J U R I D I C U M
The Right to Health: Israel’s Obligations in the
Occupied Palestine During the COVID-19 Pandemic
Dina Klingsbo
HT 2020
RV101A
Rättsvetenskaplig Masterkurs med Examensarbete 30 Högskolepoäng
Examinator: Erika Lunell Handledare: Mais A.M Qandeel
ABSTRACT
Every human being is entitled to enjoy the highest attainable standard of health in order to live a life in dignity. In 2020 the COVID-19 pandemic affected people around the world and gen-erated additional vulnerabilities to the fragile and fragmented healthcare system in the Occu-pied Palestine. This thesis uses the legal dogmatic method and the legal analytical method in order to identify Israel’s international obligations to fulfil the right to health in the Occupied Palestine. Moreover, the thesis examines whether Israel’s measures during the COVID-19 pan-demic comply with such obligations, or if the measures, or lack thereof, entail State responsi-bility for internationally wrongful acts.
Israel, as the occupying power in the Occupied Palestine, has under international humanitarian law and international human rights law obligations to ensure the health and hygiene in the Occupied Palestine. Nevertheless, Israel has historically vehemently denied its position as the occupying power and neglected its responsibility to protect the Palestinians, thus failed to rec-ognize the Palestinian people’s right to health. Israel’s failure to ensure the health and hygiene in the Occupied Palestine has further been demonstrated by its actions during the COVID-19 pandemic. Israel has during the pandemic continued to demolish houses and structures im-portant to combat COVID-19 in the West Bank. Additionally, Israel’s punitive fuel cuts, the permit system and the lack of medicine and vital equipment has further impeded the measures to combat COVID-19.
As a result, Israel violates the right to health under international humanitarian law and interna-tional human rights law, which leads to State responsibility for internainterna-tionally wrongful acts.
List of Abbreviations
HCJ Israel’s High Court of Justice
ICJ International Court of Justice
WHO World Health Organization
NGO Non-Governmental Organization
VCLT Vienna Convention on the Law of Treaties
ICESCR International Covenant on Economic, Social and Cultural Rights
UN United Nations
UNRWA United Nations Relief and Works Agency for Palestine Refugees in the Near East
ICTY
ICU
SARS-CoV-2
International Criminal Tribunal for the Former Yugoslavia
Intensive Care Unit
TABLE OF CONTENT
1. INTRODUCTION 1
1.2 PURPOSE AND RESEARCH QUESTION 3
1.3 METHOD AND MATERIAL 3
1.4 DELIMITATIONS 5
1.5 DISPOSITION 5
2. LEGAL SITUATION OF THE OCCUPIED PALESTINE 7
2.1 THE GAZA STRIP 7
2.2 THE WEST BANK 8
3. INTERNATIONAL LAW 10
3.1 INTERNATIONAL HUMANITARIAN LAW 10
3.2 INTERNATIONAL HUMAN RIGHTS LAW 13
3.2.1 Article 12 ICESCR 15
3.2.2 The Right to Health During the COVID-19 Pandemic 18
4. THE RIGHT TO HEALTH IN THE OCCUPIED PALESTINE 21
4.1 THE HEALTHCARE IN OCCUPIED PALESTINE 21 4.2 THE PALESTINIANS’ RIGHT TO HEALTH IN HCJ CASES 24 4.2.1 The Wall’s Restriction on the Right to Health 25
4.2.2 Exit Permits 25
4.2.3 Fuel Cuts in Gaza 26
4.2.4 COVID-19 Testing Centres 27
4.3 MEASURES DURING THE COVID-19 PANDEMIC 28
4.3.1 The West Bank 28
4.3.2 The Gaza Strip 33
5. STATE RESPONSIBILITY FOR INTERNATIONALLY WRONGFUL ACTS 40
6. CONCLUSION 43
1. INTRODUCTION
Every human being has a fundamental right to health which implies that everyone is entitled to enjoy the highest attainable standard of health in order to live a life in dignity.1 The right to health cannot be interpreted as a right to be healthy, since there are factors that affect individ-ual’s health that the State cannot control.2 However, States have obligations to ensure that the people enjoy the highest attainable standard of health by, for example, providing accessible and affordable medical facilities and services without discrimination.3
In 2020 the COVID-19 pandemic began, affecting the health of millions of people around the world. In the Occupied Palestine, the pandemic further burdened the already fragmented and fragile healthcare system and worsened the humanitarian crisis in the Occupied Palestine, which already faced restrictions affecting the right to health.4
Israel, as the occupying power, has obligations in order to fulfil the right to health in the Occu-pied Palestine under both international human rights law and international humanitarian law.5 The Supreme Court of Israel, sitting as the High Court of Justice (HCJ), has not examined the Palestinians’ right to health to a sufficient extent, as it does not consider Israel as the occupying power with obligations towards the Palestinians.6 Since Israel denies its position as the occu-pying power, while still maintaining control over the Palestinians, the protection of the Pales-tinians has been neglected. During the pandemic, Israel has taken measures that could be per-ceived as violations of the right to health of the Palestinians, for example demolitions of testing centres, homes of Palestinians and hindering the entrance of fuel and essential items into the Gaza Strip.7
1 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 14: The Right to the
Highest Attainable Standard of Health, Art 12 (11 August 2000) E/C.12/2000/4, para 1.
2 Office of the United Nations High Commissioner for Human Rights (OHCHR) `Fact Sheet No 31, The Right
to Health´ (OHCHR, June 2008) <https://www.ohchr.org/Documents/Publications/Factsheet31.pdf> accessed 15 September 2020, 3.
3 CESCR GC 14 (n 1).
4 Europea Commission `European Civil Protection and Humanitarian Aid Operations´ (European Commission,
17 November 2020) <https://ec.europa.eu/echo/where/middle-east/palestine_en> accessed 24 November 2020, 1.
5 International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966, entered into
force 3 January 1976) 993 UNTS 3 (ICESCR) art 12; Geneva Convention (IV) Relative to the Protection of Ci-vilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950), 75 UNTS 287 (Geneva IV) art 55 and 56.
6 HCJ 5429/07 Physicians for Human Rights et al v The Minister of Defense et al (28 June 2007) (original text in
Hebrew, translation by Hamoked).
7 United Nations Office for the Coordination of Humanitarian Affairs (OCHA) `West Bank Demolitions and
Displacement: An Overview June 2020´ (United Nations Office for the Coordination of Humanitarian Affairs
Occupied Palestinian Territory, 15 July 2020)
<https://www.ochaopt.org/sites/default/files/demoli-tion_monthly_report_june_2020.pdf> accessed 27 September 2020; OCHA `Occupied Palestinian Territory (oPt): COVID-19 Emergency Situation Report No 16 (12-28 August 2020)´ (OCHAOPT, 28 August 2020) <https://www.ochaopt.org/sites/default/files/sitrep-16-covid-19.pdf > accessed 28 September 2020.
Thus, this calls for a closer assessment of what Israel’s obligations are to fulfil the right to health in the Occupied Palestine. Moreover, the thesis examines whether Israel’s actions during the COVID-19 pandemic comply with such obligations, or if they entail State responsibility for internationally wrongful acts.
