Training on

1
Training on

• The right to health in the oPt
• From IHL IHRL
• perspectives

Presented by Wael Abu Nemeh, Diakonia
2
Training Objectives

• Enhance the knowledge on IHL IHRL regarding the
  right to health and health care.
• Provide a better understanding of the relevant
  Israeli laws and military orders relating to
  access, movement and humanitarian assistance work
  in the oPt.
• Provide practical legal tools for monitoring and
  reporting the violations of the law.

3
Methodology

• Presentation of key practical principles and
  rules of IHL IHRL
• Highlighting the practical examples and
  experiences
• Presentation of various perspectives on
  challenges
• Open space for debates

4
Topics covered in this presentation

• Interplay between IHL and IHRL.
• Health care under IHL.
• Health care under occupation.
• The right to health under IHRL.

5
What is the difference between IHL and IHRL?

• International humanitarian law is applicable in
  times of armed conflict.
• Minimum rights to limit the suffering during
  war.
• The four Geneva Conventions of 1949, their
  Additional Protocols of 1977, a number of
  customary norms such as those in the Hague
  Regulations of 1907

• Human rights are applicable at all times in war
  and peace.
• More extensive rights, including the right to
  life, health care, education, work, freedom of
  expression and association etc.
• Human rights conventions such as the ICESCR,
  ICCPR, Child Convention

6
Do IHL and IHRL apply to the oPt?
With control follows responsibility...
Israels High Court of Justice views the Israeli
government in the oPt as bound by the customary
Laws of War. According to the Court, the
disputed issue of sovereignty does not prevent
the authorities from being bound by the customary
laws of war, which are applicable as long as
Israel is effectively in control of the OPT.
(H.C.J. 593/82, 13 July 1983, H.C.J. 69/91, 4
April 1983)
7
IHL applies to the oPt

• The military operations of the Israeli Defence
  Forces in Rafah, to the extent they affect
  civilians, are governed by Hague Convention IV
  Respecting the Laws and Customs of War on Land
  1907 . . . and the Geneva Convention Relative to
  the Protection of Civilian Persons in Time of War
  1949.

Supreme Court of Israel, in a judgment dated 30
May 2004
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IHL applies to the oPt

• In view of the foregoing, the Court considers
  that the Fourth Geneva Convention is applicable
  in the Palestinian territories which before the
  1967 conflict lay to the east of the Green Line
  and which, during that conflict, were occupied by
  Israel, there being no need for any enquiry into
  the precise prior status of those territories.

ICJ Advisory Opinion on the Wall of 9 July 2004,
para. 101.
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ICJ IHRL applies to the oPt

• . . . the Court considers that the
  International Covenant on Civil and Political
  Rights is applicable in respect of acts done by a
  State in the exercise of its jurisdiction outside
  its own territory. para. 111
• . . . It would also observe that the
  territories occupied by Israel have for over 37
  years been subject to its territorial
  jurisdiction as the occupying Power. In the
  exercise of the powers available to it on this
  basis, Israel is bound by the provisions of the
  International Covenant on Economic, Social and
  Cultural Rights. para. 112
• As regards the Convention on the Rights of the
  Child of 20 November 1989 That Convention is
  therefore applicable within the Occupied
  Palestinian Territory. para. 113

ICJ Advisory Opinion on the Wall of 9 July 2004.
10
Whose interpretation of the law?

• "Many areas of international law are vague. They
  can be interpreted in different ways. The
  situation in Gaza, for example, has no parallel
  anywhere else in the world. It's all open. So
  there are interpreters who want to interpret the
  law in such a way as to limit us as much as
  possible, and there are interpreters who are more
  convenient for us."

Israels Justice Minister Daniel Friedmann in an
interview with Yediot Aharonot in February 2008.
11
What is meant by health care?

• The concept of health care covers
• all those services whose main purpose is to
  promote, restore or maintain health, defined as
  "a state of complete physical, mental and social
  well-being and not merely the absence of disease
  or infirmity.

Constitution of the World Health Organization,
Basic Documents, Official Document No. 240
(Washington, 1991)
12
The right to health for Palestinians

• Available and adequate health care system,
  including emergency health care as well as
  treatment for advanced diseases, such as cancer
  or diabetes
• Access to the clinics and hospitals
• Availability of medicines
• Availability of electricity and fuel which in
  turn affects the health system
• Protection from military attacks on medical
  installations and personnel
• Cleanliness
• Conditions in prisons.

