Israel has been restricting travel between the West Bank and the Gaza Strip, which according to the Oslo Accords, and
High Court of Justice (HCJ) jurisprudence, form a single territorial unit, ever since the beginning of the second Intifada. Travel is allowed only in cases defined by Israel as humanitarian. In May 2011, Israel released the
three criteria that make a case humanitarian enough to allow a Palestinian to travel from the West Bank to the Gaza Strip via Israel: travel for the purpose of settlement in the Gaza Strip; travel for the purpose of participating in the wedding or funeral of an immediate relative and travel for the purpose of visiting an immediate relative who is seriously ill.
On March 6, 2012,
HaMoked petitioned the HCJ requesting it to instruct the army to state the reasons for its refusal to allow a Palestinian man who lives in Jericho to travel to the Gaza Strip via Israel in order to visit his brother. The brother was recovering from a recent heart attack and a therapeutic cardiac catheterization procedure he had undergone as a result. The petition was filed after the army denied the brother’s application without explanation. In the petition HaMoked argued that the brothers had not seen each other for seven years because of the army’s narrow criteria, and emphasized the importance of the visit when the Gaza brother was recovering from surgery. HaMoked stated that the army’s refusal to allow travel violated the brothers’ right to family life and the right to freedom of movement, which is recognized as a fundamental right in
the 4th Geneva Convention. HaMoked also stressed the army has a duty to take action to protect the rights and routine lives of the residents of the Occupied Palestinian Territories, which it rules.
The State Attorney’s Office requested the petition be dismissed, arguing that the petitioner’s permit application had been denied in accordance with the “restrictive policy” employed by Israel, whereby travel between the West Bank and the Gaza Strip is limited to exceptional, humanitarian cases only. Because following the catheterization, “[the brother] was in good health”, the army said that the request to visit him did not show humanitarian cause as “visiting a sick relative does not amount to sufficient humanitarian grounds where the relative’s life is not at risk and his illness does not require lengthy hospitalization”.
On June 6, 2012, after Justice Arbel said during
the hearing that “catheterization is not surgery”, the Court accepted the State’s argument that visiting the brother did not amount to a humanitarian need and dismissed the petition.
In their judgment, the Justices chose to accept the army’s decision without any scrutiny, noting that “[I]f and to the extent that the circumstances change, the petitioner may submit a new application which will be examined by the competent authorities in accordance with prevailing policy”. That is, if the heart patient’s life is at risk once again, the brothers might be able to see each other in the hospital.