1.1 THE COVID-19 PANDEMIC
In March 2020, the World Health Organization (WHO) declared the spread of COVID-19 as a pandemic.8 COVID-19 is a newly discovered infectious disease caused by the virus `severe acute respiratory syndrome coronavirus 2´ (SARS-CoV-2).9 People infected with the virus ex-perience mild to moderate respiratory illness.10 Elderly people and other risk groups are more likely to become severely ill.11 At the end of December 2020, there were over 81 million con-firmed cases of COVID-19 and over 1,7 million deaths, with the numbers constantly increas-ing.12 The first case of COVID-19 in Israel was confirmed on 21 February 2020.13 In the West Bank, the first case was confirmed on 5 March 2020 and in the Gaza Strip on 21 March 2020.14 At end of December 2020, there were over 134 000 confirmed cases and over 1330 deaths due to the virus in the Occupied Palestine.15 For the purpose to combat COVID-19, prevent deaths and the spread of the disease, it is essential to have sufficient access to healthcare. Equally important is the access to clean water in order to wash hands, making good hygiene crucial in the impediment of the spread of the disease.16
In addition, to combat COVID-19 the World Health Organization (WHO) has emphasized the importance of testing. The WHO developed testing strategy recommendations in which it stated
8 WHO `WHO Director-General’s opening remarks at the media briefing on COVID-19 - 11 March 2020´
(WHO,11 March 2020) <https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> accessed 8 October 2020.
9 WHO `Coronavirus´ (WHO) <https://www.who.int/health-topics/coronavirus#tab=tab_1> accessed 3
Septem-ber 2020; WHO `Naming the Coronavirus Disease (COVID-19) and the Virus That Causes It´ (WHO) <https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-corona-virus-disease-(covid-2019)-and-the-virus-that-causes-it> accessed 4 September 2020.
10 WHO `Coronavirus´ (n 9). 11 ibid.
12 Worldometer `COVID-19 Coronavirus Pandemic´ (Worldometers, updated 28 December 2020)
<https://www.worldometers.info/coronavirus/> accessed 28 December 2020.
13 State of Israel Ministry of Health `One Of The Passengers Returning From The Ship In Japan Tested Positive
For Coronavirus´ (Ministry of Health, 21 February 2020)
<https://www.health.gov.il/Eng-lish/News_and_Events/Spokespersons_Messages/Pages/21022020_1.aspx> accessed 3 September 2020; Worldometer `Israel´ (Worldometers, updated 2 September 2020) <https://www.worldometers.info/corona-virus/country/israel/> accessed 2 September 2020.
14 Worldometers `Palestine´(Worldometers, 28 December 2020)
<https://www.worldometers.info/corona-virus/country/state-of-palestine/> accessed 28 December 2020; OCHA `Occupied Palestinian Territory (oPt): COVID-19 Emergency Situation Report No 4 (7 – 13 April 2020)´ (OCHAOPT, 14 April 2020)
<https://www.ochaopt.org/sites/default/files/sitrep_4_13_april_2020.pdf> accessed 7 September 2020.
15 Worldometers `Palestine´ (n 14).
16 WHO and United Nations Children’s Fund (UNICEF) `Water, sanitation, hygiene, and waste management for
SARS-CoV-2, the virus that causes COVID-19´ (WHO, 29 July 2020) <https://apps.who.int/iris/bitstream/han-dle/10665/333560/WHO-2019-nCoV-IPC_WASH-2020.4-eng.pdf?ua=1> accessed 4 September 2020.
that all countries should increase the level of alert, preparedness and response to identify, man-age and care for COVID-19 cases.17 The laboratory testing was an integral part of the strategy developed by the WHO. Furthermore, each country should assess the risks and immediately implement necessary measures to prepare for testing and reduce COVID-19 transmission and economic, social and public health impacts.18
1.2 PURPOSE AND RESEARCH QUESTION
The purpose of this thesis is to contribute to the understanding of occupying powers’ legal obligations towards the occupied territory under international humanitarian law and interna-tional human rights law. This is accomplished by examining Israel’s internainterna-tional obligations, in order to fulfil the right to health in the Occupied Palestine during the COVID-19 pandemic. In order to achieve the purpose of this thesis, the following questions are addressed:
1. What obligations do occupying powers have in order to fulfil the right to health under international humanitarian law and international human rights law in the occupied ter-ritory?
2. What measures has Israel taken during the COVID-19 pandemic in this regard?
3. Does Israel’s measures, or lack thereof, during the COVID-19 pandemic entail State responsibility for internationally wrongful acts?
1.3 METHOD AND MATERIAL
This thesis uses a combination of the legal dogmatic method and the legal analytical method. The legal dogmatic method is often described as reconstructing legislative rules on a legal issue in order to find a solution.19 The legal dogmatic method allows the author to search for the answer to a research question in the general sources of law.20 The thesis focuses on public international law and uses the sources of law described in Article 38 of the Statute of the Inter-national Court of Justice (ICJ). 21 Sources of law are interpreted in light of Article 31 of the Vienna Convention on the Law of Treaties.22 This thesis examines a new issue that has occurred
17 WHO `2019 Novel Coronavirus (2019-nCoV): Strategic Preparedness and Response Plan´ (WHO, 4 February
2020) <https://www.who.int/docs/default-source/coronaviruse/jmo-who-ncov-report-4feb-web.pdf?sfvrsn=d82d752a_2&download=true> accessed 5 September 2020.
18 WHO `Laboratory testing strategy recommendations for COVID-19: interim guidance´ (WHO, 21 March
2020) <https://www.who.int/publications/i/item/laboratory-testing-strategy-recommendations-for-covid-19-in-terim-guidance> accessed 6 September 2020.
19 Maria Nääv and Mauro Zamboni, Juridisk Metodlära (2nd edn, Lund Studentlitteratur 2018) 21. 20 ibid.
21 Statue of the International Court of Justice (entered into force the 24 October 1945) 33 UNTS 993 (ICJ
Stat-ute) art 38.
22 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
due to the COVID-19 pandemic. Thus, in order to explain what legal obligations Israel has, a legal dogmatic method is used in order to find de lege lata.
The legal analytical method is broader than the legal dogmatic method and includes an analysis of the law and not only establishing de lege lata.23 The legal analytical method is used in order to include WHO recommendations and other measures recommended during the COVID-19 pandemic, that are not legal documents but rather connected to the medical field. Since the legal dogmatic method is used to establish de lege lata, the legal analytical method is used in order to apply the law in the situation of the COVID-19 pandemic. By using the legal analytical method, the thesis can include material that is non-legal such as reports and recommendations, in order to analyse the law.
The legal dogmatic method is especially used in order to establish what international obliga-tions Israel has as an occupying power towards the Occupied Palestine under the right to health during the COVID-19 pandemic. The legal analytical method is rather used when analysing whether Israel’s measures during the pandemic are in violation of international law. However, a combination of both is used throughout the thesis.
The thesis examines conventional obligations under international humanitarian law and inter-national human rights law in order to answer what interinter-national legal obligations Israel has towards the Occupied Palestine. The Hague Convention (IV) Respecting the Laws and Cus-toms of War on Land and Its Annex: Regulations Concerning the Laws and CusCus-toms of War on Land,24 the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War25 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)26 are the main sources used in order to establish the legal obligations of Israel as an occupying power. However, other sources described in Article 38 of the ICJ Statute are used in order to interpret the law, such as writings of publicists.
