Gaza and International Humanitarian Law

Gaza and International Humanitarian Law: The humanitarian situation in Gaza and the obligations of Israel, Hamas and Egypt towards the Right to Humanitarian Assistance

Masters Thesis LLM Program: Public International Law Utrecht University

Thesis Advisor: Professor T. Gill Student Name: Manar Usama Alshiekh Student ID: 3441407 Date: 12 July, 2010

Index

1.Introduction

5

2. Historical Background and Factual Considerations relating to Gaza

8

2.1 The Gaza Strip Legal Status Prior to 1967

8

2.2 Israeli Occupation and Disengagement including Legal Consequences

9

2.2.1 The Law of Belligerent Occupation

9

2.2.2 The law of Occupation under the Hague Regulations

11

2.2.3 Occupation under the Fourth Geneva Convention

12

2.2.4 The Revised Disengagement Plan

13

2.2.4.a Aspects of Israeli control as envisaged in the disengagement plan

14

2.2.5 Assessment of the legal status subsequent to the Disengagement Plan

16

2.3 Hamas de facto control of Gaza and reactions of Egypt and Israel

17

2.3.1 Hamas’s Electoral Victory early 2006

18

2.3.2 The Israeli blockade following Hamas’ control over Gaza

19

2.3.3 Egyptian Border Breach

20

2.3.4 Operation Cast Lead and its implications on the blockade

20

2.3.5 Hamas’s Control

21

2.4 Erection of the Steel Wall

22

2.4.1 Implications of the tunnels on Egypt

23

2.4.2 Legal issues arising from the construction of the wall

24

2.5 the Current Legal Status of the Gaza Strip

24

3. The Applicable Law in the Context of the Current Factual Background 3.1 International Humanitarian Law

27 27

3.1.1 The Obligation to Respect and to Ensure Respect

27

3.1.2 The Right to Humanitarian Assistance under International Humanitarian Law

28

3.1.2.a General Rules on Humanitarian Assistance

29

3.1.2.b Conditions for Humanitarian Assistance

30

3.2 International Human Rights Law

31

3.2.1 The Concurrent Application of International Humanitarian Law and Human Rights Law

31

3.2.2 The Application of the ICCPR and ICESCR during Armed Conflicts

34

3.2.3 The Application of Human Rights in the context of Occupation

35

3.2.4 Application of Human Rights Law subsequent to the Israeli Disengagement 2005 36

2

4. Obligations incumbent upon the Parties

38

4.1 Israel

38

4.1.2 The legality of the Blockade

39

4.1.3 Restrictions of Movement

40

4.1.3.a Border Control

40

4.1.3.b Denial of Goods

41

4.1.4 Impeding Humanitarian Missions

42

4.1.4.a Administrative Restrictions

42

4.1.4.b Attack on Humanitarian Missions

43

4.2 Hamas

45

4.2.1 Application of Human Rights Law to Non-State Actors

45

4.2.2 Hamas practices with respect to Humanitarian Assistance

47

4.3 Egypt

48

4.3. 1 Border Control and Responsibility of Egypt towards the ESC Rights

49

4.3.2 The impact of the Steel Wall on the Realization of the Right to Water

51

5.Conclusion

52

6.Bibliography

56

3

The Gaza Strip border crossings

Source:BBC news

4

1. Introduction

The Gaza Strip has been occupied by Israel in the context of the Six-Day War in 1967. Since then, the civilian population of Gaza has been mainly dependent on the provision of humanitarian assistance to sustain its needs.1 During that period Israel has maintained effective control over the territory amounting to occupation as envisaged by the Hague Regulations.2 As an occupying power, Israel was bound by the provisions of the Fourth Geneva Convention to provide for the basic needs of the population under its control and ensure the fulfillment of their right to food, shelter, education and medical care.3

In 2005, Israel has announced its unilateral evacuation from Gaza by removal of Israeli armed forces and settlements, while still in control of Gaza’s airspace, territorial waters and border crossings. The new Israeli policy certainly had some impact on qualifying the legal status of Gaza as occupied territory. Following the intensifying rivalry between the successive Palestinian Authority and Hamas, the latter successfully seized Gaza and became the de facto administrative government in 2007. As hostilities escalated between Israel and Hamas, Israel has imposed a blockade on Gaza by severely restricting the movement of people and access of humanitarian assistance into Gaza. The Israeli measures have dire consequences on the humanitarian situation on the livelihood of the population of Gaza, which have been denounced as collective punishment against the civilians in the latest report by the UN Fact Finding Mission on Conflict of Gaza.4 The blockade has devastating effects on 1.5 millions impoverished Gazans by further deteriorating its economy, increasing aid dependency, worsening poverty and food insecurity. 5 Egypt, which is the only country sharing a border with Gaza, has on its turn blockaded Gaza by restricting the operation of Rafah border crossing, the only remaining humanitarian resort not controlled by Israel. Furthermore, Egypt has begun the construction of a steel underground wall in order to curb the illegal smuggling across tunnels underneath the Egyptian borders. In addition to providing the basic commodities to the population of Gaza, the tunnels are also being used in other illegal contexts including transfer of arms and weapons to Hamas and other militias.

The policies each of the aforesaid parties make certainly have had grave ramifications on the provision and effective delivery of humanitarian assistance to the affected civilian population of Gaza as will be covered throughout the thesis.

The right to humanitarian assistance is fundamentally derived from basic norms of international humanitarian law and human rights law, both sharing the common objective to ensure the protection of human beings and their dignity. In that sense, the obligation of states is not solely limited to the parties to the conflict, but both legal regimes impose general obligations on all states and legally qualified entities to observe and ensure the realization of the right to humanitarian assistance. Recognizing the hostile environment in which humanitarian missions operate, The Office of Coordination of Humanitarian Affairs (OCHA) in 2009 published the Minimum Framework for the Provision of Humanitarian Assistance in Gaza which provides a guideline on the general rules of humanitarian assistance, originating from humanitarian law and human rights law, and the rights and responsibilities of parties to the conflict and other states.

1

General Assembly Res.2252 (1967) on the provision of assistance to Palestinian refugees. Res.194 (1948) and 302(1949) established UNRWA. General Assembly A/64/13. Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) 2009 2 UN resolution 242(1967) 3 Article 55 of GCIV. Israel is a party to the Four Geneva Conventions of 1949, but not to its additional protocols of 1977, however, it still remains bound by their customary provisions.

4 The United Nations Fact Finding Mission on the Gaza Conflict was established by the United Nations Human Rights Council (UNHRC) to investigate violations committed during the Gaza war (Cast Lead Operation. The findings of the mission were published in a report in 2009.Hereinafter; the Goldstone Report.

5 Amnesty International.” Suffocating Gaza-the Israeli blockade’s effects on Palestinians.” 1 June 2010.

5

In the current context of Gaza, this thesis attempts to explore the relationship between Israel, Hamas and Egypt with respect to the provision of humanitarian assistance in the Gaza Strip, and the obligations incumbent upon each party, from a different legal standing pursuant to its role, under both international humanitarian law and human rights law vis-à-vis the civilian population of Gaza.

Two points need to be highlighted. First, the complexity of the conflict presents legal challenges relating to the traditional understanding of the law of occupations as envisaged in the Hague Regulations and the Fourth Geneva Convention. This would be given substantial consideration in Chapter 2 of the thesis. Second, while international humanitarian law is the primary legal regime in the context of armed conflict, human rights law is given special attention in the thesis since it provides more detailed obligations on the parties, and thus protection for the affected population.

Since Egypt is not a party to the conflict, Human rights law is more relevant in this situation.

Also, the current status of Hamas government makes it equally bound by the provisions of human rights law.

Structure of the Thesis

This thesis is written on the premise of the existing situation in the Gaza Strip during the months of May-June 2010.The recent developments relating to the Israeli blockade in Gaza will be given special attention. The thesis specifically deals with the humanitarian situation in Gaza pursuant to the Israeli disengagement in 2005. The legality of the conduct of hostilities in the context of ongoing-armed conflict between Israel and Hamas will not be covered.

Chapter 2 deals with the current legal status of Gaza, which determines the extent of obligations of the parties to the conflict. Firstly, I will provide a theoretical background on the law of belligerent occupation under the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949 dealing with the civilian population, and the obligations of the occupying power towards the civilian population subject to its control.

Secondly, I will assess the legal status of Gaza at 2 stages; pursuant to the Israeli disengagement in 2005 and Hamas’s seizure of Gaza in 2007. For that purpose, I will shed some light on the Israeli aspects of control over Gaza and whether this amounts to “effective control”, and thus qualifies to occupation under the Hague Regulations. Also, I will discuss Hamas’s power over Gaza and whether it has any effect on the Israeli control and thus the legal status of Gaza. The Egyptian policies concerning the closure of Rafah and the construction of the steel wall will be covered in this chapter.

Chapter 3 deals with the legal framework applicable to Gaza with respect to the right to humanitarian assistance. First, I will discuss the right to humanitarian assistance under international humanitarian law, which is the primary legal regime in this context. I will cover in details the relevant provisions dealing with duties of the parties to the conflict, specifically the duty of occupying power. Second, I will provide a brief overview of the relationship between international humanitarian law and human rights law and their concurrent application during armed conflict, and particularly occupation. Then, I will discuss how the right to humanitarian assistance is broadly defined under international human rights law.

6

In chapter 4, I put the findings of chapter 2 and 3 into practice by addressing the obligations of Israel, Hamas and Egypt respectively with respect to the right to humanitarian assistance, and their responsibility in response to their current policies and practices.

Lastly, I present my conclusion and recommedations in chapter 5.

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2. Historical Background and Factual Considerations relating to Gaza

The Israeli occupation of the Gaza Strip resulted from the Arab-Israeli war of 1967. In spite of the Israeli withdrawal from Gaza in 2005 and Hamas’s de facto control over the Gaza Strip in 2007, Israel is still de jure the occupying power of the Gaza Strip with all that may entail from obligations on its side vis-à-vis the civilian population of the Gaza Strip.6 However, from 2007 Israel has imposed a blockade on Gaza on all borders under Israeli control thereby denying the population basic humanitarian necessities and violating its duties under both international humanitarian law relevant to occupation and international human rights law. Consequently, the only remaining humanitarian outlet for the population became the Rafah border crossing with Egypt. While Egypt is not a party to the conflict, it is still bound by international humanitarian law and, in particular, international human rights law to fulfill its obligations towards the population of the Gaza Strip. Similarly, any policy that Egypt makes which might have an extraterritorial implication on the humanitarian situation in the Gaza Strip may hold it accountable.

In this chapter, I will briefly discuss the subsequent development in the Gaza Strip and consequences in terms of its current status from a legal perspective.

2.1 The Gaza Strip Legal Status Prior to 1967

Following the end of World War I, the League of Nations established the mandate system in order to administer parts of the former Ottoman Empire. The mandatory authorities were to be: “Responsible for placing the country under such political, administrative, and economic conditions as will secure the establishment of the Jewish national home…and the development of self-governing institutions and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion”. 7 Until 1948, the Gaza Strip was put under the administration of Great Britain. Since the establishment of the Jewish settlements was also entrusted under the mandate, that period witnessed growing hostilities between the newly Jewish settlers and the Arabs residing in the territories.

With the British mandate of Palestine coming to an end, on November 1947, the United Nations proposed a partition plan of the Palestinian mandate under the General Assembly Resolution 181.8 The plan recommended the partition of Palestine into independent Jewish and Arab states with Jerusalem and Bethlehem being put under special international administration.

The Arabs rejected the plan that provided 55 per cent of the territory to the proposed Jewish state, including the most arable lands already owned by the Arab inhabitants.9 On 14 May 1948, a day before the expiry of the mandate, Jewish leaders declared the independence of the state of Israel. Consequently, War broke out between the neighboring Arab states and the newly declared state. At the end of the war, Israel was in possession of all of Palestine except the Gaza Strip and the West Bank. The cessation of hostilities was officially declared by the signing of the 1949 armistice agreements between Israel and each of the Arab states involved, which define the current boundaries of the Gaza Strip.

Gaza was put under the control of Egypt. Nevertheless, the armistice agreement was not intended to create permanent borders; it was only interim agreement until replaced by peace 6

Section 2.5 The Mandate for Palestine, 24 July 1922 8 UN General Assembly Resolution 180(II) of 29 November 1947 9 Emma Playfair,“ International Law and the Administration of Occupied Territories”. Oxford University Press 1992. P.4 7

8

treaties. Article 5(2) of the agreement states “The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.”10 Gaza remained under Egyptian administration until 1967, only to be interrupted briefly during the tripartite aggression on Egypt by Israel, Britain and France (Suez Canal Crisis) in 1956. The Gaza Strip was occupied by Israel during the Six-Day War of 1967 after it launched a preemptive attack on Egypt, Syria, Iraq, and Jordan after which Israel defeated the Arab states and gained control of most parts of the Sinai peninsula, the West Bank, the Gaza Strip, East Jerusalem and the Golan Heights.

Subsequently, the Security Council issued Resolutions 242 of 1967 and 271 of 1969 qualifying the West Bank and the Gaza Strip as occupied territories and called upon Israel “ to observe the provisions of the Geneva Conventions and international law governing military occupation.”11

2.2 Israeli Occupation and Disengagement including Legal Consequences

The situation in Gaza constitutes occupation in the meaning of The Hague Regulations and the Fourth Geneva Convention. It has been occupied by Israel in the course of an international armed conflict, and is accordingly governed by international humanitarian law relevant to belligerent occupation, international customary law and international human rights law.12 Occupation occurs from the moment the adversary power exercises effective control over the territory. Nevertheless, the fundamental treaties on the law of occupation, the Hague Regulations and the Fourth Geneva Convention, do not define what constitutes effective control or the form of administration of an occupied territory. Neither instrument is concerned with the status of the territory prior to the occupation. The law of belligerent occupation is applicable whenever a state occupies, in the course of an international armed conflict, a territory that was previously under the control of hostile party to that conflict, irrespective of whether the displaced party was the lawful sovereign in that territory.13 Once the factual situation amounts to an occupation, the relevant law applies, regardless of the legality or otherwise of the occupation.14 Therefore, it will be necessary to briefly go over the law of occupation under the relevant instruments in order to assess the legal status of the Gaza Strip subsequent to the disengagement and whether Israel still exercises effective control over the territory.

2.2.1 The Law of Belligerent Occupation

The law of belligerent occupation regulates the relationship between the occupying power on one hand, and the occupied territory and its inhabitants, including refugees and stateless persons, on 10

The Egyptian-Israeli armistice Agreement 1949.

S/RES/271 (1969) of 15 September 1969.

12 ICJ advisory opinion, concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004. pp.149 13 Christopher Greenwood, “ the administration of occupied territory in international law”. Published in International Law and the Administration of Occupied Territories”. Oxford University Press 1992. P.244; see also S.D. Dikker Hupkes,” What constitutes Occupation?” E.M. Meijers Instituut 2008. p.28.

14 Daniel Thürer, “Current challenges to the law of occupation” ICRC official statement 2005. In the Hostages case, the US Military Tribunal held that: International Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory ... Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject. US v List, 15 Ann Digest 632 at 647 11

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the other, in which the occupying power shall assume responsibility for maintaining the public order and the welfare of its inhabitants. Occupation confers certain rights and obligations on the occupying power as articulated in the Hague Regulations and the Fourth Geneva Convention.

While the occupying power enjoys certain rights and privileges that serve its military interests, it has certain obligations and responsibilities towards the civilian population under its authority and control.15 This is based on the fact that occupation is recognized as only a provisional situation; the occupying power does not acquire sovereign rights over the occupied territory, but mainly assumes temporary control without changing its status16. From here comes the obligation of the occupying power to ensure pubic order and safety of the territory it administers.

The application of international humanitarian law and the law of occupation is not left to the discretion of the occupying power, nor does a declaration of a state of war or occupation enjoins the applicability of law. 17 However, in practical terms this proved not to be the case. While Israel has accepted the applicability of the Hague Regulations with regard to the OPT, it did not with regard to the Fourth Geneva Convention18 . The Israeli Supreme Court has held that the Hague Regulations are directly applicable in municipal courts since they form part of customary law, as was first taken in Hilu v. the state of Israel of 1972.19 However, the Israeli court has repeatedly contested the de jure applicability of the Fourth Geneva Convention on two grounds; first, it represents contractual law, not customary international law and therefore the municipal courts are not bound by its terms20 , and second, and most importantly, is based on the legal status of Gaza prior to its occupation in 1967; While Egypt was an occupying power, it did not exercise sovereign rights over Gaza and therefore no territorial claims over it 21 . Accordingly, Israel has declared that the Fourth Geneva Convention does not apply by virtue of article 2(2) of the convention.22 However, it has repeatedly declared that it would still apply its humanitarian provisions on a de facto basis, when it comes to the treatment of the civilian population of Gaza 23 .

However, the Israeli government position on the non-applicability of Geneva Convention has no basis in law and has been condemned by the international community on a regular basis24.

The applicability of the Fourth Geneva Convention to the OPT and Gaza has been affirmed by UN Security Council, UN General Assembly in its sessions and the 10th emergency session, the ECOSOC, the UN High Commissioner for Human Rights, and ICRC official statements25 . Most notably, the ICJ on its advisory opinion on the Wall confirmed the applicability of the de jure applicability of the Fourth Geneva Convention26 .

15

In the subsequent section I talk about the obligations of occupying power under the Hague Regulations and Fourth Geneva Convention respectively.

16 Dieter Fleck, “ The Handbook of International Humanitarian Law.” p.273.

17 supra at 14.

18 Qupty in Playfair 1992,p.101; Benvenisti 2004,p.109; Hupkes 2008, p.58.

19 ISC H.C. 302/72 (Hilu), pp. 180.

20 While the great majority of the rules laid down in the Geneva Convention is considered Customary law; it is still cannot be held a whole to be reflective of Customary International law.

21 Greenwood in Playfair 1992, p.241.

22 Article 2 of the Fourth Geneva Convention, “ In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”. See also Fleck p.275 23 ISC 30/05/2004, as quoted in ICJ Wall opinion pp. 100; see also HPCR Policy Brief, P.5 24 supra at 16.p. 275 25 for example UNSC Res 452(1979); UNSC Res 681 (1990); UNSC Res 1544 (2004); UNGA Res 56/60; UNGA Res 58/97; UNGA Res ES-10/2; UNGA Res ES-10/ 11; ECOSOC RES 2001/9; Statement of the High Commissioner of human Rights 05/12/01; ICRC Official Statement 05/12/2001, Para.1.

26 The ICJ, the Wall opinion pp. 101. “In view of the foregoing, the Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties.

Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that

10

2.2.2 The Law of Occupation under the Hague Regulations

Article 42 determines a territory to be considered occupied upon (1) the establishment of effective control over a territory; and (2) the ability to exercise direct authority over that territory.

The Hague Regulations do not define how control is effective, but rather it depends on the factual characteristics of the occupation. Oxford Manual of 1880 on the Laws of War on Land provides that the invading state must alone be in position to maintain order in the occupied territory.27 While traditionally effective control is usually brought by the physical presence of armed forces, however, this is not a necessary condition for occupation to be effective.28 This view has been expressed in the Brussels Conference of 1874 and is confirmed by the Military Tribunal at Nuremberg.29 Physical presence of armed forces on the ground at all times is not a prerequisite for maintaining effective control. This stems logically from the fact that the amount of military power necessary for establishing effective control is stronger than the needed for maintaining control, the military force needed afterwards is significantly less30 . Similarly, the US Field Manual follows the same approach; “The number of troops necessary to maintain effective occupation will depend on various considerations such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors.”31 Effective control would instead be established through carrying out government functions of the occupied territory. Such functions include; controlling international borders, management of internal and external security, controlling the economic situation in the territory, as well as passing of legislation.32 As soon as the situation amounts to an effective exercise of control, Article 43 of the Hague Regulations confers upon the occupying power the obligation to restore and ensure the public order and safety, while respecting national laws. While obliged to administer the territory as far as possible in a similar manner prior to occupation, if the military situation so demands the occupying power may suspend the operation of national laws and enact legal provisions of its own. In the words of Robert Kolb, this provision ensures that the occupying power strives to conserve the status quo in the occupied territory during the temporal state of occupation until the return of legitimate sovereignty, and simultaneously it protects the right of self-determination of the inhabitants of the occupied territory 33 .

Article 46 provides a broad obligation of the occupying power to respect family honour and rights, the lives of persons, and private property, as well as religious convictions and practice. It is worth noting that the Hague Regulations are more directed towards serving the interests of states rather than civilian population. Its formulation appears more concerned with the conduct of hostilities and the protection of state’s interests, without paying attention to the economic and social welfare of the population.34

that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories”.

27 Oxford Manual “Art. 41. Territory is regarded as occupied when, as the consequence of invasion by hostile forces, the State to which it belongs has ceased, in fact, to exercise its ordinary authority therein, and the invading State is alone in a position to maintain order there. The limits within which this state of affairs exists determine the extent and duration of the occupation”.

28 Hupkes 2008, p.21.

29 IMT Nuremberg Wilhelm List, p.56; HPCR Bruderlein 2004,p.8; Hupkes 2008, p.21.

30 supra note 21.

31 US Field Manual 27-10, 139.

32 supra note 21.

33 Robert Kolb, “Occupation in Iraq since 2003 and the powers of the UN Security Council”. International review of the Red Cross. Volume 90 Number 869 March 2008.9.29-50;p.29 34 Hupkes p.19, Pictet 1958 p. 614, Draper 1968 p.122 and greenwood in Kalshoven 2000 p.217

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2.2.3 Occupation under the Fourth Geneva Convention

The Fourth Geneva Convention does not define occupation; instead it offers a new perspective in determining it.35 It provides a detailed regime of protection as it deals with the humanitarian aspects in relation to occupation, as its purpose is to ensure protection of “ persons taking no active part in the hostilities” and “ who, at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupation in the hands of a part to the conflict or occupying power of which they are not nationals.”36 In that sense, the Fourth Geneva Convention attempts to define occupation in terms of exercising effective control over the persons of the occupied territory.

In order to regulate the relation between the two instruments relating to the law of occupation, Article 154 of the Fourth Geneva Convention states that it shall be supplementary to parts of the Hague Regulations relevant to occupation. Therefore, the definition of occupation is to be derived from the wordings of article 42 of the Hague Regulations based on the absence of a definition of occupation in the Geneva conventions. The ICTY has followed this reasoning in the Kordic case.37 While the Hague Regulations as a whole have acquired the status of customary international law, it cannot easily be argued the same with respect to the Fourth Geneva Convention. The legal status of the Fourth Geneva Convention is particularly relevant to the situation in the OPT, since Israel have contested its de jure applicability. However, given that international humanitarian law is inherently concerned with the protection of the civilians from the effects of armed conflict, and the Fourth Geneva Convention specifically addresses the rights of civilians under the control of an adversary and occupation, it can be implied that the convention, with a great majority of its provisions, reflects customary international law. The ICJ in Nuclear Weapons advisory opinion states that the majority of the rules laid down “constitute intransgressible principles of international customary law”.38 Although the Israeli Supreme Court has already accepted the customary nature of numerous provisions of the Fourth Geneva Convention that similarly constitute part of the law of Israel, it has refused to accept the application of the law of belligerent occupation in the Fourth Geneva Convention. Israel’s consent to only apply its humanitarian provisions on a de facto basis, is rather misleading since the convention itself does not differentiate between humanitarian and non-humanitarian provisions.39 While article 2 provides for the applicability of the convention, article 6 states that the application of the convention shall cease on the general close of military operations, or in the case of occupation, one year after the end of military operations. In cases of prolonged occupation exceeding one year, article 6(3) acknowledges that the cessation of hostilities does not necessarily lead to termination of occupation, instead the fundamental humanitarian provisions of the convention remain applicable based on the fact that the occupying power still carries out government functions40 .

It should be noted that applying the provisions of the Fourth Geneva Convention is particularly imperative for the welfare of civilians under occupation as it provides for a detailed protection scheme relating to the maintenance of proper living condition, that better not be left entirely to the discretion of the occupying power.

35

supra at 14; see also Hupkes 2008, p.30.

Articles 3 and 4 GCIV .

37 ICTY, Prosecutor v. kordic (IT-95-14/2-T 26 February 2001) paragraph 338 and 339.

38 ICJ advisory opinion. The Legality of the Threat or Use of Nuclear Weapons. 8 July 1996. pp.79 39 HCJ 769/02 The Supreme Court Sitting as the High Court of Justice [December 11 2005] Before President (Emeritus) A. Barak, President D. Beinisch, and Vice President E. Rivlin (see Kawasme; Jami'at Ascan, at p. 194; Ajuri, at p. 364; HCJ 3278/02 Hamoked: Center for Defense of the Individual founded by Dr. Lotte Salzberger v. The Commander of IDF Forces in the West Bank Area, 57(1) PD 385, 396, hereinafter Hamoked: Center for Defense of the Individual; Beit Sourik, at p. 827; Mara'abe, at paragraph 14 of the judgment) 40 supra note 21.

36

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The Fourth Geneva Convention is concerned with the protection of civilian population from arbitrary treatment by the adversary. It covers extensively the duty of occupying power as being the primary responsible entity for the welfare of the civilian population of occupied territories.

This entails the occupying power the following: providing the population with food and medical supplies41 ; agreeing to relief schemes undertaken by other States or impartial humanitarian organizations if the population is inadequately supplied42 ; maintaining and ensuring medical facilities and services, public health and hygiene 43 ; and facilitating the proper working of all institutions devoted to the care and education of children.44 Similarly, the occupying power is prohibited from individual or mass forcible transfers and deportations of the civilians population from occupied territories, or transferring parts of its population into the occupied territories, and evacuation shall only be temporary provided that the security situation of the occupying power and the inhabitants of the territory so demands.45 There is no doubt that the situation in the Gaza Strip prior to the disengagement plan constitutes occupation in the meaning of the Hague Regulations and the Geneva conventions.

Since 1967, Gaza has been under effective control of the Israeli government subject to the law of belligerent occupation. Notwithstanding the transfer of certain powers to the PA under the interim agreement of the Oslo Accord in 1993, that did not change the legal status of Gaza, nor the legal obligations that Israel is bound by towards the population of the Gaza Strip. Israel retained the responsibility for defending Gaza against external threats, legal jurisdiction over foreign relations, borders, internal security and public order of settlements. In other words, Israel had effective control amounting to occupation under the Hague Regulations and the Fourth Geneva Convention, as affirmed by the ICJ 46 .

2.2.4 The Revised Disengagement Plan

In June 2004, the Israeli government announced its unilateral withdrawal from the Gaza Strip to be fully implemented in September 2005. The plan involved the dismantling of the Gaza settlements, the movement of Israeli settlers, and the removal of the Israeli Defense Force (IDF) from the area. The completion of the plan was to end the occupation and accordingly to dispel the claims regarding Israel’s responsibility for the Palestinian’s in the Gaza Strip 47.

The plan envisaged increased responsibility for the PA (later to be exercised by Hamas).

Although the plan offered substantial changes in the situation in Gaza Strip, in particular relating to the free movement of people within Gaza, it contained numerous provisions implying that Israel would still retain overall control over Gaza and its inhabitants, which as a matter of fact did not alter the legal status of Gaza as being an occupied territory.

2.2.4.a Aspects of Israeli Control as envisaged in the Disengagement Plan Continued Military Presence in the Territory

41

Article 55 of GCIV. Article 59 of GCIV. 43 Article 56 of GCIV. 44 Article 50 of GCIV. 45 Article 49 of GCIV. 46 The ICJ the Wall advisory opinion 2004, para. 78 47 The Revised Disengagement Plan para.1, principle 6.

42

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On the security situation following the withdrawal of IDF, the plan stipulates that Israel will guard and monitor the external land perimeter of the Gaza Strip, including exclusive authority over the airspace and territorial waters of Gaza48. The plan similarly suggests that the authorities in Gaza will not be allowed to establish a seaport or airport in Gaza without the approval of Israel49 . The plan lays down that Israel reserves its fundamental right of self-defense, both preventive and reactive, including where necessary the use of force, in respect of threats emanating from the Gaza Strip 50 . It is worth noting that this falls under absolute prohibition, as preventive self-defense is contrary to article 2(4) and 51 of the UN Charter.

Israel would not be legally justified in invoking the law of self-defence in conducting preventive military operations in the Gaza Strip. 51 In spite of the withdrawal of the Israeli forces, military incursions were continually carried out against Gaza as they maintained their power to get into the territory on a regular basis. The incursions over the Gaza Strip made the inhabitants subject to artillery fire. It has been repeatedly reported that Israeli military aircrafts were opening fire on installations on the ground52. The UN Office for the Coordination of Humanitarian affairs (OCHA) has confirmed that these attacks have resulted in civilian casualties53 , and the practice of mock attacks by Israeli warplanes (sonic booms) that create panic among the inhabitants of Gaza 54 . The Special Rapporteur of the UN Commission on Human Rights, have qualified these sonic booms as a way of collective punishment, in violation of the Fourth Geneva Convention.55

Control over the External Land Perimeter of the Gaza Strip Egypt The plan states that Israeli military forces will maintain a military presence in the southern border area separating the Gaza Strip and Egypt (Philadelphi road)56 . Military forces may be expanded when required by security consideration57 , and arrangement for the passage of the border between Egypt and the Gaza Strip remains unchanged, this control is effectuated by the continued presence of the Israeli military in the border area.

The plan envisaged a transfer of Rafah border crossing to the Palestinian Authority (PA). 58 However, directly following the implementation of the plan, Israel imposed a closure of the Rafah crossing which had very negative implications on the humanitarian situation on the Gaza Strip for the population dependent on the supply of food and medical supplies coming across the border. 59

48

The Revised Disengagement Plan para.3.1 principle 1.

The airport in Gaza had already been disabled earlier by the IDF military actions during the second Intifada in 2000 50 The Revised Disengagement Plan para.3.1, principle 3.

51 Hupkes 2008, p.70; Shaw 2003, p. 1029, 1030; HPRC Bruderlein 2004, p. 13.

52 WAFA 12/12/05; HRW Overview 2005; B’Teselm 07/03/06; Amnesty International 11/04/06; OCHA 12/04/06;OCHA 21/06/06;B’Teslem 22/06/06.

53 OCHA 12/04/06; WAFA 24/09/05(air strikes); WAFA 14/12/05; Amnesty International 11/04/06; B’Teslem 22/06/06; Hupkes 2008, p.71.

54 Hupkes 2008, p.71.

55 Report of Special Rapporteur Dugard of December 2005, p. 8,9.

56 Philadelphi Road is a buffer zone over a narrow Strip between Egypt and the Gaza Strip which was built according to Egypt-Israel Peace treaty of 1979. It falls under Area C which is mainly patrolled by the Israeli forces. Later on, smuggling tunnels were built across the borders that go underneath the Road.

57 The Revised Disengagement Plan pp.11.a, principle 1.

58 The Rafah border crossing is the international border crossing between Egypt and the Gaza Strip. It was first built following the Israeli-Egyptian peace treaty in 1979. Since then, the Israeli authority administered it until evacuation from the Gaza Strip in 2005 59 OCHA-OPT The Gaza Strip: Access Report September 2005, December 2005 report: “ Following the 15 November Agreement an official Palestinian opening ceremony was held at Rafah crossing on 25 November. The following day, the crossing began operating under joint Palestinian/Egyptian control with the presence of European Union (EU) monitors.”

49

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Shortly after the closure of Rafah border crossing, the Israeli side agreed on handing the Rafah border control to the PA under the monitoring of the European Union border Assistance Mission (the EU BAM) to monitor the performance of the PA. Nevertheless, the Rafah crossing between Gaza and Egypt was still controlled by Israeli forces, despite the fact that it is not a border of Israeli territory. The EU BAM was only allowed to open the Rafah border with a permission from Israel which was in control of the EU BAM border passage through the Israeli liaison office in Kerem Shalom. The Rafah border crossing was regularly closed by Israel whenever hostilities were intensifying between the IDF forces and Palestinians.

Between the Gaza Strip and the West Bank

The plan makes no arrangements for the passage of persons between the Gaza Strip and the West Bank, which can only be realized by transfer over Israeli territory. Accordingly, the passage remains fully under the control of Israel, which had been subject to severe restrictions due to Israel’s continuing control over the issuance of identity documents, and therefore it regulates who gains and who is denied access 60 . This has had immense implications on the passage of goods and persons.

Border control by Israel

With regard to the rest of external land perimeter of the Gaza Strip, Israel will guard and monitor it as stated in the plan. The Erez checkpoint, on the northern border between the Gaza Strip and Israel will be moved to a location within Israel sometime after the implementation of the plan. 61 Israel has full control over the few crossings between Gaza and Israel. Israel imposes these closures despite the Agreement of Movement and Access of 15 November 2005 between PA and Israel. 62 Regarding Israel’s right to monitor the borders of Gaza, over the whole length of its border with Israel, Israel has created a buffer zone extending from 300 meters to 2 km wide within Gaza, where Palestinians access is prohibited. The buffer zone encompasses an estimated 30 – 40% of Gaza’s agricultural land and a significant number of water wells. Israeli military patrols enforce access restrictions by firing upon individuals who enter the buffer zone 63 .

Forms of internal control which are retained by Israel

Israel still administers the population register of Gaza, which provides Israel with control over the issuance of identity documents to the population, and thus considerable influence over who can move in or out of the territory, including travel between Gaza and the West Bank64. The plan provides that the following arrangements will remain in force: the tax and customs regime, the monetary regime and postal and telecommunications arrangements.

Gaza is still dependent on Israel for the supply of electricity, which regularly puts the population under threat whenever Israel cuts off the supply. The valid currency is still the 60

Report of Special Rapporteur Dugard of December 2005, p.9; Hupkes 2008, p. 74.

The Revised Disengagement Plan para.12.

62 OCHA occupied Palestinian territories. The Gaza Strip: Access Report November 2005 and December 2005 63 OCHA 21/06/06; Save the Children, fact sheet: Gaza Buffer Zone. October 2009 64 Hupken p. 74 61

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Israeli Shekel resulting in full control over the monetary system. Similarly, Israel controls vital parts of infrastructure including telecommunications, water supplies and sewage networks 65 .

Notwithstanding the obligation of the occupying power to release civilian internees and detainees upon the end of occupation under article 77 of the Fourth Geneva Convention, the disengagement plan was silent on the issue of civilian prisoners who are still held by Israel. Palestinians held prior to the end of occupation remain protected by the applicable rules of the Fourth Geneva Convention until their final release 66 .

2.2.5 Assessment of the legal status subsequent to the Disengagement Plan

In the context of the factual situation existent in Gaza pursuant to the implementation of the disengagement plan, Gaza still falls under the Israeli occupation under the Hague Regulations and the Fourth Geneva Convention.

As discussed above, military presence is not a condition per se for the maintenance of effective control; instead, it is whether the occupying power is capable of enforcing its control over the occupied territory. The Nuremberg jurisprudence establishes that the occupier’s military evacuation from an area within the territory it occupies does not necessarily signify the end of occupation for that specific area 67 . Such evacuation does not relieve the occupier of its responsibility for the welfare of the occupied population living in the evacuated area, especially when this withdrawal is only to limit the occupier’s responsibility towards the population while maintaining its security control over the evacuated territory by other means68 . In the Hostages case, the tribunal considered a territory occupied even though the occupying army had partially evacuated certain parts of the territory and lost control over the population, as long as it could “at any time” assume physical control of any part of the territory.69

For the purpose of establishing effective military control, the size and distribution of the occupying forces in the territory is immaterial. In other words, an Occupying Power can exercise effective control without being physically present in all parts of the territory it occupies70 . It is enough that it can maintain military power over the whole of the occupied territory by keeping forces in only parts of the territory, and conducting, for example, military operations from the air71 . Moreover, effective administrative control does not necessarily preclude local authorities from administering the territory. The Hague Regulations, as well as the decisions of various international military tribunals, have given considerable scope to the ability of the occupying power to carry out normal administrative functions in cooperation with local authorities and to maintain law and order as an indication of the existence of effective control.

65

Id. Art 77 of GC VI, in Pictet 1958, p.366. Report of Special Rapporteur Dugard of December 2005, p. 9.

67 HPCR “Israel’s Disengagement and IHL” 2004;p.9.

68 Id. 69 USA vs. Wilhelm List et al., Law Reports of Trials of War Criminals, vol. VIII, London: United Nations WarCrimes Commission, 1949, at p. 56.

70 Report of Special Rapporteur Dugard of December 2005.para.8 “ While the Special Rapporteur concedes that the absence of a military occupying power in Gaza has removed many of the features of occupation, it is wrong to suggest that the occupation has ended. In the first place, it must be stressed that technological advances since 1949 have changed the whole nature of control. It is no longer necessary for a foreign military power to maintain a permanent physical presence in a territory to exercise control, as Israel has demonstrated since its withdrawal from Gaza. Sonic booms, which terrorize and traumatize the population (and constitute a form of collective punishment) and the targeted assassination of militants (and innocent bystanders) by rockets fired from the skies, serve as a constant reminder to the people of Gaza that they remain occupied”.

