04 Apr COVID-19 Symposium: Israel and its International Law COVID-19 Obligations Towards Gaza
[Solon Solomon is a Lecturer in the Division of Public and International Law at Brunel University London School of Law.]
There is no question that Israel has an obligation to alleviate the health crisis that COVID-19 may trigger in the Gaza Strip. After all, according to the jurisprudential line taken by the Israeli Supreme Court, the State cannot allow the emergence of a humanitarian crisis in post-disengagement Gaza. The current post would like to examine how these international law obligations are translated when it comes to the need to avert any COVID-19 expansion in Gaza. Emphasis in this post will be placed on Gaza, but it goes without saying that the Israeli obligations extend also to the West Bank and East Jerusalem.
The case of Gaza though is more acute. Whereas Israel has annexed and exercises control over East Jerusalem and cooperates with the Palestinian Authority in the West Bank, Gaza is ruled by Hamas which has been declared by Israel an enemy entity. Moreover, the extent of the Israeli obligations towards Gaza becomes more complicated given the debate over whether the Strip is still occupied by Israel following the Israeli withdrawal of its army and settlements in 2005. Proponents of the stance that Israel is still occupying Gaza point to the fact that Israel is controlling Gaza’s air and sea space as well as its crossings (see here, page 38, n.101), whereas those that hold that it is not occupied, underline the lack of boots on the ground and Israel’s stated unwillingness to permanently reconquer the area (see here, page 37, n.97).
For those holding that Gaza is still occupied, things are clear when it comes to COVID-19. The right to health is a socio-economic right and, as the International Court of Justice held back in 2004, prior to the Israeli disengagement, the International Covenant on Economic, Social and Cultural Rights (ICESCR) should be seen as applying also to Gaza and the West Bank (see here, para.112). Yet, the position that Israel must provide for the socio-economic rights of the Palestinian residents in Gaza, even after the Israeli disengagement, raises a number of hurdles.
The first hurdle is doctrinal. According to the ICESCR, States are meant to provide for socio-economic rights according to their available resources. As noted by Lubell (see here, page 330), there is a need for a ‘contextual approach’ when we come to discuss the level of obligations and the precise duties of the occupying power. As Lubell notes, there are doubts whether an occupying power can carry out the ‘fulfill’ aspects of socio-economic rights. In Gaza all the more so, given that it is Hamas and not Israel that runs the local hospitals.
The second hurdle is teleological; if after the disengagement Israel is to be considered an occupying power in the Gaza Strip on the same terms as before the country withdrew its army and settlers, then given the number of rocket attacks that have been recorded coming from the Strip in the last few years, no country facing a similar situation and holding boots on the ground in order to stabilize a volatile security situation, would have the impetus to terminate the state of military occupation. Examples could include the U.S. presence in Afghanistan and Iraq. Yet, in international law, military occupation is meant to be temporary. States should be given incentives to terminate it, not prolong it.
The contention, therefore, that Israel is still occupying Gaza and, when it comes to COVID-19, must provide to Gaza residents the same level of satisfaction to the right to health that it provides for its own citizens, is quite comfortable to make from a legal point of view, since it leads to clear ramifications, but at the same time problematic, to the extent that it raises the aforementioned hurdles. This maximalist approach which in essence equates Israeli citizens and Gaza residents and calls on Israel to treat the two groups the same, allocating for example the same number of medical supplies, runs the danger of being disregarded by the State altogether.
On this account, scholars, like Shannon Maree Torrens, who have underlined the stance that Israel must step in to avert any COVID-19 crisis in Gaza due to it being the occupying power there, have equally noted that even if the question of whether Israel is still occupying Gaza is answered differently, Israel would be under a moral obligation to avert a spread of the virus in the Strip. Yet, whereas obligations based on morality are always welcome, someone must not forget that States are not benevolent institutions. The question is thus if international law can propose a binding scheme, beyond the realms of morality, that could be cited as a ground for any Israeli obligations towards Gaza in the current COVID-19 crisis.
