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MAHA ABDALLAH AND VITO TODESCHINI
This article originally appeared on Opinio Juris on May 19 2020.
States must respect, protect and fulfil the right to health at all times, without discrimination based on race, colour, sex, gender identity and sexual orientation, disability, age, nationality, marital and family status, language, religion, political or other opinion, national or social origin, property, birth or other status, as international human rights law prescribes. In the occupied Palestinian territory (OPT), Israel, as the Occupying Power, has a range of obligations under the right to health regarding the Palestinian population. In addition, the Palestinian Authority (PA), which exercises authority over some parts of the OPT, retains certain obligations under international law regarding the Palestinians’ right to health.
The past five decades of belligerent occupation have demonstrated Israel’s shortcomings (and often-deliberate failure) in recognizing and fulfilling its obligations under international law. Instead, Israel’s policies and practices have been marked by human rights violations, including institutional discrimination, measures of collective punishment and excessive use of force. The situation of prolonged occupation impacts the right to health, which includes the right to an equitable healthcare system. Like other fundamental sectors, the healthcare system in the OPT has become reliant on Israeli and international assistance. This reliance, in turn, has hampered its development and contributed to its collapse, leading to a situation in which the right to health of the protected population is seriously affected and undermined. These factors, their ramifications, and Israel’s failure to adequately protect the right to health of Palestinians have strongly resurfaced amid the COVID-19 pandemic.
The pandemic has, to a certain extent, shed light anew on some often-overlooked human rights impacts of Israel’s occupation. These include impacts on the conditions faced by the 5,000 Palestinian prisoners and detainees; the working conditions and treatment of Palestinian labourers in Israel and Israeli settlements; the situation of Palestinian refugees; and Israel’s unrelenting surveillance. Meanwhile, systemic human rights violations in the OPT have continued unabated, including in relation to Palestinians in East Jerusalem, unlawful demolitions of homes and other structures, movement restrictions and the ongoing blockade of the Gaza Strip. All this has serious consequences on the right to health of Palestinians in the face of the pandemic.
Israel’s Duties as an Occupying Power with regard to Epidemics
Since 1967, Israel holds the Palestinian territory in belligerent occupation, which makes the law of occupation applicable to the West Bank, including East Jerusalem, and the Gaza Strip. Under the law of occupation, Israel, as an Occupying Power, has an obligation to guarantee the right to health of the population of the occupied territory during epidemics. As such, the Occupying Power must provide protected persons with, among others, essential primary health care, housing and sanitation, without any discrimination.
While the Occupying Power’s obligation not to impede the prevention and treatment of epidemics in occupied territory applies under any circumstances, its positive obligations to provide access to healthcare services continue to apply and intersect with the residual powers local authorities might exercise. Article 56 GC IV clarifies that the Occupying Power’s duties are to be fulfilled “with the cooperation of national and local authorities”. In this respect, it is to be noted that Article 17 of Annex II to the 1995 Interim Agreement, although criticised and at stake, provides that Israel and the PA cooperate and exchange relevant information in countering epidemics and contagious diseases.
Article 55 GC IV requires the Occupying Power to guarantee the necessary medical supplies “if the resources of the occupied territory are inadequate”. These provisions place on Israel a due diligence obligation to take all feasible measures to fight the spread of a pandemic such as COVID-19, including through “the distribution of medicines, the organization of medical examinations and disinfection, the establishment of stocks of medical supplies, the dispatch of medical teams to areas where epidemics are raging, the isolation and accommodation in hospital of people suffering from communicable diseases, and the opening of new hospitals and medical centres”. Furthermore, Article 59 GC IV further prescribes an Occupying Power to allow relief consignments, including medical supplies, to the civilian population in need, which as a general rule must be accorded rapid and unimpeded passage.
In accordance with Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which applies in situations of belligerent occupation, Israel, as an Occupying Power, must ensure the right to the highest attainable standards of health, including “the prevention, treatment and control of epidemic … diseases [and] the creation of conditions which would assure to all medical service and medical attention in the event of sickness”. Accordingly, it requires both “the creation of a system of urgent medical care in cases of … epidemics” and “the provision of disaster relief and humanitarian assistance in emergency situations”.
The UN Committee on Economic, Social and Cultural Rights (ESCR Committee) affirmed that the Occupying Power’s obligations under Article 12 ICESCR depend on “its level of control and the transfer of authority” relating to the occupied territory. In the context of the OPT, this translates into a graduation of Israel’s obligations in accordance with the level of control exercised in the West Bank, including East Jerusalem, and Gaza. More specifically, in its 2019 Concluding Observations, the ESCR Committee recommended Israel to take practical measures to allow access to medical treatment and health-care services for Palestinians in Gaza, including to facilitate the entry of essential medical equipment and supplies, and the movement of medical staff from and to Gaza.
Duties relevant to the Palestinian Authority and Hamas
As mentioned earlier, the Palestinian Authority and Hamas, as the de facto authority in the Gaza Strip, are to cooperate with Israel to tackle the COVID-19 pandemic. The State of Palestine fully retains its obligations under the ICESCR, including with regard to the right to health, in areas where it exercises authority. As highlighted by the ESCR Committee, States should prioritize “minimum core obligations imposed by the Covenant” and “adopt appropriate regulatory measures to ensure that healthcare resources in both the public and the private sectors are mobilized and shared among the whole population to ensure a comprehensive, coordinated health-care response to the crisis”.
Hamas, being a non-State actor, is not formally bound by the ICESCR. However, since it exercises de factogovernmental-like powers, it bears human rights obligations under international law, including with regard to the right to health. Therefore, Hamas has a duty to adopt, to the best of its available resources, necessary measures to prevent the spread of the pandemic in Gaza and provide treatment to those affected by COVID-19.
