By Gabriele Kuchenbecker, Research Associate, thinc.

This blog explores the WHO’s endemic Israel preoccupation that impairs the organization’s credibility, effectiveness and relevancy. It is written in reaction to the World Health Organization’s tradition of maintaining a separate agenda item on the program of the World Health Assembly, in which Israel is singled out annually as a violator of Palestinian health rights in the ‘Occupied Palestinian Territories’. The aim is to explore this ‘special treatment’ and whether it is justified under international law. Note that this blog is currently being reworked into an article that will soon be published. The article will offer a deeper investigation of, amongst others, 1) how politicization of the WHO impacts its effectiveness, and 2) the success of the Palestinians themselves in managing their health care.

On 1 May 2019, during the 72nd annual World Health Assembly (WHA) of the World Health Organization (WHO) of the United Nations (UN), the Director-General (DG) issued a report [A72/33] in response to decision WHA71(10) (2018) that requested the DG to ‘report on progress in the implementation of the recommendations contained in the report [A71/2, 18 May 2018] on the health conditions in the occupied Palestinian territory, including east Jerusalem and in the occupied Syrian Golan’. On 22 May 2019, the draft decision proposed by the delegations of Algeria, Azerbaijan, Bahrain, Bolivia, Comoros, Cuba, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Maldives, Mauritania, Morocco, Oman, Pakistan, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, United Arab Emirates, Venezuela and Yemen, was adopted by the WHA with bare majority — 96 countries voting in favor to 11 voting against, 21 abstaining and 56 absent. The eleven countries that opposed the decision are the United Kingdom, Germany, the Czech Republic, Hungary, Australia, Canada, the United States, Brazil, Guatemala, Honduras, and of course Israel.

In a statement issued by the United States, the draft decision is criticized for ‘perpetuating politicization’ and ‘not meet[ing] the objective of a [WHA] focused purely on public health.’ The US further warned that the WHA ‘should not be sidetracked by political issues’ and pointed out the irony in addressing the health of the population in the Golan. After all, it is ‘the Syrian regime [that] attacks its own citizens, using chemical weapons to kill and maim.’ As for Israel, the country has voluntarily received and treated a multitude of wounded Syrians in Israeli hospitals as part of Operation Good Neighbor and has made international headlines with the rescue of the Syrian ‘White Helmets’. Lastly, the US pointed out that this annual decision ‘will not improve the health of Palestinians [and] does not help make peace between Israelis and Palestinians.’

Essentially, the purpose of the WHO’s annual meetings is (or should be) to discuss internal and external health-related issues facing the WHO, with topics such as market transparency in the pharmaceutical industry, vaccines, health technologies, the rise of Ebola, WHO reforms, strategies to address snake bites, the shortage of health workers; universal health coverage. Yet, the alleged maltreatment of Palestinians in the occupied territories has become a permanent point of discussion in a separate agenda item dedicated to it since 1968. Between 1968 – 1977 the item read ‘Health assistance to refugees and displaced persons in the Middle East’. In 1977 it was renamed to read ‘Health conditions of (and assistance to) the Arab population in the occupied Arab territories, including Palestine.’ And in 2007 it was renamed, more transparently, reading ‘Health conditions in the occupied Palestinian territory, including east Jerusalem, and in the occupied Syrian Golan’.

The peculiarity here lies in the annual singling out of Israel as a violator of Palestinian health rights. While the questions in this context are manifold, the present discussion will focus on the following: Firstly, is the health situation in the Palestinian territories severe enough to warrant the extent of attention it receives at the annual WHA? Secondly, what constitutes the applicable legal framework and what does (or doesn’t) it require from Israel. Thirdly, what is the responsibility of the Palestinian Authority (PA) in health-related matters?

Before delving into the legal nitty-gritty, let’s reflect on the question whether the health situation in the Palestinian territories is severe enough to warrant the extent of attention it receives.

When considering actual health standards of Palestinians, one may find it surprising that the WHO is devoting so much resources on condemning the impact of the occupation on Palestinian health. After all, Palestinians enjoy high life expectancy and low infant mortality, especially in comparison to the gloomy public health record of those nations repeatedly rushing to condemn Israel.

According to a 2017 report by the US Central Intelligence Agency, the life expectancy of Palestinians in the West Bank is 75.20 years and in Gaza 74.20 years. In the most recent UN report on World Population Prospects of 2015, ‘Palestine’ reaches 72.65 years.

