Legal Memorandum regarding the right to health for Palestinian Political prisoners during the spread of COVID- 19
The World Health Organization on 11 March 2020 declared that Coronavirus has become a pandemic. As the virus continues to spread, WHO is advising measures of protection through the maintenance of good hygiene habits and the practice “social distancing”. This is difficult for persons held in detention facilities. This was the case in China when more than 500 reported cases of coronavirus were reported from persons in detention. With 5000 Palestinian political prisoners in Israeli detention this calls for active measures by Israel the occupying Power in order to ensure the right to health to Palestinian political prisoners through proper monitoring and provision of the required medical attention. The following memo will address Israel’s obligations in regards to the right to health of prisoners.
Political prisoners’ Rights under International Humanitarian Law – the Fourth Geneva Convention
Obligations of Israel as the occupying Power are enshrined in the Fourth Geneva Convention. Despite Israel’s refusal to recognize the de jure applicability of the Fourth Geneva Convention to the occupied State of Palestine, consensus of the international community, including multiple UN Resolutions and the 2004 Advisory Opinion of the International Court of Justice have repeatedly recognized de jure obligations of Israel as the occupying Power within the Fourth Geneva Convention. These include specific obligations in regards to Palestinian detainees and administrative detainees in times of the spread of serious or contagious diseases.
Article 27 of the Fourth Geneva Convention which states that “protected persons are entitled in all circumstances, to respect for their persons… they shall at all times be humanely treated…” provides a general principle through which the occupying Power shall treat all protected persons. It asserts that the occupying Power has an absolute obligation to treat all protected persons, including prisoners and administrative detainees, humanely under all circumstances. More specifically, in relation to health, the Article refers to “protection of person”. The Commentary explains that this should be understood in a wide context so as to include all fundamental rights, including the right to physical integrity.
In regards to detainees, Article 76 ensures that the occupying Power provides adequate food and hygiene which ensure the good health of prisoners. Detainees should also receive medical attention as required by their health. As for internees or administrative detainees issues of health are addressed in Article 81 where it provides that the occupying Power is responsible for the maintenance of internees, including all that is required for ensuring good health free of charge.  To ensure that internees/ administrative detainees are in good health, Article 91 states that places of detention shall include infirmaries that are operated by a qualified doctor. The presence of such facility in places of detention according to the Commentary would allow for internees to receive medical inspections that would ensure no delay in receiving the required medical attention.Article 91 further provides for special isolated wards in places of detention that are equipped to deal with cases of contagious diseases. In the case that the condition of a prisoner carrying a contagious disease who is placed in these isolated wards becomes more serious and requires further “special treatment” Article 91 calls for the transfer of sick detainees to institutions. These institutions could be at a distance from the location of detention. It should also be noted that detainees suffering from serious illness should be afforded the proper medical attention which is provided for “the general population.”
As for Article 92, it calls for medical inspection which shall be taken once every month, in order to monitor the general state of health in detention facilities but to also detect contagious diseases.
Political Prisoners’ Rights under International Human Rights Law
The declaration of COVID-19 as a pandemic requires prison authorities to take all measures in order to contain the spread of the virus and provide the required medical attention for prisoners. This is especially important in detention facilities containing Palestinian political prisoners, as the conditions of crowded cells subject prisoners to high risk of infection and spread of the virus.
As the occupying Power, Israel has obligations under international human rights law towards the protected population in the occupied State of Palestine. These obligations were also recognized by the 2004 Advisory Opinion of the ICJ. Thus, Israel has an obligation to guarantee the right to health to Palestinian prisoners.
The right to enjoy the highest attainable standard of physical and mental health is a right that is guaranteed to all, without discrimination, including to individuals who are detained. This was affirmed in the preamble of the WHO constitution. The right to health is guaranteed in the Universal Declaration of Human Rights Article 25.It is also guaranteed under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” This includes the obligation of states to take active measures in order to prevent, treat and control the disease. This right also requires that states establish a medical system that would efficiently deal with epidemics and other health hazards.
