Is Israel legally obligated to provide Palestinians with vaccines?

Israel has vaccinated nearly half of its population while the PA has barely started.

By TOVAH LAZAROFF
Palestinian medical worker collects a swab sample from a boy to be tested for the coronavirus disease (COVID-19), in the southern Gaza Strip January 14, 2021. (photo credit: REUTERS)
Palestinian medical worker collects a swab sample from a boy to be tested for the coronavirus disease (COVID-19), in the southern Gaza Strip January 14, 2021.
(photo credit: REUTERS)
“The occupying power, Israel, is responsible for the health of all the people under its control,” tweeted popular US Democratic politician Bernie Sanders this week as he took Israel to task for not massively vaccinating the Palestinian population in the West Bank and Gaza.
He is not alone in chastising Israel whose rapid vaccine rollout is lauded world-wide, but whose success has backfired in the court of international public opinion, when it comes to the Israeli-Palestinian conflict.
Israel’s ability to quickly vaccinate close to half its population, while the Palestinian Authority program has barely started, speaks to the vast discrepancy in the efficiency of their respective governments. It has, however, also placed the issue of COVID-19 squarely at the heart of the debate surrounding Israeli responsibility for the Palestinians in the West Bank and Gaza.
Prime Minister Benjamin Netanyahu’s decision to take 100,000 thousand vaccines and parcel them out in bundles of 5,000 to some 20 Israeli allies, only strengthened the impression that Israel could help the Palestinians but callously chose not to.
The fact that Israel had pledged in early February to give the Palestinian Authority the same bundle of 5,000 doses, of which 2,000 have already been received or that it has plans to vaccinate some 100,000 Palestinians who work in Israel, has not made a dent in anti-Israel sentiment on this score.
“It is outrageous that Netanyahu would use spare vaccines to reward his foreign allies while so many Palestinians in the occupied territories are still waiting,” Sanders tweeted.
He was not alone in speaking out. The issue made it onto a Saturday Night Live sketch and into the halls of the United Nations where the Palestinian Authority has also spoken out and where officials have said that Israel could do more.
Israel has been clear that its role is to facilitate the passage of PA-acquired vaccinations to the West Bank and Gaza, but that it is the PA’s responsibility to secure the vaccinations either by purchasing them or through donations.
But behind the moral debate of whether the pandemic requires Israel to provide for the Palestinians, does it have a legal obligation to do to so?
The heart of that debate centers around two specific legal documents, the 1995 Interim Oslo Accords signed by both Israel and the Palestinians and the Fourth Geneva Conventions that set out international recognized rules of warfare and occupation.
Those who argue that Israel has no legal obligation rely heavily on the Oslo Accords, noting that the provisions of a signed agreement between two parties make the Geneva Conventions irrelevant in this matter.
Among those who subscribe to this belief is former foreign ministry legal adviser Alan Baker, who is now the director of the International Law Program at the Jerusalem Center for Public Affairs.
As one of the drafters of the Oslo Accords he points to the exact relevant passage, annex III, article 17.
It states that the “powers and responsibilities in the sphere of Health in the West Bank and the Gaza Strip will be transferred to the Palestinian side, including the health insurance system.” The text specifically stipulates that this includes vaccines.
Baker told The Jerusalem Post he believed that Israel has “a moral and epidemiological responsibility” to the Palestinians on the issue of the vaccines, “because they are our neighbors and they come and work here.”
He added, “If they are ill, then we are ill. It is in our interest to help them.”
But there is no legal obligation, he said, adding that Israel does not have to provide vaccinations for all the Palestinians in the West Bank and Gaza.
What Israel  is “obliged to do” is “to cooperate and to share information and to facilitate transfer of medicine and things like that.”
All of that, he said, is set out by the Oslo Accords, according to which “the full powers and responsibilities for health care and for dealing with epidemics in the territories is in the hands of the Palestinian Authority. It is written in black and white.”
Baker added, “as soon as we signed the Oslo Accords any provisions of the Geneva Convention are no longer valid because both the Palestinians and the Israelis agreed to establish a special regime that is set out in the Oslo Accords.”
He noted that the Geneva Convention was meant to be used where a state occupied the territory of another existing state. Israel holds that because it captured the West Bank from Jordan, and Jordan has since relinquished any claim to that territory, the Geneva Convention does not apply.
It's a claim bolstered by the fact that Jordan itself had annexed the territory and its brief sovereignty was recognized by only a few countries. 
But left-wing human rights attorney Michael Sfard disagreed.
“Oslo is irrelevant,” Sfard said, noting that, “it is a bilateral agreement between two parties.”
That agreement was never meant to signal  the end of the Israeli occupation of the West Bank and Gaza nor was it meant to absolve Israel of the responsibilities of an occupying power, Sfard said.
The creation of the Palestinian Authority under Oslo does not absolve Israel of its obligations to the Palestinians, “it just makes it possible for Israel to implement its responsibility through the PA,” Sfard said.
That does not mean that Israel has to provide identical health services to Palestinians and Israelis in Israel, within the Green Line, but it does have to adhere to an adequate standard, which in this case, would be provision of COVID-19 vaccines. It also cannot discriminate between Palestinians and West Bank settlers in this matter, he said.
Sfard noted that even domestic law recognized that Israel had a responsibility here.
He pointed to a pre-Oslo 1991 High Court of Justice case with respect to the inequitable distribution of gas masks during the Gulf War. Israel had provided gas masks to the settlers living in the West Bank, not to the Palestinians. The court ruled that gas masks had to be distributed to both populations, he said.
Lastly, he said, the 1995 interim agreement was only supposed to last for five years, so “it cannot be the standard of what should happen now.”