The legal status of the Gaza Strip

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Background The Gaza Strip came into existence following the 1948 war and the establishment of Israel. It absorbed dozens of thousands of Palestinian refugees who were expelled from their homes and lands inside Israel. As two thirds of its population were refugees, the Gaza Strip became one huge refugee camp. The then Israeli Prime Minister David Ben Gurion offered annexing the Gaza Strip to Israel believing that it would resolve the problem of having such concentration of Palestinian refugees in the northwest of the Negev. However, this offer was rejected by Egypt in the Lausanne conference of 1949.[1] Following the 1948 war, Egypt administered the Gaza Strip, but did not annex it. Egyptian military forces ruled over the Gaza Strip and managed all public and civil affairs.[2] During that period, Israel launched military incursions into the Gaza Strip to intimidate Palestinians and carried out indiscriminate air strikes. It eventually occupied the territory following the 1956 war against Egypt, but it was compelled under international pressure to withdraw from the territory in 1957.[3] The situation in the Gaza Strip remained as such until the six-day war in 1967 between Israel and neighboring Arab countries, following which Israel occupied the Gaza Strip; the West Bank, including East Jerusalem, which was under the Jordanian administration; the Egyptian Sinai Peninsula; and the Syrian Golan Heights. On 22 November 1967, the UN Security Council issued resolution 242, which is also known as "land for peace" resolution, calling for "withdrawal of Israel's armed forces from territories occupied in the… conflict".[4] However, the resolution has not been implemented. Israel ruled the Gaza Strip according to military orders issued by the military commander of the area with no consideration to the laws that were in force before the occupation. It refused to recognize that it was an occupying power in the Gaza Strip and insisted that it was only administering the area. During its occupation, Israel established 21 settlements on Palestinian lands throughout the Gaza Strip, where thousands of Israeli settlers lived. Palestinian resistance of the occupation in the Gaza Strip took the form of sporadic armed struggle led by the Palestine Liberation Organization (PLO), especially in the 1970s. In the early 1980s the Palestinian struggle took the form of popular resistance with Palestinians, especially students, organizing mass demonstrations protesting against the Israeli occupation. This Palestinian movement matured with the outbreak of the first Intifada in December 1987, which marked a new stage of the history of the Gaza Strip that highlighted the reality of the Israeli occupation and the need for ending it. During the Intifada, Israeli forces killed hundreds of Palestinian civilians and wounded thousands of others. In the early 1990s, the situation witnessed a major development with some Palestinian armed groups attacking Israeli military targets inside the Gaza Strip, so Israel began to seek a solution to stop the losses of its soldiers. Therefore, it initiated secret negotiations with the PLO in Oslo which were concluded by the Declaration of Principles, under which the two parties agreed that an autonomous Palestinian authority would be established and the peace process between them would be based on the "land for peace" principle. In May 1994, the two sides signed Gaza-Jericho Agreement, according to which Israeli forces were redeployed in the Gaza Strip and in Jericho in the West Bank. They also agreed that a final settlement would be reached by the end of a five-year interim arrangements. In Summer 2000, US President Bill Clinton invited the late chairman of the Palestinian Authority Yasser Arafat and the then Israeli prime minister Ehud Barak to Camp David to negotiate a final solution for the Israeli-Palestinian conflicts, but the negotiations failed. Soon after, in September 2000, the second Palestinian Intifada broke out and it was different from the first one in that it involved the use of heavy weapons by Israeli forces against Palestinians, while Palestinian armed groups attacked Israeli military objectives and settlements in the Gaza Strip and West Bank. In September 2005 Israel completed its unilateral disengagement plan and declared an end of its martial law in the Gaza Strip. Under the plan, Israeli forces redeployed outside the Gaza Strip and Israeli settlements were evacuated. By the implementation of the disengagement plan Israel claimed that the occupation of Gaza ended. However, in spite of withdrawing its troops and settlers from the Gaza Strip, Israel has continued to influence the life in the Gaza Strip: the Israeli military has continued to control the airspace and territorial water of Gaza, and the passage of persons and goods into Gaza; and Israel has not delivered to the Palestinian Authority the population registration records and has not agreed to the opening of Gaza's seaport and airport.[5] In June 2007, following short internal fighting with Fatah movement, Hamas, which won the majority of seats in the elections of the Palestinian Legislative Council in January 2006, took over the Gaza Strip and expelled the Palestinian Authority security services and officials. Since 2005, Israeli has carried out a series of incursions and air strikes against the Gaza Strip, and even wide-scale military offensives, the most prominent of which were 'Operation Cast Lead' (2008-2009), 'Operation Pillar of Defense' in November 2012, and the latest one, 'Operation Protective Edge', which is addressed by this essay. Current Legal status of the Gaza Strip In order to categorize the latest conflict, 'Operation Protective Edge', under international law it is necessary to examine the current legal status of the Gaza Strip.