Due to the fact that the issue of COVID-19 emerged recently, soft law is used to a certain extent in order to examine Israel’s measures during the pandemic. Although soft law can be described as not law at all,27 it has become more recognised and accepted within international law even though it does not have legal force.28 Furthermore, in order to examine Israel’s measures during the COVID-19 pandemic and whether it complies with international law, non-governmental organizations (NGO), United Nations (UN) and other organizations reports are used due to lack of case law on the particularly new issue.
23 Claes Sandgren, Rättsvetenskap för Uppsatsförfattare: Ämne, Material, Metod och Argumentation (Norstedts
Juridik 2018) 50.
24 International Conferences (The Hague) Hague Convention (IV) Respecting the Laws and Customs of War on
Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (Hague Convention IV).
25 Geneva Convention IV (n 5). 26 ICESCR (n 5).
27 Andrew T Guzman and Timothy L Meyer `International Soft Law´ (2010) 2(1) Journal of Legal Analysis,
171–225.
28 Bryan H Druzin `Why Does Soft Law Have any Power Anyway´ (2016) 7(2) Asian Journal of International
1.4 DELIMITATIONS
This thesis does not address the historical and political aspects of the Israeli occupation, it rather focuses on the information that is relevant to the legal situation during the pandemic. Thus, the thesis excludes jus ad bellum. Additionally, the status of Palestine as a State is outside the scope of this thesis since either way the Palestinian Authority has obligations under inter-national human rights law, thus the status of State is irrelevant.
The main focus of the thesis is Israel’s international obligations, as the occupying power, under international human rights law and international humanitarian law concerning the right to health. However, the thesis does not delve into the situation of specific groups in society that are experiencing health-related challenges during the pandemic, such as prisoners. In addition, although the thesis contains references to food as a key component in the right to health, it delimits a deeper examination of the issue of food during the pandemic. The thesis focuses on the right to health in general, mainly physical health and does not examine how the Palestini-ans’ mental health have been affected by the COVID-19 pandemic and Israel’s obligations concerning the mental health. Neither does the thesis include issues that could occur in relation to vaccination. Furthermore, examination on the possibility of prosecution of violations of the obligations is excluded.
With regard to the material, the right to health has been acknowledged in several international and regional legal instruments and there is a need for a delimitation. The focus of the thesis is on ICESCR, the Hague Convention IV and the Geneva Convention IV, thus other conventions are mainly excluded.
Although Article 43 of the Hague Convention IV is assessed in the thesis, the difference be-tween the English and French translation of the Article is excluded. It is excluded since the HCJ has interpreted the Article, in a manner in which the difference between the translations is irrelevant for the thesis.
1.5 DISPOSITION
This thesis is divided into six chapters. Apart from the purpose, research question, delimita-tions, method and material and disposition, the introductory chapter also includes a general introduction of the issue of the COVID-19 pandemic in an occupation.
The second chapter concerns the legal situation of the Occupied Palestine and establishes whether Gaza and the West Bank including East Jerusalem are considered occupied territory.
The third chapter examines international law concerning the right to health. The first part of the chapter addresses international humanitarian law mainly in the Hague Convention IV and the Geneva Convention IV, in order to establish the occupying powers obligations regarding the right to health especially, during a pandemic. The second part assesses international human rights law focusing on Article 12 of the ICESCR and how it applies especially, during the COVID-19 pandemic.
The fourth chapter assesses the right to health in the Occupied Palestine in three subchapters. The first subchapter describes the healthcare system in the Occupied Palestine in order to get an idea on how the healthcare was previous to the pandemic. The second subchapter contains a brief overview on how the Palestinians’ right to health is assessed by the HCJ. The third subchapter concerns Israel’s actions during the COVID-19 pandemic in the Occupied Palestine and an analysis and discussion on whether those actions fulfil the obligations established in the previous chapters.
The fifth chapter briefly examines what State responsibility for internationally wrongful acts entails and Israel’s obligations regarding State responsibility for its measures during the COVID-19 pandemic that affects the right to health.
The sixth chapter contains a conclusion of the findings of the analysis and discussion estab-lished in the thesis.
2. LEGAL SITUATION OF THE OCCUPIED PALESTINE
This chapter addresses the topic of whether Israel can be considered to be the occupying power over the West Bank and the Gaza Strip. Such examination is necessary in order to apply the law of belligerent occupation.
2.1 THE GAZA STRIP
Whether or not the Gaza Strip is considered under Israeli occupation can be debated. In 2005, Israel withdrew its settlers from the Gaza Strip but retained control over the borders, seashore and airspace.29 In 2007, Hamas seized power in the Gaza Strip and acted as de facto authority in the area.30 Israel argues that it does not have effective control over the Gaza Strip and is therefore not an occupying power of the area.31 According to the HCJ, the law of occupation does not apply in this situation. It claims that the area has a sui generis status and Israel has no positive obligations towards the residents in Gaza.32
However, in order to determine whether the territory is occupied under international law there has to be effective control.33 Physical presence of the occupying power’s military force in the territory is not a requirement for the territory to be established as occupied territory.34 An oc-cupation occurs when the territory is placed under the authority of the hostile army.35 The In-ternational Criminal Tribunal for the former Yugoslavia (ICTY) has interpreted that an actual authority exists if the State has a sufficient force present or the capacity to, within a reasonable time, send troops to make the authority of occupying power felt.36 Israel controls the people of Gaza without a permanent military presence, henceforth remains the occupying power in the Gaza Strip.37 The effective control of Israel can be determined by the following factors:
1. Israel has substantial control over six land crossings in Gaza.38
2. Israel has control through military invasion, rocket attacks and sonic booms as well as declaring no-go zones where residents are shot upon entering the areas.39
3. Israel completely controls Gaza’s territorial waters and airspace.40
29 United Nations the Question of Palestine `History of the Question of Palestine´ (UN)
<https://www.un.org/unispal/history/> accessed 5 October 2020.
30 Human Rights Council, Human Rights Situation in Palestine and Other Occupied Arab Territories, Report by
Special Rapporteur John Dugard (21 January 2008) UN Doc A/HRC/7/17.
31 HCJ 9132/07 Al Basyouni et al v the Prime Minister (30 January 2008) (original text in Hebrew, translated by
Hamoked) [12].
32 HCJ 11120/05 Osama Mahmud Hamdan and Others v the Southern Military Commander and Others ILDC
794 (IL2007) 7 August 2007 [13].
33 A/HRC/7/17 (n 30) para 11. 34 ibid.
35 Hague Convention IV (n 24) art 42.
36 The Prosecutor v Naletilic & Martinovic (Judgment) IT-98-34-T (31 March 2003). 37 A/HRC/7/17 (n 30) para 11.
38 ibid. 39 ibid. 40 ibid.
4. Israel controls the Palestinian Population Registry, which means that the Israeli military defines who is a Palestinian and who is a resident of Gaza and the West Bank.41
Under those circumstances, this thesis concludes Israel to be the occupying power of Gaza and therefore the law of occupation is applicable in the area.