Israel has been in full control of the territories since 1967 and has ceded its control in areas A fully and in areas B partially with the enactment of the Oslo Accords between 1993 and 2005. When those areas were still under the control of Jordan and Egypt before 1967, the life expectancy was a mere 48.7 years (according to Dr. Wael R. Ennab, a prominent Palestinian demographer). Thus, while the Palestinian life expectancy was once well below the world average, it currently ranks higher than most countries in the world – this includes Egypt (70.84) Russia (69.83), and South Africa (57.11).

In fact, this dramatic rise in life expectancy may be linked to extensive cooperation between Palestinian and Israeli healthcare providers. This includes, inter alia, intensive training of Palestinian health care workers (see e.g. Soroka, Hadassah, Peres Center) and offering medical treatment to Palestinian patients in Israeli hospitals (see e.g. Jibril Rajoub, permits granted, Gaza patients).

But then, in other parts of the world the health situation has reached catastrophic proportions. 18 million Yemenis are facing a severe famine and 22 million people in East Africa are on the verge of starvation. Close to a million Venezuelans suffer from malaria while medical facilities in the country have collapsed. This begs the question, why does the annual WHA keep insisting on maintaining a special article in its annual agenda to examine Israel’s supposed mistreatment of Palestinians? No such annual ritual is devoted to countries in need like Syria, Sudan or North Korea. Indeed, it appears that Israel is the only country repeatedly singled out and branded as a health rights violator. Based on the above, it appears unlikely that this treatment is justified.

Preparatory to establishing the legal framework at issue, let’s first have a look at what the WHA requires from Israel. Besides pledging further support and technical assistance in health-matters to the Palestinian Authority (PA) and reporting on the outcome of field assessments on health conditions in the territories, report A72/33 concludes with 10 recommendations, three of which concern Israel’s purported obligations towards Palestinians. Recommendation 1 holds that Israeli authorities should live up to the following obligations under international law:

To establish procedures, which enable undelayed access 24/7, for all Palestinian patients requiring specialized health care, including exit out of Gaza and access into Jerusalem, and which at the same time safeguard Israeli security concerns;

To establish procedures that ensure Palestinian health care personnel to be able to work, train and specialize in the occupied Palestinian territory, including east Jerusalem, and abroad;

To establish procedures that enable ambulances to have free access to patients and health care institutions without unnecessary delay.

Recommendation 6 requires ‘Israeli authorities [to] ensure that health care workers have unhindered access to their workplace, and have possibilities for professional development and specialization.’

And Recommendation 8 calls for ‘adher[ence] to the United Nations Security Council [(UN SC)] resolution 2286 (2016) stating relevant customary international law concerned with the protection of the wounded and sick, medical personnel engaged in medical duties, their means of transport and medical facilities.’

The legal framework concerning the right to health under international law is complex and fragmented, especially as regards the Israel-Palestine conflict. Here, the main elements at play are human rights law (IHRL), humanitarian law (IHL), the Oslo Agreements and the relevant UN SC resolution(s).

IHRL

In human rights law, the 1948 United Declaration of Human Rights (UDHR) establishes ‘the right to health’ as a universal common ‘standard of living’ adequate for a person’s general health and well-being, which includes ‘food, clothing, housing, …medical care, …necessary social services, and security in the event of unemployment, sickness, disability, widowhood, old age…’ (article 25). The International Covenant of Economic, Social and Cultural Rights (ICESCR) of 1966 explicitly delineates the right to health and the steps states should take to ‘realize progressively … to the maximum available resources … the highest attainable standard of health,’ including ‘the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ (article 12). Furthermore, the right to health is included in article 5e(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination (1965); in articles 11.1(f) and 12 of the Convention on the Elimination of All Forms of Discrimination against Women of (1979); and in article 24 of the Convention on the Rights of the Child (1989). The right to health has also been recognized by a number of regional initiatives, such as the European Social Charter (1961), the African Charter on Human and Peoples’ Rights (1981), and the Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988).

For half a century since its inception in 1948, human rights law has widely been regarded as soft-law. Also, it has been acknowledged that certain factors beyond the state’s control may hinder the progressive fulfillment of the ‘highest attainable standard’ of health as envisioned by the above instruments. Essentially, human rights instruments have always been understood as constituting a set of ideals that states agree to implement and/or strive towards, as far as possible. However, in the 2004 Wall Advisory Opinion, the International Court of Justice appears to initiate a paradigm shift in international law, ‘hardening’ the status of IHRL. The Court disagrees with the established rule that ‘humanitarian law is the protection granted in a conflict situation…, whereas human rights treaties were intended for the protection of citizens from their own Government in times of peace.’ The Court clarified that human rights protection ‘does not cease in times of war’ and that breaches of human rights law may only be justified or excused under the applicable lex specialis, namely [IHL] which is designated to regulate the conduct of hostilities.’

