Israel is Legally Obligated to Ensure the Population in the West Bank and Gaza Strip Are Vaccinated

The reported success of the AstraZeneca and Oxford University COVID vaccine is good news for the citizens of the State of Israel. The Israeli government has purchased 10 million such vaccines that are sufficient for five million people. This is in addition to the vaccines already purchased from Pfizer (8 million, which is enough for 4 million men and women) and Moderna (6 million, which is enough for 3 million people). Given the fact that there are about 6 million people in Israel over the age of 15 (the vaccine will not be given to children at this point), immunization for the Israeli population is completely covered.

And so, in the coming months the State warehouses will accumulate surplus vaccines that are enough for another 6 million people. These additional jabs will then more than suffice for the two and a half million adult Palestinian residents living in the West Bank and Gaza Strip. Moreover, AstraZeneca vaccines do not require special refrigeration and can therefore be transported safely to remote places, isolated villages and refugee camps. But according to recent reports, Israel does not intend to provide any of those vaccines to the non-Jewish population in the West Bank nor to the residents of the Gaza Strip.

Under international law and under Israeli public law, as interpreted by the Supreme Court, the Israeli government has a duty to ensure that the population in the territories is vaccinated. This obligation was recognized in the Supreme Court ruling in the days leading up to the Gulf War of 1991 (HCJ Murcus v. Minister of Defense), when the fear of a chemical attack by Iraq prompted the distribution of gas masks to all Israelis. The Supreme Court ordered the military commander to distribute similar kits to the Palestinian population in those areas quickly and free of charge. Since there were not enough protective kits for all, the Court ordered the military commander to “make every effort to obtain these protective kits as soon as possible.”

From the days of the Gulf War until today, much has changed, but the obligations of the State of Israel toward the Palestinian population in the territories have remained in this respect. Israel is still the occupying power in the West Bank, while the Gaza Strip is under constant blockade, which also imposes on Israel the responsibility for the well-being of the population living there. Despite the termination of direct control since 2005, the Supreme Court has ruled (HCJ Albassiuni Ahmed v. The Prime Minister) that Israel has “a duty to ensure the safety of the civilian population [in Gaza] and the protection of its dignity and basic rights.”

Moreover, in recent years the Knesset has expressed its opinion that it is authorized to regulate directly by legislation life in the West Bank, thereby reflecting the legal position that Israel is directly responsible for the lives of the people living there, Jews and Arabs alike. How, then, can the Knesset allow discrimination between these two population groups, especially in a situation where there are enough vaccines for all?

Beyond that, the State of Israel, in a commendable move, has joined a global effort (COVAX) designed to ensure access to the COVID vaccine in developing countries. This effort reflects solidarity between strong and weak economies in the fight against the pandemic. Beyond the moral duty – and some would even say the legal duty – this venture is also motivated from self-interest since as long as the virus is not eradicated the pandemic and its economic consequences remain a concern for all.

The distribution of life-saving resources that are in short supply raises a number of questions about priorities, questions about which it will always be difficult to reach an agreement. For example, does the principle calling for prioritizing those “within thy gates” justify allocating first to Israelis in certain risk groups and only later to Palestinians in the territories belonging to those same groups, or does the consideration of citizenship have no place at all and the only acceptable distinction is between risk groups (which is the position taken by COVAX).

Here again, the Israeli Supreme Court was quite clear on this point, at least with regard to the West Bank, when it ruled that

the military commander should treat everybody with equality. He must not discriminate between residents. Once the military commander came to the conclusion that protective kits should be distributed to the Jewish residents of the area, he should also distribute protective kits to the Arab residents.

The commitment to the well-being of the civilian population in Gaza also entails at least a commitment to distribute the remaining vaccines.

Image: A healthcare worker administers a COVID-19 vaccine to an woman at Clalit Health Services, in the northern Arab Israeli city of Umm al Fahm , on January 4, 2021. Photo by JACK GUEZ/AFP via Getty Images

 

About the Author(s)

Eyal Benvenisti

Whewell Professor of International Law at the University of Cambridge, where he is also Director of the Lauterpacht Centre for International Law. Follow him on Twitter at (@EBenvenisti)