Article

Litigating the right to health under occupation : between bureaucracy and humanitarianism

Aeyal Gross

• Minnesota journal of international law, Vol. 27, issue 2, 2018, p. 421-491

English

This article considers the right to health of Palestinians from the Occupied Palestinian Territory (OPT) as discussed in Israeli courts, a setting distinct from the discussion in the current literature on health rights litigation—one that raises unique questions. Part I of this Article outlines the normative framework relevant to the discussion. Part II focuses on freedom of movement, the issue identified as crucial in the litigation affecting access to health care. Part III deals with the protection of civilians and medical teams during hostilities. The conclusions sum up the various topics discussed, showing how Israeli case law on the right to health of Palestinians in the OPT is almost entirely lacking in any references to the right to health as a human right in international law and turns only rarely to the specific obligations under International Humanitarian Law (IHL). These lacunae are pointed out in the argumentation adopted by the courts especially, but not only, in the Gaza cases: Israeli courts often deal with access to health care by Palestinians from the OPT as mainly a humanitarian issue (not in the sense of binding obligations from IHL but in the sense of a humanitarian gesture) rather than as a matter raising questions of rights and duties.

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