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Promoting Vaccination from a Human Rights and Equity Perspective: Lessons from the Israeli “Green Pass”

Published online by Cambridge University Press:  18 August 2021

Tamar LUSTER Open the ORCID record for Tamar LUSTER [Opens in a new window] ,
Einat ALBIN Open the ORCID record for Einat ALBIN [Opens in a new window] ,
Aeyal GROSS Open the ORCID record for Aeyal GROSS [Opens in a new window] ,
Miriam TABENKIN Open the ORCID record for Miriam TABENKIN [Opens in a new window] ,
Nadav DAVIDOVITCH Open the ORCID record for Nadav DAVIDOVITCH [Opens in a new window]  and
The COVID-19 and Human Rights Working Group
Tamar LUSTER
Affiliation:
PhD candidate, The Zvi Meitar Center for Advanced Legal Studies, Tel Aviv University, Israel.
Einat ALBIN
Affiliation:
Associate Professor, Hebrew University of Jerusalem, Israel.
Aeyal GROSS
Affiliation:
Professor of Law, Tel Aviv University, Israel.
Miriam TABENKIN
Affiliation:
Doctor, Department of Public Health and MPH candidate, School of Public Health, Ben Gurion University of the Negev, Israel.
Nadav DAVIDOVITCH
Affiliation:
PhD candidate, The Zvi Meitar Center for Advanced Legal Studies, Tel Aviv University, Israel.
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Abstract

Israel’s vaccination percentage was among the highest recorded worldwide. The Israeli government opted for a model using a proof-of-vaccine document (“Green Pass”). However, the “Green Pass” policy raises practical, legal and ethical concerns. While immunisation passports could be utilised to protect one’s health, significant legal difficulties arise from their usage as a vaccination encouragement scheme. Protecting health is a proper purpose, particularly as minimising the pandemic ameliorates the human rights violations that stem from the COVID-19 response, enables individuals to return to their daily lives and enhances economic activity. However, any privileges or restrictions guided by one’s COVID-19 immunisation status must be designed with the utmost attention to prevent a disproportionate violation of the human rights of the non-vaccinated and the public at large. Furthermore, as “Green Pass” policies might entrench existing discriminatory structures, ensuring equality is vital in moving forward. By exploring two case studies – labour rights and the right to privacy – we demonstrate the legal and public implications of the “Green Pass” regime. Despite the removal of the “Green Pass” in Israel, discussions continue regarding its modified reimplementation. The wider implications of the model might extend beyond its specific legal arrangements and limited temporal phase, requiring us to bring long-term public health into consideration.

Type
Symposium on COVID-19 Certificates
Information
European Journal of Risk Regulation , Volume 12 , Special Issue 2: Symposium on COVID-19 Certificates and Special Issue on the Global Governance of Alcohol , June 2021 , pp. 308 - 320
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

This research is supported by the Israel National Institute for Health Policy Research (NIHP). We thank Aner Shofty and Asher Rottenberg for their research assistance and valuable insights.

References

1 M Roser et al, “Israel: coronavirus pandemic country profile” (Our World in Data, 2021) <https://ourworldindata.org/covid-vaccinations> (last accessed 26 May 2021).

2 Israeli Ministry of Health, “The Coronavirus in Israel – a general status report” (Ministry of Health, 1 June 2021) <https://datadashboard.health.gov.il/COVID-19/general> (last accessed 1 June 2021).

3 M Levine-Tiefenbrun et al, “Initial report of decreased SRAS-CoV-2 viral load after inoculation with the BNT162b2 vaccine” (Nature, 29 March 2021) <www.nature.com/articles/s41591-021-01316-7> (last 28 April 2021); S Shilo et al, “Signal of hope: gauging the impact of a rapid national vaccination campaign” (Nature, 12 March 2021) <www.nature.com/articles/s41577-021-00531-0> (last accessed 28 April 2021).

4 R Wilf-Miron, V Myers and M Saban, “Incentivizing vaccination uptake, the “Green Pass” proposal in Israel” (JAMA, 15 March 2021) <https://jamanetwork.com/journals/jama/article-abstract/2777686> (last accessed 19 April 2021).

