COVID-19 Vaccines and Israel's Obligations as an Occupying Power

Introduction

The world has been facing one of its harshest social, economic, and health crises since the outbreak of the COVID-19 pandemic. Nations worldwide are still forced to take strict social distancing measures, total or partial lockdowns, and difficult decisions to protect their citizens from a fast-spreading and infecting disease that continues to take many lives. All the while, scientists were busy with lengthy research procedures to find a vaccine. To date, there are over 60 vaccines in clinical trials. However, countries have approved a few vaccines and started the process of immunization of targeted groups.

As for Israel, the process of vaccination has started on 7 January 2021, data collected by the University of Oxford indicate that around 1.7 million Israelis are vaccinated,  which means that Israel has vaccinated more than 10 percent of its population. Thus, as of 7 January 2021, Israel is leading worldwide in administered vaccines per 100 people, with the United Arab Emirates and Bahrain following, respectively. At this rate, it is expected that the majority of the population would be vaccinated around the end of March. All the while, silence once again prevails on Israel's responsibility as an occupying Power towards the occupied Palestinian territory during this pandemic. While illegal colonial-settlers who reside on stolen Palestinian land have access to vaccines, Palestinians in the West Bank, excluding occupied and annexed East Jerusalem, and the Gaza strip, stand defenseless as an occupied population in their ability to access any immunization for the virus. The same applies to Palestinians in occupied East Jerusalem whom Israel revoked their identity resident cards. This has led some to call this the worst form of discrimination and even “medical apartheid”. 

In the occupied State of Palestine, the government is trying through its channels to secure vaccines. This means that it might take months until Palestine’s Ministry of Health starts immunization procedures. It also means that Palestine might not be able to provide vaccines for the population as a whole and focus its immunization strategy, based on the number of vaccines received, on what it can provide for high-risk categories, such as health works, elderly, and people at high risk due to existing health conditions. As of today, the Health Ministry announced that they would be receiving the Pfizer vaccine through COVAX. The Pfizer vaccine requires storage in very low temperatures, as low as minus 70 degrees Celsius and below, which requires special storage equipment with minimal availability in Palestine, posing another challenge.

As of 9 January 2021, there were over 165,000 active cases in the State of Palestine, including in East Jerusalem. So far, 1735 Palestinians lost their lives.

Despite a prolonged military occupation, and as a result, a compromised health care system, a financial crisis, and a volatile political situation, the State of Palestine has been performing to its maximum capabilities to guarantee the right to health for its population, including with its recent efforts to purchase authorized vaccines for COVID-19. Yet, Israel has been adamant in refraining from fulfilling its responsibility as an occupying Power under international humanitarian law and human rights law. Israel has also hampered the work of the State of Palestine to manage the health crisis.

Israel's Responsibility as an Occupying Power in Providing Vaccines for the Protected Population

As an occupying Power, Israel has responsibilities towards the occupied Palestinian territory and the protected population under international humanitarian law, international human rights law, and Israel's signed agreements with the Palestine Liberation Organization (the Oslo Interim Accords).

A. Israel's Responsibility According to International Humanitarian Law

Israel's responsibility can be first derived from the Hague Regulations of 1907 Article 43, which iterates the general obligations of the occupying Power:

 "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

The Fourth Geneva Convention supplements this Article. Article 55 of the Convention states that:

"To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate."

Commentary on the Fourth Geneva Convention^[1] reminds the occupying Power that medical supplies mentioned in the article include the provision of:

"necessary medical supplies, such as medicaments, vaccines and sera, when the resources of the occupied territory are inadequate."

Article 56 further specifies the responsibilities of the occupying Power in regards to the right to health of the protected population, and particularly pointing to the obligation of the occupying Power in cooperating with national and local authorities in cases of the spread of contagious diseases; the Article explains that the occupying Power:

"has the duty of ensuring and maintaining, with the co-operation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventative measures necessary to combat the spread of contagious diseases and epidemics…"

Furthermore, the Fourth Geneva Convention in Article 59 places an obligation on the occupying Power not to impede relief schemes directed to the occupied territory. It establishes a further obligation on the occupying Power to facilitate their arrival to the occupied territory.^[2]

B. Israel's Responsibility According to International Human Rights Law

Also, it has been established that Israel, as an occupying Power, has human rights obligations towards the population and territory it occupies. The International Court of Justice affirmed this in its 2004 Advisory Opinion on the wall.^[3]

Under international human rights law, the right to health is mentioned in the Universal Declaration of Human Rights, Article 25.1 states:

"Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services."

However, the International Convention on Economic Social and Cultural Rights (ICESCR) is regarded as having a more comprehensive article, under international human rights, on the right to health. Article 12 of ICESCR states:

"1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness."

General Comment 14, which elaborates what this article entails, explains that states have core obligations in fulfilling their responsibility regarding the right to health. As described in the General Comment^[4]:

"to provide immunization against the major infectious diseases occurring in the community" and "to take measures to prevent, treat and control epidemic and endemic diseases…"

The General Comment further highlights that states have an obligation to guarantee the right to health for all, without discrimination, including to provide access for the right to health for detainees and prisoners.^[5]

As for refugees, the General Comment explains that the obligation to guarantee the right to health, and in this case to ensure that Palestine refugees have access to vaccines, is a collective responsibility of the international community.^[6]

C. Israel's Obligations According to Oslo Interim Accords

Cooperation between Israel and the PLO in combating epidemics and contagious diseases is included in the 1995 Interim Agreement, Annex II, Article 17.6:

"Israel and the Palestinian side shall exchange information regarding epidemics and contagious diseases, shall cooperate in combating them and shall develop methods for exchange of medical files and documents."