  1. Israel's position
In September 2005, Israel implemented its unilateral disengagement plan from the Gaza Strip, under which Israeli troops were redeployed outside the area and took positions at the border, and Israeli settlements were evacuated. Israel declared an end of its military rule of the Gaza Strip. It claimed that as it took these measures, its position as an occupying power in Gaza ended.[6] Brigadier General Aviv Kochavi, the departing Israeli military Gaza Region Commander, stated: ‘the responsibility for whatever takes place inside befalls upon the [Palestinian] Authority’.[7] On that same day the former Israeli military Chief of Southern Command, Major-General Dan Harel, issued an official decree claiming the end of military rule in the Gaza Strip.[8] The state's position, as detailed before the Israeli Supreme Court in a case challenging the practice of sonic booms over the Gaza Strip, is that the laws of occupation, according to which an occupying power owes legal obligations towards pro­tected persons living in occupied territory, apply when the territory is under the authority of the enemy and such authority is "stablished and capable of being exercised".[9] At the legal level, the Israeli Supreme Court rejected a petition by human rights organizations against the restriction of electricity supplies to Gaza. It ruled that Israel is no longer responsible for public order in the Gaza Strip, nor for the well-being of the Gaza Strip's population under the laws of occupation.[10] International Law and International Humanitarian Law In spite of unilaterally evacuating 8,000 settlers and removing military installments from the Gaza Strip in September 2005, Israel have maintained effective control of the Gaza Strip, so it remains the occupying power as defined by article 42 of the Hague Regulations 1907,[11] which stipulates: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised". According to article 43, Israel as the occupying power of the Gaza Strip must "take all the measures in [its] power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country". In fact, Israel have maintained control over the Gaza Strip through:
  • Effective control of border crossings of the Gaza Strip into Israel;
  • Control on the ground through repeated incursions and an imposing access-restricted areas along the eastern and northern border of the Gaza Strip;
  • Control of the Gaza Strip’s airspace;
  • Control of the Gaza Strip’s territorial waters and limiting the fishing areas;
  • Control of the registry of the Palestinian population of the Gaza Strip;
  • Control of tax policies and transfer of tax revenues;
  • Control of the of the Palestinian Authority's ability to exercise governmen­tal functions.[12]
Under the current situation, the powers Israel exercises from the borders enable it to control the life within the Gaza Strip. As shown in the case of Denmark during the Second World War, the occupier may leave in place an existing local administration or allow a new authority to be established for as long as it preserves the ultimate authority. Under the Oslo Accords and other related agreements, Israel has transferred to the Palestinian Authority some powers and functions within the Gaza Strip and the West Bank, but kept for itself the ultimate authority, especially with regards to security. When Israel implemented the unilateral disengagement and evacuated its troops and settlers from the Gaza Strip, it left in place a Palestinian local administration, but there is no local governing body to which full authority was transferred.[13] Israel's justification for its offensive on Gaza In a statement to the international community, the Israeli Prime Minister Benjamin Netanyahu said:[14] Hamas and other terrorist groups in Gaza are firing rockets on cities throughout the State of Israel… No country on earth would remain passive in the face of hundreds of rockets fired on its cities and Israel is no exception… I spoke with several world leaders. I appreciated their expressions of strong support for our right and our duty to defend ourselves, and this is what we will continue to do. Israel claimed that it was acting in self-defense in Gaza, and attempted to portray itself as the victim in the conflict. The United States endorsed this justification for the use of force. However, Gaza is not an independent state and Israel accepts this but instead sees Gaza as a "hostile entity", a concept that is unknown to international law and one that Israel has never explained. The status of Gaza is clear – it is an occupied territory and part of the occupied Palestinian territory. Effective control is the test of occupation as recently confirmed by the International Court of Justice in dispute between the Democratic Republic of Congo and Uganda. Concerning the case of Gaza, Israeli physical presence in the territory is not necessary as Israel retains effective control over the territory by other means. It uses modern technology to control all aspects of life in Gaza.[15] Israel argues that it can invoke the right to self-defense under international law. It has attempted to frame rocket fire from Gaza as an "armed attack" within the meaning of Article 51 of the UN Charter to justify its offensive on Gaza. However, the International Court of Justice rejected this faulty legal interpretation in its 2004 Advisory Opinion. The ICJ pointed out that an armed attack that would trigger Article 51 of the UN Charter must be carried out by a sovereign state, but the attacks by Palestinians emerge from a territory that is under Israel's jurisdiction. [16] The ICJ's Opinion is complementary to the UN General Assembly Resolution 2694 adopted on 30 November 1970, which affirms "the legitimacy of the struggle of peoples under colonial and alien domination recognized as being entitled to the right of self-determination to restore to themselves that right by any means at their disposal". The Resolution also considers that "the acquisition and retention of territory in contravention of the right of the people of that territory to self-determination is inadmissible and a gross violation of the Charter" and condemns those governments "that deny the right to self-determination of peoples recognized as being entitled to it, especially of the peoples of southern Africa and Palestine". The rejection of Israel argument concerning Article 51 of the UN Charter leaves Israel at risk of prosecution for the crime of aggression.