COVID-19, Israel and Palestine, and the paralysis of international law

The vaccination rollout against COVID-19 is the largest and fastest immunisation campaign in history. Law has played little role in governing the rollout, which has instead been dominated by political, moral and ethical discourse around vaccine nationalism, wasted vaccines and prioritised groups – nevertheless, the vigour of countries to vaccinate their populations and move the world back to “normal” is incredible. In the race to vaccinate populations, Israel has consistently been at the forefront, having fully vaccinated 60% of its population. The state has attracted praise from leaders across the world as it returns to normalcy, introducing vaccine passports and reopening hospitality. However, to look at the state through this progressive lens is to overlook the reality. Israel occupies the West Bank and Gaza, yet in these Occupied Palestinian Territories, the percentage of the population vaccinated with a single dose is below 30%, and infection rates are rising, overwhelming hospitals and triggering localised lockdowns. Dubbed “the great equaliser” by some commentators, the vaccine discrimination between Israel and the Occupied Palestinian Territories and resultant discrepancy in infection rates highlight that impacts of COVID-19 are anything but equal. In February, at the same time that Israel had vaccinated its entire vulnerable population and was shifting into vaccinating its non-vulnerable groups, only 10,000 doses were offered to the West Bank (MSF), the population of which is in the millions. The virus has brought into sharp focus the power imbalance between Israel and the Occupied Palestinian Territories, and the paralysis of international law to intervene.

The responsibility to vaccinate continues to be debated. Currently, Palestine is receiving vaccinations through the international COVAX programme, but this is only enough to vaccinate 20% of its population. In 2021, the UN Human Rights Body stated that it is Israel’s responsibility to provide equitable access to vaccines for Palestinians in Gaza and the West Bank. It upholds the importance of the Geneva Conventions on the regulation of occupied territories and says that differential access is “morally and legally unacceptable” under international law. The Israeli Health Minister, on the other hand, told the BBC that Israel considers the Oslo Accords to be paramount, arguing that the agreements between Israel and the Palestinian Liberation Organisation (PLO) “[say] loud and clear that the Palestinians have to take care of their own health”. The lack of binding power of international law underpins this entire debate.

The Lotus Case in 1926 affirmed that international law was rooted in consent – there can be no hierarchy between sovereign states and so the power and legitimacy of international law to govern states stems from the state themselves consenting to be bound. Israel has a long history of refusal to consent to international law, choosing instead to uphold the provisions and agreements which suit its political interests. Since its creation in 1947-8, Israel has violated peremptory norms of international law by using force to occupy territory and refusing to recognise the right of the Palestinians to self-determination. Though peace-making and conflict resolution are political rather than legal endeavours, peremptory norms of international law are seen to embody global notions of fairness and justice and therefore should not be violated.  Throughout the second half of the 1900s, the Palestinians accepted the growing Israeli borders, and these concessions were recognised by Israel as formal acceptance of the new state. However, it must be recognised that these concessions were achieved in an environment of extreme power imbalance and violence and so their legitimacy must be doubted. Further, in 2004, the ICJ ruled in Legal consequences of the construction of a wall in the occupied Palestinian territory that Israeli settlements established on Palestinian territory were clear violations of international law. Israel has not removed the settlements. This aggressive attitude coupled with unwavering US support means that international law is thoroughly undermined as a mechanism to resolve conflict in this area – Israeli conduct exemplifies the inability of international law to prevent the mistreatment of Palestinians.

Regarding who has the responsibility to vaccinate the Occupied Palestinian Territories – Israel or the Palestinian Authority – two international treaties come into conflict. The Oslo Accords, agreed in 1993 and 1995, set out how parts of the West Bank and Gaza would be governed under an interim framework of partial self-governance until a permanent peace settlement can be reached. Under these Accords, the Palestinian Authority was given oversight of public health under the principles of self-determination. This provision is being used to justify Israeli inaction and is the current position of the government. In a stunning display of politico-legal dissonance, the Israeli government refuses to recognise the right to self-determination of the Palestinians but argues that the Palestinians have enough autonomy through principles of self-determination to oversee their own healthcare. The conflicting treaty is the Fourth Geneva Convention, which is one of the four treaties establishing international legal standards for humanitarian treatment in war. Article 56 of the Fourth Convention, which deals with humanitarian protections for civilians in a warzone, specifically states that the Occupying Power has the duty of application of prophylactic and preventative measures necessary to combat the spread of epidemics. Considering that the majority of the international community considers Palestine to be occupied territory, Article 56 obliges Israel to ensure access to vaccines  for Palestinians in the Occupied Territories. The ICJ also affirmed the application of the Convention in 2004. However, as aforementioned, Israel’s track record does not align with fulfilling international responsibility.

Even if we were to accept that the Oslo Accords have primacy, the Palestinians point to an important caveat which is seemingly overlooked by the Israelis – “Israel and the Palestinian side shall co-operate in combating [contagious disease].” There is also the reality that the Israeli government maintains exclusive control of over 60% of the West Bank, leaving it with no excuse not to vaccinate this region, especially considering that, earlier this year, the Israeli government stated that they were seeking to reroute unused AstraZeneca vaccines (Reuters). Further, the Palestinian Authority does not possess the economic means to obtain vaccinations, and the intermingling of the populations presents a real risk to Israeli recovery.

It is clear that international law cannot be relied upon to hold Israel accountable, and so other arguments must be presented to change the Israeli approach. However, the misrepresentation in the recent vaccine swap arrangement between Israel and Palestine – the expiry date on the vaccines Israel was giving to Palestine (in exchange for concessions) had a much earlier date than promised – indicates that it is unlikely that Israel will put aside its political motivations to combat COVID-19.