By Prof. Eugene Kontorovich*, Antonin Scalia Law School
Earlier this month, several left-leaning senators and representatives signed various letters contending that “Israel has an obligation under international law” to provide free vaccines for all Palestinians in the Palestinian Authority (PA). The claims are baseless, and they call into question the credibility of the legal experts who have been peddling them.
The central source of international law is treaties—agreements between the parties. While treaties often do not address many specific questions, in this case, there is a clearly applicable international agreement that directly addresses the vaccine issue—the Oslo Accords. The 1990s-era deal created the current PA government, which governs Palestinians in the West Bank (and governed Palestinians in Gaza up until Hamas took over). It also established a highly detailed division of authority between Israel and the Palestinians for issues of mutual concern, such as archaeological and holy sites, customs, taxes—and public health. Oslo provides that “Powers and responsibilities in the sphere of Health in the West Bank and the Gaza Strip will be transferred to the Palestinian sides.” It also makes clear that this includes vaccination.
So according to the foundational agreement governing Israeli-Palestinian relations, vaccination is solely a Palestinian governmental concern—in fact, this is an aspect of the Palestinian self-governance that the Oslo Accords achieved. The Oslo Accords are so clear on this point that proponents of the vaccination-obligation claim, when pushed, must argue that the Oslo Accords simply do not apply. This is a shocking argument, because even the PA routinely invokes the authority of the Accords (while also routinely violating them). The U.S. itself continues to believe Oslo is in force. Israel paid dearly for this peace deal, turning over most of the territory it controlled to the PA. To suggest provisions of this deal—or the whole thing—aren’t binding on the PA is to make a complete joke of the underlying 1990s-era diplomacy that produced the Accords.
Because Oslo directly contradicts their claim, the vaccination-obligation exponents base their argument exclusively on Art. 56 of the Fourth Geneva Convention, which was quoted extensively in the senators’ letter. Here is what Art. 56 provides: “The Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics.”
The senators—including Elizabeth Warren (D-MA) and Sherrod Brown (D-OH)—can be forgiven for thinking Art. 56 makes the issue quite clear, at least given their incorrect but widely-shared initial belief that Israel is an “occupying power” under international law. After all, numerous groups the senators respect have been making this exact claim about what Art. 56 means in the COVID context—groups like J Street, Amnesty International, Human Rights Watch and various UN “human rights experts.” And the language of Art. 56 seems entirely consistent with the claim. What could be the issue?
All these experts present Art. 56 of the Fourth Geneva Convention as the sole governing provision, with no other context. This position is entirely misleading about the content of international law, and even the Geneva Convention itself. First, the contention that the Geneva Convention supplants Oslo is preposterous—it makes much of the latter agreement a dead letter, something none of these “experts” argued when Oslo was first signed.
But even if one thinks the Geneva Convention is relevant, it clearly does not require Israel to supply the Palestinians with vaccines. By its own terms, the Geneva Convention has nothing to do with COVID vaccination. The full name of the treaty is “The Convention Relevant to the Protection of Civilians in Time of War,” and it principally applies in wartime. Indeed, Art. 6 of the Convention makes clear that “in the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations.” In other words, Art. 56 has had no possible relevance to the conflict since 1968, one year after the Six Day War.
Art. 6 does list certain provisions that apply for the “duration of the occupation”—but Art. 56 is not one of them. The various “experts” and NGOs are certainly aware of Art. 6, because one of the exceptions to the one-year time limit is the provision dealing with the “deportation or transfer” of a population, which they routinely claim applies to Jews who choose to live in the areas that had been occupied by Jordan prior to 1967.
Over a half-century after the “close of military operations,” citing Art. 56 borders on malpractice. If such an incomplete argument were presented to a U.S. federal judge, sanctions on the attorney would likely follow.
But even if Oslo did not govern, and even if it were somehow still 1968, the Geneva Convention would still not make Israel responsible for vaccinating the Palestinians. The point of the one-year limit is that the responsibility over public health only applies because it could be that as a result of war, the hospitals and medical services in the territory might not be properly functioning. But the Palestinians do have fully functioning hospitals and public health service no worse than many other governments of comparable economic stature.
Even if it were still 1968 and Art. 56 could arguably apply, it would not require Israel to provide vaccines. As the authoritative commentary of the International Committee for the Red Cross (ICRC)—no friend of Israel—makes clear, “organizing hospitals and health services and taking measures to control epidemics…is above all one for the competent services of the occupied country itself.”
Not only are Palestinians capable of securing vaccines from abroad, they have in fact done so—though, according to media reports, they have misallocated early doses to ruling party officials and even re-exported many to Jordanian royals. The Palestinians get to choose which vaccines they want—typically not the Pfizer doses preferred by Israel—and how much they are willing to pay for them. Israel got its shots early because it paid top taxpayer dollar for quick delivery. The Palestinians are not taxed by Israel.
Again, the experts waving around Art. 56 are surely aware of the ICRC commentary that makes clear it does not mean what they say it does. But they disingenuously choose not to mention that inconvenient fact.
The official commentary also makes clear that even when an occupying power does provide public health services, it does not have to do so for free. But Israel does not control the Palestinian budget, and it is surprising that Jerusalem’s critics insist that it impose its spending priorities on the Palestinian government. Part of having one’s own government is the ability to set budgetary priorities. According to a State Department report, the PA spends hundreds of millions of dollars on its “pay for slay” program that incentivizes terror against Israeli Jews. The funding for that program would be more than enough to buy vaccines for its entire population. But the PA has put killing Jews ahead of protecting its own people.
The claim of Israeli responsibility for vaccinating the PA’s populace was never made before Israel achieved global renown for its rapid vaccine rollout program. The accusations against Israel now are designed to besmirch and belittle this remarkable achievement. But absolutely nothing in the Geneva Convention says that an occupied territory is unable to “look after the health of its population” if it does not vaccinate them with the speed of the fastest country on earth. This idea is baseless and preposterous. In fact, the PA is receiving vaccines at roughly the same speed as are comparable governments.
And of course, none of this even touches upon the dispute as to whether Israel actually illicitly “occupies” Judea and Samaria in the first instance.
Pandemics throughout history have seen Jews blamed for the spread of disease. Today, such claims come dressed in legal robes—and get amplified by progressive U.S. legislators.
* Eugene Kontorovich is a professor at George Mason University’s Antonin Scalia Law School, where he heads the Center for the Middle East and International Law. This Op-ed was published in Newsweek on 24 March 2021.