A Glimpse into COVID-19’s Reality in the OPT
Israel, the PA and Hamas have all taken varying measures in response to the pandemic, including imposing restrictions on movement and public gatherings, and setting up quarantine units. Despite its inadequate public expenditure into the healthcare system, the PA quickly responded with an emergency plan to the COVID-19 outbreak, which highlighted its strategic response, actions taken, and challenges. One of the practical measures swiftly taken by the PA in March 2020 was to impose a 14-day curfew in the West Bank. In the Gaza Strip, since March 2020 the Hamas authorities established about 19 quarantine centres, mostly in hotels and schools, which have been criticised for the lack of basic needs. Cooperative efforts between Israel and the PA have been deployed since the beginning of the pandemic, yet insufficiently.These efforts are also compounded by Israeli-imposed restrictions, ranging between an already ‘fragile’ Palestinian healthcare system, restrictions on access to healthcare, and prevention from delivering health-related services.
While Jerusalem has featured the highest number of COVID-19 cases in the area, Israel’s neglect of the health and well-being of the 350,000 Palestinians living in East Jerusalem is exemplified by the limited access to informationdisseminated in Arabic and to testing clinics, and by the obstruction of Palestinian community-led initiatives aimed at tackling the pandemic and its socio-economic ramifications. In the Shufat refugee camp and Kufor Aqab neighbourhood, which are located within Israel’s Jerusalem Municipality’s jurisdiction but outside the Annexation Wall, and where about 150,000 Palestinian Jerusalemites reside, Israel committed to open testing clinics only as a response to the filing of a petition by the Palestinian NGO Adalah before its Supreme Court.
In a briefing to the UN Security Council on 24 April 2020, the UN Special Coordinator for the Middle East Peace Process, Nickolay Mladenov, noted Israel’s closure of a testing clinic provided by the PA in Silwan, East Jerusalem, and reported that only two of the six hospitals in the city are equipped to address COVID-19 cases. It is important to recall that Palestinian hospitals in East Jerusalem have for many years been lacking fundamental resources to provide adequate healthcare. The serious financial crisis they face is primarily due to the high taxes imposed by the Israeli authorities. In addition, in 2018 the United States (US) halted the $25 million aid to Palestinian hospitals in East Jerusalem as part of the US unilateral recognition – contrary to international law – of Jerusalem as Israel’s capital.
According to the UN Office for the Coordination of Humanitarian Affairs (UN OCHA), “hospitals across the oPt have shortages of specialized staff in intensive care units and the laboratory infrastructure urgently requires upgrade to conform with strict biosafety standards, while laboratory staff in Gaza suffer from significant gaps in training and specialized skills”. Palestinians in Gaza have been facing the COVID-19 pandemic with an already dire and near-collapsing healthcare system due to the ongoing Israeli closure, compounded by, among others, a chronic electricity crisis and shortages in drugs, specialized medical staff, and drinking water.
The closure restricts the movement of people as well as goods, including medical equipment and other materials categorized by Israel as “dual-use” items, which directly affects the health sector. Human rights organisations have issuedseveral appeals, urging Israel to immediately lift the closure and allow Palestinians in Gaza unrestricted access to medical facilities, goods and services, including urgent medical treatment, as also recommended by the ESCR Committee in 2019. On the ground, out of the 49 primary health care centres in the Gaza Strip, 23 have been closed in an attempt to redirect the limited human resources to COVID-19 related responses. Moreover, it should be noted that, at a time when the levels of food insecurity and poverty are particularly high in Gaza, Israeli forces continue to attack and harass Palestinian fishermen at sea.
Meanwhile, Israel’s violations and collective punishment measures against Palestinians across the OPT and Israel have continued during the pandemic, including house raids and arrests, excessive use of force, and house demolitions. Between February-April 2020, the Israeli authorities demolished 69 structures in the West Bank and East Jerusalem, including homes, water, sanitation and hygiene facilities, forcibly displacing and affecting 480 Palestinians. While the Israeli Civil Administration announced on 7 April 2020 that it would halt demolitions of “residential property in the West Bank to mitigate the spread of the coronavirus”, nine demolitions and confiscations of Palestinian property have already been reported between 14 and 27 April 2020. Additionally, Israel has prevented the construction of field clinics in some parts of the West Bank and confiscated relevant equipment.
In the OPT, the COVID-19 pandemic added up to a reality of diminished capacity of the healthcare system caused by Israel’s systemic failure to respect and protect the right to health of Palestinians in a context of prolonged occupation. This is in addition to the PA’s inexcusable limited investment in the public health sector in comparison to the security sector. Despite the contribution of international agencies to counter the pandemic, and the coordinated efforts between Palestinian and Israeli authorities to that effect, Palestinians are far from adequately enjoying their right to health as is protected under international law.
The unjustified delays and shortcomings in addressing the pandemic in East Jerusalem, the continued demolition of public infrastructures and homes of Palestinians in the West Bank, and the ongoing restrictions on the import of medical equipment and supplies to Gaza demonstrate that Israel has not fulfilled its obligations prescribed under the law of occupation and the ICESCR. The COVID-19 pandemic revealed that in the OPT, Israel’s prolonged occupation and institutional discrimination function as instruments of “comorbidity,” the result of which is to exacerbate the conditions for the spread of the disease among the Palestinian population.
Maha Abdallah is an International Advocacy Officer at the Cairo Institute for Human Rights Studies; Vito Todeschini is an Associate Legal Adviser at the International Commission of Jurists, and co-founder of Rights! Follow their work @MahaAbdallah @VitoTodeschini