5 Israeli Ministry of Health, “Press release – Green Pass and Purple Badge restrictions lifted – public updates and guidance” (Ministry of Health, 1 June 2021) <https://www.gov.il/en/departments/news/01062021-01> (last accessed 1 June 2021). For an additional discussion, see E Albin and A Gross, “First in first out: the rise and fall of Israel’s Green Pass?” (Lex-Atlas: COVID-19, 2 June 2021) <https://lexatlas-c19.org/first-in-first-out-the-rise-and-fall-of-israels-green-pass/> (last accessed 2 June 2021).

6 Regulation of Special Authorities to Address COVID-19 Novel Coronavirus (Provision Measure) (Restriction of Activity and Other Instruction) (Amendment No. 31), 5781-2021 (Isr.); Public Health Ordinance (Amendment No. 36 – Provisional Measure – the New Coronavirus), 5781-2021 (Isr.).

7 The “Green Pass” has a predetermined expiration date of six months for vaccinated individuals, but debates continue regarding its extension for various medical reasons, including possible future serological surveys.

8 Special Authorities Regulations to Combat the Novel Coronavirus (Temporary Provision) (Limitations on the Operations of Educational Institutions) (Amendment No. 6) 2020 (22 September 2020); Israeli Ministry of Health, “Press release – Additional relaxation measures will be brought to the government’s approval” (Ministry of Health, 25 April 2021) <https://www.gov.il/en/departments/news/25042021-01> (last accessed 25 April 2021).

9 In events held in event halls and ballrooms, individuals without a “Green Pass” were also allowed to present a negative COVID-19 test conducted up to forty-eight hours earlier.

10 Including children between the ages of one and sixteen years. Infants under one year of age were exempt from the “Green Pass” requirements, and children who had recovered from COVID-19 could be added to their parents’ Green Pass. Ministry of Health, “What is a Green Pass?” (Ministry of Health, 2021) <https://corona.health.gov.il/en/directives/green-pass-info/> (last accessed 19 April 2021).

11 In early May 2021, the government removed “Green Pass” requirements in regards to gyms, pools and outdoor public events with under 500 participants, among other changes. See Ministry of Health, “Latest updates” (Ministry of Health, 6 May 2021) (in Hebrew) <https://govextra.gov.il/economy-tavsagol/> (last accessed 25 May 2021).

12 Israeli Ministry of Health, supra, note 5; Israel had also removed its restrictions on the usage of public transportation and most workplace-related limitations, except for the requirement to use face masks indoors. See Prime Minister’s Office and Finance Ministry, “Joint Prime Minister’s Office–Finance Ministry statement” (Prime Minister’s Office, 30 May 2021) <https://www.gov.il/en/departments/news/spoke_joint300521> (last accessed 30 May 2021); Prime Minister’s Office, Ministry of Health and Ministry of Transport, “Joint Prime Minister’s Office, Ministry of Health & Ministry of Transport statement” (Prime Minister’s Office, 30 May 2021) <https://www.gov.il/he/departments/news/spoke_joint_statement300521> (last accessed 30 May 2021).

13 In the public health literature, “vaccine hesitancy” refers to delays in or refusals of vaccination that could stem from various causes, including a lack of time, knowledge, awareness or access. See R Butler, NE MacDonald and SAGE Working on Vaccine Hesitancy, “Diagnosing the determinants of vaccine hesitancy in specific subgroups: the guide to tailoring immunization programs (TIP)” (2015) 32(34) Vaccine <https://www.sciencedirect.com/science/article/pii/S0264410X15005022> (last accessed 28 April 2021).

14 Israel’s Supreme Court had denied the request for an immediate temporary injunction, thus giving way to holding Israel’s national memorial ceremonies under the “Green Pass” requirement. HCJ 2254/21 Individual Freedom Protectors v. Director of Health Ministry (Interim decision), Nevo Legal Database (4 April 2021) (Isr.).

15 HCJ 1935/21 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Health), Israel Supreme Court Database (2021) (Isr.).