71 Supra note 21.

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During the occupation of Iraq in 2003, there was ambiguity regarding the status of some states’ troops that were involved with the US and the UK forces. The ICRC established that the fact that certain states had been assigned very small sections of territory and had very troops on the ground did not make a difference. In the words of the Daniel Therur; “Within this territory, troops may be carrying out functions for which respect for the law of occupation could be relevant. Examples would include troops carrying out patrols, mobile checkpoints, or arrests and detention of persons protected by the law of occupation. The title given to these troops by their own states “ peacekeeping” or “stabilizing” forces did not affect its determination, which focuses instead on the actual functions they were carrying out.” 72 Although other states’ troops were not exercising authority within the meaning of article 42 of the Hague Regulations, but the fact that they were capable of exercising control over protected persons or could be in such position, of interacting with these persons, enjoins these states to respect the laws of occupation.73

Moreover, it is imperative to note that a transfer of authority to a local government does not necessarily indicate the cessation of occupation, unless the national government is sufficiently effective and independent. The new British Military Manual suggests that, if occupying powers operate indirectly through an existing or newly appointed indigenous government, the law of occupation is likely to continue to apply74 . Article 47 of the Fourth Geneva Convention prohibits such changes through which the occupying power attempts to circumvent their obligations vis-àvis the civilian population of the occupied territory 75 .

In light of the different aspects of Israeli control over the Gaza Strip, the conditions triggering the application of the law of occupation are still in force, consequently precluding the cessation of occupation from a legal perspective. Israel is bound by international humanitarian law and human rights law to fulfill its obligations towards the civilian population of Gaza. Israel is responsible for maintaining public order and ensuring the welfare of the population. Israel remains responsible to maintain the operation of legal system and public administration of Gaza . Israel will be legally required to permit the free passage through its territory of humanitarian and relief consignments directed to the population of Gaza, as required by Article 59 of the Fourth Geneva Convention.

Similarly, Israel has the right to enter the territory at any time on security grounds.

2.3 Hamas de facto control of Gaza and reactions of Egypt and Israel

Hamas’s victory in early 2006 of the Palestinian legislative elections marks an important turning point in the relationship between Gaza and Israel and the violence thereof. Following the Israeli disengagement, even with the handover of some power to PA, occupation did not end. In response to the de facto takeover of Hamas of Gaza in June 2007 and the ongoing and indiscriminate firing of rockets into Israel, the Israeli government has imposed severe restrictions on the access of goods and people to and from Gaza.

Since the beginning of occupation in 1967, the Israeli forces have continuously been engaged in hostilities against different Palestinian groups fighting against the occupation. Prior to the disengagement plan, conflict escalated during the first Intifada in 1987 and the second Intifada in 72

Supra note 11.

Supra note 11.

74 UK Ministry of Defence, (note 21), para.11.3, 275.

75 Daniel Thurer “The occupying power cannot discard its obligations by installing a puppet government or by pressuring an existing one to act on its behalf, in all these cases, the occupying powers maintains de facto- albeit indirectly- full control over the territory”. Supra note 14.

73

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2000, a period of intensified Palestinian-Israeli violence which led to an Israeli military blockade on Gaza. Military incursions continued as well subsequent to the Israeli disengagement in 2005 as Israel reserved its right of self-defense according to the plan; Israel has proclaimed such policies as retaliation for the firing of rockets against Israeli settlements in Gaza which result in causalities among the Israelis.76

2.3.1 Hamas’s Electoral Victory early 2006

With the formation of a Hamas-led government in place of the PA, Israel and the Quartet on the Middle East imposed an economic embargo against Gaza in order to isolate the Hamas administration and compel it to accept the Quartet principles i) recognition of the State of Israel, (ii) recognition of previous agreements and (iii) renunciation of violence77 . On the other side, they have eased some of the sanctions on the West Bank in order to support the Fatah government that was established there and became recognized. In addition, Israel withheld tax revenues it collected on imports and introduced additional restrictions on the movement of goods to and from Gaza. The conflict between Hamas and Israel is due to Hamas’s refusal to recognize the right of the state of Israel to exist, in addition of categorizing Hamas as a terrorist organization which in fact explains other countries refusal to accept the new government led by Hamas. This period witnessed intensified violence between Hamas and Fatah on one side, and between Hamas and Israel on the other. With respect to Hamas-Fatah conflict, there were escalating armed clashes between the political groups. Because Hamas was better organized and military advantaged than Fatah, by June 2007 Hamas subsequently took over Gaza and became the official governmental authorities with wide international denunciation.

With Regard to Israel, hostilities intensified following Hamas’s victory till it assumed full control over Gaza. According to the Goldstone Report: “From the disengagement until November 2006, the Israeli armed forces fired approximately 15,000 artillery shells and conducted more than 550 air strikes into the Gaza Strip. Israeli military attacks killed approximately 525 people in Gaza. Over the same period, at least 1,700 rockets and mortars were fired into Israel by Palestinian militants, injuring 41 Israelis. The conflict culminated, in 2006, in the Israeli military incursions into Gaza, codenamed “Summer Rains” and “Autumn Clouds”, the latter focusing on the north of the Strip around the town of Beit Hanoun, where shortly after the end of the military operations in November, 19 people, of whom 18 of the same family, were killed by artillery fire in one incident.” 78 These military incursions have also been directed against civilian objects in Gaza in which Israel attacked key infrastructure buildings including the main power plant and main bridge. Similarly, Israel has tightened the economic sanctions on Gaza as well as hampered the delivery of humanitarian assistance.79

76

Report of Special Rapporteur Dugard of December 2005 pp. 8 “. In the three months following Israel’s withdrawal from Gaza, 15 Palestinians have been targeted and assassinated, 18 civilians killed and 81 injured in response to Qassam rockets fired by militants from Gaza. Such actions of the Israel Defense Forces must be viewed in conjunction with the fact that Israel retains control over airspace, territorial waters (fishing is allowed only within 10 nautical miles of the coastline) and external borders.”

77 The Goldstone Report pp. 188; see also “Briefing to the Security Council on the situation in the Middle East”, by Ms Angela Kane, Assistant Secretary-General for Political Affairs, 31 January 2006, available at:http://www.unsco.org/Documents/Statements/MSCB/2008/January%2031.pdf 78

The Goldstone Report pp.195.

June 2006:armed groups, Palestinian militants excavated a tunnel under the Gaza Israeli border attacked he military bas of Kerem Shalom. Inside Israel killing 2 soldiers and captures corporal Gilad Shalit, which Hamas is still holding as a prisoner and refuses to release him.

79

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2.3.2 The Israeli blockade following Hamas’ control over Gaza

Right after Hamas assumed control over Gaza, Israel declared Gaza a ‘hostile entity’ and decided that ‘additional sanctions will be placed on the Hamas regime in order to restrict the passage of various goods to the Gaza Strip and reduce the supply of fuel and electricity. Restrictions will also be placed on the movement of people to and from the Gaza Strip. The sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis.”80

During the early stage of blockade, Israel besieged the Gaza Strip and imposed severe restrictions on the flow of goods and movement of persons across borders, and only allowed sporadic aid delivery. The blockade involved as well closure of Rafah border crossing with Egypt, followed by the EU BAM refusal to continue monitoring the border when Hamas came in control. Palestinian groups were partially able to evade the blockade through digging tunnels, some used for arms smuggling. According to the Goldstone report “During the month of June, the number of truckloads of goods allowed into Gaza represented only 17 per cent of the number that entered Gaza in May 2007, before Hamas seized control of the Gaza Strip. No exports had been allowed out of Gaza by Israel since December 2007.”81

The implications of the Israeli blockade were devastating on the Gazan population. Because of cutting off the supply of fuel and the destruction of the Gaza power plant, hospitals and other health services were not fully operative, especially with Israel consistently cutting the power it supplies. 82 Similarly, industrial operations were put to a halt causing an upsurge of unemployment.83 Due to restrictive border control, medical treatment outside of Gaza- in both Egypt or Israel- was almost denied in spite of the urgent situation due to the inadequacy of medical supplies and treatment. Patients needed to be granted permits in order to seek medical assistance outside Gaza, which even when granted, many patients were denied access at the border crossing84 . The denial of export and import has subsequently affected the economy of Gaza and made people more reliant on humanitarian aid as a result of poverty impoverishing the population85

2.3.3 Egyptian Border Breach

With escalating violence between Israel and Hamas, and further restrictions by Israel, Hamas militants in Gaza breached the Egyptian border by destroying part of the Israeli-Gaza barrier in January 2008. During the intensifying rivalry between Hamas and Fatah, Egypt closed Rafah border crossing. More than 200,000 Gazan bypassers crossed the border into Egypt seeking food and supplies where they stayed for several days but were not allowed to go beyond the city of Arish. 86 As a result of the border breach, Egypt was under Israeli pressure demanding Egypt to 80

Israel Ministry of Foreign Affairs, Security Cabinet declares Gaza hostile territory, 19 September 2007. Under international law there is no legal concept as “hostile territory” nor does such labeling entails Israel to act in violations of its legal obligations.

81 The Goldstone Report pp. 237.

82 B’Teslem. “The siege on Gaza and intensified economic sanctions” 2010, Gisha Report,” Electricity Shortage in Gaza: Who Turned Out the Lights?” May 2010.

83 Id. 84 Oxfam. the Gaza Strip: a Humanitarian Implosion. March 2008.

85 Id. 86 Human Rights Watch.” Israel/Gaza: Israeli Blockade Unlawful Despite Gaza Border Breach.” January 25, 2008

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reseal its border for security reasons. Hamas justified that this breach was “ the natural consequences of the people’s surge”, since Rafah was “ the only wall possible| whose breach would help to avert the humanitarian needs. 87 After the seizure of Gaza by Hamas, Egypt has been heavily involved in mediation between two sides in an effort to bring the hostilities to an end. An informal cease-fire agreement in summer of 2008 was brokered by Egypt, calling upon the Gaza Authorities (Hamas) to halt attack against Israel launched by other militants, and Israel to cease military operations, ease blockade and allow the import of goods.

the the the the

While the borders’ control was eased to some extent, still that did not meet the minimum needs of the population of the Gaza Strip. Eventually, the ceasefire agreement collapsed, and further restrictions were imposed.

2.3.4 Operation Cast Lead and its implications on the Blockade

On 27 December 2008, Israel launched a three-week military offensive against Gaza marking one of the most violent hostilities to take place between the Palestinians and Israel since the second Intifada. Operation Cast Lead was itself subject to huge condemnation due to the flagrant violations committed concerning the conduct of hostilities. The legality of the means and methods of warfare adopted in the operation was put under investigation by the Independent Fact Finding Mission on the Gaza conflict adopted pursuant to the UNHCR resolution 2-9/1.88 The Goldstone report unequivocally denounced the effects of the deliberate blockade-which was further tightened during the military offensive-on the humanitarian situation in Gaza which in the findings of the mission amounted to collective punishment of the civilian population of the Gaza Strip, and thus constitutes a war crime.

In addition to the formerly adopted measures enforcing the blockade, by virtue of its control over the territorial waters of Gaza, Israel extended its naval blockade from 3 to 20 nautical miles and has denied all humanitarian aid vessels entry. It has further restricted fishing zone into 3 nautical miles, regardless of the fact it is set to 20 nautical miles under the Oslo Accords89. Israel has persistently denied the import of construction materials that were needed to allow repair of the destroyed neighborhoods.90 Following the end of operation Cast Lead, 46,234 Palestinians stayed in the UNRWA shelters in Gaza.91 During the operation, Israel has also hindered the delivery of humanitarian aid either through postponing the delivery of goods causing its depletion or by denying entry of certain products, and did not respond to requests made by The UNRWA and other humanitarian groups concerning the criteria applied to determine which products are allowed in Gaza.92 In the course of the Israeli military operation, Egypt allowed the entry of urgent cases seeking medical treatment. To some extent, humanitarian aid cargoes were allowed into Gaza through the Rafah border crossing, albeit inadequate endeavor as seen by many humanitarian organizations. Smuggling across the tunnels built under the Gaza-Egypt borders was on the rise

87

International Crisis Group, “Ruling Palestine I: Gaza under Hamas” Middle East Report N°73 – 19 March 2008 “Gaza under Hamas”, p. 5.

88 The legality of means and methods of warfare deployed by both parties will not be covered in this thesis 89 The Goldstone Report, pp. 321.

90 According to the ICRC, “a number of areas looked like the aftermath of a strong earthquake”.. “entire urban neighborhoods disappeared.”

91 UNOCHR, Field update on Gaza form humanitarian coordinator, 19 January 2009.

92 Id.

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in order to meet the needs of the civilian population. It should be noted that Hamas was able to maintain economic control through operating trade activity across the tunnels.93

2.3.5 Hamas’s Control

The Gaza authorities were capable of enforcing its control as a result of the withdrawal and abandonment of the PA of the different administrative and governmental sectors. Hamas controlled the security with its armed wing, ‘Izz-al-Din al-Qassam Brigades, and its internal police, the Executive Forces.94 During then, Hamas was capable of advancing its armed capabilities and enhancing its rocket production and thus expanding the range of its targets in Israel. 95 Smuggling across the tunnels served as the most viable way of getting hold of ammunitions and devices employed on fighting against Israel. According to an Israeli General, “the first tunnels were dug soon after Israel’s withdrawal from Sinai and were used to smuggle cheese, which is cheaper in Egypt. During the second Intifada, they began to be used for weapons. By 2005, smugglers were bringing in RPGs.”96 Hamas subsequently sought to control the arms supply across the tunnels from other armed groups.97 With regard to economic control, The Gaza authorities have relied on several sources to be able to generate revenues and evade the implications of the economic sanctions adopted by foreign donors and the blockade imposed by Israel. Different international agencies have already increased their humanitarian aid following the blockade. The Gaza authorities impose extra taxes on workers salaries in order to cover government welfare payments98. By establishing customs offices near Israeli border crossing, Kerem Shalom and Sofa, Hamas has been able to impose taxes on incoming merchandise 99. It is worth noting that tunnel smuggling is the main revenuegenerating source for Hamas. By monopolizing tunnels’ activity, Hamas levies taxes on commodities when used by other groups or destroys tunnels if they refuse to pay 100. This proved to be a vital source of income given the fact that the entire population of Gaza supplies its needs through the tunnels. A recent report published by the international Labour Office observes the role tunnels have played in providing around 20,000 employment opportunities to Gazans due to the lack of other opportunities in light of the devastated industrial and agricultural sectors due to the Israeli measures. The report warns of the children employed in the operation of tunnels and the impact of the illegal commercial activity on further degradation economy of Gaza.101

2.4 the Erection of the Egyptian Steel Wall

93

Supra note 87 at p.16-20 In the words of a Qassam recruit, “in the past we lived underground. We couldn’t go out of the house for fear of Fatah and Israel. Now we can go wherever we want from Beit Hanun to Rafah. We’re free and in charge”.60 60 Crisis Group interview, Gaza City, October 2007.

95 Supra note 87 at p. 7 96 Crisis Group interview; Senior Israeli General, Jerusalem, November 2007.

97 A Hamas official said “One group wants to fire rockets in response to a West Bank incident, another to a different attack.

One group says it is respecting the calm ‘ahdia’; the other calls it a betrayal. It’s leading to chaos. There’s not only a political problem, but a resistance problem. We have to organize the resistance. Palestinians are 80 per cent of the problem.

Accordingly, Hamas has sought to subordinate the “resistance” to a joint command”. Crisis Group interview, Hamas official, Gaza City, October 2007.

98 “Hamas under Gaza” during Crisis Group interview, Palestinian academic, Gaza City,October 2007. P.16 99 Crisis Group visit, October 2007. “Their customs offices demand that traders submit invoices to see how much tax should be paid”, Crisis Group interview, Gaza chamber of commerce member, Gaza City, March 2008.

100 International Crisis Group “Hamas forces were also said to have set up impromptu flying checkpoints at tunnel exits, detained smugglers arriving with merchandise, taken them to the Rafah terminal to pay customs duties and threatened to impound their goods if they did not”, Crisis Group interview, Egyptian security officials, March 2008.

101 The situation of workers of the occupied Arab territories, International Labour Conference, 99th Session, 2010, para.48 94

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In light of the past events related to Egypt-Gaza border breach and escalated smuggling that had negative implications on Egypt, both in terms of its national security and its foreign relation with Israel, Egypt has finally decided to reseal its borders through constructing an underground steel wall. Currently the steel wall is being built along the 13.8 km Egypt-Gaza border and goes 20-25 meters underground thereby curbing smuggling through the tunnels between the two sides of the border.102 Whereas Egypt has turned a blind eye before to what has been happening across its borders for the past two decades because of the devastating humanitarian situation in Gaza, however, in the past few years Egypt has been under immense pressure not to disregard the situation anymore.

The new Egyptian policy of deterring smuggling has stirred heated controversy, which has earlier been denied by the Egyptian government. Egypt is facing accusation that such an action should hold it liable for participating in the Israeli blockade against Gaza, given that tunnels provide the only remaining vital supply of goods to the Gazans suffering from the Israeli blockade.103 In addition to the Israeli-American pressure on Egypt to secure its border, some explain Egypt’s motive behind the construction of the wall as a way of compelling Hamas to sign the Egyptianbrokered Palestinian reconciliation document. Others argue that Egypt wants to isolate Hamas and weaken its rule and its legitimacy, thereby undermine the power of Muslim Brotherhood, a radical Islamist group sharing the same ideology as Hamas and represents a strong threat to the Egyptian government.104 While some of these factors may hold true, Egypt has consistently raised its right to protect its national security from threat emanating from its borders.105 Smuggling through tunnels goes back to the 1980’s following the Israeli withdrawal from the Sinai Peninsula according to the Israeli-Egyptian peace treaty of 1979. The city of Rafah was divided into two parts, one on the Egyptian side and the other on Gaza and because of the existing family ties between the two sides and Israel’s restriction on movement, tunnels were being dug all the way through Philadelphi road to the Egyptian Rafah. While being used at first for the transfer of basic commodities, during the first Intifada of 1987 tunnels became used for the smuggling of ammunitions and weapons in the fight of Palestinian militants against the Israeli occupation.106

In particular, following the Hamas’s takeover of Gaza in 2006, smuggling activity has grown largely after the Israeli blockade both for attaining basic commodities for the population of Gaza and for smuggling of ammunitions and weapons used against the Israeli offensives. In fact, Israel has repeatedly tried and failed to destroy tunnels and many military operations were launched for that purpose even prior to its withdrawal in 2005.107 Because of technical innovation in the 102

No accurate figure on number of tunnels but it is believed that they exceeded 1000.

