In a recent judgment of the Israeli Supreme Court, HCJ 7001/09 Kareem AlKanua v Commander of the Army Forces in Gaza et al. (rendered by Justice Levi on 26 October 2009) the petitioner a Palestinian resident of the Gaza Strip, requested the Court to oblige the state to allow him to enter Israel for the purpose of crossing over to the West Bank in order to receive urgent medical treatment in Ramallah. The petition also included a medical expert’s opinion on the condition from which the petitioner suffers, which concludes that the petitioner is bound to become blind if he does not undergo the required operation. The Court’s one paragraph judgment in the case consists of the following,
“The respondents object to grant the petitioner the requested remedy [i.e. exit out of the Gaza Strip], and their objection is grounded principally on security considerations. For this purpose they have placed before us intelligence material that we examined ex parte, and in light of what was said in it we came to the conclusion that there is no error in the state’s decision that would justify our interference therewith. Due to this, the petition is rejected.” (emphasis added)
This judgment gives rise to serious concerns on both formal and substantive levels. The Court’s laconic and ungrounded rationale that does not consider even the applicable normative framework that governs the circumstances of the case generates a severe violation of the petitioner’s procedural rights. Notably, this petition begs the examination of both Israel’s obligations vis-à-vis the humanitarian situation in the Strip, as well as a consideration of the broader context in which Palestinian medical patients need to exit the Gaza Strip in order to receive adequate treatment that does not exist there. Also, the Court is expected to pay regard to the state’s derogation from its human rights obligations that are applicable extra-territorially as a consequence of Israel’s persisting ‘effective control’ (as per the law of occupation under IHL) over the Gaza Strip, and examine the proportionality of its decision in light of alternative, less depriving options. Instead, it rejects the request altogether, and prevents the petitioner from exiting the Gaza Strip given the obvious consequences of this decision.
An interesting normative matter that is reflected in this case is the question of the legality of the derogation to human rights obligations under what human rights treaties refer to as a declared “state of emergency”. Although it is true that the lawfulness of a derogation is not to be determined in every individual case on an ad hoc basis (since derogation is not about individual situations but about a general regime declared by a state that finds itself in a certain situation), clearly the declaration of a “state of emergency” under Article 4 of the ICCPR cannot act as a veil of immunity for all kinds of state actions. It should remain analytically clear that whilst the mere act of derogation under the auspice of a “state emergency” regime may be legal, the character of the particular derogation (i.e. its proportionality, purpose, arbitrariness, reasonableness, etc.) must be subjected to strict judicial scrutiny. Moreover, the case at hand concerns the right to life and the prohibition of inhuman and degrading treatment, which cannot be derogated from even in times of war or other public emergency.
The judgment also reminds those of us who are familiar with the Court’s judicial practice on the occupied Palestinian territories over the years of Israel’s occupation of its heedlessness towards international law, and reflects the Court’s strongly arguable cynical approach to the state’s human rights and international law obligations.