The United Nations (1990) Basic Principles for the Treatment of Prisoners once again reaffirmed the right to health of prisoners, Principle 9 declared that “prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal status.” In addition, failure of prison authorities to provide the required medical attention for a prisoner could amount to a breach of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Important to note that special attention should be regarded to minors, pregnant women, persons with disability in order to ensure they receive the proper health care needed as their health requires. Special care should also be provided for Palestinian detainees suffering from critical conditions. In a previous resolution by the WHO it was decided that prisoners suffering from critical conditions should be released from prison in order to receive the proper medical treatment. Currently with the outbreak of COVID-19 there must be pressure on Israel, the occupying power to release those prisoners and others as vulnerable, like minors, elderly and pregnant women, who are provided special guarantees to their rights under conventions such as the Convention on the Rights of the Child, Convention on the Elimination of all Forms of Discrimination against Women. Especially those under administrative detention, low sentences, or short remaining sentences should be released.
Israel has an obligation under both international humanitarian law and international human rights law to ensure that Palestinian prisoners at all times, but specifically during the spread of coronavirus to have full access to their right to health. It is thus asked that WHO and ICRC pressure Israel, the occupying power do the following:
- Ensure that Israel the occupying power conduct medical testing for the detection of the coronavirus, with the presence of qualified medical staff, equipment and facilities to deal with detected cases in prison including necessary means to transfer those in need of critical medical attention.
- Call on Israel, the occupying Power to provide Palestinian prisoners with all necessary equipment and products to maintain the highest levels of personal and special hygiene inside detention centers.
- Pressure Israel, the occupying Power to release minors, elderly, pregnant women, and persons with compromised immune system or diagnosed with chronic illness. This is especially urgent in all cases of administrative detention, and in cases of conviction of low sentences or those with short remaining sentences.
 CNBC, China says more than 500 cases of the new coronavirus stemmed from prisons, available at: https://www.cnbc.com/2020/02/21/coronavirus-china-says-two-prisons-reported-nearly-250-cases.html .
 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287,P. 201,205.
 Geneva Convention relative to the Protection of Civilian Persons in Time of War, Article 76 “Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separate from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country. They shall receive the medical attention required by their state of health.”
 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), supra at 377. “maintenance must be understood to mean the supplying of everything necessary for the life and physical health of the internees.”
 Id at 401.
 Id at 399.
 Id at 399-400
 Geneva Convention relative to the Protection of Civilian Persons in Time of War, Article 76 “Proper regard shall be paid to the special treatment due to minors.”
 According to the Commentary page 364 Article 16 is also applicable to those categories in detention “The wounded and sick, as well as the infirm, and expectant mother, shall be the object of particular protection and respect.”
 Constitution of the World Health Organization “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.”
 Universal Declaration of Human Rights, Article 25 (1) “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
. International Covenant on Economic, Social and Cultural Rights, Article 12.
 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, Para 16
 WHO, Health conditions in the occupied Palestinian territory, including east Jerusalem, and in the occupied Syrian Golan, 2010, para. 5 “(5) calls upon all international human rights organizations, particularly the International Committee of the Red Cross, to intervene on an urgent and immediate basis vis-à-vis the occupying power, Israel, and compel it to provide adequate medical treatment to Palestinian prisoners and detainees who are suffering from serious medical conditions worsening every day, and urges civil society organizations to exercise pressure on the occupying power, Israel, to save the lives of detainees and ensure the immediate release of critical cases and to provide them with external treatment, and to allow Palestinian women prisoners to receive maternity care services and medical follow up during pregnancy, delivery and postpartum care, and to allow them to give birth in healthy and humanitarian conditions in the presence of their relatives and family members and immediately to release all children detained in Israeli prisons”, available at: https://www.un.org/unispal/document/auto-insert-199627/ .