16 A Gross, “Rights restrictions and securitization of health in Israel during COVID-19” (Bill of Health Blog, 29 May 2020) <https://blog.petrieflom.law.harvard.edu/2020/05/29/israel-global-responses-covid19/> (last accessed 13 April 2021); A Gross, “Like a dystopian nightmare: human rights, democracy, and politicization and securitization of health in constitutional and global health law in the shadow of the COVID-19 crisis” (Mishpat Umimshal, forthcoming 2021); TH Brandes, “A year in review: COVID-19 in Israel: a tale of two crises” (Verfblog, 13 April 2021) <https://verfassungsblog.de/a-year-in-review-covid-19-in-israel/> (last accessed 14 April 2021); E Albin, IB Siman-Tov, A Gross and TH Brandes, “Israel”, in Oxford Compendium of National Legal Responses to COVID-19 (Oxford University Press, April 2021) <https://oxcon.ouplaw.com/view/10.1093/law-occ19/law-occ19-e13> (last accessed 26 April 2021).

17 Among these measures, Israel had temporarily and intermediately (1) authorised its general security services to use cellular network-based surveillance against Israelis infected with COVID-19; (2) confined demonstrators to protest only within 1000 metres of their homes; and (3) prohibited exiting and entering the country without obtaining special permission from an exceptions committee, including for citizens, and later set a daily quota on the number of individuals exiting and entering Israel. In separate decisions, the Israeli Supreme Court significantly limited the first measure and deemed the second and third measures as disproportional and unconstitutional (see (1) HCJ 6732/20 Association for Civil Rights in Israel v. Knesset (Mar. 17, 21), Nevo Legal Database (4 April 2021) (Isr.), (2) HCJ 5469/20 National Responsibility – Israel My Home v. Government of Israel (Apr. 4, 2021), Nevo Legal Database (4 April 2021) (Isr.), (3) HCJ 1071/21 Shemesh v. Prime Minister (Mar. 17, 2021), Nevo Legal Database (4 April 2021) (Isr.), respectively).

18 MS Green et al, “A study of ethnic, gender and educational differences in attitudes toward COVID-19 vaccines in Israel – implications for vaccination implementation policies” (2021) 10(26) Israel Journal of Health Policy Research <https://ijhpr.biomedcentral.com/articles/10.1186/s13584-021-00458-w> (last accessed 25 April 2021).

19 G Caspi et al, “Socioeconomic disparities and COVID-19 vaccination acceptance: experience from Israel” (medRxiv, forthcoming 2021) <www.medrxiv.org/content/10.1101/2021.01.28.21250716v1> (last accessed 25 April 2021).

20 S Martin et al, “Ensure Palestinians have access to COVID-19 vaccines” (2021) 397(10276) The Lancet 791–92.

21 The CFR (proportion of deaths among reported positive patients) is 1.1% among Palestinians living in OPT compared with 0.7% in Israel. See World Health Organization (WHO), “Coronavirus disease 2019 (COVID-19) in the Occupied Palestinian Territory” (WHO, 19 April 2021) <https://app.powerbi.com/view?r=eyJrIjoiODJlYWM1YTEtNDAxZS00OTFlLThkZjktNDA1ODY2OGQ3NGJkIiwidCI6ImY2MTBjMGI3LWJkMjQtNGIzOS04MTBiLTNkYzI4MGFmYjU5MCIsImMiOjh9> (last accessed 21 April 2021).

22 See J Leone and D Moss, “Israel’s vaccine discrimination against Palestinians must end” (Physicians for Human Rights, 15 March 2021) <www.phr.org/our-work/resources/israels-vaccine-discrimination-against-palestinians-must-end> (last accessed 13 April 2021).

23 HCJ 2171/21 Physicians for Human Rights – Israel v. State of Israel, Israel Supreme Court Database (2021) (Isr.).

24 Diakonia, “COVID-19 in occupied Gaza: what are the health-related and other obligations of the responsible authorities? Legal brief” (Diakonia, 2020) <www.diakonia.se/globalassets/documents/ihl/ihl-in-opt/briefs/covid-19-in-occupied-gaza-dec-2020.pdf> (last accessed 13 April 2021); M Longobardo, “The duties of occupying powers in relation to the fight against Covid-19” (EJIL: Talk!, 8 April 2020) <https://www.ejiltalk.org/the-duties-of-occupying-powers-in-relation-to-the-fight-against-covid-19> (last accessed 21 April 2021).