The Goldstone Report pp. 320 104 “The "Steel Wall" with Gaza Strip: Purpose and Implications.” Al-Zaytouna Centre for Studies and Consultations. 10 February 2010.

105 Egyptian Foreign Minister, Ahmed Abou el Geit, defended Egypt’s right to build the wall,” "What Egypt is doing is placing structures on its territory related to Egyptian defense." Haartez, Amid protests, Egypt defends right to build Gaza wall”. 30 December 2009. Al-Jazeera English. “Egypt defends Gaza wall”. 22 December 2009 106 The Egypt-Gaza Border and its Effect on Israeli- Egyptian Relations. Congressional Report Service. 1 February 2008.p.3.

107 According to a report to Congress “During Operation Rainbow in 2004, in which Israel used Caterpillar D9 armored bulldozers to destroy homes suspected of concealing tunnels, dozens of Palestinian protestors were killed and several hundred homes were demolished. One aim of Operation Rainbow, which was launched after 11 Israeli soldiers were killed in several attacks, was to create a buffer zone adjacent to the Philadelphi Route to protect Israeli soldiers and prevent Palestinians from digging underground tunnels. In 2004, the Israeli army reportedly planned on digging a ditch or moat 49 to 82 feet deep to prevent digging.8 The moat plan was abandoned due to humanitarian reasons. A water-filled moat could 103

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construction of the tunnels and most importantly, the cooperation of civilians in constructing the tunnels by allowing the tunnels to be dug inside their houses, impeding smuggling has been almost impossible to achieve. As for Egypt, the main obstacle it faces to effectively halt smuggling tunnels is due to its obligation under the Israeli-Egyptian peace treaty only to deploy a limited number of troops in Area C, where the border is located. 108 However, following the Egyptian border breach in 2008, Israel has accused Egypt of failing to adequately seal its borders.

According to the US Consolidated Appropriation Act of 2008, the United States cut off $100,000,000 from the US financial aid to Egypt until Egypt takes concrete and measurable steps to “detect and destroy the smuggling network and tunnels that lead from Egypt to Gaza.”109

2.4.1 Implications of the tunnels on Egypt

In spite of the fact that tunnels provide a vital source of supplying the population of Gaza with necessities and help to alleviate the humanitarian crisis, on the other hand, it has resulted in negative implications on Egypt. Tunnels are not only used for the transfer of food and medical supplies, instead they have been used for illegal drug trafficking and arms trade, certainly not serving humanitarian necessities of the population of Gaza. The subterranean network of tunnels is used as well for escaping criminals and terrorists on both besides of the order. Recent terrorist attacks on Egypt have been launched by groups who entered Egypt through the tunnels. 110 Hamas does not only use the tunnels for the supply of humanitarian goods but it operates the tunnels in a way that serves its interest. In addition to levying taxes in their operation and commodities transfer, Hamas bolsters its economy through smuggling money where and thereby selling dollars at higher rate.111 The Goldstone Report has also warned of the implication of tunnels trade on creating a black market that would harm the economy even when the blockade is lifted.112 Smugglers have indicated that the open border has cut into their profits. According to a report published by the Congress, “The profits are huge. A Kalashnikov sells for $200 on the Egyptian side, but fetches $2,000 on the Gaza black market. A good night's delivery is 1,200 Kalashnikovs — a profit of more than $2 million. Bullets — 50 cents in Egypt, $8 wholesale in Gaza — are even more profitable. A standard one-night delivery returns a profit of $750,000.”113 It has been reported that in fact there are ample supply of commodities to serve the humanitarian needs of the population of Gaza, in spite of the Israeli blockade, where people would only have to pay for them.

2.5.2 Legal issues arising from the Construction of the Wall

The right of each state to protect its sovereignty and national security is uncontested under international law, which permits states to take measures necessary for the realization of this right.

However, state sovereignty is not an absolute principle, but certainly has its limits. States are obligated to fulfil their obligations under international law as sovereignty cannot be a legitimate have further contaminated the Gaza water table with seawater”. The Egypt-Gaza Border and its Effect on Israeli- Egyptian Relations. Congressional Report Service. 1 February 2008.

108 The Egyptian-Israeli peace Treaty of 1979, Annex I 109 The Consolidated Appropriation Act 2008, Section 690(110–161). 26 December, 2007.

110 According to New York Times,” An Egyptian court on Wednesday convicted 26 men of belonging to a Hezbollah cell that was charged with planning to attack Israeli tourists in the Sinai Peninsula, fire on ships passing through the Suez Canal and smuggle weapons, supplies and people through tunnels to the Gaza Strip” 28 April 2010.

111 International Crisis Group, “Gaza under Hamas”.

112 The Goldstone Report.pp 320.

113 Supra note 106 at p.4 See also, The Sunday Times “Into the Underground.” 17July 2005.

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justification for state’s failure to observe its duties. Accordingly, the legality of these measures would primarily depend on their potential effects on the fulfillment of other obligations.

Egypt undoubtedly has the legitimate right to take the necessary measures to protect its sovereignty from illegal smuggling undergoing its territory by building a steel wall on its territory, as well as to regulate movement of people across territory.

The fact that the new wall goes underground does not signify a violation of Egypt’s right to protect its sovereignty. Nevertheless, in light of the given circumstances, the Israeli blockade and closure of borders, that does not circumvent a state of its extraterritorial obligations under international law. Egypt remains the only humanitarian outlet for the population of Gaza after Israel’s closure of its entire border crossing with its Gaza. Although Israel is still de jure the occupying power of Gaza and has the primary responsibility for ensuring the welfare of the civilian population, Egypt cannot escape its duties-under international humanitarian law and international human rights law- vis-à-vis the population whose welfare also depends on Egypt’s policy. Accordingly, whether Egypt has violated its obligation would in fact depend on its policy regarding the official Rafah crossing point which, since 2007, has not been fully operable 114 .

2.5 the Current Legal Status of the Gaza Strip

The contemporary form of Gaza’s occupation certainly poses a great ambiguity in the law that were not foreseen by the drafters of the Hague Regulations or the Geneva Conventions, making the legal status of the Gaza Strip sui generis in light of the current factual context.

Following the Israeli disengagement from Gaza according to the plan, it was clearly established that occupation did not end, as it did not fall within the legal framework relating to the cessation of belligerent occupation. In spite of the withdrawal of Israeli forces, handover of some government functions to the Palestinian representative government, Israel retained great responsibilities and powers over Gaza amounting to effective control under the law of occupation.

However, the Hamas’s de facto control of Gaza in 2007 marks an important point regarding this question, whether the legal status of Gaza has changed following Hamas’s takeover, and that Israel is no longer the occupying power, and thus is not bound by any obligations vis-à-vis the inhabitants of the Gaza Strip.

In the coming points, I present a legal assessment of the situation which in my view hold that the Israeli occupation did not end given that it still exercises overall effective control, even though Hamas exercises some aspects of control there.

1.

Since 2005, Israel is still in full control of the same powers under the disengagement plan. Hamas has not been able to control any of these aspects after administering Gaza, nor did its seizure of Gaza preclude Israel form maintaining its powers as envisaged under the plan. As a matter of fact, Israel has applied far stringent measures in exercising its powers. Israel is still in control of the territorial waters, border crossings, and airspace of the Gaza Strip and has the right and ability to enter willingly at any time.115

2.

The law of occupation does not preclude a local government from administering the occupied territory. In fact, it calls upon the occupying power to allow the formation of national 114 115

Section 4.3.

Section 2.2.4.a.

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government in an effort to maintain social order and welfare of the population of the occupied territory. Therefore, the fact that a national government is carrying governmental functions does not per se indicate inability of the side of Israel to exercise effective control116 .

3.

As referred to earlier, the physical presence of troops is not a necessary perquisite for the exercise of effective control under occupation; the same goes for carrying out governmental functions.117 According to Dugard’s report, as a result of technological advancement, effective control can be exercised in different forms. 118 As in the case of border control of Rafah, Israel has been able to control the entry of goods and persons through monitoring camera, regardless of the presence of EU BAM and therefore controlling access.

4.

The existence of a state of hostilities between the occupying power and resistance groups, herein Israel and Hamas, does not necessarily indicate inability of the occupying power to exert control. The right to resistance is not prohibited under the law of occupation, Israel is obliged to observe international humanitarian law regarding the conduct of hostilities where as the civilian population must always be spared the effects of hostilities. According to Nuremburg jurisprudence, the tribunal in Hostages case considered a territory to be occupied even though the occupying power had partially evacuated certain parts of the territory and lost control over the population, as long as it could “ at any time” assume physical control of any part of the territory;119

“While it is true that the partisans [resistance movement against the Germans in Yugoslavia and Greece] were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and not such as would deprive the German Armed Forces of its status of an occupant”.120

As Von Glahn says, “ as long as the territory as a whole is in the power and under the control of the occupant and as long as the latter has the ability to make his free will felt everywhere in the territory within a reasonable time, military occupation exists in a legal point of view.”121

5.

Most notably, the humanitarian situation in Gaza is completely under the control of Israel. When it comes to the Fourth Geneva Convention, and the law of occupation in general, its purpose is to ensure the protection of the civilian population falling into the hand of occupying power.122 The current situation in Gaza falls precisely within this meaning. Israel fails to fulfill its obligation to supply water, food, medical supplies, electricity, fuel and other basic commodities, it has also cut the operation of electricity power plant, water systems telecommunication systems, as well as cut off its external economy. The Israeli Supreme Court held in a recent decision that because of the unique situation in the Gaza Strip, Israel is still under the obligation to provide the population with electricity given that it is the only source for them, even though the court itself held that Israel is no longer the occupying power subsequent to the disengagement.123 In

116

Section 2.2.5.

Id. 118 Supra note 55.

119 HPCR “Israel’s Disengagement and IHL” 2004; p.7.

120 supra note 48.

121 Von Glahn 1957, p. 29.

122 Section 2.2.3.

123 Jaber al Bassiouni v. The Prime Minister, HCJ 9132/07, 30 January 2008.

117

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addition to that, Israel does not allow the passage of humanitarian aid into Gaza and hampers access of humanitarian groups by imposing severe restrictions.

According to Jean Pictet, on his commentary on the Geneva Convention in 1958:

“ so far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of the article 42 refereed to above. The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the [ fourth Geneva] convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the conventions in its dealings with the civilians it meets, when it withdraws, for example, it cannot take civilians with it, for that would be contrary to article 49 which prohibits the deportation or forcible transfer of persons from occupied territory. The same thing is true of raids made into enemy territory or on his coasts. The convention is quite definite on this point: all persons who find themselves in the hands of a party to the conflict or an occupying power of which they are not nationals are protected persons. No loophole is left.” 124

It goes without saying that Gaza is still under the Israeli occupation and thereby Israel bears the primary responsibility to ensure the protection and welfare of the civilian population. The law of belligerent occupation clearly stipulates the duty of occupying power for the provision of humanitarian assistance, to allow and facilitate humanitarian passage from external sources, and to ensure the protection of humanitarian personnel and objects125 . Nevertheless, that does not relieve Hamas of its obligations towards the civilians of Gaza by virtue of its de facto control over the territory. As a party to the conflict and de facto administrative government, the duty to maintain public order is more relevant to Hamas than Israel. Similarly, once Israel authorizes the passage of relief consignment into Gaza, Hamas becomes responsible to ensure the orderly and impartial distribution of good to the affected civilians. It also shares the responsibility to ensure the safety of the humanitarian mission.

3. The Applicable Law in the Context of the Current Factual Background

International humanitarian law is the primary legal regime that governs armed conflict and binds its parties. However, two points need to be highlighted. First, while international humanitarian law is the specialized body, particularly related to occupation, the parties are also bound by other obligations under international law, those also relevant to the humanitarian situation of the 124 125

Jean Pictet. “Commentary to the Geneva Conventions 1958.” p.58.

Section 3.1.2.

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civilian population. Hence, international human rights law becomes significant in this context since its reinforces the interpretation of the former. Second, since Egypt is not a party to the conflict, international humanitarian law only provides general obligations on its part; therefore, its obligations under human rights law become crucial.

In this chapter, I will go briefly over the relationship between international humanitarian law and international human rights law with respect to humanitarian assistance, and how they reinforce each other in this context. This is significantly imperative since the right to humanitarian assistance is inherently derived from fundamental norms of international humanitarian law and international human rights law.

3.1 International Humanitarian Law

3.1.1 The Obligation to Respect and to Ensure Respect The legal basis of obligations under international humanitarian law lies under Common Article 1 to the Geneva Conventions, binding both parties to the conflict and High Contracting Parties alike. Common article 1 is a two-folded obligation that enjoins the High Contracting Parties to respect and to ensure respect of the conventions at all circumstances. The ICJ in the Nicaragua Case observed the legal status of Common Article 1 as reflective of customary international law.126 “To respect” means that a state is under an obligation to do everything it can to ensure that the rules in question are respected by its organs as well as others under its jurisdiction.127 While “to ensure respect”, means, whether engaged in a conflict or not, a state must take all possible steps to ensure that the rules are respected by all, and in particular by parties to conflict.128 Whereas obligations incumbent upon parties to a conflict appear more direct to monitor their compliance, third parties are obliged to denounce violations committed by parties to a conflict, take concrete measures to remedy the situation and abstain from participating in a violation that might hold them jointly liable.129 Therefore, obligations of the High Contracting Parties under international humanitarian law need to be interpreted broadly.

Jean Pictet on his commentary on the Geneva Conventions states that: “ in the event of a power failing to fulfil its obligations, the other High Contracting Parties( neutral, allied, or enemy) may, and should, endeavour to bring it back to an attitude of respect for the convention. The proper working of the system of protection provided by the convention demands in fact that the contracting parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the convention are applied universally.” 130 The obligation to ensure respect needs to be understood as “ deliberately invested with imperative force.”131 Such a powerful formulation stems from the legal status of the Geneva Conventions; most of its provisions reflect erga omnes obligations that “all States can be held to

126

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, para. 220. The Court decided that a State commits an internationally wrongful act in breach of common Article 1 if it induces a party to a non-international armed conflict to act in a manner contrary to the humanitarian principles embodied in Common Article 3.

127 Laurence Boisson de Chazournes, Luigi Condorell: Common Article 1 of the Geneva Conventions revisited: Protecting collective interests. International Review of the Red Cross 2001 No. 837, p. 67-87.

128 Id. 129 the ICJ in Wall opinion obligates states to refrain from recognizing the situation in OPT. 130 Jean Pictet, international Committee of the Red Cross, commentary on the Geneva Conventions Vol.IV, p.16 131 Id. p.17.

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have a legal interest in the protection.”132 The ICTY reasserted similarly the obligation of all states; “[as] a consequence of their absolute character, these norms of international humanitarian law do not pose synallagmatic obligations, i.e. obligations of a State vis-à-vis another State. Rather (…) they lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a 'legal interest' in their observance and consequently a legal entitlement to demand respect for such obligations.” 133 Accordingly, obligations on Israel, Hamas and Egypt can be based primarily under the premise of Common Article 1 to the Geneva Conventions. Both Israel and Egypt as states are bound by the provisions of the relevant legal instruments; and Israel, in particular, to international humanitarian law relevant to the occupied territories.

Hamas’s obligations under international humanitarian law remain those relevant to armed groups, that is; Common Article 3 to the Geneva Conventions and customary international law, even though it is the de facto government, it does not qualify as a state. Hamas shall be held liable as well for the humanitarian conditions of the population under its control and its duty does not extend elsewhere.

3.1.2 The Right to Humanitarian Assistance under International Humanitarian Law

Under international humanitarian law, the right to humanitarian assistance is essentially derived from two principles, namely; the obligation of a party to a conflict to distinguish civilians from combatants, and the duty to respect, protect and treat humanely persons not-or no longer- taking part in hostilities134 . The duty of states to provide and facilitate humanitarian assistance is essentially based on the broad concept of protection of civilians135 . This involves the obligation of parties to the conflict to refrain from employing means and methods of warfare that are likely to have impact on the civilians, such as starvation of civilian population, deliberate targeting of civilian objects, or facilities used for civilian purposes.

In 2003, the Institute of International Law adopted the ‘Guiding principles on the Right to Humanitarian assistance’. Although a non-binding instrument, the principles reflect pre-existing norms on the right to humanitarian assistance under international humanitarian law, with special emphasis on the role of human rights to enforce the right to humanitarian assistance.

3.1.2.a General Rules on Humanitarian Assistance

Rules pertinent to the provision of humanitarian assistance in international armed conflict are essentially based on the Fourth Geneva Convention and the First Additional Protocol; most of

132

ICJ, Case Concerning the Barcelona Traction, Light and Power Company, Limited, 5 February 1970, §33. See section 2.2.5.

133 The Prosecutor v. Zoran Kupreskic and others, ICTY Trial Chamber, Judgment, The Hague, 14 January 2000, Case No. IT-95-16-T, para. 519.

134 Ruth Abril Stoffels. Legal regulation of humanitarian assistance in armed conflict: achievements and gaps. P.518 135 Id.

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these rules have acquired the status of customary law, and are also applicable in non-international armed conflict.136 States parties to an armed conflict are obliged to provide the necessary medical and food supplies to civilian population under their control.137 In case the affected state is unable to carry out its duty or the needs of the population (of occupied territory) are inadequately met, the state shall facilitate the provision of humanitarian assistance by third parties.138 Nevertheless, that does not relieve the affected state of its primary responsibility vis-à-vis the civilian population subject to its jurisdiction or under its control.

Humanitarian organizations and third parties have the right to provide humanitarian assistance, which involves the right to offer relief supplies to victims and the right not to be denied unreasonably.139 This imposes an obligation on the affected state to respect and protect the humanitarian mission including its personnel and objects by allowing and facilitating the unimpeded and rapid passage and the provision of humanitarian relief140 , provided that it is impartial in character and conducted without adverse distinction, unless restricted by imperative military necessity.141 The obligation to allow and facilitate access of humanitarian relief is enshrined in many military manuals and UN resolutions.142

The ICRC has established the obligation to respect and protect humanitarian relief personnel, as a customary norm which is ‘corollary of the prohibition of starvation, …as well as the rule that the wounded and sick must be collected and cared for’, this is derived from the fact that the security of humanitarian relief personnel and objects is an ‘indispensable condition for the delivery of humanitarian relief to civilian populations in need threatened with starvation”.143 Similarly, many military manuals contain the obligation to respect and protect humanitarian personnel,144 and also the legislation of many states criminalized the attack on humanitarian relief personnel145 .