Palestine's Concerns During COVID-19 Pandemic

1. Prisoners

Currently, there are 4,400 Palestinian prisoners in occupation prisons. They are kept in cells characterized by overcrowdedness, lack of basic necessities, poor hygiene, humidity, and a severe lack of fresh air. Such conditions make it impossible for prisoners to practice health and safety protocols instructed by the WHO, mainly in social distancing, washing hands, and wearing protective gear such as masks and even access to proper equipment to clean and disinfect their cells. Prisoners are left with only one way, protesting to demand their fundamental rights and necessities during the pandemic. This has left Palestinian prisoners extremely vulnerable. Since the outbreak of the pandemic, 189 prisoners have tested positive. Prisoners infected with the virus have reported deplorable treatment, isolation, one pain killer, and one lemon.

In the meantime, Israel, the occupying Power, must provide safety measures to guarantee Palestinian prisoners' health during this pandemic and ensure their vaccination. This should be done with the request of international presence to warrant that this process is done through trained medical staff and in a safe environment and under international eyes.

It is essential to highlight that Palestinian prisoners must not be discriminated against and must access all elements of the right to health, including access to proper health care, including vaccines. It is unacceptable that Israeli prison guards and criminal prisoners who occupy the same space as Palestinian prisoners are immunized while Palestinian prisoners are denied their right to be vaccinated.

2. Refugees

This pandemic has had a tragic impact on Palestinian refugees in all refugee camps. It has left Palestinian refugees even more vulnerable in overcrowded refugee camps, experiencing a challenging social and economic situation exacerbated by the pandemic. The financial crisis of UNRWA due to the United States' decision to withdraw funding from the Agency was already taking its toll on the refugee situation. This has jeopardized essential services, including healthcare services, which Palestinian refugees greatly depend on, especially during the pandemic.

All Palestine refugees in all refugee camps must be able to obtain vaccines against COVID-19 immediately. This is mainly an obligation of the occupying power, yet, it is also a collective responsibility of the international community.

Furthermore, the international community must assist UNRWA in passing this financial crisis to continue to perform its vital work towards Palestinian refugees. A just solution based on international law is reached.

3. Gaza

First and foremost, a Palestinian demand that Israel, the occupying Power, immediately lift its blockade on Gaza. Due to the occupation and now a 13-year-old blockade, Gaza's healthcare system is severely compromised. Gaza urgently needs special training of medical staff along with essential medical equipment, medicine, electricity, clean water, and much more to combat this pandemic.

The Committee on Economic Social and Cultural Rights, in its Concluding Observations in 2019, stated that Israel, the occupying Power, should "Facilitate the entry of essential equipment and supplies and the movement of medical professionals from and to Gaza."

Thus, it is the international community's responsibility to pressure Israel to lift the illegal blockade and allow access to all urgent aid, including vaccines and its required infrastructure, into Gaza.

4. East Jerusalem

Following its occupation, East Jerusalem was officially annexed in the year 1980. Since then, the occupying Power through, inter alia, its settler-colonial project in and around the city, the annexation wall, and the permit system, has effectively isolated East Jerusalem from the rest of the territory of the State of Palestine. As a result, Palestinian institutions in East Jerusalem, including hospitals, have been suffering.

During the COVID-19 pandemic, the policies of the occupying Power towards Palestinian hospitals in occupied East Jerusalem had left them de-developed and in need of financial and other forms of aid to survive this pandemic. Furthermore, this period has highlighted discriminatory Israeli practices towards Palestinian citizens in the city. This is seen through harassment and arrests of local volunteers distributing foodstuffs and needed material to families at the beginning of the pandemic outbreak, and the closure of local initiatives to contain COVID-19 and raise awareness about the virus in the community. It should be noted that Israel has also failed to provide numbers and infection rates among the Palestinian population in East Jerusalem, as well as guidance information to Palestinians in East Jerusalem in Arabic.

While the WHO was issuing health recommendations of social distancing and as much as possible staying at home, the Israeli occupation in East Jerusalem left people with no homes. In the year 2020, UNOCHA reported that Israel’s occupying forces demolished 145 structures, including two donor-funded structures in East Jerusalem, thereby displacing 361 people, including women and children. Seven days since the start of the New Year (2021), UNOCHA has reported the demolition of 22 structures, including four donor-funded structures, in East Jerusalem, displacing 30 people, including women and children, who find themselves homeless while the occupying Power has taken measures of lockdown in the city.

Conclusion

The State of Palestine has an obligation to provide vaccines as best of its capabilities to its citizens; nonetheless, the State of Palestine remains under prolonged Israeli military occupation. Therefore the international community must hold Israel to account and urge Israel as an occupying Power to fulfill its obligations under international law and make vaccines available to the protected population as a whole and without discrimination. This includes Palestinians in the whole territory of the State of Palestine, which comprise the West Bank, including East Jerusalem, and the Gaza Strip, including Palestinians in occupation prisons and Palestinian Refugees. Despite numerous calls for the immediate release of Palestinian prisoners, particularly women, children, sick and administrative detainees, and in light of Israel's documented policy of medical negligence, it is crucial that the international community place pressure on Israel and ask for their immediate release.