25 Basic Law: Human Dignity and Liberty, 5752-1992 (Isr.) <www.knesset.gov.il/laws/speciaL/eng/basic3_eng.htm> (last accessed 21 April 2021); CA 6821/93 United Mizrahi Bank Ltd, et al v. Migdal Cooperative Village [1995] IsrSC 49(4) 221 translated decision available on <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\93\210\068\z01&fileName=93068210_z01.txt&type=4> (last accessed 21 April 2021); A Barak, “Proportional effect: the Israeli experience” (2007) 57(2) University of Toronto Law Journal 369.

26 E Albin and G Mundlak, ”COVID-19 and labour law: Israel” (2020) 13(1S) Italian Labour Law E-Journal <https://illej.unibo.it/article/view/10794> (last accessed 26 April 2021); E Albin, “The broad and humane right to work: justifications for its adoption in light of COVID-19” (Labour, Society and Law Rev, forthcoming 2021).

27 An exception is regulation for public employees as set in Israel’s Civil Service Rules (Appointments) (Delivery of News and Medical Certificates in Corona Virus Emergency), 5781-2021 (Isr.) <https://www.nevo.co.il/Handlers/LawOpenDoc.ashx?id=199777> (last accessed 26 April 2021).

28 See N Countouris and A Bogg, “Mandatory vaccinations in the workplace: constitutionalising the managerial prerogative” (Lex-Atlas: COVID-19, 7 May 2021) <https://lexatlas-c19.org/mandatory-vaccinations-in-the-workplace-constitutionalising-the-managerial-prerogative/> (last accessed 28 May 2021).

29 G Lior, “Pais factory in dramatic move: ‘an employee who does not get vaccinated – will be fired’” (Ynet, 10 March 2021) <www.ynet.co.il/economy/article/Hk20czImd> (last accessed 19 April 2021).

30 Position paper by E Albin et al, “Vaccinated and unvaccinated workers in the labor market” (18 March 2021); Letter to the Attorney General of Israel Avichai Mandelblit from the Association for Civil Rights in Israel (11 February 2021); Legal Opinion to the Manufacturers Association of Israel from N. Feinberg & Co. Law Office (15 February 2021); Joint Announcement, General Federation of Labour in Israel and Business Sector Presidency Trade Association (23 February 2021).

31 For an additional discussion, see E Albin and A Gross, “Israel: is the ‘Green Pass’ an example to follow?” (Lex-Atlas: COVID-19, 7 May 2021) <https://lexatlas-c19.org/israel-is-the-green-pass-an-example-to-follow/e/> (last accessed 28 May 2021).

32 TARLC (Tel Aviv Regional Labor Court) 42405-02-21 Sigal Avishai v. Kochav Yair Tzur Yigal Local Council, Nevo Legal Database (2021) (Isr.).

33 Appeal on this judgment was rejected; see NLC (National Labor Court) 3955-04-21 Sigal Avishai v. Kochav Yair Local Council, Nevo Legal Databases (2021) (Isr.).

34 TARLC (Tel Aviv Regional Labor Court) 50749-02-21 Ori Chen v. Netanya Municipality, Nevo Legal Databases (2021) (Isr.). An appeal was rejected; see NLC (National Labor Court) 15681-05-21 Ori Chen v. Netanya Municipality, Nevo Legal Databases (2021) (Isr.).

35 HRLC (Haifa Regional Labor Court) 33232-03-21 Sigalit (Gingol) Pickstein v. Shufersal Ltd, Nevo Legal Databases (2021) (Isr.).

36 Public Health Ordinance (Amendment No. 36 – Provisional Measure – the New Coronavirus), 5781-2021 (Isr.) <www.nevo.co.il/Law_word/law14/LAW-2903.pdf> (last accessed 21 April 2021).

37 HCJ 1441/21 Association for Civil Rights in Israel v. Knesset (9 March 2021), Nevo Legal Database (Isr.).

38 International Covenant on Civil and Political Rights Art 17 (16 December 1966), 999 U.N.T.S. 171; G.A. Res. 217 (III) A, Universal Declaration of Human Rights Art 12 (10 December 1948).

39 Z v. Finland, 1997-I European Court of Human Rights, paras 95–96; American Convention on Human Rights, Art 11.

40 Basic Law: Human Dignity and Liberty, 5752-1992 (Isr.) <https://www.knesset.gov.il/laws/speciaL/eng/basic3_eng.htm> (last accessed 21 April 2021).

