats cannot be cited as a reason for denying medical treatment, considering the obligation to provide medical treatment to protected residents using every means available to the occupying power. The presumption is that the occupying power’s effective control over the occupied territory, and certainly over its own territory, make it possible for it to take whatever enforcement, monitoring and security measures are required with respect to certain individuals in order to enable them also to receive medical treatment, and even to offer an alternative within the occupying power’s own territory, if the treatment is not available in the occupied territory.


Adv. Alon Margalit
The author is a lawyer, formerly on staff at HaMoked: Center for the Defence of the Individual. He is currently a PhD candidate at the Institute of Advanced Legal Studies, University of London.


[1] 
Physicians for Human Rights-Israel, Adalah and Al Mezan Center for Human Rights, Who Gets to Go? In Violation of Medical Ethics and the Law: Israel’s Distinction between Gaza Patients in Need of Medical Care (June 2010); for data on approved applications in 2009 and the first half of 2010, see Physicians for Human Rights-Israel, A Situation Report on Obstacles Facing Gaza Residents in Need of Medical Treatment (July 2010).
[2] 
HCJ 5429/07 Physicians for Human Rights-Israel v. Minister of Defense (2007), petition of June 19, 2007 (in Hebrew).
[3] 
Ibid., arts. 3, 5 and 7 of respondents’ notice of June 20, 2007 (in Hebrew).
[4] 
[5] 
HCJ 9132/07 Al-Basyuni v. Prime Minister (2008), judgment of January 30, 2008, para. 12.
[6] 
See Common Art. 3 of the Four Geneva Conventions (1949); Arts. 8 and 10 of Protocol I: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977) (hereinafter: Protocol I); J.-M. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law (ICRC, 2005, reprint 2009), Vol. I, pp. 401-402 on Rule 110.
[7] 
[8] 
See above note 1, Situation Report, pp. 3-5.
[9] 
See Art. 43 of the Hague Regulations concerning the Laws and Customs of War on Land (1907); above note 7, Arts. 55, 56 and 59 of the Fourth Geneva Convention; Jean S. Pictet (ed.), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), pp. 319-323 (Art. 59); and also above note 6, Art. 14 of Protocol I.
[10] 
HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983), judgment of December 28, 1983, para. 28; and see commentary on this judgment.
[11] 
See Art. 25 of the Universal Declaration of Human Rights (1948); Art. 12 of the International Covenant on Economic, Social and Cultural Rights (1966). It should be noted that Israel does not accept the common view – held, inter alia, by the International Court of Justice and the UN Human Rights Committee acting under the International Covenant on Civil and Political Rights – that human rights law continues to apply during armed conflict and exterritorialy also with regards to the West Bank and Gaza Strip. It seems that, conversely, the HCJ does hold that human rights law applies in these circumstances and compliments the law of war; see HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel (2006), judgment of December 14, 2006, para. 18 of the opinion of President (Emeritus
[12] 
See above note 5. Though given at a later date, the Al-Basyuni judgment addresses circumstances that were relevant at the time of the judgment discussed in this commentary.
[13] 
[14] 
See above note 5.
[15] 
See above note 13, pp. 51-54; see also Yuval Shany, “The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. Prime Minister of Israel”, Hebrew University International Law Research Paper No. 13-09 (2009), pp. 16-18.
[16] 
Later on, the HCJ expressed reservations regarding the distinction and held that it was unacceptable where “serious disabilities” are concerned; see HCJ 9522/07 Physicians for Human Rights-Israel v. IDF Commander in Gaza (2008), decision of November 28, 2007 (in Hebrew), para. 4.
[17] 
See above note 6, Art. 8-10 of Protocol I. According the World Medical Association Regulations in Times of Armed Conflict and Other Situations of Violence (1956), the sick – civilians or military – are entitled to the “care they need” and that physicians must do whatever they can in order to provide them with care immediately.
[18] 
Cf. Art. 12 of the First Geneva Convention on Wounded and Sick in Armed Forces in the Field (1949); Jean S. Pictet (ed.), Commentary: I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (ICRC, 1952), p. 139 (Art. 12).
[19] 
See above note 2, judgment of June 28, 2007, para. 5.
[20] 
Ibid.
[21] 
Yves Sandoz, Christophe Swinarski & Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Protocol I (ICRC, 1987), pp. 118 and 488 (Arts. 8 and 41 respectively).
[22] 
See above note 6, Common Art. 3 and Art. 41 of Protocol I.
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