IHL

The applicable area of IHL concerns the law of occupation. The duties of an occupying power (Israel has accepted this position since 1967 over the areas under its authority) are found in articles 42-56 of the 1907 Hague Regulation and articles 27-34 and 47-78 of the 1949 Geneva Convention IV (GCIV), Additional Protocol I to the GCIV, as well as customary international law. While the Geneva law is focused on protecting civilians and combatants, the Hague law is geared towards managing the conduct of hostilities. Recall, however, that Israel has ceded control over areas A and to some extent areas B in the Palestinian territories. It is therefore arguable that these provisions do not apply, or apply in a limited extent in areas A and B. In short, these provisions require the following with respect to health rights:

  1. The occupying power must safeguard public order and security, as far as possible.
  2. The occupying power must ensure sufficient hygiene and public health standards, as well as enable access to food and medical care to the population under occupation.
  3. Reprisals against protected persons or their property are prohibited.
  4. The destruction of seizure of enemy property is prohibited, unless absolutely required by military necessity during the conduct of hostilities.
  5. Medical and humanitarian personnel exclusively engaged in medical duties, their means of transport and equipment, and hospitals and other medical facilities must be protected, allowed to carry out their activities and must be given access to all protected persons, wherever they are.

The Oslo Accords

Besides IHRL and IHL, the Oslo Accords possibly constitute the most important element of the applicable legal framework. From the set of bilateral agreements transferring authority from the Israeli government to the Palestinian Authority (PA), it can be inferred that responsibility in the field of health in the Palestinian territories now rests with the PA in areas A and B (article 6, Oslo I). In fact, it is the Palestinian Council that is in charge of setting and enforcing public health standards (see article 6, Annex I, Oslo II). Essentially, all ‘[p]owers and responsibilities in the sphere of health in the West Bank and the Gaza Strip [have been] transferred to the Palestinian side, including the health insurance system’ (article 17(1), Annex II, Oslo II). The agreements, however, do provide that ‘[t]he Israeli authorities shall endeavor to facilitate the passage of Palestinian ambulances within and between the West Bank and the Gaza Strip and Israel’ (article 17(5), Annex II, Oslo II).

UN SC Resolution(s)

A more contentious element of the legal framework are the UN SC resolutions. Report A72/33 explicitly refers to UN SC resolution 2286 (2016), which strongly condemns attacks against medical facilities and personnel in conflict situations. It should be noted, that UN SC resolutions are only strictly binding when adopted under Chapter VII of the Charter, in accordance with article 25 of the Charter. As resolution 2286 is not adopted under Chapter VII, it may be evidence of opinio juris and/or reflect custom, but does not automatically constitute a binding statement of law.

From the above we can deduce the following: IHRL’s soft character has been hardened and now provides a set of overarching standards applicable to acts by a State in exercise of its jurisdiction both within and beyond its own territory. The law of occupation, as lex specialis, provides some minimum exonerating grounds if a party fails to adhere to IHRL’s lofty ideals ‘in a time of national emergency’. UN SC resolutions are only binding when adopted under Chapter VII. And the Oslo Accords have enabled a transfer of authority from Israel to the PA in areas A and B, which are (arguably) no longer under occupation. The responsibility to maintain public order and security while facilitating movement between areas A, B and C, however, rests with Israel.

Now, having considered the main elements of the applicable legal framework, it is time to subject to scrutiny the DG’s recommendations under consideration.

In sum, report A72/33 recommends the following: 1) to enable ‘undelayed access’ for Palestinian patients, ambulances and health-care workers to and from medical facilities while simultaneously safeguarding Israeli security concerns; 2) to ensure that Palestinian health care workers have opportunities for professional development and specialization; and 3) to adhere to UN SC resolution 2286 (2016).

Firstly, both the ‘endeavor to facilitate the passage of Palestinian ambulances’ (article 17(5), Annex II, Oslo II) and the obligation to safeguard public order and security (article 43, 1907 Hague Regulation) rest with Israel. However, the recommendation to enable ‘unhindered’ access to Palestinian ambulances and health personnel and ‘undelayed access 24/7 for all Palestinian patients’ clearly throws a spanner into the wheel. It can be argued, in Israel’s defense, that checkpoints between Israel and the Palestinian territories are part and parcel of the obligation to safeguard public order and security, in addition to Israel’s right to self-defense. The report’s unreasonable demands render Israel’s right to safeguard her legitimate security concerns virtually impossible in this age of asymmetrical warfare.