41 Protection of Privacy Law, 5741-1981 – unofficial translation <www.gov.il/BlobFolder/legalinfo/legislation/en/ProtectionofPrivacyLaw57411981unofficialtranslatio.pdf> (last accessed 21 April 2021); Patient’s Rights Law, 5756-1996 (Isr.).

42 World Health Organization (WHO), “Interim guidance for developing a smart vaccination certificate – release candidate 1” (WHO, 19 March 2021) <https://cdn.who.int/media/docs/default-source/documents/interim-guidance-svc_20210319_final.pdf?sfvrsn=b95db77d_11&download=true> (last accessed 19 April 2021).

43 See also D Enoch et al, “Vaccination, conditionality, and bearing costs – position paper” (16 February 2021) (in Hebrew) <https://new.huji.ac.il/sites/default/files/mainsite/files/khysvnym_svpy_lhptsh_16_pbrvr_2021.pdf> (last accessed 21 April 2021), where the authors maintain that opening certain activities only to those who have been vaccinated might improve their situation but does not worsen the situation of non-vaccinated individuals, and therefore this does not constitute a form of discrimination against non-vaccinated individuals.

44 World Health Organization (WHO), “Ten threats to global health in 2019” (WHO, 2021) <www.who.int/news-room/spotlight/ten-threats-to-global-health-in-2019> (last accessed 21 April 2021).

45 E Sabaté and World Health Organization, “Adherence to long-term therapies: policy for action” (Noncommunicable Diseases and Mental Health Cluster, 5 June 2001) <https://apps.who.int/iris/handle/10665/66984> (last accessed 21 April 2021).

46 ibid; P Garner et al, “Promoting adherence to tuberculosis treatment” (2007) 85(5) Bulletin of the World Health Organization 325–420 <https://www.who.int/bulletin/volumes/85/5/06-035568/en/> (last accessed 21 April 2021).

47 C Jarrett et al, “Strategies for addressing vaccine hesitancy – a systematic review” (2015) 33(34) Vaccine 4180–90 <https://doi.org/10.1016/j.vaccine.2015.04.040> (last accessed 21 April 2021).

48 Sabaté, supra, note 45.

49 S Kimhi et al, “Recovery from the COVID-19 pandemic: distress and resilience” (2020) 50 International Journal of Disaster Risk Reduction <www.ncbi.nlm.nih.gov/pmc/articles/PMC7491376> (last accessed 21 April 2021).

50 MJ Moon, “Fighting COVID-19 with agility, transparency, and participation: wicked policy problems and new governance challenges” (2020) 80(4) Public Administration Review <https://onlinelibrary.wiley.com/doi/10.1111/puar.13214> (last accessed 28 April 2021).

51 See also LO Gostin et al, “Digital health passes in the age of COVID-19: are ‘vaccine passports’ lawful and ethical?” (JAMA, 7 April 2021) <https://jamanetwork.com/journals/jama/article-abstract/2778526> (last accessed 19 April 2021).

52 Green et al, supra, note 18; Caspi et al, supra, note 19.

53 I Ber et al, “The need for reducing disparities in SARS-CoV-2 immunization: the ultraorthodox and Arab populations in Israel” (2021) 16(5) Harefuah 285 (in Hebrew).

54 World Health Organization (WHO), “Coronavirus disease (COVID-19): vaccine access and allocation” (WHO, 20 October 2020) <www.who.int/news-room/q-a-detail/coronavirus-disease-(covid-19)-vaccine-access-and-allocation?topicsurvey=v8kj13)&gclid=Cj0KCQjw9_mDBhCGARIsAN3PaFNkym2wA3MvQRxI3mUgWJ4eCO5tDbenvnB8AmnkzdJ7soNdMN-GQ78aAr-OEALw_wcB> (last accessed 21 April 2021).

55 TA Ghebreyesus, “Vaccine nationalism harms everyone and protects no one” (Foreign Policy, 2 February 2021) <https://foreignpolicy.com/2021/02/02/vaccine-nationalism-harms-everyone-and-protects-no-one/> (last accessed 21 April 2021).