2.2 THE WEST BANK
In 1995 the Oslo II Accord was signed and divided the West Bank into three zones, areas A, B and C,42 followed by the 1997 Hebron Protocol that divided areas H1/H2 in Hebron.43 Area A and H1 is administered exclusively by the Palestinian Authority. Whilst in Area B, the civilian control is by Palestine and military control by Israel.44 Area C and H2 is administered by Israel and contains the Israeli settlements.45 However, it is important to note that Area A and B are surrounded by Area C, enabling Israel to impose control over A and B to a certain extent and limiting the control of the Palestinian Authority.46 Furthermore, East Jerusalem is divided from the rest of the West Bank through the Wall and is illegally annexed by Israel, since it applies its own laws in the area.47 In 2002, Israel decided to build a wall in the West Bank and claimed that it was for security reasons, aimed to prevent violent attacks by the Palestinians.48 However, the Wall severely restricts the human rights of the Palestinians and has been established to be illegal.49 For instance, the Wall affects the populations access to health services and primary sources of water. 50
Moreover, an occupation can further be defined as prolonged or short-term. Although conven-tions do not express a distinction between prolonged occupaconven-tions and short-term occupaconven-tions, the difference can impose distinct obligations on the occupying power under international hu-man rights law.51 In the context of this thesis, in order to examine Israel’s obligations to pro-gressively realize the right to health, it might be important to establish whether it is a prolonged or short-term occupation. Both the UN and legal scholars have used the notion of prolonged
41 ibid.
42 Peace Agreements & Related, Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip
(Oslo II) 28 September 1995.
43 Protocol Concerning the Redeployment in Hebron, January 17, 1997, art 2. 44 ibid; Oslo Accord II (n 42).
45 ibid.
46 United Nations Country Team Occupied Palestinian Territories, Common Country Analysis, Leave No One
Behind: A Perspective on Vulnerability and Structural Disadvantage in Palestine (2016) 9.
47 United Nations Security Council Resolution 478 (20 August 1980) S/RES/478.
48 Information and Internet Division Ministry of Foreign Affairs Jerusalem `Saving Lives: Israel’s Anti-Terrorist
Fence Answers to Questions´ (Israel Ministry of Foreign Affairs, 1 January 2004)
<https://mfa.gov.il/MFA_Graphics/MFA%20Gallery/Documents/savinglives.pdf> accessed 28 October 2020.
49 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
[2004] ICJ Rep 136.
50 ibid [133].
51 Vaios Koutroulis `The Application of International Humanitarian Law and International Human Rights Law
in Situation of Prolonged Occupation: Only a Matter of Time? (2012) 94 International Review of the Red Cross 165, 168.
occupation when referring to the Occupied Palestine.52 Thus, this thesis recognizes the Occu-pied Palestine as a prolonged occupation without further scrutiny.
52 UNSC Resolution 471 (5 June 1980) S/RES/47,1 para 6; UNSC Resolution 476 (30 June 1980) S/RES/476,
para 1; Adam Roberts `Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967´ (1990) 84(1) The American Journal of International Law 44; Yoram Dinstein, The International Law of Belligerent Occupation (2nd edn, Cambridge University Press, 2019) 128; Richard Falk `Some Legal Reflections on Prolonged Israeli Occu-pation of Gaza and the West Bank´ (1989) 2 J Refugee Stud 40.
3. INTERNATIONAL LAW
Both international human rights law and international humanitarian law derives from the need to protect the individuals against those who would harm them.53 Human rights law expresses a general principle applicable in peacetime while international humanitarian law is specific to when the application of human rights is restricted or prevented during armed conflict. Since human rights are originally applicable during peacetime, they contain derogation clauses in case of conflict, however, certain rights are non-derogable.54
This chapter examines the right to health under the law of occupation within the framework of international humanitarian law, as well as the right to health under international human rights law. The relationship between international humanitarian law and international human rights law in the Occupied Palestine is further elaborated in the chapter.
3.1 INTERNATIONAL HUMANITARIAN LAW
According to the Oslo I Accord, the healthcare in the West Bank and the Gaza Strip is under the responsibility of the Palestinian Authority.55 However, occupying powers have obligations under the law of occupation to ensure that the basic needs of the population are fulfilled. People living under occupation have a guaranteed right to health under the laws of occupation, pro-tected by the Geneva Convention IV and customary international law.56
Israel is not a State Party to the Hague Convention IV, however it is established declaratory of the laws and customs of war.57 Since the Hague Convention IV is customary international law it is applicable to the Occupied Palestine.58 Article 43 of the Hague Convention IV states that the occupying power shall take all the measures in its power to restore and ensure public order and safety as far as possible, while respecting the laws in force in the country.59
The HCJ has interpreted Article 43 of the Hague Convention IV as not only concerning security and military matters but also civilian issues which include hygiene, health and other matters connected to human life in modern society.60 The COVID-19 pandemic could be considered a threat to public order and safety, requiring the occupying power to take all measures in order to cease the spread of the disease to the furthest extent possible. The HCJ has interpreted Article 43 of the Hague Convention IV to include to restore and ensure health and hygiene in the 53 Jean Pictet, Humanitarian Law and the Protection of War Victims (Henry Dunant Institute, 1975) 15.
54 ibid.
55 Declaration of Principles on Interim Self-Government Arrangements of 1993 (Oslo Accord I).
56 UNGA, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories
Oc-cupied Since 1967 (2018) A/HRC/37/75, para 31.
57 ICJ Advisory Opinion (n 49) [89]. 58 ibid.
59 Hague Convention IV (n 24) art 43.
60 HCJ 393/82, Jami’at Ascan et al, v IDF Commander in Judea and Samaria et al, 37(4) PD, p 785 (1983) [10]
occupied territory, which further supports the interpretation that the Article requires occupying powers to combat COVID-19.
In addition to the Hague Convention IV, the Geneva Convention IV addresses the right to health in occupied territory. Article 2 of the Geneva Convention IV declares that the Conven-tion is applicable to occupied territory.61 Although Israel is a State Party to the Geneva Con-vention IV,62 it disputes the applicability of the Convention in the Occupied Palestine, with the argument that it is not sovereign Israeli territory.63 However, considering that Israel has effec-tive control in the West Bank including East Jerusalem and the Gaza Strip, the Geneva Con-vention IV is applicable de jure in the Occupied Palestine.64 Henceforth, Israel is required to fulfil the obligations in the Geneva Convention IV in the Occupied Palestine.
Article 55 of the Geneva Convention IV 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 popula-tion; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate…65
Article 55 of the Geneva Convention IV extends the responsibility of the occupying power towards the occupied territory. While Article 43 of the Hague Convention IV states that the public order and safety should be ensured to the greatest degree. Article 55 of the Geneva Con-vention IV is broader and includes the obligation of the occupying power to ensure food and medical supplies to the population to the fullest extent of the means available, in order to main-tain a reasonable level of material conditions.66
The occupying power has several options if the supplies are inadequate in the occupied territory in order to fulfil its obligations. Firstly, it can permit authorities or private individuals to import the goods, either from the unoccupied part of the country or from a third State. 67 If that is insufficient, the occupying power should itself provide for the required supplies to the fullest means available to it.68
61 Geneva Convention IV (n 5) art 2.
62 ICRC, `Convention (IV) Relative to the Protection of Civilian Persons in Time of War Geneva, 12 August
1949´ (Treaties, State Parties and Commentaries)
<https://ihl-databases.icrc.org/ap-plic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=380> accessed 15 October 2020.
