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In the Covid-19 Pandemic, What Are the Reciprocal Israeli and Palestinian Obligations?

 
Filed under: International Law, Israel, Palestinians

In the Covid-19 Pandemic, What Are the Reciprocal Israeli and Palestinian Obligations?
(COGAT)

The reciprocal bilateral and international obligations and commitments of Israel and the Palestinians, in all spheres – but especially in the handling of medical and health issues – are dependent on the perception as to the status of the territory, and the concomitant legal commitments to which Israel and the Palestinian Authority are committed in their administration of the areas under their respective control.

This perception is viewed differently by Israel and elements in the international community.

The Oslo Accords Regime

Since the signing of the 1993-5 Oslo Accords, Israel and the Palestinians are committed to the relevant provisions of these accords which constitute the sole, agreed, and still valid source of authority determining powers and responsibilities in the areas under their respective control, pending a permanent status agreement between them.

In fact, in light of the wide international acceptance of the Oslo Accords, and the fact that they were countersigned by the U.S., Russia, the EU and others, and endorsed by the UN, the cooperation and coordination frameworks established by the accords constitute an independent legal regime (lex specialis) that overrides any other legal framework that existed beforehand.

In the fields of health, medical affairs and contagious diseases, the basis for cooperation between the Palestinians and Israel is set out in the 1995 Interim Agreement (Oslo 2).

In Article 17 of the Protocol to the Concerning Civil Affairs (Annex III), Israel and the PLO agreed and committed themselves to:

exchange information regarding epidemics and contagious diseases, [to] cooperate in combating them and…develop methods for exchange of medical files and documents (Paragraph 6).

They also agreed that:

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 (Paragraph 7).

From the above, it is clear that these reciprocal health commitments oblige the two sides to cooperate and coordinate activities to combat Covid-19.

In light of the seriousness of the pandemic, its geographic coverage and its inherent dangers and consequences affecting, without distinction, the populations of both parties, there exists obvious interdependence between the Israeli and Palestinian health authorities, with all that this implies regarding the urgency of cooperation and coordination, irrespective of political tensions and suspicions.

Clearly, the disunity between the Palestinian Authority administration in Judea and Samaria (West Bank) and the independent Hamas administration in the Gaza Strip, as well as the fragile border security reality between Israel and Hamas, serve to impede possible efficient and viable cooperation in coping with the spread of the Covid-19 virus.

However, in light of the seriousness of this corona crisis, the need for open and real-time cooperation is a vital and obligatory factor that should, of necessity, drive all parties in light of their responsibilities to their respective populations.

This also serves as a basis for building mutual trust and confidence for the future relationship between them.

International Humanitarian Law Instruments

Within the international community there exists widespread and general acknowledgment of the Oslo Accords as the source of authority that determines the reciprocal commitments of the parties in the respective areas of their administration.

However, there are nevertheless elements within the international community (including the UN, EU and Muslim states) that consider Israel to be an “occupying power.” This is notwithstanding the fact that, pursuant to the Oslo Accords, Israel withdrew from the Gaza Strip and the Palestinian-populated areas of Judea and Samaria, and transferred all powers and responsibilities in civilian spheres to the Palestinian Authority.

As such, those elements still consider Israel to be obligated by the instruments of international humanitarian law, specifically the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), and the First Additional Protocol relating to the Protection of Victims of International Armed Conflicts of 1977.

Inasmuch as Israel never accepted the fact that the territories had the status of “occupied territory,” and never acknowledged the formal applicability of the Geneva Convention or its Protocol in the territories, Israel nevertheless agreed to apply the humanitarian provisions of the convention vis-à-vis the local population. However, with the signing of the Oslo Accords (1993-5), as stated above, the unique “lex specialis” regime agreed upon in the Oslo Accords replaced any other former legal regime, including the Geneva Convention.

While in the field of medical care and supplies, the instruments of international humanitarian law concentrate predominantly on the provision of medical care and supplies to the local population of administered, or occupied territory in the context of protection from hostilities, they refer specifically to the obligation to protect the local population in the event of contagious diseases:

Articles 16 and 18 of the Fourth Geneva Convention, dealing with wounded and sick, and hospitals within the local population, require:

The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect (Article 16).

Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.

Articles 55 and 56 deal with the supply of food and medical supplies for the local population:

To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate (Article 55).

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 national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics (Article 56).

On the reference in this article to contagious diseases, the official International Red Cross commentary details the components of the obligation of the administering power, as follows:

The Article refers in particular to the prophylactic measures necessary to combat the spread of contagious diseases and epidemics. Such measures include, for example, supervision of public health, education of the general public, the distribution of medicines, the organization of medical examinations and disinfection, the establishment of stocks of medical supplies, the dispatch of medical teams to areas where epidemics are raging, the isolation and accommodation in hospital of people suffering from communicable diseases, and the opening of new hospitals and medical centers. It will be remembered that Article 55 requires the Occupying Power to import the necessary medical supplies, such as medicaments, vaccines and sera, when the resources of the occupied territory are inadequate.

Conclusion

Whatever the perception may be as to the legal or political status of the territories, of Israel, and of the two Palestinian administrations, it is clear that Covid-19 does not acknowledge such perceptions and has the potential to harm all people in the area. Israel and the Palestinians are thus obligated to act together to deal with epidemics and contagious diseases such as Covid-19 in order to protect their own populations and to protect the area as a whole.

This obligation is not just reciprocal between them but applies internationally vis-a-vis the whole area of the Middle East and further afield.

Despite this, hostile statements and false accusations against Israel, voiced repeatedly by Palestinian Prime Minister Mohammad Shtayyeh, as well as the daily social media and international political incitement and misrepresentation by Palestinian chief negotiator Saeb Erekat, continue despite the need for cooperation and coordination.

In light of the seriousness of the Covid-19 crisis and the absolute need for a bilateral ambiance of mutual trust, this hostility and incitement are misplaced and ill-advised and serve to undermine regional efforts to combat the crisis.