[17] Military or belligerent occupation is a status recognized by IHL. According to the Geneva Convention Relative to the Protection of Civilian Persons (Fourth Geneva Convention) of 1949, to which Israel is a party, a state is allowed to occupy a territory acquired in an armed conflict, but such occupation must be temporary pending a peace settlement. Israel as the occupying power has obligations to protect and ensure the welfare of the Palestinian civilian population in Gaza, but it has breached its obligations, and has perpetrated violations of the Fourth Geneva Convention by launching a series of military campaigns against Gaza and imposing an illegal siege on the densely populated area as a form of collective punishment prohibited by Article 33 of the Convention. Before 2005, Palestinian resistance of the occupation was directed against Israeli forces present in the Gaza Strip, but following the imposition of the total siege and launching a series of military attacks on Palestinians in the Gaza Strip, Palestinian armed groups began to fire rockets into Israeli territory in an attempt to lift the siege and end the belligerent occupation. Occupation in itself is an act of aggression and it is a self-evident legal and moral principle that an aggressor can never rely upon self-defense to justify using force against resistance to its own aggression. This principle is demonstrated in the judgments of the Nuremberg tribunals. A Nuremburg judge put it as follows: One of the most amazing phenomena of this case which does not lack in startling features is the manner in which the aggressive war conducted by Germany against Russia has been treated by the defense as if it were the other way around. …If it is assumed that some of the resistance units in Russia or members of the population did commit acts which were in themselves unlawful under the rules of war, it would still have to be shown that these acts were not in legitimate defense against wrongs perpetrated upon them by the invader. Under International Law, as in Domestic Law, there can be no reprisal against reprisal. The assassin who is being repulsed by his intended victim may not slay him and then, in turn, plead self- defense. (Trial of Otto Ohlendorf and others, Military Tribunal II-A, April 8, 1948) [18]
[1] J.P. Filiu, Gaza: A History, UK, Oxford University Press, 2014, p. 311. [2]'Legal Status in Palestine', Information Center, Institute of Law, Bir Zeit University, Ramallah, http://lawcenter.birzeit.edu/iol/en/index.php?action_id=210, (accessed 24 October 2014) [3] Filiu, supra note 1. [4] UN Security Council Resolution 242/1967, S/RES/242 (22 November 1967), available from undoc.org/S/RES/242. [5] Y. Shany, 'Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement,' International Law Forum, the Hebrew University of Jerusalem, August 2006, p. 7. [6] Gaza Strip, B'Tselem – The Israeli Information Center for Human Rights in the Occupied Territories, http://www.btselem.org/gaza_strip, (accessed 25 October 2014). [7] IDF Spokesperson Office, Mission Completed, 12 September 2005, cited in Y. Shany, 'Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement,' International Law Forum, the Hebrew University of Jerusalem, August 2006, p. 3. [8] Ibid. [9] Israeli Supreme Court, 10265/05 Physicians for Human Rights v. Defense Minister, State's submission of July 11, 2006, cited in 'Disengaged Occupiers: The Legal Status of Gaza', position paper, Gisha – Legal Center for Freedom of Movement, January 2007, p. 23 (all translations of court documents into English are by Gisha). [10] B'Tselem, supra note 1. [11] N. Erakat, 'Humanitarian law and Operation Protective Edge: a survey of violations and remedies', expert analysis, Norwegian Peacebuilding Resource Centre, August 2014, p. 2. [12] 'Disengaged Occupiers: The Legal Status of Gaza', position paper, Gisha – Legal Center for Freedom of Movement, January 2007, p. 10. [13] Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, September 2009, para. 278 and 279. [14] 'A Statement from PM Netanyahu to the International Community', the Yeshiva World News, 10 July 2014, http://www.theyeshivaworld.com/news/headlines-breaking-stories/246114/a-statement-from-pm-netanyahu-to-the-international-community.html (accessed on 1 November 2014). [15] J. Dugard, 'Debunking Israel's self-defense argument', Opinion, Al-Jazeera America, 31 July 2014, http://america.aljazeera.com/opinions/2014/7/gaza-israel-internationalpoliticsunicc.html (accessed on 1 November 2014). [16] N. Erakat, Humanitarian law and Operation Protective Edge: a survey of violations and remedies', Expert Analysis, Norwegian Peacebuilding Resource Center, August 2014. [17] J. M. Leas, 'Why the Self-Defense Doctrine Doesn't Legitimize Israel Assault's on Gaza', Counter Punch, 27 December 2012, http://www.counterpunch.org/2012/12/27/why-the-self-defense-doctrine-doesnt-legitimize-israels-assault-on-gaza/ (accessed on 1 November 2014). [18] M. Mandel, 'Israel's Unjust War on Gaza, "Self-Defense against Peace"', Global Search – Center for Research on Globalization, 7 August 2014, http://www.globalresearch.ca/israels-unjust-war-on-gaza-self-defense-against-peace/5395084 (accessed on 1 November 2014).
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