The Rome statute of the International Criminal Court relates the willful impediment of relief supplies indispensable for survival of civilians to starvation.146 In the context of occupation, the Fourth Geneva Convention specifically obligates the occupying power to protect relief supplies.147

The protection afforded to humanitarian personnel and objects is essentially derived from their civilian character, and they may only be targeted if they take part in hostilities. Accordingly, a deliberate attack on humanitarian personnel and objects involved in humanitarian assistance amounts to a grave breach of the Geneva Conventions by targeting civilians, not taking part in

136

ICRC” Customary international Humanitarian Law” p. 105, p.186. article 55 GC4, and article 69(1) AP1.

138 Article 23 and 59 GC4.

139 Article 10,59,60,61,62,63 GC4 and article 70(3) AP1.

140 article 71(2) API. 141 71(3) AP1.

142 ICRC ”customary international humanitarian law” the military manuals of Argentina, Australia Canada, Columbia, Germany Italy, Kenya, Netherlands, New Zealand, Russia, Switzerland, United Kingdom and united States. P.194 UN Security Council Res. 688, 706, 822, 853 and 874.

143 Rebecca Barber. “ Facilitating humanitarian assistance in international humanitarian and human rights law”.Internatonal Review of the Red Cross. Volume 91 Number 874. June 2009.

144 Argentina, Australia, Canada, France, Netherlands, Sweden, and Yugoslavia. The military manual of Sweden identifies article 71(2) of AP1 as codifying pre-existing customary law. ICRC Customary International Humanitarian law. P.106.

145 Legislation of Australia, Azerbaijan, Canada, Congo, Estonia, Ethiopia, Germany, Ireland, New Zealand, Norway, Philippines, Portugal and United Kingdom. ICRC Customary International Humanitarian Law p.106.

146 The Rome Statute article 8(2)(b)(xxv).

147 Article 59 of GCIV. 137

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hostilities, and civilian objects. The deliberate targeting of humanitarian personnel and objects involved in humanitarian mission also amounts to a war crime under the Rome Statute.148 Whereas the state on which humanitarian passage is carried out has the right to authorize the passage by granting its consent to the third parties providing relief, it must refrain from denying aid unreasonably while still having the right to take measures and regulate the mission149 . In case of occupation, it is the occupying power, and not the legitimate authority, which must provide its consent for the humanitarian assistance. This is based on the notion that the civilian population of the occupied territory is under the control of the occupying power.

The question of granting consent to humanitarian missions has been intensively discussed in various legal settings of the extent of which a state can deny aid. The ICRC views that “consent must not be refused on arbitrary grounds. If it is established that a civilian population is threatened with starvation and a humanitarian organization which provides relief on an impartial and non-discriminatory basis is able to remedy the situation, a party is obliged to give consent.”150 The right to humanitarian assistance does not cease at the provision of authorization for passage, the obligation on the affected state continues to the extent of cooperation, for example by ensuring the safety of the relief consignment and abstaining from obstructing or delaying the passage unduly.151 It is imperative to note that the obligation to allow free passage of relief consignment is not only limited to parties to the conflict, but article 23 of the Fourth Geneva Convention broadly stipulates the duty of High Contracting Parties to allow the free passage of ‘all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another high contracting party’, as well as ‘essential foodstuffs, clothing and tonics intended for children under 15, expectant mothers and maternity cases.’ Additional Protocol 1 further reiterates and expands the duty of non-parties to the conflict to “ allow and facilitate rapid and unimpeded passage of all relief consignments, equipments and personnel...even if such assistance is destined for the civilian population of the adverse party.”152 Accordingly, a state that denies the passage of relief aid through its territory with no legal grounds shall be held liable for failing to carry out its duties, particularly if such action is likely to have implications on the welfare of civilian population dependent on the relief aid.

3.1.2.b Conditions for Humanitarian Assistance The obligation of states to facilitate humanitarian assistance is not unconditional. In order for assistance to be considered ‘humanitarian’, it must “be of an exclusively humanitarian and impartial nature and must be undertaken without any adverse distinction.”153 The Institute of International Law gives an extensive definition of humanitarian assistance as to mean “all acts, activities and the human and material resources for the provision of goods and services of an exclusively humanitarian character, indispensable for the survival and the fulfillment of the essential needs of the victims of disasters.”154 Such Goods include “foodstuffs, drinking water, medical supplies and equipment, means of shelter, clothing, bedding, vehicles, 148

Supra note 146.

Artciles38,39, 23,70 and 71 of AP1. Resolutions 43/131 and 45/100 of the United Nations General Assembly.

150 Supra note 143.

151 Christa Rottensteiner,”The denial of humanitarian assistance as a crime under international law”. International Review of the Red Cross 1999 No. 835, p. 555-582 .

152 Article 70(2) AP 1.

153 Military and Paramilitary activities in and against Nicargua, Merits, judgment, ICJ reports 1968,p.14 para. 242-243 154 Institute of International Law, Resolution of the Sixteenth Commission (Humanitarian Assistance), 2 September 2003.

Article 1 149

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and all other goods indispensable for the survival and the fulfillment of the essential needs of the victims of disasters; this term never includes weapons, ammunition or any other military material.”155 The ICJ in the Nicaragua case also discussed the conditions of humanitarian assistance that are essentially based on the fundamental principles of the Red Cross: humanity, impartiality and neutrality156 .

For assistance to be ‘humanitarian’, it must be directed to the civilian population affected by armed conflict with the purpose to prevent and alleviate human suffering, protect life and health and to ensure respect for the human being.”157 For assistance to be ‘impartial’, it must be provided to the victims of armed conflict without making discrimination on nationality, race, religious beliefs, class or political grounds. Instead, priory must be based on humanitarian needs and to the most vulnerable groups.158 Humanitarian organizations need to be independent to act impartially; they need not to act on any political grounds. For assistance to be ‘neutral’ it must not be supporting or providing military advantage to one party to a conflict.159 The court provided that humanitarian assistance that meets these requirements couldn’t be considered as intervention in the internal affairs of the state.160 However, in the case an aid is provided in a discriminatory manner, it cannot be recognized as humanitarian and thus is not protected under international humanitarian law 161 .

3.2 International Human Rights Law

The right to humanitarian assistance during armed conflicts is particularly reinforced by international human rights law on the basis of the right to life, the right to an adequate standard of living and to the highest attainable standards of health.

Special attention should be paid to the strong formulation of obligations under human rights law.

Unlike humanitarian law, it requires states to “protect, respect and fulfil”, entailing a more positive obligation on the states to take effective measures in carrying out its obligations.

3.2.1 The Concurrent Application of International Humanitarian Law and Human Rights Law Even though international humanitarian law and human rights law emerged as two separate regimes each with a different mode of applicability, the essence of the rules of international humanitarian law and human rights law is the same, they both share a common purpose, that is the protection of human beings and promotion of dignity. 162 Human rights law is designed to operate in all circumstances, primarily in peacetime conditions, and it regulates the relation between a state and its citizens. On the other hand, international 155

Id. article 2 ICJ. Nicaragua case, based on humanitarian law provisions : 10 GC4, 70 AP1, 18(2)APII and Common Article 3.

157 Fundamental Principles of the Red Cross, proclaimed by resolution VIII of the twentieth international conference of the Red Cross, Vienna 1965. See also Nicaragua Case para.242 158 Id. 159 Id. 160 see also Guiding Principles on the Right to Humanitarian Assistance, principle IV.1 161 ICJ, Nicargua case (Nicaragua v. United States of America), Judgment, ICJ Rep. 1986, pp. 243. The court established that the provision of aid by the US exclusively to the contras was not of a humanitarian and impartial nature, and thus amount to intervention in internal affairs of Nicaragua.

162 Cordula Droege, “ the interplay between international humanitarian law and international human rights law in situations of armed conflict”. International Law Forum. Vol. 40, No.2, pp. 310-355, 2007. P.310.

156

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humanitarian law applies in armed conflict and it regulates the relationship between a state and the citizens of the adversary; a relationship based on power rather than law.163 Nevertheless, human rights law remains applicable in armed conflict and many of its norms cannot be revoked in times of war.

While the concurrent application of these two bodies of law has been earlier subjected to heavy scrutiny, if not rejected, as international humanitarian law was seen as the only applicable law in the context of armed conflict, it can be seen that human rights norms were also meant to supplement humanitarian law whenever the protection of human beings was addressed. Since the drafting of the Hague Regulations of 1899 and 1907, Martens Clause implies that the rules of the law pertaining to armed conflict cannot be regarded as the final regulation for the protection of human beings, but can be supplemented with human rights law protection.164 This was affirmed in the ICJ Corfu Channel case, where the court referred to “elementary considerations of humanity” that need to be observed by parties to a conflict.165 .

This indicates that human rights norms were meant to supplement humanitarian law when it comes to the protection of persons.

Following the Tehran Human Rights Conference of 1968 it became expressly recognized that human rights are also applicable in times of armed conflict. Similarly, The concurrent application of these two regimes has been widely accepted by various international tribunals, including the ICJ, the UN Human Rights Committee, the European Court of Human Rights, and the InterAmerican Commission on Human Rights. Moreover, many recent treaties integrate provisions of both bodies of law; such as the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. The UN General Assembly has in various occasions referred to the joint application of both bodies of law as to ensure maximum protection to civilians in times of armed conflict.166 Most importantly, the general principles embodied in Common Article 3 to the Geneva Conventions and article 75 of the First Additional Protocol are inherently a reflection of the fundamental human rights as a minimum guarantee of individuals falling out of the protection of the conventions.

Nevertheless, the way both regimes interact with each other is still debatable. The ICJ in Nuclear Weapons advisory opinion has articulated three modes of operation; “there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” 167 The court explains that both bodies of law can coexist in different contexts: - When there is a conflict between the norms, international humanitarian law, as the lex specialis body of law, should prevail, for example; the right to life and targeting of combatants, the right of occupying power for internment and the right to freedom of movement 168 , in certain situations 163

Fleck. p.12, pp3.

The preamble to the Hague regulations of 1977 “ the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience”.

165 Corfu Channel Case, Judgment of April 9th, 1949, I.C.J. Reports 1949, Para. 24 166 The Secretary-General in UN Doc.S/1999/957 calls on states to ratify equally the relevant instruments of international humanitarian law, human rights law and refuges law, all the three are “essential tools for the legal protection of civilians in armed conflict”. The General Assembly in Resolution 2853 XXVI ‘effective protection for human rights in situations of armed conflict depends primarily on universal respect for humanitarian rules’.

167 ICJ. The Wall advisory opinion, pp. 106.

168 Hans-Joachim Heintze. “On the relationship between human rights law protection and international humanitarian law”.

International Review of the Red Cross. December 2004 Vol. 86 N 856 p.796.

164

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where human rights law does not address situation specific to armed conflict such as prisoners of war. In its Nuclear Weapons advisory opinion, the ICJ referred explicitly to the requirement to interpret the right to life under international humanitarian law in the context of armed conflict.

The court noted “whether a particular loss of life, through the use of certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to article 6 of the [ICCPR], can only be decided by reference to the law applicable in armed conflict and not deduced from the from the term of the covenant itself.”169 The ICJ established that article 6 is a non-derogable right and consequently also applies during armed conflict, and that even during hostilities it is prohibited to “arbitrarily” deprive someone of their life. However, the word “arbitrarily” needs to be interpreted under international humanitarian law.170 - Otherwise, the framework of their dual application is complementarity. While both are distinct bodies of law, because of their overlapping scope of protection, they mutually reinforce each other.

For example, in situations where international humanitarian law is not very detailed, human rights law can fill in the gap, for example in dealing with torture and inhumane treatment. There are also situations where either a body of law influences the interpretation of the other and therefore provides a more exact formulation of state’s obligations. For example while human rights law proclaims the right to physical and mental health in article 12 of ICCPR, article 56 of the Fourth Geneva Convention obligates the occupying power the provision of medical facilities, hence both bodies of law can be understood to complement each other.

Human rights monitoring bodies have repeatedly referred to the applicability of human rights norms in the situation of armed conflict. The Human Rights Committee on its General Comment no. 31 on article 2 stresses that: “The Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.” 171 Similarly, the ICTY in the Kunarac case referred to the role of human rights developed jurisprudence to provide guidance for the interpretation of humanitarian law, given the scarcity of cases under international humanitarian law, “With regard to certain of its aspects, international humanitarian law can be said to have fused with human rights law.”172 The reasoning behind applying human rights during armed conflict is to ensure the effective protection of victims of armed conflict, not only they enjoy the basic rights of all human beings at all times, but also they benefit from other rights that are affected by the armed conflict, such as medical care, the right of detainees to correspond with their families and, more generally, protection from the effects of hostilities. These are areas in which the provisions of humanitarian law go further and enter into more details than those of human rights law. On the other hand, humanitarian law is silent with respect to some rights protected by human rights law, such as freedom of thought, association or expression, or the right to development.173

3.2.2 The Application of the ICCPR and ICESCR during Armed Conflicts

169 170

ICJ. The Nuclear Weapons advisory opinion pp. 24 and 25.

“Interaction between Humanitarian Law and Human Rights in Armed Conflict”. Geneva Academy publication.

171

UN Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13(26 May 2004), at § 11.

ICTY. Prosecutor v. Kunarac. Judgment Case no. IT-96-23 & IT-96-23/1 – A. 22 February 2001.pp. 467 173 Human rights questions: Report of the United Nations High Commissioner for Human Rights. United Nations, General Assembly, 53rd session, Third Committee, item 110(e) of the agenda. Statement by the International Committee of the Red Cross (ICRC), New York, 10 November 1998 172

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The ICCPR and ICESCR are of particular significance during armed conflicts; this is mainly because the rights they enshrine are the ones deliberately affected as a result of the armed conflict. While the application of the ICCPR during armed conflict is expressly mentioned in the Covenant in article 4 which allows for derogation for certain rights during armed conflict, this is different with regards to the ICESCR. The ICJ in its Nuclear Weapons advisory opinion clearly established that the protection afforded by the covenant does not cease except by operation of article 4.174 It should be noted that certain rights are absolute and can not be derogated from during times of war which are essentially the same as those of humanitarian law, including: the right to life, prohibition of torture and inhumane and cruel treatment and the right to judicial guarantees before the law. Most importantly, the right to derogate from other rights during emergencies (including war) is not absolute; measures taken need to be proportional, limited to the extent strictly required by the exigencies of the situation, must be publicly announced, and cease as soon as the situation of emergency comes to an end.175 The absence of derogation clauses from some human rights instruments, on the other hand, should not be manifested as an indication of the inapplicability of these rights. Instead, it should be understood so as to ensure the absolute application of certain norms that cannot be derogable during armed conflicts. This is particularly the case regarding the ICESR that does not contain a derogation clause. Mothershaw is of the opinion that given the nature of the rights under this covenant, derogation is less compelling.176 The ICJ in the Wall opinion clearly expressed the obligation of Israel to respect the right to an adequate standard of living under ICESCR.177 Article 2(1) of the covenant mandates states to “take steps, individually and through international assistance and cooperation... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant”. Accordingly, a state is not only under the obligation to provide an adequate standard of living to people under its control, but should take every effort to allow for the realization of rights: ‘[t]hus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. ... [and] must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.’178 In the context of humanitarian assistance, this enjoins states not only to allow for the provision of humanitarian assistance to meet the needs of people but when unable to meet their needs, it obliges states to fulfil their duties by allowing others to carry out relief consignments.

3.2.3 The Application of Human Rights in the context of Occupation

174

ICJ.Nuclear Weapons Advisory Opinion.pp.25.

CCPR/C/21/Rev.1/Add.11 31 August 2001 pp.4.

176 Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Right’, Human Rights Quarterly, Vol.9 (1987), p.217. Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law Elizabeth Mothershaw. The International Journal of Human Rights Vol. 12, No. 3, 449–470, June 2008.

177 Id. p.134.

178 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 3: The Nature of States Parties Obligations (Art 2(1) of the Covenant), UN ESCOR, Comm. Economic, Social and Cultural Rights, 5th sess., Annex 3, UN Doc. E/1991/23 (1990), para. 1.

175

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One of the most important contexts of applying human rights in conjunction with humanitarian law is during occupation. The ICJ in its Wall advisory opinion discussed the applicability of human rights law in occupied territory179 , and later it reaffirmed in the Armed Activities case: “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration… international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories.” 180 Applying human rights law in the context of occupation is based on the fact that it can extend extraterritorially, as recognized by the Human Rights Council and various jurisprudence of human rights tribunals. The HRC’s General Comment No. 31 asserts that human rights law applies extraterritorially to the OPT; “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” 181 In Burgos/Delia Saldias de López v. Uruguay, the HRC concurs that “it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”182 Similarly, the European Court of Human Rights has repeatedly discussed the jurisdiction of the European Convention of Human Rights of 1950(ECHR) in various cases. In Cyprus v. Turkey, the court held that the ECHR bounds the High Contracting Parties to “secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised on its own territory or abroad.”183 In Loizidou v Turkey, the court concluded that the object and purpose of ECHR would entail state responsibility where “as a consequence of military action – whether lawful or unlawful – [a contracting party] exercises effective control of an area outside its national territory.”184 It is worth noting that the extraterritoriality of human rights in the context of occupation is based on the exercise of “ effective control” by a party to a conflict over a territory or its individuals, where the population of the occupied territory is actually placed under the authority of the hostile army.

Human rights law becomes particularly relevant during occupation since it is concerned with the regulation of law enforcement, whereas humanitarian law is more relevant during the conduct of hostilities.185 Once effective control has been established, thus occupation, use of force will mostly be related to law enforcement. Consequently, the welfare of the civilian population becomes the responsibility of the occupying power. Since the Israeli occupation of Gaza in 1967, the UN

179

The ICJ in the wall opinion discusses the application of human rights in the OPT, “In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”.

180 ICJ. Armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports (19 December 2005) 181 HRC. General Comment no. 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para.10 182 Un Human Rights Committee.Burgos/Delia Saldias de López v Uruguay. CCPR/C/13/D/52/1979. 29 July 1981 183 European Court of Human Rights (ECtHR). Cyprus v. Turkey. 25781/94 . 10 May 2001 184 Id. See also ECtHR. Issa v Turkey, 31821/96. 10 November 2004 185 Noam Lubell. “Challenges in applying human rights law to armed conflict.” International Review of the Red Cross.

Volume 87 Number 860 December 2005. p. 745.

