JCPA via JNS
By Alan Baker
The current wave of criticism and hostility against the Jewish state is based on patently false claims and has the nature of a literal blood libel.
As expected, the favorable international attention garnered by Israel’s successful COVID-19 vaccination drive is being offset by a parallel and concerted wave of international criticism and hostility from states, non-government organizations and the media.
These critics are feverishly accusing Israel of failing to provide vaccinations for the Palestinian population. Some have gone to the absurd and obscene level of accusing Israel of war crimes and even “medical apartheid.” This wave of criticism and hostility, based on patently false assumptions, has the nature of a literal blood libel against the Jewish state.
This wave of criticism is propagated and compounded by organizations such as Amnesty International, the BDS movement, the United Nations human-rights office, Israeli NGO B’tselem and others.
Indeed, the BDS campaign is suffering from signs of impending stagnation following the recent upsurge in support for and international trade with Israel emanating from the Abraham Accords normalization agreements with the Arab Gulf states, Sudan and Morocco. Now, with this fresh blood libel, it has found a new lease on life by jumping onto an international bandwagon accusing Israel of “health apartheid” and calling for sanctions against Israel in the context of vaccination transfer to the Palestinians.
This upsurge of criticism is based on false, flawed, malign and misguided assumptions—or deliberately misleading claims—that Israel is the “occupying power” in Judea and Samaria, and the Gaza Strip.
As a putative corollary to that mistaken assumption, Israel’s detractors go on to claim that international humanitarian law, as represented by the Fourth Geneva Convention, requires Israel, as an occupying power, to ensure and maintain “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 preventive measures necessary to combat the spread of contagious diseases and epidemics.“
They are claiming that Israel, as the occupying power, is required to provide the necessary supplies and funding to enable distribution of vaccines, as well as to ensure and maintain medical and hospital establishments and services, public health and hygiene, prophylactic and preventive measures to combat disease and epidemics.
A further, no less questionable claim relates to the Gaza Strip, governed by the Hamas terror organization, attributing to Israel full responsibility for the health of the Gaza population, in light of Israel’s land and maritime blockade by which, according to the same critics, Israel willfully prevents the transfer of humanitarian and health supplies.
These assumptions, claims and accusations are at best misguided, and at worst emanate from envy, ill will and a deep hostility towards Israel and its achievements.
What are Israel’s legal requirements?
1. Israel is not obligated by international humanitarian law to provide vaccinations to the population of the territories.
Since Israel’s status is not that of an “occupying power” and therefore the 1949 Fourth Geneva Convention is neither valid in nor applicable to the territories, Israel is not bound by its provisions.
While there was some controversy over whether the Geneva Convention ever applied in the territories, Israel has consistently held the position that since it did not acquire the territories from an “ousted sovereign power” as required by the convention, but rather from a Jordanian administration that had never received international acknowledgment of its claims to sovereignty, the provisions of the Fourth Geneva Convention never applied to the territory.
Accordingly, Israel’s administration was, from the start, based on the norms of international customary law as set out in the 1907 Hague Regulations regarding War on Land.
However, until the signing of the 1993 Oslo Accords Israel took upon itself to apply the humanitarian provisions of the Geneva Convention vis-à-vis the local Palestinian population. Throughout its administration, all its actions have been and remain under the judicial supervision of Israel’s Supreme Court.
2. The only accepted legal regime in the territories is the one agreed to by Israel and the Palestinian leadership in the Oslo Accords.
Since Israel and the Palestine Liberation Organization signed the 1993-95 Oslo Accords, they agreed to divide the territories between them pending completion of negotiations on their permanent status.
To that end, the parties established an independent legal regime whereby the Palestinian Authority has full responsibility to govern those parts of the territories placed under its control by the accords.
This legal regime replaced any previous legal regime, and even if there are those who, despite Israel’s contrary position, considered that the Geneva Convention had applied up to then, with the signing of the Oslo Accords, the new legal regime replaced it as lex specialis.
The Oslo Accords were countersigned by the leaders of the United States, Russia, the European Union, Egypt, Jordan and Norway, and were subsequently reaffirmed in several U.N. resolutions. Their continued validity determines the inter-relations between Israel and the P.A. This is especially so in light of the fact that they serve as the sole source of legal authority for the establishment and continued existence of the P.A. and its associated organs, including its presidency.
3. The P.A. has full powers and responsibilities in the field of health care and the importation of medicines.
In article 17 of the Third (civilian) annex to the Oslo II accord, the Palestinian side assumed full powers and responsibilities in the field of health care.
They undertook in paragraph 2 of article 17: “ … to continue to apply the present standards of vaccination of Palestinians and shall improve them according to internationally accepted standards in the field, taking into account WHO recommendations.”
In paragraphs 6 and 7, they agreed that: “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.”
Similarly: “The health systems of Israel and of the Palestinian side will maintain good working relations in all matters, including mutual assistance in providing first aid in cases of emergency, medical instruction, professional training and exchange of information.”
4. Israel’s maritime blockade of the Gaza Strip does not prevent the transfer of health and other humanitarian materials.
The Hamas terror organization that rules the Gaza Strip continues to blatantly neglect the health and welfare of its population by prioritizing hostility towards Israel and its civilian population.
Israel’s maritime and land blockade of the Gaza Strip serves to prevent the import and introduction of strategic items that seek to enhance Hamas’s rocket-building capabilities and tunnel construction industries, as well as other means of terrorizing Israel.
The imposition by Israel of its maritime blockade and Israel’s actions in restricting shipments to Gaza was the subject of a 2011 U.N. Secretary-General’s Panel of Inquiry, headed by Sir Geoffrey Palmer. The U.N. report acknowledged the legitimacy of Israel’s maritime blockade, concluding:
“Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.”
