The Israeli Supreme Court’s Decision in Tziam v. the Prime Minister

On Aug. 26, the Israeli Supreme Court, in the case of Tziam v. the Prime Minister, ordered the state to grant the petitioners, five Palestinian women living in Gaza who required life-saving medical treatment, permission to enter East Jerusalem for the purpose of receiving healthcare.

The petition was filed by women who required lifesaving medical treatments, most of them for cancer, that are available neither in the Gaza Strip nor in the West Bank. The women therefore requested permission to enter Israel in order to receive medical treatment, to be paid for by the Palestinian Authority, in private hospitals in East Jerusalem that predominantly serve Palestinian patients. Their request was denied on the grounds that they were first-degree relatives of Hamas members. The basis for the denial was a governmental policy to prevent family members of Hamas members who are over the age of 16 years, from entering Israel for the purpose of medical treatments. That policy was adopted as a means of pressuring Hamas to return the bodies of two captured Israeli soldiers, Lt. Hadar Goldin and Staff Sgt. Oron Shaul. The two were taken captive by Hamas during Operation Protective Edge in 2014. Since then, Hamas has refused both to return their bodies to Israel for burial and to provide information about the fate of two Israeli citizens who voluntary crossed the border into Gaza and have disappeared since.

The petitioners argued that Israel is required, under international humanitarian law, to allow the women to enter Israel for the purpose of medical treatment; that the decision to deny them entry was arbitrary, unreasonable and disproportionate under Israeli law; and that sanctioning them because of their relatives’ activities amounted to collective punishment.

The state’s response rested on two pillars. The first was Israel’s alleged lack of legal responsibility towards residents of Gaza. The state argued that since the 2005 withdrawal from Gaza (referred to by Israel as the “disengagement”), Israel ceased to bear responsibility for Gaza and the manner of Hamas’s rule renders the territory a “hostile area.” In view of these developments, Israel prohibits residents of Gaza from entering Israel other than on ex gratia basis—in exceptional humanitarian circumstances.

The second pillar was that Israel argues that it has wide discretion over policies governing entry into its territory. The state argued that “no foreign subject has a right to enter Israel,”, including for medical treatment, nor did they have a right to enter Israel in order to reach a third state. Israel’s policy, the state argued, balanced properly between the “humanitarian interests” of sick relatives of members of the Hamas and the goal of returning the Israeli soldiers’ bodies.

The high court was not convinced: It sided with the petitioners, ordering Israel to allow the women to reach the hospitals in East Jerusalem.

The legal question was carefully defined. The court explained that a classified cabinet decision to prevent family members of Hamas from entering Israel for the purpose of medical treatment in order to pressure Hamas was interpreted by the attorney general as excluding lifesaving treatments. It thus did not apply to the petitioners, and the court did not have to rule on its legality.

The court reiterated its previous rulings regarding Israel’s duties to residents of Gaza. It stated that since 2005, Israel was no longer an occupying power in Gaza, that no foreign subject had a right to enter Israel, and that this was particularly true with regard to subjects of a “hostile area.” The legal question was thus confined to the narrow exception of permission to enter Israel on humanitarian grounds pursuant to the relevant immigration law. The question was whether the criteria applied by the state, within this narrow exception, were legitimate. The state’s repeated claim, that no foreign subject had a right to enter Israel, was based on the premise that control over entry to the state was an aspect of its sovereignty, and that the state thus had no duty to grant such permission. The court determined, however, that criteria for accepting or rejecting requests for admission had to be based on legitimate considerations, compatible with the state’s basic values.

The court concluded that the medical-entry policy fulfilled neither. It emphasized that recognition of the sanctity of life, including an enemy’s life, was part of Israel’s values as a “Jewish and Democratic” state. It concluded that the policy was incompatible with the principle of individual responsibility and with the prohibition on punishing an individual for the actions of others. The court also emphasized the fact that life itself was at stake and that the consequences of denying the women entry would most likely be their deaths. The implications of a decision to deny entry, it was determined, must be examined individually, and the blanket ban on entry of first-degree relatives of Hamas members does not fulfil the requirement of individualized evaluation.