63 ICJ Advisory Opinion (n 49) [30] - [31].
64 ibid; UNGA, Human Rights Situation in Palestine and Other Occupied Arab Territories (17 June 2020)
A/HRC/43/L.38/Rev.1, 2.
65 Geneva Convention IV (n 5) art 55.
66 Jean S Pictet, Commentary: IV Geneva Convention – Relative to the Protection of Civilian Persons in Time of
War (Geneva: International Committee of the Red Cross, 1958) 309.
67 Hans-Peter Gasser and Knut Dörmann, `Protection of the Civilian Population´ in Dieter Fleck (ed), The
hand-book of international humanitarian law (3rd ed, OUP 2013) 296.
It is important to note that Article 55 of the Geneva Convention IV includes the phrase `to the fullest extent of the means available to it´ which means that the drafters considered the material difficulties that an occupying power might face in wartime.69 If the occupying power is not able to fulfil the essential needs of the population it has to demonstrate that it made an attempt and exhausted all available means in order to meet the requirements.70
In addition to Article 55 of the Geneva Convention IV the right to health is also included in Article 56 of the same Convention, which states:
To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the co-operation of na-tional and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with par-ticular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious dis-eases and epidemics...71
The Article states that the occupying power should cooperate with national and local authori-ties. This indicates that there is a shared burden of taking measures to control epidemics.72 In certain situations the national authorities are able to take measures and look after the health of the population without the interference of the occupying power, in which the occupying power does not have to intervene.73 However, in most cases the occupying power has invaded a coun-try that severely suffers from the aftermath of war. Oftentimes, the medical services and hos-pitals are disorganized and lack the necessary supplies. Under such circumstances, the needs of the population cannot be fulfilled by the national and local authorities.74 The occupying power has to cooperate with the authorities and ensure that hospitals and medical services can work properly to the fullest extent of the means that are available.75
Furthermore, the Article refers especially to prophylactic measures necessary in order to com-bat the spread of epidemics and other contagious diseases.76 COVID-19 is a contagious disease and pandemic, which is larger and broader than an epidemic and should thus be considered within the scope of this Article, as a disease that calls for preventive and prophylactic measures.77 Prophylactic measures include supervision of public health, distribute medicines, educate the general public, organize medical examinations and disinfection, establish stocks of medical supplies, isolate and accommodate people that suffer from the disease and open new hospitals and medical centres in order to combat the disease.78
69 Pictet 1958 (n 66) 310.
70 Andrew Clapham, Paola Gaeta and Marco Sassóli, The 1949 Geneva Conventions: A Commentary (OUP
2015) 1494.
71 Geneva Convention IV (n 5) art 56. 72 Clapham (n 70) 1496. 73 Pictet 1958 (n 66) 313. 74 ibid 314. 75 ibid. 76 ibid. 77 WHO 11 March 2020 (n 8). 78 Pictet 1958 (n 66) 314.
The laws mentioned above create obligations for the occupying power to ensure the right to health and hygiene in the Occupied Palestine. Israel has a duty to ensure food and medical supplies in the Occupied Palestine to the fullest extent of the means available to it. Israel as the occupying power has significant obligations under the law of belligerent occupation to ensure the health of Palestinians that are under its control.79 Since the Oslo I Accord prescribed the Palestinian Authority the responsibility to provide healthcare in the Occupied Palestine, the Palestinian Authority and the de facto authority in Gaza have responsibilities over the state of the healthcare in the Occupied Palestine. Nevertheless, Israel has the ultimate responsibility due to its restrictions and occupation imposed on the Occupied Palestine.80
3.2 INTERNATIONAL HUMAN RIGHTS LAW
Under international human rights law `Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services´.81 Although the right to health is recognized in several international conventions, 82 this chapter focuses solely on ICESCR.83
International human rights law binds the occupying power to respect the population in the oc-cupied territory.84 However, Israel does not agree on this standpoint.85 Israel has the responsi-bility as a State Party to implement its human rights conventional obligations in the Occupied Palestine as long as it continues to exercise jurisdiction in the territory.86 Israel has ratified the ICESCR and has, as an occupying power, the obligation to fulfil the right to health in the Oc-cupied Palestine.87 Its standpoint is that the ICESCR is not applicable in the West Bank and the Gaza Strip since it is neither sovereign territory nor within its jurisdiction.88 This is based on the distinction between human rights and humanitarian law, since it is an armed conflict distinct from a relationship of human rights.89 Furthermore, the standpoint is that the Palestinian Au-thority has the responsibilities and powers of the civil sphere and is consequently responsible
79 A/HRC/37/75 (n 56) para 63. 80 ibid para 64.
81 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) art 25. 82 ibid; ICESCR (n 5) art 12; International Convention on Elimination of All Forms of Racial Discrimination
(adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195, art 5; Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 art 24.
83 ICESCR (n 5) art 12.
84 ICJ Advisory Opinion (n 49) [107]-[112]. 85 ibid.
86 UNGA, Human Rights Situation in Palestine and Other Occupied Arab Territories (2008) A/HRC/8/17, para
7.
87 United Nations Treaty Collection `International Covenant on Economic, Social and Cultural Rights´ (UNTC,
updated 3 December 2020) <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chap-ter=4&clang=_en> accessed 3 December 2020.
88 Economic and Social Council, Implementation of the International Covenant on Economic, Social and
Cul-tural Rights (16 October 2001) UN Doc E/1990/6/Add.32, para 5-8.
for the economic, social and cultural rights.90 The right to health in an occupied territory is not limited to what is provided by international humanitarian law but additionally with comple-mentary contributions made by human rights law.91
State Parties have obligations under the ICESCR to all territories and populations that are under its effective control.92 Although, international humanitarian law is applicable during armed conflict, the fundamental human rights are also applicable and have to be respected as mini-mum standards of human rights guaranteed under customary international law.93 There are dis-cussions on to which extent the occupying power has to fulfil human rights in the occupied territory.94 The result of those discussions is a test divided into three parts. Firstly, it is im-portant to distinguish between positive and negative human rights obligations.95 Secondly whether it is a short-term or long-term occupation and lastly, the distinction between civil and political rights versus economic, social and cultural rights.96 This thesis assesses positive and negative obligations concerning the right to health, included in economic, social and cultural rights during a long-term occupation.
Despite discussions regarding the extent of the occupying powers obligations under human rights law, the minimum core obligations included in the right to health are non-derogable obligations the occupying power has to fulfil.97 Prolonged occupations require more actions of the occupying power than short-term occupations in order to keep up with the passage of time.98 The welfare of the local population has a key role and should be a main principle along with the occupying power’s security interests, when measures and policies are adopted by the occu-pying power.99
The ICESCR obliges State Parties to immediately implement certain core rights.100 The ICESCR contains a distinction between two normative levels, the provisions establishing obli-gations with immediate effect and the provisions that establish obliobli-gations to be realized pro-gressively.101 The temporary nature of occupations is not a legitimate argument to evade the obligations.102
90 ibid.