13
Who is protected under IHL?

• Civilians (including humanitarian workers)
• Wounded and sick (also combatants)
• Medical and religious personnel
• Prisoners of war

14
General protection under IHL

• The protected population shall always be treaded
  humanely and be protected against all acts of
  violence and threats thereof. Measures of control
  or security taken by the OP in fulfilling this
  duty must be necessary as a result of the war.
  (Article 27 IVGC)

15
General protection under IHL

• Civilians and civilian objects should never be
  the target of attack.
• Indiscriminate attacks are forbidden
• Attacks that are not or cannot be directed at a
  specific military objective.
• Attacks that employ means and methods of fighting
  whose effects cannot be limited according to IHL.

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Specific protection of medical personnel and
property

• Attacks against civilian hospitals are prohibited
  at all times and such hospitals must be respected
  and protected at all times (Article 19 IGC
  Article 18 IVGC Articles 8, 9, 12 AP I)
• Civilian hospitals loose protection if they are
  used to commit, outside their humanitarian
  duties, acts harmful to the enemy. (Article 19
  IVGC)
• Medical personnel benefit from special protection
  and are designated as "protected personnel".
  (Articles 24, 25, 26, 27 IGC Article 36, 42
  IIGC Article 20 IVGC, and Article 8 AP I)
• Medical transport enjoy same protection as long
  they bear the distinctive emblem of the red
  cross, red crescent or the crystal. (Article 8
  AP, Article 35 IGC, Article 21 AP I, Article 22
  IIGC, )

17
The reality Jan-Feb 2008 (PRCS)

• 8 physical attacks on crew
• 3 ambulances damaged
• 117 delays and denial of access incidents
  reported
• Israeli soldier fired tear gas canister into two
  ambulances
• Israeli soldier fired plastic coated metal
  bullets at the crew at two occasions (driver
  injured)
• Israeli settlers stoned an ambulance causing
  damage to it (Nablus)
• Israeli soldiers stopped an ambulance and
  detained the wounded (Nablus)

18
The harsh reality continues

• Since 2000, outbreak of the 2nd Intifada, 39
  people died because follwoing delay of medical
  treatment (BTselem).
• Palestinian women giving birth at check points
  two cases in December 2008 (BTselem)

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Palestine Medical Relief Society

• 27 February 2008- Gaza
• The main pharmacy, a mobile clinic, a loan centre
  for persons with disabilities and all
  administrative offices were attacked.
• The mobile clinic, all the medicine supplies and
  most of the equipment have been destroyed.
• The building itself is badly damaged and cannot
  be used again without extensive repairs.

20
Grave breaches/War crimes?

• If committed against protected persons or
  property
• Willfully causing great suffering, or serious
  injury to body or health.
• Wilful killing.
• Torture or inhuman treatment, including
  biological experiments.
• Unlawful and intentional extensive destruction
  and appropriation of property, not justified by
  military necessity.
• (Articles 50 IGC, 51 IIGC, 130 IIIGC and 147 IVGC)

21
Health care under occupation
The overall duties/responsibilities of the
Occupying Power (OP) . . . to restore and
ensure, as far as possible, public order and
safety, while respecting, unless absolutely
prevented, the laws in force in the country it
occupies. (Article 43 of the 1907 Hague
Convention (IV))
22
Responsibility of the Occupying Power

• Beyond the maintenance of law and order, the OP
  has the duty to
• Ensure food and medical supplies for the
  civilian population, and bring in the necessary
  foodstuffs, medical stores and other articles if
  the resources of the occupied territory are
  inadequate. (Article 55 IVGC)

23
Responsibility of the Occupying Power

• The OP, with cooperation of national and local
  authorities, is responsible for the care of the
  civilian population, including the protection and
  maintenance of the medical and hospital
  establishments and services, public health and
  hygiene in the occupied territory.
• In particular, the occupying authorities are
  under the duty to adopt and apply the
  prophylactic and preventive measures necessary
  to combat the spread of contagious diseases and
  epidemics, and to allow all medical personnel
  to carry out their duties.
• (Article 56 IVGC)

24
What about Gaza?

• WHO Report
• 69 medical patients died because they were denied
  access.
• Statistics Electricity and fuel cuts.
• Sewage catastrophy.
• Drinking water.