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Security Council called for “ essential and inalienable human rights to be respected even during the vicissitudes of war.”186 Human rights law provides an important tool for filling gaps on issues humanitarian law is rather vague on or does not afford enough protection to the civilians. The law of occupation attempts to strike a balance between the rights of an occupying power and the welfare of the population. It gives the occupying power the right to take certain measures to ensure its security as laid down in article 43 of the Hague Regulations. Such measures, while in conformity with international humanitarian law, do not necessarily comply with state’s obligations under international law and could give the occupying power justifications for failing to observe its obligations towards the civilians. Similarly, human rights law empowers the welfare of people particularly in situations of prolonged occupation where only the basic provisions of the Fourth Geneva Convention are applicable by virtue of article 6.187 This is imperative with reference to the economic, social and cultural rights of the civilians of the occupied territories, which are the ones deeply affected as a result of the occupying power’s security concerns that usually lead to deterioration of living standards including health, education, food and water. With regards to the situation in the OPT, the CSECR, condemned on various occasions the deterioration of human rights by Israel.188

3.2.4 Application of Human Rights Law subsequent to the Israeli Disengagement 2005

Given that Gaza is still considered occupied subsequent to the Israeli occupation and Hamas’s takeover in 2007, human rights law continues to apply, a fact Israel has always contested even though the Israeli Supreme Court referred frequently to the application of human rights to the OPT.189 In reference to that, the Goldstone Report addressed this issue in its findings, “ the unilateral disengagement from the Gaza strip does not relieve Israel from complying with its human rights obligations towards the population of its territory; Israel remains bound to the extent that the measures it adopts affect the enjoyment of human rights of the residents of the Gaza strip”190 .

The report refers as well to the concluding observations of the Committee against Torture, which observes that transferring powers and functions to self-governing bodies do not exempt Israel from its human rights obligations to people within its jurisdiction or under its effective control191 .

Notwithstanding the primary responsibility of Israel vis-a-vis the welfare of the population of Gaza, the new factual situation in Gaza attributes responsibility for Hamas, by virtue of its status as the governing authority, with regards to its human rights obligation.192

186

UN GA A/RES/2252 1967 Section 2.2.3.

188 CESCR, Concluding Observations on Israel, at 11 & 19, UN Doc. E/C.12/1/Add.90, (May 23, 2003); CRC, Concluding Observations on Israel, at44 & 55, UN Doc. CRC/C/15/ Addd.195, (Oct. 9, 2002).

189 The Supreme Court of Israel has applied human rights law to cases involving the OPT. It considered the competing claims of freedom of movement and freedom of religion in Bethlehem Municipality & 21 others v. The State of Israel – Ministry of Defense;26 conditions of detention for security detainees in Center for the Defense of the Individual founded by Dr. Lota Salzberger et al. v. Commander of the IDF Forces in the West Bank;27 and liberty and security of the person, specifically the length of time for which a detainee can be held without access to a judge to determine the lawfulness of his or her detention, in Marab v IDF Commander in the West Bank.28 On occasion the Supreme Court of Israel has applied both human rights law and international humanitarian law concurrently.

190 The Goldstone Report 2009 pp. 302.

191 Id. 192 Discussed in the upcoming section 4.2.1.

187

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4. Obligations incumbent upon the Parties

4.1 Israel

Notwithstanding the Israeli disengagement and withdrawal of forces from Gaza in 2005, Israel is still de jure the occupying power by virtue of the substantial degree of control it exercises over Gaza. This enjoins Israel the duty to respect, protect civilians from the effects of hostilities, and treat humanely the population under its control as envisaged in the Hague regulations and the fourth Geneva Convention.193 193

Section 2.2.5.

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The provision of humanitarian assistance in Gaza faces numerous challenges as a result of Israel’s deliberate policies of imposing a blockade on the civilian population. As a party to the conflict, and the occupying power, Israel cannot escape its responsibility to ensure the welfare of the civilians under its control regardless of legitimate security concerns, including the right to food, shelter, education and medical care.

Its duty is not solely limited to the provision of the humanitarian aid, but to also use means and method of warfare that distinct between civilians and combatants. However, if such tactics are meant to have dire consequences on the needs of the population, then it is falls under prohibition of international law. Similarly, acts of reprisals against the civilian population and civilian objects are prohibited under customary international humanitarian law.194 Consequently, starvation of civilians as a method of warfare is in complete violation of the law of war and amounts to collective punishment 195 , as it violates the duty of state to protect and treat the civilians humanely. Similarly the deliberate targeting of civilian objects indispensable for the needs of the population violates the principle of distinction. 196 The Israeli Supreme Court explicitly upheld the application of law on humanitarian assistance under both the Fourth Geneva Convention and Additional Protocol 1, even though Israel is not party to, it acquired the status of customary international law. In Albassioni v. Prime Minister, the court held that “It is not superfluous to add that according to the rules of customary international humanitarian law each party to a conflict is bound to refrain from impeding the transfer of basic humanitarian items of aid to the population that requires them in the areas that are under the control of that party to the dispute.”197 In Physicians for Human Rights v. Prime Minister, the court clearly stipulated that in the current factual situation of Gaza, subject to Hamas’s de facto control, Israel still retains major responsibility vis-à-vis the civilians, albeit -in the court’s view- not the occupying power since the disengagement plan anymore; “as long as Israel has control of the transfer of necessities and the supply of humanitarian needs to the Gaza Strip, it is bound by the obligations enshrined in international humanitarian law, which require it to allow the civilian population to have access, inter alia, to medical facilities, food and water, as well as additional humanitarian products that are needed to maintain civilian life.” 198 As discussed earlier, with regards to the right to humanitarian assistance, Israel has a duty to ensure the security and well-being of the population of Gaza and it must strictly comply with the right of the civilian population in need to receive humanitarian relief, as set out in the Fourth Geneva Convention and Additional Protocol I. It must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allowing relief operations to take place and may not refuse such consent on arbitrary grounds. They can take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments are clearly restricted to humanitarian goods. However, deliberately impeding relief supplies is prohibited. The freedom of movement of humanitarian relief personnel (including medical personnel) must be assured for the effective exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity199 . Israel is also obliged to protect and ensure the protection of the humanitarian personnel and missions, who only lose their protection if they commit acts, outside their humanitarian function, that amount to engaging in hostilities.

194

Article 51 of AP1.

Article 33 of GC4.

196 article 54 of AP1.

197 Supra note 123. At pp.12.

198 the Israeli Supreme Court. Physicians for Human Rights v. Prime Minister HCJ 201/09. 19 January 2009. pp.37.

199 Article 71(3) of AP1.

195

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4.1.2 The legality of the Blockade

International humanitarian law does not prohibit blockades per se as a legitimate tool of warfare in international armed conflicts. Nevertheless, in order for a blockade to be legal, certain requirements must be met. The San Remo Manual on the Law of Naval Warfare which codifies existing customary law expresses that a “legal” blockade needs to be publicly declared and notified to the parties to the conflict and neutral states200 , it needs to be effective201 and specifically defined in terms of its duration, location 202 , and it must be carried out proportionally in accordance with military need.203 While the blockading state has the obligation to allow for the passage of vessels providing humanitarian aid for the population, it has the right to search and monitor the relief consignment. A blockade is nevertheless prohibited if its purpose is to starve the blockaded civilian population and deny them objects essential for their survival, and if its effect is likely to be excessive to the military advantage anticipated.204 There is no doubt that Israel as an occupying power certainly enjoys the right to take necessary measures in order to maintain its security. However, these need to weighed against its other obligations towards the civilians of Gaza. The ICRC has recently condemned the way Israel justifies its measures; “Israel's right to deal with its legitimate security concerns must be balanced against the Palestinians' right to live normal, dignified lives."205 This imposes on Israel the duty to ensure that the needs of people under its control are met substantially.

Israel’s effective control of the air, territorial waters and border crossings to and from Gaza as well as its the supply of electricity, fuel and water, makes the entire living conditions of the population in the hands of Israel. The Israeli government has frequently stated, since the beginning of the blockade, that its sole purpose is to weaken Gaza’s economy and thereby de-legitimize Hamas by turning people against it 206 . Declaring Gaza a hostile territory does not give Israel legal grounds to circumvent its obligations vis-à-vis the civilians.207 On justifying its stand, Israel has declared that, “a country has the right to decide that it chooses not to engage in economic relations or to give economic assistance to the other party to the conflict, or that it wishes to operate using 'economic warfare”208 .Given the outcome of policies that Israel makes in relation to the blockade which deliberately threaten the humanitarian needs of Gazans , it falls short of meeting the requirement of a legitimate blockade under international law and thus is unlawful as it amounts to collective punishment against the civilian population.

Israel’s blockade constitutes two elements: the restriction of movement of goods and persons across the borders, and impeding the passage of humanitarian agencies.

4.1.3

Restrictions of Movement

200

San Remo article 93 and Declaration of London on Naval Warfare 1909. article 95 San Remo Manual.

202 article 94 San Remo Manual.

203 article 97/102(2) San Remo Manual.

204 Article 103 of San Remo Manual.

205 ICRC News Release.” Gaza closure: not another year”. 14 June 2010.

206 Ehud Olmert advisor Dov Weisglass said in early 2006:"The idea is to put the Palestinians on a diet, but not to make them die of hunger." in January 2010, Gisha examined the situation in a report titled, "Restrictions on the transfer of goods to Gaza: Obstruction and Obfuscation," saying that: "Beginning in September 2007, Israel openly stated that it would restrict the movement of goods into and out of Gaza (not for security), but (to) apply 'pressure' or 'sanctions' on the Hamas regime."

207 Supra note. 80.

208 Gisha Report. “Gaza Closure Defined: Collective Punishment.” December 2008.

201

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The manner by which Israel controls the border crossings impedes the delivery of basic goods needed for the survival of the civilian population. Israel severely limits the quantity and variety of goods it allows into Gaza and almost bans exports, as well as the movement of persons, and therefore it violates the fulfillment of basic human rights.

4.1.3.a Border Control

Israel has fully closed all crossings under its control except for the Kerem Shalom. Since 2010, it has been used for the transfer of all types of commodities, resulting in heavy traffic and a likely delay as a result of the incapability of the crossing to sustain delivery of all goods. 209 The UNRWA has noted that the new policy has employed additional financial cost as the Israeli government requires new rules to allow delivery. Shipments are required to be repackaged into pallets and empty containers need to be returned to Israeli authority. The requirement to palletize all container shipments contributed to additional operating charges of 3.61 millions dollars.210 It is important to pay attention that many hostilities take place in close proximity to the borders, therefore becoming fully dependent on only one crossing runs the risk of being subjected to closure for security concerns.

As for movement of persons, Palestinians can only be allowed to cross the borders with permits, and many of those who already have can be arbitrarily denied access into and out of Gaza. This restriction not only violates the freedom of movement, but has huge ramifications on people’s exercise to right of education and attainment of medical treatment.

“The resulting restrictions on movements have disastrous consequences for the entire Palestinian population.

They hamper the activities of emergency medical services as well as access to health care, workplaces, schools and places of worship, and have a devastating effect on the economy. They also prevent, for months on end, Palestinian families from visiting relatives detained in Israel. The concern caused by these practices has grown considerably during the past 14 months as measures taken to contain the upsurge of violence have led to a further deterioration in the living conditions of the population under occupation”.211

4.1.3.b Denial of Goods

Israel’s blockade allows limited entry of basic goods that obviously fall short of fulfilling the needs of the people, and meeting its obligations as the occupying power to allow and ensure an adequate supply of food, medical care, housing and education. Goods are only limited to a “humanitarian minimum”, those considered for the “essential survival of the civilian population”212 .

209

Nahal Oz fuel crossing in January 2010, Sufa crossing closing in 2008 for the import of aggregates in September 2008,a and the almost total closure of Karni crossing, the largest and most equipped commercial crossing .

210 UNOCHA Report. Challenges impeding delivery p.7. see also Updates quick response Plan for Gaza: An Assessment of Needs Six Months After the War p.4 .“On another level, the need for additional funds is a consequence of Israel’s continued policies of closure and isolation, which forestall prospects for Palestinian private sector recovery and post-war rehabilitation and serve to prolong aid dependency and destitution amongst a majority of the population. By extension, increases in humanitarian aid budgets also reflect the continued failure of the international community to protect and guarantee the basic human rights of Palestinians, including refugees who represent around two-thirds of Gaza’s population, as enshrined under international law”.

211 Implementation of the Fourth Geneva Convention in the occupied Palestinian territories: history of a multilateral process (1997-2001) Annexe 1: Conference of High Contracting Parties to the Fourth Geneva Convention Declaration Geneva, 5 December 2001 p.6 . International Review of the Red Cross No. 847, p. 661-695. September 2002.

212 According to Geisha Report of June 2010, The following goods were previously prohibited, but have been allowed into Gaza since June 2010, some of them are allowed if used by international organizations: “Sage, coriander, spices, jam, halva,

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Nevertheless, Israel bans many essential goods that, in its view, serve as dual use objects and could be used to offer military advantage to Hamas by using them for making weapons and launching rocket attacks on Israel. This follows the same logic Israel makes by refusing to allow construction materials for repairing objects it targets during its military attacks. On Commentary to the Additional Protocol 1, the ICRC rejects this approach: “a food supply needed by the civilian population does not lose its protection simply because it is also used by the armed forces and may technically qualify as a military objective. It has to be used exclusively by them to lose its immunity.”213 In a recent statement, the ICRC has commented on the dreadful medical situation in Gaza due to Israel’s policy of refusing ,or at best delaying, the entry of certain electronic medical equipments which, according to Israel, might serve other non-medical purposes as well banning the entry of necessary spare parts including laboratory bloof analysers, mammography machines and cardiac monitoring equipments.214 In order to hamper the economic development in Gaza, Israel prohibits the entry of raw materials that could be used for industrial purposes and limits cash flow in the Strip.215 Regarding the supply of fuel and cooking gas, Israel only allows minimum supply that hardly meets people’s need, in order to make sure they are not being used for any industrial purposes. In a Geisha report, “One example that illustrates this policy is that Israel allows the residents of Gaza to receive small packages of margarine, which are considered a consumer item; however, Israel prohibits the transfer of large blocks of margarine to Gaza, because those blocks are for “industrial” rather than “household” use: they might, for example, allow a local factory to manufacture biscuits, and thereby engage in economic activity”.216 Banning entry of construction materials poses one of the biggest problems affecting the welfare of the population, in particular regarding the denial of the right of housing. Many construction projects by humanitarian agencies have been put to a halt as a result of denial of entry of certain construction materials. Also, one of the major challenges facing humanitarian agencies is that Israel has refused to disclose a list of permitted goods and import procedures. Based on the experience of work of humanitarian organizations, they have compiled an approximate list of goods of what the Israeli government allows on a regular basis217 . This results in continuous denial of certain goods since Israel decides on entry of goods on a case-to-case basis218 . Negotiation is timely consuming as a result of lack of clarity and arbitrariness of the Israeli government and its failure to communicate to humanitarian agencies which items are allowed. For example, some of the prohibited items such as paper, biscuits, and chocolate are sometimes granted entry on the condition they are being used by international organizations, and not by private businesses.219

vinegar, nutmeg, chocolate, fruit preserves, seeds and nuts, biscuits, sweets, potato chips, gas for soft drinks, dried fruit, nets for greenhouses, ropes to tie greenhouses, writing implements, toys, towels, buttons, mattresses, razors, kitchenware, perfume, cosmetic products”. The following items are still prohibited” fresh meat plaster tar wood for construction cement iron glucose industrial salt plastic/glass/metal containers industrial margarine tarpaulin sheets for huts fabric (for clothing) flavor and smell enhancers fishing rods, various fishing nets, buoys, ropes for fishing nylon, spare parts for tractors dairies for cowsheds irrigation pipe systems, planters for saplings, heaters for chicken farms, musical instruments, size A4 paper, notebooks newspapers sewing machines and spare parts heaters horses donkeys goats cattle chicks” 213 ICRC. Commentary to the Geneva Conventions of 1949. p.310.

214 ICRC. “Gaza: ailing health-care system puts lives at risk.” Interview with Eileen Daly, ICRC's health coordinator. 1 July 2010.

215 UNRWA. “Updated quick response plan for Gaza: An assessment of needs six months after the war”, “Meanwhile, restrictions on the entry of bank notes via Israel have tightened in the aftermath of the war, impacting negatively on payments of salaries and social welfare assistance.” July 2009. p.10 216 Geisha center Report Restrictions on passage of goods into and out of Gaza 217 Partial List of Items Prohibited/Permitted into the Gaza Strip June 2010, BBC List of commercial goods allowed for import into Gaza, April 2010.

218 BBC List of commercial goods allowed for import into Gaza, April 2010.

219 Partial List of Items Prohibited/Permitted into the Gaza Strip June 2010

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It is worth mentioning that Israel has lately started to change its policies with regards to the denial of basic goods. As of April 2010, Israel announced that it would allow the entry of some construction materials including aluminum and wood. In particular, following the Freedom Flotilla attack, Israel has been subjected to wide denunciation has recently announced a new future policy that aims at easing the blockade. The Israeli Cabinet has announced in a recent statement that Israel would "expand the transfer of construction materials designated for projects that have been approved by the Palestinian Authority, including schools, health institutions, water, sanitation and more – as well as (projects) that are under international supervision”. 220 This includes publishing a list of all banned goods, of which all other non-listed goods will be allowed in. 221 The list is particularly important since it tends to assess earlier banned materials that were classified by Israel as “dual-use” objects222 . This would cover a specific list of weapons and war materials that could be used by Hamas “to prepare and carry out terror and rocket attacks towards Israel and its civilians”223 . Earlier banned objects such as humanitarian aid, food, and construction materials are to be allowed unrestricted entry.

4.1.4 Impeding Humanitarian Missions 4.1.4.a Administrative Restrictions

In general, Israel imposes administrative restrictions that impede the ability to provide for the needs of the population. These measures negatively influence humanitarian missions as they result in extra financial and administrative costs.224 Humanitarian organizations encounter a number of access and operational challenges that hamper the effective aid delivery.

Humanitarian personnel face major challenges concerning their freedom of movement relating to entry permit visas and delay at border crossings which subsequently affect the quick fulfillment of humanitarian operations, as they require prior coordination which adds additional administrative costs.