91 ICRC `Expert Meeting Occupation and Other Forms of Administration of Foreign Territory´ (ICRC, 2012)
<https://www.icrc.org/en/doc/assets/files/publications/icrc-002-4094.pdf> accessed 4 November 2020, 95.
92 Economic and Social Council, Consideration of Reports Submitted by States Parties under Article 16 and 17
of the Covenant (26 June 2003) UN Doc E/C.12/1/Add.90, para 31.
93 ibid.
94 ICRC Expert Meeting (n 91) 63. 95 ibid. 96 ibid. 97 ibid 66. 98 ibid 72. 99 ibid. 100 ibid 65.
101 CESCR, General Comment No 3: The Nature of State Parties’ Obligations (Art 2, Para 1, of the Covenant),
(14 December 1990) E/1991/23, para 1.
Additionally, Hamas is a non-State actor but is the de facto authority in the Gaza Strip, even though it is not formally bound by conventions, it is required to respect human rights norms.103 Palestine is a State Party to ICESCR.104 However, since the Palestinian Authority lacks sover-eignty, effective control over natural resources or other potential sources of the State, it is hin-dered to adequately finance public healthcare and fulfil the duties under the right to health in the Occupied Palestine.105
3.2.1 Article 12 ICESCR
Although international humanitarian law provides obligations for the occupying power to en-sure food and medical supplies to the extent to the means are available to it, international human rights law establishes a minimum entitlement to adequate food, clothing, water, health and housing.106
The right to health is explicitly expressed in Article 12 of the ICESCR which states that: 1. The States Parties to the present Covenant recognize the right of eve-ryone 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 hy-giene;
(c) The prevention, treatment and control of epidemic, endemic, occu-pational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
Article 2 of the ICESCR states that the State Parties to the Covenant commence to take steps individually, through cooperation and international assistance to achieve progressively full re-alization of the rights recognized.107 The steps anticipate that the State uses all appropriate measures and to the maximum of its available resources, which includes adoption of legislative measures.108 Furthermore, the rights have to be guaranteed to be exercised without discrimina-tion.109
103 A/HRC/8/17 (n 86) para 9. 104 UNTC ICESCR (n 87).
105 WHO `Right to Health 2018´ (WHO Regional Office for the Eastern Mediterranean, 2019)
<http://www.emro.who.int/images/stories/palestine/documents/who_right_to_health_2018_web-fi-nal.pdf?ua=1> accessed 18 September 2020, 21.
106 Clapham (n 70) 1493. 107 ICESCR (n 5) art 2. 108 ibid.
The right to health is a fundamental indispensable right in order to enjoy other human rights.110 The right should be interpreted as the right to enjoy facilities, services, goods and conditions necessary for the realization of the highest attainable standard of health.111 Moreover, the right to health shall at all levels contain the four elements: availability, accessibility, acceptability and quality.
Availability means that functioning public health and healthcare facilities, services and goods should be in place.112 The nature of the facilities, services and goods vary depending on several factors, for instance, the State Party’s developmental level.113
Accessibility means that the health facilities, services and goods have to be accessible to eve-ryone without discrimination within the jurisdiction of the State Party.114 The element has four dimensions that overlap, namely, non-discrimination, physical accessibility, economic acces-sibility and information accesacces-sibility. Non-discrimination includes that health facilities, ser-vices and goods shall be accessible to all especially marginalized and vulnerable groups of the population. There should neither be discrimination de jure, nor de facto on any of the prohibited grounds.115
Physical accessibility means that health facilities, services and goods have to be within physical reach for all sections of the population, especially marginalized and vulnerable groups such as indigenous populations and ethnic minorities, children, women, older persons and persons with disabilities.116 Physical accessibility implies that medical services and other detrimental factors for health such as safe and potable water and adequate sanitation facilities are within physical reach for all including rural areas.117
Economic accessibility means that the health facilities, services and goods shall be affordable for all. Healthcare should be based on the equity principle and ensure that the services are affordable for all.118 Lastly, information accessibility includes the right to receive, seek and impart information and ideas that concern health issues.119
Acceptability means that all the health facilities, services and goods have to respect medical ethics and have to be culturally appropriate.120 It has to respect the culture of individuals, com-munities, minorities and be gender-sensitive.121
110 CESCR GC 14 (n 1) para 1. 111 ibid para 9. 112 ibid para 12. 113 ibid. 114 ibid. 115 ibid. 116 ibid. 117 ibid. 118 ibid. 119 ibid. 120 ibid. 121 ibid.
Quality means that the health facilities, services and goods are scientifically and medically appropriate and of good quality while being culturally acceptable.122 In order to achieve good quality there has to be skilled medical personnel as well as unexpired and scientifically ap-proved drugs and hospital equipment. Furthermore, it is required that there is potable water and adequate sanitation.123
Additionally, in order to comply with international law, the States have to respect, protect and fulfil the obligations.124 The State respects the right by refraining from direct or indirect inter-ference with the right to health.125 For example, States should refrain from denying or limiting access to healthcare.126
In order to protect the right to health, it is required that States prevent third parties from inter-fering with it.127 They should refrain from imposing bans or measures restricting the supply of another State with medicine and medical equipment.128
The obligation to fulfil the right to health entails that States must adopt appropriate legislative, judicial, administrative, budgetary, promotional and other measures to realize the right to health to the full extent.129 For example, States should adopt a national health plan or a national health policy covering the private and public sector. Furthermore, States should ensure that everyone has equal access to the underlying determinants of health such as nutritious and safe food, sanitation and clean water.130
As mentioned, the State Party has to use all appropriate means in order to progressively achieve the full realization of the right to health. When determining what all appropriate means entails, the State enjoys a level of discretion, however it is not unlimited. The State has to adopt appro-priate measures that are consistent with human rights and contribute effectively to the progres-sive realization of the right to health.131
State Parties have an obligation to secure the minimum core of the right to health. The idea of the minimum core obligation is to, at all times, guarantee a minimum level of protection.132 All State Parties should take action to immediately implement the minimum core obligations. If the available resources in the State are demonstrably inadequate, the State concerned still has to strive to ensure the widest possible enjoyment of the rights under the prevailing circum-stances. Therefore, complying with the minimum core obligations should not depend on the 122 ibid. 123 ibid. 124 ibid. 125 ibid para 33. 126 Fact Sheet No 31 (n 2) 25. 127 CESCR GC 14 (n 1) para 33. 128 ibid para 41. 129 ibid para 33. 130 Fact Sheet No 31 (n 2) 27.
131 John Tobin and Damon Barret `The Right to Health and Health-Related Human Rights´ in Lawrence O
Gos-tin and Benjamin Maso Meier (eds) Foundations of Global Health & Human Rights (OUP, 2020) 75.
availability of resources.133 When the State has limited financial means it is crucial to fulfil the minimum core obligations in order to assure basic health needs. For example, there should be access to health facilities, essential food, basic shelter and essential drugs.134
Furthermore, one of the core obligations is the allocation of healthcare facilities, goods and services without discrimination.135 In order to meet this obligation the States have to ensure that the equitable allocation of health funds and resources are aiming at achieving access to good quality health facilities, services and goods, giving special attention to the needs of the marginalized and vulnerable population.136
If a State is unwilling to use the maximum of its available resources to progressively realize the right to health it is in violation of its obligations under Article 12 of ICESCR.137 Further-more, core obligations are non-derogable, thus States cannot, under any circumstances, justify non-compliance with the minimum core obligations.138 The minimum core obligations have to be guaranteed irrespective of the country’s economic conditions and both in military occupa-tion and in peacetime.139
The ICESCR requires progressive realization of the right to health, which is far more long-term than the law of occupation that takes into consideration the temporary character of occu-pations. The ICESCR provides that the occupation power at least has to respect the right to health and fulfil minimum core obligations.140 Additionally, prolonged occupations are ex-pected to take further steps under international human rights law to progressively realize the right to health.