25
What about Gaza?

• The Israeli High Court of Justice has earlier
  confirmed that
• supply of electricity needed by the local
  population is unquestionably a function imposed
  on the military government, so as to ensure the
  proper living conditions of the population".

26
What about patients without permits?

• Permits have been repeatedly denied by the
  Israeli authorities based on security concerns.
• The sharpened policy have had severe effects with
  at least five deaths ince June 2007.
• Other patients have suffered severe injuries,
  including amputation, while waiting clearence.

27
The right to humanitarian assistance

• Civilian population of an occupied territory has
  the right to call for relief schemes if
  inadequately supplied, and the Occupying Power is
  obliged to agree to such schemes on behalf of the
  said population and shall facilitate them by all
  the means at its disposal.
• (Article 59 IVGC)

28
The right to humanitarian assistance

• IHL provides for guarantees to the right to
  assistance in the Geneva Conventions and their
  Additional Protocols (Article 3, 23, 55, and 59
  IVGC Articles 69 and 70 AP I Article 18 IAP I).
• IHL gives the humanitarian organizations such as
  the Red Cross the right of initiative in
  offering relief actions (Article 18 (1) IAP I)
  and of the Parties concerned in such actions
  (Article 70 AP I).
• Protected persons in occupied territories shall
  be permitted to receive the individual relief
  consignments sent to them. (Article 62 IVGC)

29
Humanitarian organisations shall not relieve the
OP from its duties

• Humanitarian assistance delivered to the
  population of the occupied territory shall in no
  way relieve the Occupying Power of any of its
  responsibilities under Articles 55 , 56 and 59
  .
• Article 60 IVGC

30
Specific rights for women children

• Not to hinder any preferential measures in
  regards to food, medical care, and protection
  against the effects of war in favor of children
  under 15 years, expectant mothers, and mothers of
  children under seven (Article 50 IVGC)
• To facilitate the proper working of all
  institutions devoted to the care and education of
  children (Article 50 IVGC)

31
The Right to Health under IHRL

• Every human being has
• a right to a standard of living adequate for the
  health of himself and his family, including food,
  clothing, housing, and medical care and necessary
  social services. (Article 25(1) of the Universal
  Declaration of Human Rights of 1948)
• the right of everyone to the enjoyment of the
  highest attainable standard of physical and
  mental health. (Article 12(1), ICESCR)

32
The Right to Health under IHRL

• States are bound to
• carry out the necessary measures for reducing
  infant mortality and health development of the
  child
• improvement of all aspects of environmental and
  industrial hygiene
• prevention, treatment and control of epidemic,
  endemic, occupational and other diseases and the
  creation of conditions which would ensure access
  to health services.

33
The Right to Health under IHRL

• ICECSR committee sets out four criteria by which
  to evaluate the right to health
• Availability - functioning public health and
  health care facilities, goods and services as
  well as health programme to be available in
  sufficient quantity within the state party
• Accessibility to everyone without
  discrimination, within the jurisdiction of the
  sate party

34
The Right to Health under IHRL

• Acceptability must be respectful of medical
  ethics and culturally appropriate i.e respectful
  of individuals, minorities, people and
  communities, sensitive to gender and life-cycle
  requirement and
• Quality scientifically and medically
  appropriate and of good quality. Skilled medical
  personnel and scientifically approved and
  unexpired drugs and hospital equipment, safe and
  potable water and adequate sanitation.

35
The Right to Health under IHRL

• Governments have an obligation to progressively
  realize the right to access health care, they
  must ensure that
• existing services are provided without
  discrimination.
• health care services respect a range of other
  rights, including the right to physical
  integrity, autonomy, confidentiality and informed
  consent.

36
The Right to Health under IHRL

• In the present climate, it is easy for a state
  to justify its repressive measures as a response
  to terrorism - and to expect a sympathetic
  hearing. Israel exploits present international
  fear of terrorism to the full.
• John Dugard, UN Special Rapporteur to the Human
  Rights Council, March, 2008

37
Thank you!

• You are welcome to visit our website
• Easy Guide to International Humanitarian Law in
  the occupied Palestinian territory
• www.diakonia.se/ihl