The Israeli policies are often vague regarding the entry requirements as they justify that with military and security concerns.225 For example, foreign nationals working for international NGOs are given tourist visas and might not be granted entry into some regions. Moreover, the UN and other organizations staff are each subjected to different entry process. National staff (UN and other international organizations) are subject to prolonged application process and are required to have an Israeli permit to enter through Erez checkpoint.226 Many of the UN personnel involved in humanitarian missions are subjected to individual and premises’ searches. This falls in violation with Israel’s obligation to respect the inviolability and immunity of UN staff under the UN Charter and other relevant treaties.227 Article 105 of the UN 220 Benhorin, Yitzhak; Associated Press . "Cabinet: All non-military items can enter Gaza freely". 20 June 2010 Ynet news.

June 21, 2010.Lis, Jonathan, Haartez "Netanyahu: Decision to ease Gaza siege weakens Hamas". 21 June 2010.

221 Not disclosed yet.

222 BBC. “Israel sets out changes to Gaza blockade curbs.” 20 June 2010.

223 aljazeera English . “Israel to allow more Gaza goods.” 21 June 2010. BBC News. “Israel sets out changes to Gaza blockade curbs.” 20 June 2010.

224 Annex 1. “ The participating High Contracting Parties call upon the Occupying Power to facilitate the relief operations and free passage of the ICRC, UNRWA, as well as any other impartial humanitarian organization, to guarantee their protection and, where applicable, to refrain from levying taxes and imposing undue financial burdens on these organizations”.

225 OCHA Special Report “Impeding assistance: challenges to meeting the humanitarian need for Palestinians.” May 2010 226 Id. p.17.

227 UN privileges and immunities are part of international law and are found mainly in treaties, notably: UN Charter;1946 Convention on the Privileges and Immunities of the United Nations; 1947 Convention on the Privileges and Immunities of Specialized Agencies; and Bilateral agreements between the UN and/or UN agencies such as UNRWA and relevant governmental authorities, e.g., Jordan, Lebanon, Syria, Palestinian Authority, PLO, Israel12

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Charter provides that the organization shall enjoy in the territory of each of its members such privileges and immunities as are necessary for the fulfillment of its purposes.

Humanitarian staff in Gaza encounters another problem concerning freedom of movement and access.228 The Israeli forces restrict driving through crossings only to limited organizations; particularly ICRC and some senior UN officials, while others walk through the crossing on foot. 229 This poses huge risks on the safety of the staff especially if hostilities intensify, as they usually occur across borders, and puts Israel in violation of its duty to ensure the safety of humanitarian personnel.

4.1.4.b Attack on Humanitarian Missions

Part of Israel’s obligations to protect and respect humanitarian personnel is to refrain from attacking them unless legally justified. Failure to distinguish between military and civilian objects has frequently resulted in attacking humanitarian convoys unjustly. During operation Cast Lead, many UNRWA premises were attacked resulting in intensive casualties, as many UNRWA schools were made the target of an attack.230 A recent example of Israel’s questionable respect for humanitarian missions is the Freedom Flotilla attack that aimed at providing humanitarian assistance to the population of Gaza and to protest- and bring to an end- the Israeli blockade. It is worth noting that the recent attack has brought ramifications on Egyptian policy on the way it operates Rafah border, after which it announced its opening indefinitely.

The Gaza Freedom Flotilla, consisting of six civilian ships and 700 human rights activists and journalist from over 40 countries, carrying over 10,000 tonnes of aid and supplies for Gazan civilians231 . While Still in international waters, on 31 May Israeli commandos boarded the vessels from helicopters and attempted to take control of the ship through the use of weapons including live ammunition fire. The confrontation between the Israeli naval commandos and the civilians on board resulted in the death of at least 9 civilians and more injuries, and others are still held by Israel232 .

Israel’s interception of the flotilla and attack of persons on board has subjected Israel to international condemnation for failing to respect the humanitarian mission and persons involvedwho are primarily protected by virtue of their civilian character- and reminded the international community again of the humanitarian situation in Gaza.

On a press release Israel claims: “The organizers of the flotilla scorned Israel’s efforts to prevent the vessels from reaching Gaza, via diplomatic dialogue, announcements in advance and declarations over the radio. The organizers of the flotilla similarly rejected Israel’s offer to transfer the aid on board directly to Gaza via Israel, thereby 228

Various UN resolutions called for the safety and freedom of access of humanitarian staff to facilitate the fulfillment of the mission. General Assembly resolution 60/123(2006) Security Council resolution 1674 (2006) 229 Supra note 225 at p.18.

230 UNRWA challenges, Senior official gives eyewitness account of Israeli shelling of UN Gaza compound 15/January 2009, UN news center 231 The Attack on the Gaza Freedom Flotilla and International Law. Lawyers for Palestinian Human Rights | http://www.lphr.org.uk 232 Amos Harel; Avi Issacharoff, Anshel Pfeffer and News Agencies 31 May 2010 "Israel Navy commandos: Gaza flotilla activists tried to lynch us". Haaretz, Slackman, Michael. "In Bid to Quell Anger Over Raid, Israel Frees Detainees". New York Times. 3 June 2010, BBC News Reynolds, "Israeli convoy raid: What went wrong?".2 June 2010. Aljazeera English."Turkey holds activists' funerals". 03 June 2010 Los Angeles Times. Edmund Sanders 1 June 2010. "Israel criticized over raid on Gaza flotilla". Al Jazeera. "Israel attacks Gaza aid fleet". May 2010. CNN Wire Staff "Israeli assault on Gaza-bound flotilla leaves at least 9 dead". 31 May 2010.

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attesting that their goal was to “break the blockade.”

Due to lack of enough supporting evidence, it is still not possible to assess the legality –or not- of the attack. Israel justifies its action based on Article 67(a) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, which permits attacking neutral merchant vessels that “are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture.”

The US Naval Handbook defines naval blockade as “a belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation.”233 Again, blockades need to meet certain requirements in order to be legitimate, but in the case of Gaza as it is inherently imposed against the civilian population, it falls in clear violation of the law and amounts to collective punishment.234 Accordingly, the Israeli attack appears unlawful given the illegality of the blockade on the first place. The right of Israel to search and inspect neutral vessels, and specifically humanitarian ones, is uncontested by virtue of its status as the blockading party. A neutral ship must obey a request by the blockading party to allow for its inspection, But again, states enforcing a blockade are under an obligation to allow the passage of humanitarian vessels to meet the needs of people subject to its control. San Remo Manual specifies that this inspection should include supervision by a neutral party to prevent the unwarranted seizure of humanitarian supplies and the abuse of humanitarian assistance by the blockaded party.

Moreover, if situation so demands, a blockading party has the right to resort to the use of force if neutral vessels appear to be hostile. Nevertheless, the rules of proportionality become essentially relevant in these situations. Humanitarian personnel are afforded the right to use force for selfdefence when encountering hostilities, and accordingly the weapons used by the armed forces Israeli naval commandos in this case- should have been proportional in that regard.

The flotilla attack is being heavily examined at this moment and many call for an independent fact finding mission to assess the situation. Nevertheless, Israel has refused to disclose any relevant supporting documents that might justify its action. The confiscated relief consignments of the flotilla have not been released by Israel yet.

4.2

Hamas

As a party to the conflict, Hamas is bound by the rules on humanitarian assistance under international humanitarian law. Except for the specific rules applicable to an occupying power, Hamas shares the same obligations-under customary international law and Common Article 3 of the Geneva Conventions- with Israel to allow the unimpeded and free passage of humanitarian aid to the affected population235 .

Generally, international humanitarian law imposes duties on non-state actors as parties to the conflict towards the civilians of the adversary party. However, with regards to special situation of Gaza, Hamas is under an obligation to ensure the welfare of the population subject to its de facto control, and thereby ensure the delivery of relief consignments to the civilian population.

4.2.1

Application of Human Rights Law to Non-State Actors

233

The US Naval Handbook article 7.71.

The Goldstone Report pp. 74.

235 In 2004 the Appeals Chamber of the Sierra Leone Special Court simply held that ‘‘it is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties’’.

234

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Originally non-state actors were solely held criminally liable for violations of international humanitarian law during armed conflicts. Notwithstanding the nature of violations committed in that context, it became highly recommendable that human rights norms should bind non-state actors to ensure the utmost protection of civilian populations under their effective control. In the words of Meron, “the gap between the norms which govern international armed conflicts, and those which govern non-international armed conflict, is narrowing down as a result of human rights considerations which call for increased protection for victims of armed conflicts.”236 This logic stems inherently from the law of non-international armed conflicts where non-state actors were involved in hostilities with their national government, and the impact of the conflict would touch upon the civilians within the same territory. Most importantly, the application of human rights law enjoins non-state actors to respect their obligations under that regime in situations where the threshold of armed conflict has not been met.237 Also, the monitoring bodies and accountability measures under human rights law are far developed than those of humanitarian law, which in turn strengthens the system of protection of civilians. Theo Van Boven’s Guiding Principles on the Rights to Remedy and Reparations of Victims for violations of human rights law and humanitarian law, adopted by the General Assembly under Resolution 60/147, is essentially based on the reparation mechanisms under human rights instruments. 238 It is widely accepted that international human rights law has developed progressively that obligations under this body of law extend to non-state actors, along with states. Those which have a high level of organization and in particular exercise government-like functions, and therefore displaying authority are expected to be bound by human rights law. Linday Moir, an opponent to this theory, argues that the law has not developed well enough to address this issue and unlike international humanitarian law, non-state actors are unable to meet the control needed to hold them liable for obligations under human rights, for example the right to due process, and their inability to establish their own legal system239 . While this view establishes a high threshold of applicability, Hamas -not a fully-fledged govenment- has reached enough level of administrative authority and military organizational level, albeit subject to the effective overall control of the Israeli occupation, to hold it accountable for its human rights obligations towards the Gazan population. 240 Moreover, it exercises jurisdiction over the territory and its inhabitants, which is a key point to the application of human rights law. This view has already been supported in various reports by Special Rapporteurs with regards to Hezbollah’s accountability during the HezbollahIsrael war:

“Although Hezbollah, a non-State actor, cannot become a party to these human rights treaties, it remains subject to the demand of the international community, first expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human rights. The Security Council has long called upon various groups which Member States do not recognize as having the capacity to do so to formally assume international obligations to respect human rights. It is especially appropriate and feasible to call for an armed

236

Theodor Meron, “The Humanization of Humanitarian Law”, 94 Am. J. Int'l L. (2000), p. 239.

Andrew Clapham” Human rights obligations of non-state actors in conflict situations.” International Review of the Red Cross. Volume 88 Number 863 September 2006 p. 505.

238 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005 239 Lyndsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002;p.194.

240 Sigall Horovitz , “the Hamas does not amount to a legitimate government of a recognized state, and is therefore considered a non-state actor. However, it has a high level of organization, with a structured military force, political and social components, and de facto control over a defined territory, Gaza”. Accountability of the Hamas under International Humanitarian Law: Background Paper for the JCPA Conference of June 2009. See paragraph 237

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group to respect human rights norms when it ‘‘exercises significant control over territory and population and has an identifiable political structure.241

In various occasions, international bodies have acknowledged the duty of non-state actors to comply with the law regardless of not being a party to legal instruments. The commentary to the Geneva Conventions explains how a non-state entity can be bound by a treaty to which they are not a high Contracting Party, 242 the same logic stands with respect to human rights law instruments;

“The commitment made by a State not only applies to the government but also to any established authorities and private individuals within the national territory of that State and certain obligations are therefore imposed upon them. The extent of rights and duties of private individuals is therefore the same as that of the rights and duties of the State. Although this argument has occasionally been questioned in legal literature, the validity of the obligation imposed upon insurgents has never been contested.” 243

While not being parties to treaties, many armed groups nowadays operate through a code of conduct where they acknowledge their obligators under the law during a situation of armed conflict.244 With regards to Afghanistan, Taliban has issued a code of conduct prohibiting the deliberate attack of civilians and calling upon its fighters to avoid unnecessary civilian casualties.245 In Sri Lanka, the LTTE group announced its obligations under international humanitarian law and human rights law to refrain from recruiting child soldiers.246 In many situations, armed groups refer to human rights norms as customary law,247 and many of these agreements stipulate that the beneficiaries of humanitarian aid are to enjoy the following rights: ‘‘the right to live in security and dignity, the right to basic needs, the right to receive humanitarian assistance without discrimination and according to basic needs, the right to be involved in humanitarian activities of concern to them, the right to legal and effective human rights protection, and the right to protection against forced population transfer.’’248 The Universal Declaration of Human Rights calls for every organ of society to respect and promote human rights, without specifically referring to states. Also, some basic legal principles bind non-state actors and states alike; for example, an individual is entitled to the status of refugee if there is a well-founded fear of persecution by a non-state actor. The Convention on the Rights of Child enjoins certain human rights obligations on non-state actors with regards to child soldiers. The CESCR on its General Comment on the right to foods states the general obligation of all members of society for the realization of right to adequate food. Moreover, many human rights organizations have called on armed groups to observe their human rights obligations that are outside the scope of humanitarian law obligations. For example, Amnesty International demands armed groups to refrain from recruitment under the age of 18, abuses of humanitarian 241

Supra note 237 at 507 . Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-General on human rights of internally displaced persons, Walter Kalin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc. A/HRC/2/7, 2 October 2006, pp 19.

242 Supra note 237 at p.496.

243 Sandoz, Swinarski, and Zimmermann, pp. 4444.

244 Supra note 237 at p.520.

245 Aljazeera. English “Taliban issues code of conduct.”28 July 2009.

246 Special Representative of the Secretary-General for Children and Armed Conflict, Report of the Special Representative of the Secretary-General for Children and Armed Conflict, at 9.

247 Jean-Daniel Vigny and Cecilia Thompson, ‘‘Fundamental Standards of Humanity: What Future?’’ Netherlands Quarterly of Human Rights, Vol. 20, 2002, pp. 185–99, p. 193.

248 Id. p.194

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workers and denial of freedom of expression through restricting the work of journalists.249 Similarly, Human Rights Watch addressed the violations of armed groups on inflicting physical abuses by an armed group on their own fighters.250 With regards to humanitarian assistance the UN Security Council has repeatedly recognized the responsibility of non-state actors to ensure the safety of humanitarian personnel and unimpeded delivery of humanitarian assistance to civilian population, an obligation that falls under both bodies of law.251 In Guinea-Bissau, the Security Council called on ‘‘all concerned’’ to respect relevant provisions of humanitarian law and human rights, as well as to ensure unimpeded access by humanitarian organizations. 252

4.2.2

Hamas Practices with respect to Humanitarian Assistance

As soon as Israel authorizes the passage of relief consignments into Gaza, the obligation to ensure the effective, impartial and non-discriminatory distribution of aid becomes the responsibility of Hamas. It should be acknowledged that Hamas’s de facto government has been able to relatively restore the devastated economy of Gaza, through foreign aids and the operation of tunnels underneath the borders and levying taxes on smuggled goods, and thus helps to alleviate the suffering of the civilian population. However, it remains important to see how far does Hamas comply with its obligations under the law.

Hamas’s relation with humanitarian organizations is significant since the survival of the Gazan population depends primarily on aid provided by foreign donors and humanitarian organizations.

The atmosphere of mutual distrust that governs the relation between the two sides leads to ineffective aid delivery. On the side of aid providers, in particular specific country donors, some have implemented a “no contact” policy with the Hamas authorities which indeed poses difficulties on the technical level since it obstructs negotiations. 253 This in fact leads to a discriminatory distribution that is not necessarily based on the priority of needs since many organizations choose their beneficiaries on a political and geographical basis, and thereby refrain from supplying areas or implemented projects in areas that are administered by Hamas.254 On the other hand, Hamas’s government employs difficult procedures that also impede the rapid and efficient aid delivery to the affected population. This goes to requiring humanitarian organizations, as well as UN agencies, to follow requests that end up making administrative burden on the work of the humanitarian agency. The staff of the agencies is under pressure to share confidential information with Hamas and are usually being questioned on an individual basis rather than the organization they represent.255 Hamas has also failed to observe its obligation to allow the free passage, and distribution of goods, to people under its control through levying taxes on distributed goods. Occasionally, the Gaza authorities have confiscated property belonging to the organizations. After operation Cast Lead, Hamas has confiscated UNRWA aid 249

Supra note 237 at p. 511.

Id. and see also Human Rights Watch, ‘‘No Exit: Human Rights Abuses Inside the MKO Camps’’ May 2005.

251 With respect to the situation in Guinea-Bissau, the Security council in resolution S/RES/1216 (1998) Para 5. ‘‘Calls upon all concerned, including the Government and the Self- Proclaimed Military Junta, to respect strictly relevant provisions of international law, including humanitarian and human rights law, and to ensure safe and unimpeded access by international humanitarian organizations to persons in need of assistance as a result of the conflict.’’ See also SC Res. 1265 (1999), preamble; SC Res. 1193 (1998), pp. 12, 14; SC Res. 814 (1993), para. 13’’.

252 S/RES/1216 (1998) pp. 5. ‘‘Calls upon all concerned, including the Government and the Self- Proclaimed Military Junta, to respect strictly relevant provisions of international law, including humanitarian and human rights law, and to ensure safe and unimpeded access by international humanitarian organizations to persons in need of assistance as a result of the conflict.’’

253 Supra note 225 at p.17.

254 Id. 255 Id. 250

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convoys that were directed to the civilians devastated by the military strike. This might in fact threaten the sustainability of the civilian population if such organizations decided to halt their aid because of Hamas practices256 .

The tensed relation between Hamas and PA has negative impact on the provision of humanitarian assistance, in which each party impedes the delivery of supplies through technical difficulties in arranging between the two governments.257 The latest OCHA report had in particular referred to the negative implications on the medical situation due to the Hamas-PA rivalry. Problems with coordination between the groups stands in the way of immediate transfer of medications and patients with urgent medical cases.258

4.3

Egypt

The Gaza Strip has always had a special relation with Egypt due to its geographical proximity.

Since the Israeli blockade has been imposed on Gaza, the Egyptian side of the border is regarded as the last resort to the humanitarian crisis facing the population of Gaza. By sharing the only crossing that is not directly controlled by Israel, the Egyptian policies concerning the operation of the border and free passage of relief consignment have deep ramifications on the welfare of Palestinians.

Although Egypt is not a party to the ongoing armed conflict between Hamas and Israel, international humanitarian law imposes general obligations on its side as a High Contracting Party to ensure respect of humanitarian law, to allow aid delivery259 -subject to technical arrangements- and to refrain from engaging in acts that may hold it liable for violations of international humanitarian law.

Egypt has been accused of imposing another blockade on Gaza due to the sporadic and irregular operation of the Rafah border crossing, which may amount to collective punishment on the civilian population. The ICJ in the Wall opinion clearly expressed the responsibility of High Contracting Parties under Common Article 1 to the Geneva Conventions; “Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction…In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention” 260.

