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Israel’s Legal Responsibilities over Gaza

Thursday 21 June 2007, by Andreas Th. Müller

It must not be forgotten that under the international law of occupation, Israel is subject to a series of legal obligations, substantially limiting its legitimate political scope of action.

In the wake of Hamas’ takeover of Gaza, Israeli National Infrastructure Minister Binyamin Ben-Eliezer was reported to have declared: “I am stopping everything until I understand what is happening over there. We simply have to increase the isolation of Gaza from Judea and Samaria; close them off completely. The only opening that should remain open is toward Rafah.” Furthermore, the Israeli government, while lifting its economic boycott of the now Fatah-led Palestinian government in Ramallah, has announced plans for far-reaching economic isolation of the Gaza Strip.

This raises the question whether the State of Israel, as an occupying power, is in a position to decide on the question of its economic relationship with the Occupied Palestinian Territory (OPT) just according to considerations of political opportunity.

Despite the complex and multifaceted discourse on international law issues, one must not lose sight of the very core principle of international humanitarian law. As being a part of so-called international humanitarian law (IHL), it serves first and foremost humanitarian concerns, i.e., as the term indicates, the basic needs of the human beings involved. This is, inter alia, expressed in Articles 7 and 47 of the 1949 Fourth Geneva Convention (FGC)[2] which states that any special agreement between the parties to a conflict shall in no way adversely affect the situation of the occupied population nor restrict the rights which the Convention confers upon it.

This means that the civilian population must be kept as far as possible out of the disarray brought about by a situation of belligerent occupation. Article 47 leaves no doubt that neither the authorities of the occupied territory nor the occupying power are, for what purpose ever, permitted to hold the civilian population hostage in order to put political pressure on the other side: “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced.”

Not entering the as protracted as—in view of Israel’s standing on the international stage—futile debate whether it is de iure bound by the FGC, the Government of Israel has long declared that it was prepared to apply its humanitarian provisions at least on a de facto basis. There can be no doubt that Article 47 belongs to that category, as does the provision of Article 55 which deserves to be fully cited here: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.”

Those duties are complemented by a series of further obligations: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory.” (Article 56) “If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.” (Article 59) And according to Article 33, “collective penalties and likewise all measures of intimidation or of terrorism are prohibited”.

The list could be continued at length. According to the quasi-unanimous standpoint of the community of states (including the US) and of international scholars, the FGC is fully and unreservedly applicable to the OPT. Furthermore, the International Court of Justice in its 2004 Advisory Opinion completely embraced this view.[3] Reading the original wording of the Convention with all its superlatives and in all its unambiguous language manifests that there is an international consensus that a civilian population already victim of a situation of occupation might in no way be exploited by one of the sides involved.

Against that background, all projects for a complete or almost complete isolation of the Gaza Strip and thus endangering its already highly inadequate supply with food, electricity, fuel, etc. must be considered manifestly incompatible with Israel’s duties as an occupying power under international law—totally irrespective of what one might think of the current regime in place in the Gaza Strip.

For the one and a half million human beings living in the Gaza Strip under most desperate conditions, the critical developments of the last days are not a game. And nobody has the right to put them at stake. They must be kept out of the game—that’s the Geneva Convention’s message.

Andreas Th. Müller, Department of European Law and Public International Law, University of Innsbruck (Austria)

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