Vaccine apartheid as a piece of the israeli settler colonial puzzle - A legal analysis
Opinion Analysis by Francesco Pitzalis, Contributor and Yara Dally, Contributor
May 19th, 2021
The Covid-19 pandemic has precipitously exacerbated global health inequalities. This has been perpetuated by inequitable access to vaccines and propagated crippling outbreaks in the developing world. Notably, israel has led the global vaccination effort whilst simultaneously refusing to vaccinate the Palestinians it occupies. israel has also vaccinated israeli settlers in the occupied territories. Thus, israel discriminates against access to vaccines on a street by street basis. The following legal analysis explores israel’s vaccine apartheid in the occupied territories.
israel’s legal duty to vaccinate Palestinians in the occupied territories is underpinned by the Fourth Geneva Convention. The Fourth Geneva convention categorically prohibits settlement building, population transfer and territorial alterations in/to the occupied territory by the occupying power. It additionally stipulates that the occupying power must provide appropriate healthcare for those it occupies. The convention mandates the provision of “medical supplies of the [occupied] population,” in addition to the “adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics”. israel thus flagrantly violates the Fourth Geneva convention through its encroachment of Palestinian lands and settlement building. Under this legal framework it also has a duty to provide vaccines to the Palestinians of the occupied territories.
The state of israel has justified its refusal to vaccinate Palestinians by referencing the 1993 Oslo accords. The 1993 accords negotiated between the PLO and israel provided a nascent Palestinian authority a patchwork and partial autonomy over the occupied territories. It also shifted the responsibility of the Palestinians’ healthcare onto this authority. However, the Oslo accords failed to explicitly outlaw the building of israeli settlements and delineate Palestinian self determination. In essence, Oslo signed Palestinian surrender into writing whilst providing a legal argument for israel to minimise its healthcare expenditure in the occupied territories.
Nevertheless, the Oslo Accords do not supersede israel's obligations to provide vaccines for Palestinians. Firstly, due to the expiration of the interim period enshrined by Oslo in 1999. Secondly, due to frequent israeli violations of nominal Palestinian authority in Area A of the West Bank. israel therefore remains the de facto ruler of all territory from the river Jordan to the Mediterranean sea. As such, it is legally required to uphold the conditions of the Fourth Geneva Convention. This is indeed the position of the United Nations, the EU and numerous Human Rights NGOs.
The subsequent failure to uphold accountability in the occupied territories elucidates the weaknesses of international law. International law, in particular, has an intrinsic indeterminacy: its laws, standards, and customs are seldom, if ever, determinative of a singular result. Likewise, these legal standards are historically predicated on the perspectives, policies and ambitions of the global north; therefore international law can be seen as a derivative of colonial order. Consequently, international legislation may be "framed, deployed, interpreted, or suspended to achieve a specific effect" by powerful states; although this is not exclusively the case. This has subjected human rights law in israel/Palestine to shrewd israeli “legal work”. Furthermore, it illustrates the law’s subjectivity and contingency on the geopolitical balance of power. The US’s unequivocal backing of israel’s settler-colonial enterprise is a shocking example of this. On 42 occasions, the US has exercised its right to veto at the UN security council to shield israel from political accountability.
In essence, israel leverages political alliances to institute a specialised legal regime in the occupied territories. This regime cherry picks elements of Oslo and violates international conventions in order for israel to further its settler ambitions and deprive Palestinians of vaccines. Noura Erakat exhaustively delineates this “sui generis” (of its own kind) legal regime in her recent book “Justice For Some.” The book explicates the history of legal exceptionalism promoting Jewish statehood and marginalisation of Palestinian self determination in Palestine. This began with the 1917 Balfour declaration; a British colonial policy seeking the establishment of a Jewish national home in Palestine. Lord Balfour, the declaration’s author declared his view on Palestinian self determination in his address to the British Parliament - “In the case of Palestine we deliberately and rightly decline to accept the principle of self-determination… Our justification for our policy is that we regard Palestine as being absolutely exceptional; we conceive the Jews to have historic claim to a home in their ancient land.”
The balfour declaration institutionalised Palestinian oppression within the framework of British colonial order and international law. Palestinians’ claims to legal redress were thus rendered nonjusticiable. Following israeli conquest of the West Bank and Gaza in 1967, the Palestinians were henceforth suspended in legal limbo. They remain a people denied both status as an occupied people and the right to self-determination. This non-sovereign status was first disseminated by the legal arguments of Professor Yehuda Zvi Blum. Blum fabricated the legal fiction of Palestinian non-existence following the 1967 war -
“The legal standing of Israel in the territories in question is thus that of a state which is lawfully in control of territory in respect of which no other State can show better title.”
israel has also persistently denied Palestinian right to self-determination. This is reflected poignantly by israel’s 2018 nation state law. The law establishes “Jewish settlement as a national value” and states that national self-determination is “unique to Jewish people” in israel. Concerning the matter in question, vaccines; israel’s refusal to vaccinate Palestinians should be seen as a further denigration of the Palestinians’ rights as an occupied and oppressed people.
The term apartheid is not one used by these authors lightly. As a legal entity, it is defined by the 1973 apartheid convention and 1998 Rome Statute as consisting of “three primary elements: an intent to maintain a system of domination by one racial group over another; systematic oppression by one racial group over another; and one or more inhumane acts, as defined, carried out on a widespread or systematic basis pursuant to those policies.”
Depriving Palestinians of an essential medical product, for which israel has ample surplus, is to further the blatant health inequalities present in the occupied territories. It also reifies Palestinians’ present subjugation as a people outside the law under israel’s sui generis legal regime. This regime which categorises Palestinians as non-citizens of israel and non-sovereigns under occupation is to subject Palestinians entirely to the discretion of the israeli occupation. This should be further contextualised by israel’s host of other policies discriminating against Palestinians including: forcible transfer, expropriation of land and property, extrajudicial executions, arbitrary arrest and restrictions on freedom of movement. In light of recent evictions in Sheikh Jarrah, vaccine apartheid should always be considered through the lens of this wider context. To label it as a momentary blip is to ignore the dualised legal regime in israel/Palestine amounting to apartheid. This accusation is no longer a fringe position and is corroborated by ESCWA, a UN utility and most recently, by Human Rights Watch.
Vaccine apartheid should serve as a route for activism against israeli apartheid. This should take the mould of a targeted rights based approach - one that is necessary to circumvent the sophistication of israel’s exceptional legal regime. As Noam Chomsky remarks: “When different forms of oppression emanate from the same source, the struggle against it has to be focused.” Further, to utilise law alone is to subvert Palestinian justice to a legal system predicated on subjective laws and skewed towards the interests of affluent states. The requisite global shift must be cultural, the impetus must be political and the targets must be specific; one vaccine, one house at a time.