Israel Defying International Legal Obligations to Vaccinate Palestinians Under Occupation Amounts to Medical Apartheid

February 23, 2021 by Digital Editor

By: Hana Kassem

Israel is leading the world in the administration of the COVID-19 vaccine, with the highest number of doses administered per capita of any country. According to Israeli Prime Minister Benjamin Netanyahu, the country is on track to achieve “herd immunity” by vaccinating its entire adult population by the end of March. Over two-thirds of the country’s population of nine million citizens have received the first dose of the vaccine and approximately forty-three percent have received both doses as of February 18. As a result, Israel is regarded internationally as a model of success for other countries to follow in effective vaccine rollout. Currently, all citizens over the age of sixteen are eligible for vaccination, and kiosks in Tel Aviv hand out free pizza, coffee, hummus, and knafeh to anyone who gets the vaccine to create a “family-like atmosphere” in an attempt to encourage more people to receive the shot. Israel’s “vaccination bonanza” is at the center of Netanyahu’s campaign for reelection in March – the fourth election in Israel in just two years. Netanyahu is under significant pressure in his reelection bid as he vies for power while facing criminal indictment for corruption.

While Israel is being praised as a vaccine success story, the Palestinian population under Israeli military occupation remains unvaccinated and continues to suffer from the worst of the pandemic. Israel is legally obligated under international law to provide vaccinations for the Palestinians under its control. However, Israel denies having any responsibility to vaccinate the more than five million Palestinians under its military control in the West Bank and Gaza Strip. Instead, Israel says its priority is its own citizens, which includes the Palestinian minority with Israeli citizenship living in Israel and annexed East Jerusalem, as well as Israeli settlers living in Jewish-only settlements in the West Bank considered illegal under international law.

Israel’s actions amount to medical apartheid, not only because Israel provides settlers living in the West Bank vaccine doses while Palestinians living in the same area are denied access, but also because Israel is flagrantly violating the Fourth Geneva Convention, the Hague Convention of 1907, and the Oslo Accords. As the occupying power, Article 55 of the Fourth Geneva Convention obliges Israel to ensure the “medical supplies of the [occupied] population” and Article 56 requires “to the fullest extent of the means available” to the occupying power, the “adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics.” Furthermore, Article 43 of the Hague Convention of 1907, regarded as customary international law, requires Israel to ensure the public order and safety of the occupied Palestinian population – an obligation that increases with the duration of the occupation as the occupier has more time and opportunity to assume responsibility to protect rights and meet the needs of the occupied population.

Under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Israel ratified in 1991 and the State of Palestine acceded to in 2014, states are required to take steps necessary for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases.” This Article also requires the “creation of conditions which would assure to all medical service and medical attention in the event of sickness,” which Israel has arguably also violated as demonstrated by the Israeli soldiers destroying COVID testing sites constructed in the West Bank. The UN committee responsible for monitoring the ICESCR confirmed that Israel is obligated to respect this treaty in the occupied territories, and the UN Human Rights Office of the High Commissioner stated that it is Israel’s responsibility to provide equal access to the vaccine for Palestinians in the West Bank and Gaza.

The fact that Israel is inoculating its citizens, including settlers in the West Bank, at one of the fastest rates in the world, indicates that Israel has the means to provide the vaccine to the Palestinians it occupies, but actively chooses not to do so. However, Israeli authorities allege that under the Oslo Accords, it is the Palestinian Authority’s (PA) responsibility to vaccinate the Palestinian population in the West Bank and Gaza. Under the Oslo Accords, the PA is responsible for the oversight of public health and the administration of routine vaccinations. But the PA also points to Annex  III of the Oslo Accords, which stipulates that “Israel and the Palestinian side shall exchange information regarding epidemics and contagious diseases, shall co-operate in combatting them and shall develop methods for exchange of medical files and documents.” Furthermore, UN experts state that international law takes priority over these accords, as the Oslo Accords do not erase Israel’s obligations under international humanitarian and human rights law so long as it remains the occupying power. The Fourth Geneva Convention is specific about the duty of the occupying power to provide healthcare, and it specifies that no agreement between parties supersedes its protections while occupation continues, which would include the Oslo Accords. Additionally, the Israeli government maintains exclusive control over Area C of the West Bank, which embodies over sixty percent of the territory, leaving the country no excuse for offloading the responsibility of vaccinating the population on the PA when it simply chooses to do so.