Occupying powers should not prevent access neither physically nor bureaucratically for pa-tients and medical staff to hospitals and health clinics.141 The occupying power should rather promote equal access to healthcare, especially for vulnerable and marginalized groups.142
3.2.2 The Right to Health During the COVID-19 Pandemic
As mentioned, everyone has the right to the highest attainable standard of health and govern-ments are obliged to prevent threats to public health. The COVID-19 pandemic is a threat to the public health and to overwhelm the healthcare systems.143 This subchapter, explicitly states the right to health during the COVID-19 pandemic, and certain measures States should take
133 Committee on the Rights of the Child Report on the Forty-Sixth Session (22 April 2008) UN Doc
CRC/C/46/3, para 89.
134 CESCR GC 14 (n 1) para 43.
135 Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and
Cul-tural Rights: Commentary, Cases, and Materials (OUP, 2014) 1006.
136 CESCR GC 14 (n 1) para 19. 137 ibid para 47.
138 ibid.
139 ICRC Expert Meeting (n 91) 90. 140 ibid 65.
141 A/HRC/37/75 (n 56) para 63. 142 ibid.
143 Economic and Social Council Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic,
during the pandemic in order to progressively realize the right to the highest attainable standard of health even during a pandemic.
Although State Parties have obligations under the ICESCR at all times, during a pandemic certain measures are of greater importance in order to fulfil the right to health. For example access to medication in the context of a pandemic is a fundamental element in order to achieve progressively full realization of the right to health.144 States should refrain from conducting measures that deny or limit equal access for everyone to preventive, curative or palliative med-ical technologies for pharmaceutmed-ical products that are used to treat pandemics.145 States should take appropriate measures to promote effective access to preventive, curative or palliative med-ical technologies for pharmaceutmed-ical products.146
During the COVID-19 pandemic, historic underinvestment in the healthcare system has shown to weaken the ability to respond to the pandemic and provide other essential health services.147 Healthcare systems that are fragmented and inadequately funded are weak in containing the spread of the COVID-19.148 States with strong healthcare systems are equipped better to re-spond to crises such as the COVID-19 pandemic.149 Some countries have made temporary fa-cilities as a response in order to fulfil the right to health during the pandemic. Although it is appropriate to establish temporary facilities, complications have occurred such as violation of certain human rights.150 For example, temporary facilities have violated the right to non-dis-crimination since certain groups have missed out on being tested and treated.151
In order to slow-down the spreading of COVID-19, measures such as physical distancing, avoiding crowds and washing hands need to be conducted.152 However, physical distancing and adequate hand hygiene in order to contain the spread of COVID-19 is difficult when there are inequalities such as inadequate housing, safe drinking water and sanitation in certain coun-tries.153
Furthermore, countries are trying to slow transmission of the virus by extensive lockdowns and restrictions on movement. However, such measures can unintentionally affect people’s access
144 UN Commission on Human Rights, Commission on Human Rights Resolution 2004/26: Access to
medica-tion in the context of pandemics such as HIV/AIDS, tuberculosis and malaria, (16 April 2004) UN Doc E/CN.4/RES/2004/26, para 1.
145 ibid para 7. 146 ibid.
147 UN `COVID-19 and Human Rights, We Are All in This Together´ (UN, April 2020)
<https://www.un.org/victimsofterrorism/sites/www.un.org.victimsofterrorism/files/un_-_hu-man_rights_and_covid_april_2020.pdf> accessed 17 November 2020, 4.
148 UNGA Rights of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental
Health (16 July 2020) A/75/163, para 13.
149 UN COVID-19 and Human Rights (n 146) 4. 150 A/75/163 (n 148) para 55.
151 ibid.
152 WHO `Coronavirus Disease (COVID-19) Advice for the Public´ (WHO, updated 26 October 2020)
<https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public> accessed 26 October 2020.
to healthcare, water and sanitation.154 States need to be careful to mitigate unintended conse-quences.155
Although the disease itself affects all groups in society, certain groups are extra vulnerable to COVID-19 and the effects of the virus. Refugees, asylum seekers and people living in areas affected by conflicts are particularly vulnerable, especially during the pandemic, since many lack adequate access to water, sanitizer or soap, healthcare services and COVID-19 testing facilities.156 States should adopt targeted measures which include international cooperation to protect vulnerable groups during the pandemic such as elderly persons, refugees, persons with disabilities, populations in conflict-affected areas, and groups and communities that are subject to structural discrimination and disadvantage. Those measures include providing water, soap and sanitizer to communities that lack them.157 States should make every effort to mobilize resources necessary to combat COVID-19 in an equitable manner, in order to avoid marginal-ized groups being burdened further.158
Furthermore, the WHO advises States to ensure public health and safety during the COVID-19 pandemic by following measures: 1) communication to the public. Countries should prepare to be able to communicate rapidly, regularly and transparently to the public; 159 2) collecting data and statistics on the detected cases; 160 3) suspected cases should be granted access to medical follow up and should receive isolation, treatment and other necessary support; 161 4) to enhance the preparedness and capacities of healthcare facilities in order to meet the increased number of COVID-19 cases.162
Additionally, during the COVID-19 pandemic many States face difficulties in ensuring avail-ability and accessibility of COVID-19 related health coverage, which leads to shortage in es-sential medical care, such as, diagnostic tests, ventilators, oxygen and personal protective equipment.163 States should in response to the COVID-19 pandemic share research, medical equipment, supplies and best practices in order to comply with the ICESCR.164 Nevertheless, the COVID-19 pandemic does not only affect healthcare services and facilities that are related to the disease, in addition it has globally affected healthcare services that are non-COVID-19 related as well.165
154 UN COVID-19 and Human Rights (n 147) 2. 155 ibid.
156 E/C.12/2020/1 (n 143) para 9. 157 ibid para 15.
158 ibid para 14.
159 Strategic Preparedness and Response Plan (n 17) 12. 160 ibid. 161 ibid. 162 ibid. 163 A/75/163 (n 148) para 54. 164 E/C.12/2020/1 (n 143) para 19. 165 A/75/163 (n 148) para 55.
4. THE RIGHT TO HEALTH IN THE OCCUPIED PALESTINE
This chapter examines whether Israel’s actions during the pandemic in the Occupied Palestine complies with the right to health. Although the focus is on the COVID-19 pandemic it is im-portant to consider measures and restrictions imposed prior to the pandemic that have affected the right to health of people during the pandemic.
