By Aiswarya Murali, advocate based in New Delhi, India. She has graduated from National Law University, Jodhpur,India.  

Introduction

“All animals are equal, but some animals are more equal than others’’. These words by George Orwell rightly capture the inequality that persists in every social condition, including the condition created by the spread of a pandemic. The novel Coronavirus (SARS–CoV–2 – which causes the disease COVID-19), like similar viruses, has a peculiar nature of transcending borders and social status. From high level officials to people residing in slums have reported to have contracted this disease. However, the ability to afford good health care is the real game changer. It has the potential to cause disproportionate harm to the most vulnerable sections of the society, such as refugees and internally displaced persons. The precarious aspect of this virus is its quick form of transmission. International organisations have opined that the only possible way to reduce its rate of transmission is by creating conditions of hygiene, social distancing and increasing the testing capacity to identify individuals who are the carriers. Unfortunately, this section would be more susceptible to such infections as they are raised in poor economic and social conditions. The transmission is further catalysed by the lack of availability of basic items required for sanitation, including supply of water and social distancing becomes almost impossible due to the dense population. The RAND (Research and development), an American think tank, created an Index for Infectious Disease Vulnerability which depicts that conflict zones are most vulnerable to epidemics.

The focus of this blog post shall be on the impact of COVID-19 on Gaza strip, one of the most problematic conflict zones on earth. At the onset of the spread of the virus in the middle- east and Europe, the World Health Organisation (WHO) had already warned that it would be difficult for this area to survive the brunt of COVID-19. After the reporting of the first case of COVID-19 in March 22, the number in the Gaza strip has now crossed 10, causing an alarming situation.

Right to health as a Fundamental right

The current COVID-19 situation has highlighted the importance of exercising the right to health more than ever before. Right to health was first recognised and enunciated in the preamble of the 1946 Constitution of the WHO. It defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. It recognised right to health as a fundamental right by further adding to the definition that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” The other International instruments which recognises right to health are, The 1948 Universal Declaration of Human Rights (Art. 25) and 1966 International Covenant on Economic, Social and Cultural Rights (Art.12). The European Court of Human rights has interpreted the notion of private life as covering the right to health including the right to refuse medical treatment or to request a particular form of medical treatment (Glass v. the United Kingdom, [2004] ECHR 103; Tysiąc v. Poland, [2007] ECHR 212). Art.56 of the Fourth Geneva Convention of 1949 (GCIV) makes even an occupying power duty-bound to co-operate with the national authorities to ensure and maintain the public health so as to combat epidemics.

The aforementioned International instruments levies an obligation on the State parties to realize this right when individuals or a group are unable to realize it, for reasons beyond their control. Failure of the State Parties to take necessary steps to fulfil this shall lead to a violation of its obligations. Such failures can be in the form of insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized. Due to the disturbed political scenario and lack of resources in the Gaza strip, their pursuit of achieving right to health is filled with impediments such as high rates of poverty, unemployment, food insecurity, insecure housing, demolitions and displacement.

Situation in Gaza

The political status of Gaza as to whether it is Sui Generis or an Occupied Territory of Palestine (OTP) is a subject of debate in International law even today. The six day war known as the Naksa, led to Israel taking over West Bank and the Gaza strip in 1967. This occupation continued until 2005, after which the Israeli administration realised that the occupation was draining its resources and it threatened the security of its civilian population. Israel implemented the Disengagement plan so as to relieve itself from any legal obligation arising out of occupation. In 2007, Hamas, an Islamic fundamentalist militant organisation took over the administration of Gaza. This led to Israel declaring the Gaza Strip as a hostile entity.

Despite the complete shift of the Israeli power from Gaza, International Organisations including the United Nations still identifies Gaza as OTP. The argument is premised on the existence of “effective control’’ over Gaza. There is a division of opinion among scholars on this point of law.  As per Art 42 of the Hague Regulations 1907, and Art 6 of GCIV,  Israel does not exercise ­­“effective control’’ over Gaza as it requires a territory to be actually placed under the authority of the hostile army and the State in power ought to exercise all the functions of the government.

Regardless of the legal principles, it is undisputed that Israel indirectly controls the lives of people in Gaza. It has control over Gaza’s airspace and maritime space, the border crossings and vital supplies like electricity, fuel, water and even medical treatment. Due to the blockades, people in Gaza are unable to move or migrate or find any means to enhance their living conditions. If Israel aims to wriggle out of legal knots and give effect to its disengagement plan, then it is incumbent on Israel to remove these barriers and facilitate Gaza to utilise the resources.

COVID-19- A new form of strike

Gaza has a population of almost 2 million people in an area of merely 365 square kilometres, making it the world’s third most populated places. Half of its population resides in crowded refugee camps. This area is always in a state of lack of resources especially when it comes to health care. The existing hospitals are already burdened with patients from hostilities or the ones requiring immediate care. The United Nations Human Rights Commission expert notes that the health care facility available in Gaza has already reached a ‘’Breaking point’’. For essential medicines and specialized health care services, Gaza is heavily dependent on Israel which has widely imposed restrictions on their movements across the border. Since, the number of coronavirus cases in Israel has surged to 14,326 as on April 22, Israeli government has announced the complete closure of border crossing to Gaza. Adding to this, Israel is also said to have acted in a destructive manner, confiscating clinic tents in the West Bank which is in violation of its international obligations. This exasperates the helpless situation which the population is already in. At this time of humanitarian crisis what is expected out of Israel is its maximum co-operation rather than implementation of its abusive state policies.

What is worse in Gaza is that even health care workers who are merely providing humanitarian service are targeted and attacked by the militants. A Palestinian Red Crescent Society (PRCS) worker was injured with live ammunitions last year during the peak time of one of the demonstrations. This has led to a dearth in the number of professionals who are willing to serve in these areas. In the event of a rise in the number of reported COVID-19 cases and nations not coming forward to aid people of Gaza, the State authorities who are the Hamas can do nothing but watch the spread of the virus like a wild fire turning it into a new form of strike which Gaza has never witnessed before.

Recourse and its implications

The need of the hour is in adopting the approach of ‘humanity first’. One major take-away while battling this crisis is the need for strong co-operation and solidarity among nations. We see countries extending their arms to each other in the form of financial aid, testing kits, medical supplies and easing the export of potential drugs. Nations must also co-operate in not inhibiting the movement of healthcare and humanitarian workers in light of the world-wide imposed lock-down.

International Humanitarian organisations have already taken note of the situation in Gaza and are attempting to extend aid in all possible ways. UNHCR, International Organization for Migration (IOM) and the International Federation of Red Crescent Societies have also appealed for $ 33 million. They have acknowledged the need for countering the lack of awareness among the community and also the rampant spread of misinformation among refugees. The world economic forum has made an appeal to the International Red cross so as to assist the most vulnerable people. If requisite measures are not undertaken actively to save Gaza and other vulnerable areas, we will soon witness a mass extermination of the ones who are victims of their political and economic conditions.

Image: Palestinian artist paints a mural to raise awareness about COVID-19 in Khan Younis, Gaza Strip (Ashraf Amra – APA Images)