Israel does not prevent the passage of humanitarian and medical equipment, food and other items required for everyday civilian life. To the contrary, thousands of tons of goods are delivered weekly daily to the Gaza Strip through the passage points.
According to the recent weekly summary of activity at the crossings between Israel and the Gaza Strip for the week of Jan. 3-9, 2021, as published by the Office of the Coordinator of Government Activities in the Territories (COGAT), almost 2,000 trucks carried in 56,000 tons of goods and equipment and four-and-a-half million liters of fuel.
Additionally, more than 36,000 Palestinian residents of the Gaza Strip, and Judea and Samaria, passed through crossings into Israel, including 17,000 humanitarian crossings and 52 ambulances.
On the other hand, the P.A. has rejected several shipments of emergency aid from the United Arab Emirates because they were delivered to Israel’s Ben Gurion Airport.
5. Israel has not blocked the transfer of vaccines to Palestinian territory, and the P.A. is regulating its own vaccine import program.
In an article published by the Gatestone Institute on Jan. 12, 2021, British Col. Richard Kemp wrote:
“The Palestinian Authority has its own plans for vaccinating its people, including in conjunction with the World Health Organization’s Covax scheme. Until now, neither the P.A. nor the Hamas terrorist regime that runs the Gaza Strip have asked Israel for any help with vaccinations, evidently preferring their own paths. However, as late as January 5, a Palestinian Authority official claimed the P.A. is now discussing with Israel the possibility of some vaccines being supplied to them, which the Israeli authorities are reportedly considering.”
Furthermore, as reported by Reuters on Jan. 10, 2021, an official of the World Health Organization confirmed that informal discussions had been held with Israel regarding allocating inoculation supplies for Palestinian health workers and that Israel had agreed to explore the option.
Similarly, in an article published in The Jerusalem Post on Jan. 6, 2021, Khaled Abu Toamah reported, according to the Palestinian Health Ministry, that the first doses of vaccines are expected to arrive in the West Bank at the beginning of next month:
“Last week, P.A. Ministry of Health officials said the Palestinians have not asked Israel to supply them with, nor to purchase on their behalf, vaccines against the novel coronavirus. The P.A. was in contact with a number of sources to obtain the vaccines, the officials said.”
6. Allegations of ‘medical apartheid’ are unfounded, willful, malign and utterly nonsensical.
In coordination with all Arab community leaders in Israel, Israel’s Arab citizens have been receiving vaccinations since the country’s vaccination drive began, despite some initial reluctance in the sector.
As regards vaccination in the territories, in a Jan. 10, 2021, article published by The Spectator, titled, “What Amnesty International gets wrong about Israel’s vaccine programme,” Jake Wallis Simons wrote:
“Palestinian liaison officials had already quietly contacted Israel’s Coordination of Government Activities in the Territories (COGAT) department to request the vaccine. The Israelis had agreed to help. Assisting the Palestinians made sense since it was vital to maintain a degree of goodwill in coordination between the two sides on the West Bank.”
In an official statement dated Nov. 26, 2020, issued to the residents of the Gaza Strip by COGAT, IDF Maj. Gen. Abu Rukun stated:
“We find it important to emphasize clearly that neither I, nor the organization that I head, nor any other representative of Israel, has obstructed any request or requirement for the entry of medical aid of any kind. We welcome all assistance from all of the various sources.
“In light of the situation, COGAT is allowing assistance from the international community to the health system of the Gaza Strip.
“So far, many dozens of ventilator machines have arrived, as well as many PCR machines, which have increased the pace of testing from 200 to 2,500 tests a day.
“Dozens of oxygen generators have arrived, and hundreds of inhalers for hospital use and home use. Hundreds of hospital beds have been added, and with our coordination, approximately 600 tons of essential medications and medical equipment have been allowed entry, including tens of thousands of coronavirus testing kits.
“All that assistance can help the health system to provide care and save lives. [The] COVID-19 pandemic is a global challenge, and it behooves all parties to strive for a solution to that challenge.”
7. Importance of epidemiological and moral considerations for Israeli-Palestinian cooperation.
The international blood libel accusing Israel of preventing the transfer of COVID-19 vaccines is nothing more than another attempt to undermine Israel’s legitimacy, utilizing concern for the spread of COVID-19 as an excuse to mount a new series of willful, false and unfounded criticism of Israel.
As required by the Oslo Accords, the P.A. is conducting its own negotiations and making appropriate arrangements for the import of vaccines.
Israel and the areas under the governance of the P.A. are separate geographical entities, each with its own responsibilities vis-à-vis its own population, including in the field of health care.
Israel is under no obligation to provide the Palestinian population of the territories with vaccines.
However, clearly, in light of the geographic proximity between Israel, Gaza and the Palestinian Authority, epidemiological and moral considerations require both Israel and the Palestinians to act responsibly and to cooperate with a view to reducing the risk of COVID-19 spreading between their respective territories.
To this end, Israel and the Palestinians are cooperating and exchanging information pursuant to their respective obligations in the Oslo Accords.
But allegations that Israel has an international legal duty to provide vaccines to the Palestinians have no basis, especially in light of the fact that the Palestinian leadership has not requested assistance and is in the process of acquiring the requisite vaccines independently.
Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.
This article was first published by the Jerusalem Center for Public Affairs.
Caption: A vial containing Pfizer's BioNTech COVID-19 vaccine, at a vaccination center in Modi'in, on Jan. 12, 2021.
Photo by Yossi Aloni/Flash90.