4.1 THE HEALTHCARE IN OCCUPIED PALESTINE
In 1967 Israel occupied the West Bank (including East Jerusalem) and the Gaza Strip.166 In 1993, through the Oslo Accord I, the responsibility of the healthcare was transferred from Israel to the Palestinian Authority.167 The Palestinian Authority was transferred the responsibility to provide healthcare to five million Palestinians in the West Bank and Gaza.168 However, the Oslo Accords did not cease the occupation and Israel maintained total military control and extended control over the Palestinian economy.169
Although, the Palestinian Authority is responsible for the healthcare, Israel has power and au-thority over elements that are crucial to healthcare, such as import.170 Israel kept control over water, authority over imports and freedom of movement. For example, the freedom of move-ment in and out of the West Bank and the Gaza Strip is controlled by Israel.171 Palestinians in the Occupied Palestine have different status and identity cards accorded by Israel, which permit them different access to health services and different restrictions on the freedom of move-ment.172
The Palestinian Authority established the Palestinian Ministry of Health that is in charge of providing healthcare services to the Palestinian population.173 The Palestinian Authority and de facto authority in the Gaza Strip are responsible for administrating the public health system in Occupied Palestine.174 The health sector in the Occupied Palestine is largely dependent on donors, the provision is fragmented between public providers, United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), private companies and NGOs.175 The healthcare in the West Bank is mainly delivered by the Palestinian Ministry of
166 UN the Question of Palestine (n 29). 167 Oslo Accord I (n 55) art IV.
168 WHO Right to Health 2018 (n 105) 8.
169 Dani Filc, Circles of Exclusion: The politics of Health Care in Israel (ILR Press and Cornell University
Press, 2009) 138.
170 ibid. 171 ibid.
172 WHO Health Conditions in the Occupies Palestinian Territory, Including East Jerusalem, and in the
Occu-pied Syrian Golan (1 May 2019) A72/33, para 16.
173 State of Palestine Ministry of Health, Health Annual Report Palestine 2016 (Palestinian Health Information
Center, 2017) 30.
174 A72/33 (n 172) para 16.
Health and UNRWA,176 while in Gaza the main providers are the de facto authority and UNRWA.177 Palestinian and international NGOs as well as Palestinian private health providers play an important role in delivering health services.178 However, Israel’s occupation and the extensive control affect the health services in these areas. For instance, in Jerusalem, the Pal-estinian residents have Israeli healthcare available, while PalPal-estinians’ access to healthcare is inferior compared to Jewish Israeli residents.179
In Gaza, Israel’s blockade on land, sea and air frontiers amounts to a form of collective pun-ishment prohibited by international law.180 The blockade restricts and controls the movement of goods and people in and out of Gaza.181
In Gaza the 2 million inhabitants rely on a healthcare system that is on the edge of collapse.182 One of the minimum core obligations in the ICESCR is provision of essential medicines. In 2018 there were 516 drugs considered essential in Palestine, however 42% of them were com-pletely depleted183 and another 43% had less than a month’s supply remaining.184 The lack of essential drugs medicine include drugs required for treating autoimmune diseases, cancer and performing dialysis.185
Israel controls all land-crossings in and out of Gaza except the Rafah crossing with Egypt.186 Israel’s blockade on Gaza prevents humanitarian supplies from reaching the civilian population that needs them.187 Furthermore, the blockade in the Gaza Strip has severe impacts on the health sector. There are two crossings where Palestinians living in the Gaza Strip can exit, one is in the north through Erez to Israel and the other one is in the South through Rafah to Egypt.188 Humanitarian supplies enter in the south of the Gaza Strip from Israel via Kerem Shalom cross-ing. Items that are considered `dual use´ for potential military use are restricted by Israel to enter the Gaza Strip.189 The restrictions on these items severely influence the health factor since they affects the supply of electricity generators for hospitals, communication equipment for coordinating ambulances and emergency responses, and protective equipment for health staff
176 Health Annual Report Palestine 2016 (n 172) 30. 177 A/HRC/37/75 (n 56) para 35. 178 ibid para 3. 179 ibid para 35. 180 ibid para 36. 181 ibid. 182 ibid para 37.
183 WHO `WHO Special Situation Report Occupied Palestinian Territory, Gaza 2018´ (WHO, 28 February 2018)
<http://www.emro.who.int/images/stories/palestine/documents/who-special-situation-report-on-_gaza-feb.pdf?ua=1> accessed 18 November 2020.
184 A/HRC/37/75 (n 56) para 37.
185 WHO Special Situation Report Gaza 2018 (n 183) 25.
186 A/HRC/7/17 (n 30) para 15; Human Rights Council, Report of the Special Rapporteur on the situation of
hu-man rights in the Palestinian territories occupied since 1967 (15 July 2020) UN Doc A/HRC/44/60, para 58.
187 M N Schmitt Yearbook of International Humanitarian Law (TMC Asser Press, 2011) 435. 188 A72/33 (n 172) para 24.
which includes protective vests, gas masks and helmets.190 In addition, there are prolonged waiting times to obtain approvals for delivering complex medical equipment and spare parts.191 Additionally, the electricity supply is limited and unpredictable in the Gaza Strip with an aver-age of seven hours of electricity per day. As a result, hospitals depend on fuel to supply emer-gency generators and fuel shortages potentially puts the lives of patients at risk.192 Power fail-ures and fluctuation in energy supply reduce the lifespan of sensitive hospital machinery.193 Since the healthcare system in Gaza is on the edge of collapse and lacks several treatments and drugs it could be necessary to seek healthcare in other areas such as the West Bank, Israel or in other countries. Historically, the Palestinian healthcare system has relied on hospitals in East Jerusalem and in Israel. For example, there are no radiotherapy or nuclear medicine facilities in the Occupied Palestine outside of East Jerusalem.194 However, the passage between the West Bank and the Gaza Strip goes through Israel, with entry to Israel controlled through the Israeli permit system. Patients in the Gaza Strip have to apply for Israeli permits in order to exit the Gaza Strip and access hospitals in the West Bank, including East Jerusalem and Israel.195 Pa-tient permit approval has been problematic since the approval rates are declining.196 The ma-jority of patients in the West Bank also need to apply for permits to access East Jerusalem or Israeli hospitals.197
In order to get a permit to travel to a hospital outside of Gaza, the patient first has to be assessed by medical professionals in Gaza that determine whether the condition can be adequately treated by the local health system.198 If it is determined that the care has to be sought outside of Gaza, the Palestinian Ministry of Health then has to approve the referral request.199After the approval of the referral request the patient’s application is forwarded to the Israeli authorities for permission to travel to exit the territory through the Erez crossing to travel to a hospital outside of Gaza.200 The application does not guarantee success and approval rates have steadily been declined for travelling outside of Gaza.201 In 2017 approximately 11,000 medical appoint-ments were missed by patients from Gaza due to travel permit applications being denied or delayed.202 The permit application process is long and non-transparent which creates uncer-tainty and anxiety.203 Approval rates for patients in the West Bank are higher compared to the
190 ibid. 191 ibid. 192 ibid para 24. 193 ibid. 194 ibid para 21. 195 ibid para 20. 196 ibid. 197 ibid. 198 A/HRC/37/75 (n 56) para 42. 199 ibid. 200 ibid. 201 ibid para 43. 202 ibid.
