A Lockdown Within an Existing Open-Air Prison, The Palestinians and their Right to Life

By: Yusur Dalloul

The Law

States are obligated to respect, protect, and fulfill the right to health, under Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ESCR), where all individuals should be granted the highest attainable health standard, to live a dignified life. Under Article 55, the Convention (IV) relative to the Protection of Civilian Persons in Time of War, the occupying power is obligated and responsible in guaranteeing the population’s food and medical supplies, including other articles if the occupied territory’s resources are insufficient. European Convention on Human Rights ECHR’s Article 2, also emphasizes healthcare. States have a positive obligation guaranteeing and supplying appropriate healthcare to ease the right to live. The McCann case held that Article 2 imposes a positive obligation in circumstances specifically a pandemic, in preventing avoidable life loss. Article 2 is non-derogable, meaning ECHR states parties cannot put on hold the negative/positive obligations arising under Article 2 during an emergency (except Lawful war acts). ECHR states parties therefore are obligated to establish a legal framework and procedures to protect life. Additionally, Article 25 of the Universal Declaration states that providing the right to healthcare, is a standard right of living adequately. In General Comment 6, the Human Rights committee states at para 5, that the right to life should be translated widely, needing states to ‘take all possible measures to reduce infant mortality and increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’. The ICCPR’s Article 6 emphasizes that protecting the right to life allows the enjoyment of all human rights, making it ‘superior’. Therefore, reaffirming that “all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms”.


The Problem

However, this is not the Palestinians’ case under Israel’s occupation. When the World Health Organization (WHO) declared COVID-19 a pandemic, Palestine faced discrimination in several forms. Firstly, Palestinian suffering by unequal treatment from the Israelis throughout the COVID-19 Pandemic, persists. Israel continuously attacked Gaza throughout COVID-19. The Gaza and West Bank health order is subjected to medical staff shortages, medicine supplies, testing kits, and disinfectants. While lacking basic medical tools in Gaza and the West Bank , COVID-19 is unbeatable. Due to causalities rising since the 2018 Great March of Return Protests, hospital loads in treating COVID-19 patients increased, since such assaults subsist. This violates Article 55, the GC IV, Article 2 of the (ECHR), Right to Life, and the previously stated laws.


Additionally, under Article 56 of the GV IV, the Occupying Power’s obligations are carried out “with the national and local authorities’ cooperation”. Therefore, Article 17, Annex II of the 1995 Interim Agreement, states Israel and the Palestinian Authority (PA), cooperate and exchange necessary details regarding combatting pandemics, specifically COVID-19.


The UN Committee on (ESCR) confirmed the Occupying Power’s Obligations specifically, the Occupied Palestinian Territory, and Israel’s obligation regarding the control standards in the West Bank, including East Jerusalem and Gaza. The 2019 Concluding Observations, the ESCR Committee suggested Israel should conduct viable actions allowing access to medical treatment and health-care services for Palestinians in Gaza, including easing access of necessary medical equipment and supplies, and medical workers’ movement to/from Gaza. A contested issue regarding Article 12, is economic and social rights were perceived as aspirational goals, and not legally binding.



However, this has not been the Palestinians’ case. Discrimination towards Palestinian workers in Israel persevere, particularly during COVID-19. Due to Coronavirus spreading, the Israeli government issued stay permits for either 30 or 60 days, restricting thousands of workers from leaving the country. This portrays the control Palestinian’s lives experience, without respecting their outside-of-work lifestyle. Firstly, although the new permit needed employers to give housing, the official requirements were beneath the ones offered to other overseas national workers. Therefore, several households reported inhumane living circumstances, this includes no beds, toilets, and running water. Secondly, Palestinian workers were not given health insurance throughout COVID-19. This triggers two ECHR rights, and how Article 2 of Protocol 4 Freedom of Movement, and Article 4 Forced Labour were derogated through (Article 15), because states needed to take action to protect all individual’s right to life and health within their jurisdiction. Yet, restricting medical workers moving to/from Gaza, does not seem proportionate, as COVID-19 needs medical workers. Article 4’s nature is absolute; therefore, Israel cannot force Palestinian workers even throughout COVID-19’s emergency. However, Article 2 of Protocol 4 can contradict Article 4, particularly with lockdown, quarantine measures, and implementation that measures will have to be taken and fulfilled if necessary. Palestinians overcrowd checkpoints, where no social distancing exists, because of fear that Palestinian’s entering Israel might be part of terrorist undertaking, impacting the Palestinians workers’ daily lives.


Palestinian prisoners should also not be discriminated against during COVID-19, if they are exposed at high-risk. Family visits were banned and lawyers access restricted for Palestinian detainees. “It is critical that such measures are medically justified and that alternative means for communication, specifically video conferencing, is available. Special measures should also apply to children and women for visits”. Experts expressed concerns over reports that Israeli authorities are impeding efforts to combat COVID-19 in East Jerusalem. In one reported incident, Israeli authorities recently raided a testing clinic in the densely populated Silwan Palestinian neighbourhood under the excuse that the Palestinian Authority provided testing kits. Israel also arrested doctors. This violates Article 2 and Article 5, the right to liberty and security, of the ECHR. This confutes Article 2’s nature where the state has positive obligations to protect people within their jurisdictions.


Conclusion

Therefore, for the Palestinians’ to live a dignified life during COVID-19, “requires the states’ responsibilities to protect life, in our case Israel. To take preventive steps to chronic yet pervasive threats to life”. However, Palestinians even during COVID-19, have faced discrimination, due to Israel’s failure in interpreting what deemed necessary and proportionate to protect the right to life.






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