A Legacy of Injustice A Critique of Israeli Approaches to the Right to Health of Palestinians in the Occupied Territories Israel, November 2002 By Hadas Ziv 'Legal Background' Chapter Noam Lubell Research and Fieldwork Iman Aghbariyya Na’ama El’ad Salah Haj-Yehya Hadas Ziv Translation Shaul Vardi Miri Weingarten Editing Miri Weingarten 1 Production & Design: [email protected] 2 “I learned I had the indirect hand in the deaths of thousands of people; that I’d even brought about their deaths by approving of acts and principles which could only end that way. Others did not seem embarrassed by such thoughts, or anyhow never voiced them of their own accord. But I was different; what I’d come to know stuck in my gorge. I was with them and yet I was alone.” Albert Camus, The Plague Photograph: Palestine Red Crescent Society 3 Contents Introduction...........................................................................................................5 Glossary..................................................................................................................7 I. Legal Background .................................................................................................9 The Right to Health in International Law ...............................................................9 The Applicability of the Right to Health in the Occupied Territories................... 11 The Obligation to Respect the Right to Health: Freedom of Movement in International Law..................................................................................................12 Key Articles of the Fourth Geneva Convention Relating to Medical Care for Civilians in an Occupied Territory........................................................................14 The Obligation to Fulfill the Right to Health in the Occupied Territories............15 II. Health in the Occupied Territories prior to the Oslo Accords........................20 Limited Responsibility: 1967 – December 1987 ..................................................20 The Intifada from December 1987: Responsibilities Reduced .............................23 III. Health During the Peace Negotiations: Approaches to Health in the Agreements ..........................................................................................................26 Madrid Discussions, 1991.....................................................................................26 Declaration of Principles, September 13, 1993.....................................................26 Gaza–Jericho Agreement, May 4, 1994................................................................27 Interim Agreement for the Transfer of Authorities, August 20, 1994...................28 The Interim Agreements, September 28, 1995 .....................................................29 Summary ...............................................................................................................32 Obstacles to Health in the Wake of Oslo...............................................................34 IV. Israeli Responsibility following the Signing of the Accords ............................36 V. Against All Odds: The Functioning of the Palestinian Health System under Israeli Occupation....................................................................................38 Freedom of Movement or The History of the Closure..........................................38 Medical Services under Direct Attack .................................................................57 Humanitarian Crisis: From Operation “Defensive Shield” to Operation “Determined Path” and Beyond............................................................................64 VI. East Jerusalem: Divorce by Force .....................................................................71 VII. "Checks and Balances" ......................................................................................73 The High Court of Justice ....................................................................................73 The Israel Medical Association (IMA) .................................................................74 The National Ambulance Company (Magen David Adom)..................................74 The Press...............................................................................................................75 VIII. Conclusion and Recommendations....................................................................76 Appendix: Response of the IDF Spokesperson.............................................................78 4 Introduction Since the 1967 War, Palestinian residents of the Occupied Territories 1 have been subject to a military administration that has severely impacted the course of their lives. The purpose of the present report is to address the question of Israel’s responsibility for implementing the right to health in the Occupied Territories following the Oslo Accords. These agreements, signed between Palestinian representatives and the State of Israel, transferred authorities in the field of health to the Palestinian Authority. However, Israel’s continued control over basic conditions that are prerequisites for health (water, housing, freedom of movement, etc.) raises the question as to whether the Palestinian Authority is capable of managing an independent health system based on professional considerations. The Oslo Accords did not bring the Israeli occupation to an end and cannot release Israel of its responsibility for the security and welfare of the civilian population in the Occupied Territories. This report begins with an introductory chapter examining the protections afforded to the right to health in international law. In order to address the question whether the Palestinian residents of the Occupied Territories are able to realize their right to health, the report continues with a brief historical review of health services prior to the peace negotiations, as well as a review of the clauses in the Oslo Accords relating to health issues. The legal situation following the accords is then analysed, including a review of the Israeli position in light of the requirements of relevant conventions and international law. The report then discusses the situation created in the Occupied Territories following the Oslo Accords, particularly in the context of Israel’s continued control of factors that determine health, and its long-standing policy of restricting the movement of patients and medical personnel in the Occupied Territories. This section reviews High Court petitions filed by Physicians for Human Rights–Israel (PHR-Israel) on this issue during the period 1991-2002, and presents case histories illustrating the inability of Palestinian residents to realize their right to health due to Israel’s control of every step of their life.2 Israel’s control of many aspects of the management of the Palestinian health system (e.g., import of medicines, patient referrals) will also be presented. There can be no doubt that the violation of the health rights of Palestinians has reached new dimensions since the eruption of violence in September 1. This report relates mainly to the West Bank and the Gaza Strip. East Jerusalem will be the subject of a separate chapter, emphasizing Israel’s efforts to disconnect the city from the other parts of the Occupied Territories. 5 2000. During the two years that have passed, dozens of roadblocks – many impassable – have been established in the West Bank, as well as a number of roadblocks in the Gaza Strip, which cut this region into three parts. Villages have been surrounded by physical barriers; medical personnel have been prevented free passage; ambulances have come under fire; hospitals have been surrounded by tanks and searched, and equipment has been destroyed; Hospitals have been left without medical supplies, and residents have been imprisoned in their homes without basic food items or access to medicines for the sick. Such a grave exacerbation has been possible, in no small measure, because Israeli society no longer generates internal checks and balances on such behavior. Various elements that could have checked this deterioration, such as the Israeli Supreme Court, the Israel Medical Association (IMA), the media and oppositionist public opinion, have either failed to do so, or done too little, too late. Operation “Determined Path” (initiated June 2002) and subsequent military operations have perpetuated Israel’s control over the Palestinians, and indeed increased this control to the point of total stranglehold. There can be absolutely no doubt that Israel bears responsibility for the health of the Palestinians in the Occupied Territories. Concern has been expressed in certain quarters that if Israel were to provide medical services, this would constitute the reinstatement of the occupation by the “back door.” Such concerns pale in the face of a reality in which the Israeli occupation has already reinstated its presence through the smashed walls of Palestinian homes. PHR-Israel does not, however, advocate the reinstatement of the Civil Administration (see glossary and explanations below), since we are well-acquainted with its aspects as a tool for occupation and for the violation of human rights. Accordingly, we urge Israel to remove all restrictions on freedom of movement in the Occupied Territories, in order to enable the civilian Palestinian system, with the assistance of foreign organizations, to at last implement an autonomous health policy. 2. The information in this report is based on various