Domestically, Israeli case law precedent points to its obligation to provide equitable access to the COVID vaccine for the Palestinian population under its control. A 1991 Israeli Supreme Court case ruled that the authorities should “exercise equality” and not “discriminate” between residents of the West Bank in their drive to distribute gas masks to all Israelis amid the possibility of a chemical attack in the buildup to the Gulf War. Most notably, the court stated that when “the Military Commander has reached the conclusion that protective kits must be distributed to Jewish residents in the area, protective kits must also be distributed to the area’s Arab residents.”

Despite Israel’s inaction, the PA has taken steps to secure doses of the vaccine for its population in the West Bank and Gaza Strip. According to World Health Organization (WHO) data, 193,418 coronavirus cases and 2,155 deaths have been reported in the Palestinian territories as of February 19. The case fatality rate for the Palestinian territories is 1.1%, compared to 0.7% in Israel. However, while Israel is just one example of wealthy countries deepening the global divide in access to the vaccine as they pay to stockpile the injections, poorer countries such as Palestine must wait for an affordable opportunity to provide the inoculation to their populations. Palestinians are expected to be vaccinated through the WHO’s COVAX initiative, which aims to distribute vaccines more equally around the world to countries that cannot otherwise afford it. Yet the program has been slow to get started and the PA only recently administered its first COVID vaccine in early February. It is anticipated that about three percent of the Palestinian population will be vaccinated through the COVAX initiative in February, but the program pledges to eventually vaccinate twenty percent of the five million Palestinians in the territories. The PA also bought 10,000 doses of Russia’s Sputnik V vaccine, which has arrived in the West Bank. Israeli authorities also recently promised to send 5,000 vaccines to the West Bank (an increase from the previous insufficient 100 doses provided), 2,000 of which have been sent so far.

The PA’s efforts to secure vaccine doses, however, will still have to face the reality of the Israeli occupation. Palestinian health efforts are constrained by the restrictions imposed by the Israeli military occupation, including movement restrictions within the West Bank and the fourteen year air, sea, and land blockade on the Gaza Strip, which challenges the ability to send vaccines into the besieged enclave. Given that the PA does not control its borders, Israel must approve all imports into the Palestinian territories, including medical supplies – and advanced medical supplies are banned under Israel’s “dual use” policy that considers them a security risk. This policy forces the Palestinian population to be dependent on Israel as the occupying power to allow them access to basic medical care. Israel requires Palestinians to apply for medical permits to enter Israel or East Jerusalem to seek medical treatment. In fact, Palestinian officials have accused Israel of preventing a vital first shipment of 2,000 vaccines from entering Gaza, and some Israeli lawmakers said that the government should refuse to allow vaccines into Gaza unless Hamas makes concessions – including the return of two captive Israelis and the remains of two Israeli soldiers. Thus, those in the government have turned their international legal obligation to provide for the health of those they occupy into an opportunity to strongarm Gazans in the ongoing wars waged on the besieged enclave for the last fourteen years.

Finally, if for no other reason, Israel should feel obligated to provide the vaccine to the Palestinians it occupies for its own best interests. Aside from the approximately 500,000 Israeli settlers living in the West Bank, about 133,000 Palestinians travel through checkpoints daily to work in Israel and the settlements. Israeli soldiers, stationed at checkpoints and crossings, interact with Palestinians on a daily basis. Israeli soldiers also come into contact with Palestinian families when carrying out home raids and home demolitions, which continue to be carried out despite the pandemic. Thus, Israel is unlikely to reach its goal of herd immunity if it refuses to meet its obligation under international law to vaccinate the Palestinians in the occupied territories.

Hana Kassem is a 2L at Georgetown Law pursuing a certificate in Refugees & Humanitarian Emergencies. She is a Global Law Scholar, Human Rights Associate, and serves as an Articles Editor on the Georgetown Journal of International Law. She is primarily interested in international human rights law as it pertains to the Middle East. She graduated with a B.A. summa cum laude in international affairs and economics from the George Washington University with minors in Spanish and Arabic.