In a 2011 article I held that Gaza cannot be deemed to be occupied by Israel after the Israeli disengagement. I reiterate this stance. At the same time, as I wrote back in 2011, post-disengagement Gaza has a sui generis status, with Israel still having certain obligations towards the Strip. In the current post, I would like to pose some ideas on where such obligations can be grounded when it comes to the handling of the COVID-19 pandemic.
To the extent that the post-disengagement Gaza case is unique, precedents from other cases where a State has withdrawn from the territory it occupied, yet the de-occupation process has not fully culminated, cannot be cited. Of greater relevance, however, is the way States have treated the outbreak of COVID-19 in dependent territories. By ‘dependent’, I mean factually and not only legally dependent territories. These territories can be separate States which nevertheless depend on other States in certain neuralgic fields such as those of defence and foreign relations (the case of New Zealand and the Cook Islands) or territories which formally belong to a State, yet their geographical position or their political history renders them also a separate unit from the parent State on which they depend for the providing of essential services.
The examples of Greenland with Denmark and of Easter Island with Chile, fall in this latter category. In both instances, when the first COVID-19 cases erupted in these territories, the main governments in Denmark and Chile did everything on a preventive basis to contain the further spread of the virus. Measures taken included sending laboratory tests for the tracing of the virus from Greenland and Easter Island to mainland Denmark and Chile respectively. The Cook Islands have not so far reported a COVID-19 case, but test samples are also being sent to New Zealand.
The examples of New Zealand, Denmark and Chile involve countries with high health standards, extending their aid to populations where such standards cannot be enjoyed. It could be argued that the same degree of due care should be applied regarding Israel’s obligations towards Gaza. Indeed, so far, Israel has acted likewise, permitting the sending to the Strip of supplies like swabs to collect samples, resources required for laboratory testing and equipment to protect the Gazan health workers. Israeli labs could similarly become more actively engaged in the examination of any samples taken from the Gaza population.
Moreover, it is important to note that Israeli actions should also be extended once COVID-19 cases are detected among Gaza’s population. Given Israel’s prior objections to the hospitalization of Gazan patients in East Jerusalem hospitals-a case that needed to be resolved by the country’s Supreme Court-no obstacles should be put to the hospitalization of Gazan patients in the West Bank, in other countries abroad or even in Israel itself if the country’s health system has the relevant capacity.
This brings me to the concept of solidarity. Ultimately, the case of Gaza can be a prototype for a wider discussion on the obligations of the developed world towards countries and populations which do not have the means to even attempt to combat COVID-19, let alone efficiently confront it. Certain African States, Syria or Afghanistan or even indigenous isolated tribes in the Amazon, constitute such examples.
For many years, solidarity has been viewed as largely a moral philosophical notion embedded in the writings of scholars like Sangiovanni. Yet, recent international developments, such as the large influx of Syrian refugees in the European Union (EU), have resulted in the European Commission trying to persuade Member States that solidarity should be a legal precept obliging all Member States to equally accept responsibilities stemming from refugee flows. The current crisis brings the question of solidarity and international cooperation once again to the forefront. This is extremely important in an era where States have showed a tendency to self-isolate and return to a more inward-looking national agenda.
The view that Israel must satisfy the health needs of Gaza’s residents because it is the occupying power, leads to a situation where Israel is left alone to tackle the needs of the Palestinian population. Yet, if there is one thing that the current crisis has taught us, is that it cannot be addressed by any single State acting alone. Cooperation is paramount. Along these lines, a Chinese businessman donated millions of medical equipment items to African countries in order for the latter to battle COVID-19, while in Europe, the European Parliament urged the EU institutions to relocate the refugees from the Greek camps to other more affluent parts of Europe. It is this principle of solidarity which should govern any Israeli aid towards Gaza, not only from a moral but also from a legal point of view. At the same time, solidarity as a legal precept also calls for the Palestinians in Gaza to internationalize any COVID-19 crisis and ask for help from any country or private entity that is ready to assist. Our times are not times of exclusion or collision.