Two seemingly minor and related points are actually notable in the decision. First, the court refrained from explicitly referring to the policy as collective punishment, although it strongly condemns the policy for violating the principle, derived from the Jewish tradition and reflected in the general legal principle of individual responsibility, that “each will die for their own sin,” which underlies the moral prohibition of collective punishment.

Although the court did not expressly invoke the term “collective punishment,” it is difficult to interpret a policy of preventing entry to treatment of cancer patients solely on ground of “affiliation with Hamas,” in a different manner from collective punishment. In fact, the State Attorney Office explanation, which states that the goal of the policy is to apply pressure on Hamas, is a further proof of a deliberate policy of punishing some persons—in this case, adult cancer patients—as a means of influencing other persons.

In our mind, the policy is almost a paradigmatic case of a collective association based treatment, which violates the most fundamental value of human dignity, the obligation to see a person as an end in itself and never a means to an end, and the derived principle, which requires the punishment of a person only for his own ‘sins.’

The exclusion of children under the age of 16 only highlights the arbitrariness of the policy and raises a series of unanswered questions: If the use of innocent people is legitimate in order to put pressure on Hamas, what difference does age make? What moral criterion allows preventing medical treatment to a 16.5-year-old child and not from a 16-year-old? Given that Israel allows some Palestinians to enter, is the argument that there is “no right to enter” even relevant here? What difference does age make to the basic question of a right to enter?

The court’s decision to refrain from explicitly referring to collective punishment could be attributed, perhaps, to the ongoing legal debate regarding over the legality of home demolitions. Israel’s practice of demolishing the houses of terrorists has been brought before the court on numerous occasions. The central claim against it is that it constitutes prohibited collective punishment, and thus amounts to a war crime under the Fourth Geneva Convention. However, to date, the court has accepted the state’s claim that house demolitions serve a primarily deterrent, not punitive, purpose. An explicit reference to collective punishment in the present case would have underscored the difference in how the court treats the two sets of cases, despite their similar features.

Second, although the illegitimacy of the criteria was enough to invalidate the policy, Justice Yitzhak Amit weighed in on the practicality of the policy, doubting whether it was an effective means of pressuring Hamas. He noted that high-ranking members of the group would likely be able to afford treatment for their family members in other countries.

The judge's choice to address the question of effectiveness is somewhat surprising, since the court’s basis for rejecting the state's position rests on the moral argument rather than the utilitarian one. Moreover, asserting the tactic’s lack of effectiveness without relying on the opinion of security professionals could provide an opening for the government to oppose the decision in the public forum. And although the decision is binding, the government may, in future similar cases, refer to the court’s discussion of effectiveness to argue that effectiveness should be a central factor in determining such cases.

The judge’s reference to the issue of effectiveness may be attributed to the social legitimacy which actions justified under security needs enjoy in Israel, even when they are prohibited under domestic or international law. Indeed, the willingness to reject the state’s factual position in this petition is strikingly different than in the demolition cases, where the court has repeatedly accepted the state’s claim regarding the deterrent effect of demolitions even though it is highly disputed among security professionals. Justice Amit may have intended to preempt arguments about security needs by voicing his skepticism on the question.

In other words, the court wanted to send the message that the policy of preventing lifesaving treatment based on collective affiliation is dubiously effective, but even if it was effective, it is immoral and inconsistent with the values ​​of the State of Israel and cannot be justified.

One can hope that the court’s statement in this petition will resonate when it will again be called upon to hear future petitions concerning collective measure, including petitions concerning demolitions. In Tziam, the court identified the policy as what it was: a prohibited collective measure, incompatible with basic moral values and the principle of individual responsibility. The judges rejected outright the state’s position, despite the sensitiveness of the issue and the campaign for the return of the bodies of the captive soldiers. The same approach should guide the court with respect to other petitions concerning measures, which, even if articulated as security measures, still constitute forbidden collective punishment.