Secondly, ‘powers and responsibilities in the sphere of Health in the West Bank and the Gaza Strip’ have been transferred to the Palestinian side under the Interim Agreement (Article 17(1), Appendix 1, Annex II, Oslo II). This means that the responsibility to ensure possibilities for professional development and specialization of health care workers in the territories rests with the PA, not Israel. The DG’s recommendation for Israel to take responsibility in this area far exceeds the responsibilities of an occupying power under international law and contradicts what is agreed upon in the Oslo Accords. Under international law, Israel is required to ensure sufficient health standards in the territories under its control – as mentioned earlier, this excludes areas A and to some extent areas B. Also, note that sufficient- does not equal highest standard of health. And recall that certain factors beyond the state’s control (in this case: armed conflict, terrorism, military necessity, self-defense and legitimate security concerns) may hinder the progressive fulfillment of such noble pursuits.

It is also important to note that many initiatives have been launched with which Israeli organizations have extended their hand in good faith to train Palestinians physicians and health care workers. See for example: Soroka, Hadassah, Peres Center etc.

Fourthly, as resolution 2286 is not adopted under Chapter VII, it should be seen not as binding law, but as an independent view concerning the legal implications in the context under consideration. The factual situation here involved ‘pressing incidents’ put forward by UN SC Members, which includedmention of hospitals in Gaza being hit by Israeli air strikes. This incident warrants a more in-depth discussion, as we are dealing with a different legal framework from the West Bank. After all, since Israel’s unilateral withdrawal in 2005 and since Hamas took control of the strip in 2007, Israel has been trapped in an on and off armed conflict with the terror group. The Oslo Accords are an agreement between Israel and the Palestinian Liberation Organization (PLO), which does not include Hamas. And so far, apart from the occasional ceasefire agreements, Hamas has been unwilling to enter into a more durable arrangement with Israel. The Iran-supported terror organization has repeatedly fired rockets indiscriminately at civilian areas in Israel. These rockets were often stored in hospitals and/or mosques, in essence using human shields, in an attempt to deter Israel from destroying the weapon facilities. However, while hospitals do constitute protected objects under IHL, they may become legitimate targets if they are used for military purposes, e.g. as weapon facilities or launch sites (article 18, 19 GCIV). Furthermore, before launching retaliatory attacks against Hamas, Israel goes through great lengths to take the necessary precautions, distinguish the targets and issue warnings to minimize civilian casualties (in accordance with articles 48, 57, 58, 85 Additional Protocol I; article 51 Additional Protocol II to the Geneva Conventions).

In conclusion to this blog, it should be pointed out that no country is immune to criticism, and Israel has never claimed to be. However, the legitimacy of the State of Israel has been a recurring point of contention in the annual World Health Assembly (WHA) since the 1950’s. In fact, Israel is the only Member of the UN whose right to exist is disputed by a significant number of states, and has been subjected to perpetual contestation and condemnation in various UN forums. This prompted former UN Secretary-General Ban Ki-Moon in 2016 to remark that ‘[d]ecades of political maneuvering have created a disproportionate number of resolutions, reports and committees against Israel. In many cases, instead of helping the Palestinian issue, this reality has foiled the ability of the UN to fulfill its role effectively.’

In light of the above, it is questionable at best whether this treatment of the only Jewish state in the world is justified. It does appear that precious time, money and resources are diverted annually (since the 1950’s) from pressing global health priorities towards waging an unjustified political prosecution of Israel.

This year, leading up to the annual WHA, Israel once again requested the separate agenda item on Palestinian health to be removed as a standalone item, suggesting that the topic be discussed in Committee A under ‘public health emergency preparedness and response’. In fact, Israel expressed approval of the assistance programs for Palestinians and reiterated support for a professional discussion on how to improve health conditions for Palestinians. However, Israel stressed that a standalone item is ‘completely superfluous and entirely motivated by politics rather than the reality on the ground.’ While Israel does ‘not oppose WHO’s assistance program to Palestinians, [Israel insists that] the draft agenda should follow the WHO’s professional standards and stop treating Israel in a one-sided way.’

Yet, once again, Israel’s plea to be treated fairly was quashed.

Now the question remains, how does this treatment of Israel reflect on the values of the WHO as a specialized agency of the UN? What became of the principle of sovereign equality upon which the UN was founded, and the spirit of mutual cooperation called upon in the Constitution of the WHO?

We as thinc. believe that respect for the sovereign equality of the Jewish State of Israel within the community of nations, in accordance with international law, is not only necessary but is the key to the achievement of the international cooperation that is needed for peace, justice and security in the Middle East and beyond. Instead of promoting peace, the discriminatory interpretation and application of international law to Israel by UN agencies such as WHO is creating perverse incentives, thereby preventing the achievement of peace based on UN values.

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