256

"Field Update on Gaza From the Humanitarian Coordinator". UN Office for the Coordination of Humanitarian Affairs.

2009-02-05. "On 3 February, over 3,500 blankets and 406 food parcels were confiscated by Hamas police personnel from an UNRWA distribution centre in Beach Camp."

257 Oxfam, “Failing Gaza: No rebuilding, no recovery, no more excuses”. December 2009.

258 OCHA, humanitarian monitor, May 2010.

259 Article 23of GCIV, commentary “the Power authorizing free passage has the right to check the consignments and arrange for their forwarding at prescribed times and on prescribed routes”.

260 ICJ. the Wall advisory opinion.pp.159. see also Annexe 1: Conference of High Contracting Parties to the Fourth Geneva Convention Declaration. International Review of the Red Cross 2002 No. 847, p. 661-695 “Whatever the means chosen, however, the ICRC wishes to emphasize that any action States may decide to take at international level must be aimed at achieving practical results and at ensuring application of and compliance with international humanitarian law, in the interests of the protected population”.

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International human rights law plays a great role in this context and is significantly relevant since it fortifies Egypt’s obligations towards the population on Gaza when it comes to the pertaining humanitarian situation. With regards to the situation in Gaza, human rights law is likely to provide more detailed obligations on Egypt to respect and fully realize certain norms if it comes subject to Egyptian control or its ability to fulfil or deny such rights. This relates to the manner Egypt operates the Rafah border crossing, and the construction of the steel wall, which while a legitimate right has far-reaching effects on the realization of human rights especially that it further tightens the blockade by denying supply of humanitarian goods. Again, this approach is based on the ability of human rights law to extend extraterritorially, particularly if governmental policies may have impact on the life of people under its jurisdiction or control.261

4.3. 1 Border Control and Responsibility of Egypt towards the ESC Rights

Egypt has earlier operated the border crossing rigidly; it only allowed its opening for a limited time monthly, sometimes denying the passage of “politically motivated” aid convoys, and required an access permit to people coming into and out of Gaza.262 However, the borders open with less restriction to allow passage of urgent cases seeking medical treatment and students. Following the Freedom flotilla’s attack, Egypt has announced the opening of the border crossing indefinitely and has relatively eased the passage of people and humanitarian goods. While it remains unclear what is the nature of future Egyptian policy with respect to the administration of the border, it is important to articulate Egypt’s responsibility towards the civilian population, albeit theoretically, from a human rights perspective.

Egypt’s obligations towards the civilian population are based on how it operates Rafah opening to allow the passage of humanitarian needs, regardless of its bitter relation with Hamas. The almost full closure of Rafah border crossing and halting tunnel smuggling puts the civilians in dire humanitarian crisis as it further strangles the Gazan economy. Even though Gaza does not fall under the jurisdiction or control of Egypt, the responsibility of the latter is based on the extraterritorial effects of its policies. Howland clearly expresses that “the term ‘jurisdiction’ is not limited to the national territory of the High Contracting Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory.”263 The far-reaching formulation of human rights is already well-established in the UN Charter and the Universal Declaration of Human Rights obliging states to promote and ensure the universal respect of human rights. More specifically, various human rights instruments to which Egypt is party to, whether including a jurisdictional clause or not, refer to the absolute application of right to everyone with no adverse distinction of any kind such as race, sex, religion, or political grounds. The three-folded requirement for fulfilling human rights law holds Egypt liable for the full realization of human rights, both through separate action and international cooperation.264 As with the case with Israel, Egypt’s obligation under the ICESCR is of significant relevance since most human rights affected by the Egyptian policies belong to this category, particularly those relating to the right to life and adequate standard of living.265 With regards to the movement of persons, the irregular opening of Rafah crossing affects the freedom of movement of people coming into or out of Gaza. Restricting access of people negatively 261

Section 3.2.3.

Almasry Alyoum News Paper. Pakinam Amer. “Today's papers: Mubarak in Port Said, Gaza activists in Cairo”. 29 December 2009.

263 Todd Howland. “The Multi-State responsibility for extra territorial violations of Economic, Social, and cultural Rights”.

Denver Journal of International Law and Policy. VOL. 35:3/4 .24 March 2008. P.404.

264 Articles 2 (1) and 23 of the Covenant, Article 56 of the Charter of the United Nations, article 10 of the World Declaration on Education for All, and Part I, paragraph 34 of the Vienna Declaration and Programme of Action 265 Section 3.2.2.

262

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affects Palestinians’ right to asylum, and in certain cases may amount to violating Egypt’s obligation of non-Refoulment. The absolute right of education is violated as well in situations where Egypt refuses to grant permit to students to cross borders, especially that many Palestinians seek higher education in Egyptian universities.266 The CESCR on its General Comment no. 13 on the right to education explains that education should be accessible to everyone with no distinction especially most vulnerable groups in law, in this case people under occupation.267 The Committee mentions specifically the duty of third parties to refrain form measures that interfere with the enjoyment of this right, and to facilitate the realization of education by the means at their disposal.268 The right to adequate food is severely impaired by the closure of borders and denial of the passage of relief consignment. Notwithstanding that Egypt is not under the obligation to provide the population of Gaza with food supply, it is responsible not to deliberately add up to the starvation of people by impeding the delivery of food. The CESCR attempts to clarify the wide scope of implementing this right that touches upon the responsibility of state parties towards other countries; “States parties should refrain at all times from food embargoes or similar measures which endanger conditions for food production and access to food in other countries. Food should never be used as an instrument of political and economic pressure. In this regard, the Committee recalls its position, stated in its General Comment No. 8, on the relationship between economic sanctions and respect for economic, social and cultural rights”.269 This clearly supports that constraining the fulfillment of right to adequate food can never be justified on any political or legal ground and Egypt’s attempts to pressure Hamas by denying access occasionally is in clear violation of its obligations.270

4.3.2 The Impact of the Steel Wall on the Realization of the Right to Water

The Egyptian decision of building an underground steel wall across its borders with Gaza is a legitimate right guaranteed by state sovereignty and the right to protect national security from the illegal tunnel smuggling. Nevertheless, The building of the steel wall produces challenging consequences on the realization of the right to water. Few scientific studies have discussed the ramifications of building an underground wall on the aquifer on which the Gazan population receive their water supply. Abd Al-Fattah Abed Rabu, a lecturer in Environment Sciences at the Islamic University describes the impact of wall building, “Construction of the wall will contribute to contaminating the aquifer due to soil weakness and inconsistency which, in turn, will contribute to the deterioration of the quality of water. This will lead to an increase in the poor state of local environment and will affect the health and environmental conditions of those in Gaza.”271 266

Saif R. Samady. “Education for Palestine refugees.” Gisha report, “Israel Undermines Higher Education – and its Own Best Interest – in Gaza”. 22 October 2007. The Palestinian Centre for Human Rights. “An Education denied: report on the Impact of the closure of border crossings on students from the Gaza Strip studying abroad.” 22 November 2009.

267 the CESCR: General Comment no. 13(2003) :the right to education pp.47.

268 id.

269 The CESCR, General comment no. 12 (2005):The right to adequate food (Art.11) para.37 270 Randle C. DeFalco “The extraterritorial obligations created by the right to adequate food are especially important in the realm of trade, as even general trade sanctions or non food-related trade blockades often cause great civilian suffering, including famines”. Legal Implications of Operation Cast Lead Spring 2009 The Right to Food in Gaza: Israel’s Obligations Under International Law. Internet Journal of Rutgers School of Law Newark Volume 35 .

271 Ma’an News agency Experts: Egypt's wall will destroy Gaza' aquifer Published Sunday 17/01/2010 (updated) 22/01/2010.

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Water expert Nezar Alweheidi noted that the metal wall will result in the destruction of the aquifer, resulting from pollution which will likely lead to devastating environmental, economic and social outcome for both Egyptians and Palestinians, due to the destruction of drinking wells and those used for agriculture and other industries.272 The extensive digging might also result in soil erosion as a result of salt water being pumped underground and thus lead to collapse of buildings in proximity to the wall. Alweheidi similarly articulated the contribution of tunnels on salting the water.273 This will definitely have negative consequences on the irrigation of agricultural land.

The wide scope of implementing the right to water has also been highlighted on the General Comment no. 15 relating to the right to water. The Committee has similarly articulated the right to accessible water without discrimination, with the duty of ensuring the enjoyment of this right by vulnerable groups. 274 The committee pays special attention to the obligation of third parties to refrain from, directly or indirectly, interfering with this right in other countries,275 “any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction�. Again, imposing sanction or embargoes that prevent the supply and access to water is legally, and ethically, unacceptable.276

272

id. id.

274 The CESCR general comment no.15(2002) on the right to water, articles 11 and 12 of the ICESCR .Para.12 275 Id. pp. 23, 32,33, 34.

276 The United Nations Convention on the Law of Non-Navigational Uses of Watercourses requires that social and human needs be taken into account in determining the equitable utilization of watercourses, that States parties take measures to prevent significant harm being caused on other territories. arts. 5, 7 and 10 of the Convention.

273

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5. Conclusion

The Israeli blockade that was imposed on Gaza since 2007 continues to have detrimental effects on the lives of 1.5 million Palestinians, reaching an unprecedented level of aid dependency of 80% since Gaza was occupied by Israel in 1967.277 The Consolidated Appeal Process has estimated a humanitarian funding which exceeds $ 666 millions for the year 2010 in order to cover the needs of people.278 The humanitarian crisis in Gaza was created by restricting access of goods and people through the Israeli closure of border crossings under its control subsequent to Hamas’s seizure of Gaza in the same year. Impeding the movement of goods and people have devastating effects on the welfare of the Gazan population which is no longer able to self-sustain its needs as a result of the ruined economy under the control of Israel, nor to benefit from unimpeded and rapid passage of humanitarian assistance due to the Israeli policies.

The responsibility of Israel to ensure the wellbeing of the civilian population principally emanates from its status as an occupying power, and thus remains the primary party responsible to fulfil the human rights needs of the population under its control. Regardless of the Israeli stringent measures, the current situation in Gaza clearly illustrates the involvement of other parties and their responsibility to ensure the welfare of the people of Gaza. Hamas, following its successful takeover of Gaza, has become the de facto government, hence responsible for the wellbeing of people under its control, as well as its responsibility as a party to the conflict. Egypt has a unique status with respect to the situation in Gaza due to its control over the only border not controlled

by Israel, and thus plays a great role in administering humanitarian passage across its territory.

In the course of my research, I attempted to look at the responsibility of Israel, Hamas and Egypt respectively towards the fulfillment of their obligations of the right of the civilian population of Gaza to humanitarian assistance, a right guaranteed under international humanitarian law and international human rights law.

Assessing the legal obligations of the aforementioned states and entities requires primarily a clear understanding of the legal status of Gaza in light of the current factual situation, and then the legal framework regulating their obligation towards the right to humanitarian assistance.

The Israeli unilateral evacuation of Gaza in 2005 and Hamas’s takeover in 2007 have certainly created some challenges to the legal qualification of the Gaza Strip as an occupied territory. A territory is considered occupied when the adversary party is able to exercise effective control over the territory within the meaning of the Hague Regulations. Upon the fulfillment of this criterion, the occupying power is bound by the Fourth Geneva Convention for the welfare of the civilian population under its control. This includes meeting the humanitarian needs of the people and ensuring adequate standards of living concerning their right to food, water, shelter, education and medical care. In case the occupying power is unable to meet the needs of the civilians, it is under the obligation to allow third parties to provide relief consignments to the affected population.

Whether Israel is still the de jure occupying power would depend on its ability to exercise effective control pursuant to its disengagement and Hamas’s seizure of Gaza. As intensively discusses in 277

B’Teslem Human Rights Review 1 January 2009 to 30 April 2010, June 2010, Gisha: Three Years of Gaza Closure By the Numbers, June 2010. Amnesty International, Israel Gaza blockade must be completely lifted 17 June 2010.

278 CAP: Humanitarian Appeal 2010, OCHA, “over $664 million is needed for humanitarian assistance for Palestinians” 9 December 2009.

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Chapter 2, in light of the changed circumstances, Israel successfully maintained substantial control over Gaza. Even with the removal of armed forcers and settlements from Gaza, the terms of the disengagement plan unequivocally granted Israel the right to enter Gaza and deploy its military forces there at any time. Israel continued to control the airspace, territorial waters and all border crossings into and out of Gaza, therefore controlling its territorial perimeter and access of people and goods. Handing Rafah border crossing to the Palestinian Authority was on the condition that the EU BAM will monitor the performance of the PA, which would only grant entry upon an Israeli permission. Israel remains the only source of supply of fuel and electricity into Gaza, especially after the damage inflicted on the infrastructural buildings by the Israeli attacks.

The Hamas government has not changed the Israeli aspect of control over Gaza. The Gaza authorities were able to sustain the administration of Gaza by carrying out some governmental functions that to some extent helped to maintain the welfare of people. Hamas has also relied on some sources in order to alleviate the impact of the Israeli blockade on the Gazan economy through levying taxes on the population, and smuggling tunnels that have helped in transferring basic commodities to the population, as well as weapons.

The factual background in Gaza is dubious if it is to be assessed within the traditional meaning of occupation, given the absence of Israeli forces on ground and presence of an administering government. Nevertheless, the law of occupation does not require the presence of military forces per se as a condition for the effective control over the occupied territory. Effective control can certainly take different forms and in this case given Israeli aspects of control over Gaza, which have not been affected by Hamas, Israel has effective overall control over Gaza in terms of movement of people and goods into the territory. This falls in line with the meaning of occupation under the Fourth Geneva Convention in which people are under the control of the occupying power, and thus afforded protection under the convention. Similarly, the existence of a national administrative government does not preclude the occupying power from pursuing its role, unless that government is completely effective and independent.

As a result, The Gaza Strip continues to be under the Israeli occupation, which entails Israel the primary responsibility to ensure the welfare of the people under its control.

The law of occupation similarly grants the occupying power the right to protect its security through taking necessary measures while observing the needs of the population. A blockade is a legitimate means of warfare that is not prohibited per se under international law.279 However, certain conditions need to be met for a blockade to be legal, including not having the primary effect of starving or threatening the life of the blockaded population.

It goes without saying that the Israeli policies and measures relating to the blockade have resulted in a grave humanitarian crisis in Gaza whose effects only reach the civilian population. The blockade has not brought any military advantage for Israel over Hamas, because it essentially attempts to strangle the people of Gaza by denying them access to humanitarian needs, which can be easily deduced from Israeli statements on justifying the blockade based on its security concerns.280 In that sense, Israel’s continual to unjustifiably impede humanitarian assistance to reach the affected population by compounding the facilitated operation of impartial humanitarian organizations supports this view. The applicability of human rights law during occupation and specifically in Gaza has been widely accepted since it reinforces the obligations on Israel and not to give any grounds for failing to realize its duties under international law, with respect to the absolute rights to food, water, shelter, education and medical care.

279 280

Section 4.1.2.

Supra note 80 and 208.

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As a party to the conflict and the de facto government, Hamas subsequently shares responsibility to ensure the wellbeing of people under its control. The obligation of Hamas to observe the humanitarian conditions of people in Gaza is based on its obligations under international humanitarian law and human rights law. As a party to the ongoing armed conflict, Hamas is responsible to equally ensure the unimpeded passage of relief consignments and safety of the humanitarian missions and the equal and impartial distribution of relief aid to the affected and most vulnerable groups. The organizational level of Hamas and its ability to effectively exercise governmental functions in administering the territory makes it legally bound by the provisions of human rights law, which offers greater protection to the population of Gaza. Human rights law offers far-reaching obligations on Hamas not only with respect to humanitarian passage, but to take all possible measures to ensure that the needs of the population are met.

The obligations of Egypt vis-à-vis the civilian population of Gaza require some innovative analysis of the law. The responsibility of Egypt is based on the operation of Rafah border crossing and the extraterritorial effects of the steel wall on the fulfillment of human rights of Gazans. The Egyptian measures definitely have some political dimensions for the purpose of pressuring and weakening Hamas. Although the right of Egypt to protect its sovereignty and national security is well recognized under international law, this should not come in the way of meeting its other obligations. 281 International humanitarian law bestows general obligation on parties not involved in armed conflict to respect and ensure respect of this legal regime. This includes the obligation of Egypt not to recognize the illegal situation in Israel and take corrective measures if it comes under its control. International humanitarian law specifically enjoins the duty of High Contracting Parties to ensure the unimpeded passage of humanitarian assistance across its territory.282 It should be noted that the general obligations under international humanitarian law would not afford sufficient protection for the population of Gaza with respect to Egypt’s policies. Accordingly, International human rights law becomes distinctively useful since it compels states to ensure the absolute recognition of certain rights, in this situation social, economic and cultural rights that are particularly affected during armed conflicts.283 Human rights law proclaims the right of everyone to adequate food, water, housing, education and medical care, and freedom of movement. The fulfillment of these rights is unconditional and states are prohibited from taking measures that may produce negative impact on the rights of people of third states or not within its jurisdiction.

5.1 Recommendations

The recent incidents relating to the blockade, imposed by Israel and further supported by Egypt, clearly demonstrate its horrific implications on the civilian population in Gaza. While it remains uncertain the future of Egypt’s policies regarding the indefinite full and effective opening of Rafah, the 3-years Israeli blockade needs to be completely lifted. It has been widely stated now that the provision of humanitarian assistance or easing restrictions will no longer be able to alleviate the suffering of the affected population or to counteract the effects of blockade on the humanitarian situation in Gaza.284 Lifting the blockade should not be understood as denying 281

Section 2.4.

Section 3.1.2.

283 Section 3.2.3.

284 ICRC News Release. “Gaza closure: not another year”. 14 June 2010. Amnesty international. “ Suffocating Gaza: the Israeli blockade’s effects on Palestinians”. 1 June 2010. OXFAM News Release. “Oxfam: Gaza needs jobs, not just aid”. 14 June 2010.

282

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Israel its right to maintain its military security. However, this right under the law of occupation has to meet the fulfillment of Israel’s obligations as an occupying power towards the civilian population. While still in control of Gaza borders, through proper coordination, Israel is urged to allow the unimpeded passage of humanitarian relief consignments subject to its right to inspect and ensure no weapons or contrabands are being transferred. While Israel has lately announced its intent to relax the restrictions on access, and to publish a list of all prohibited goods, this endeavor will never be sufficient to meet the needs of the people. As Malcolm Smart, Amnesty International's director for the Middle East and North Africa, stated "Any step that will help reduce the dire humanitarian crisis in Gaza is to be welcomed, but Israel must now comply with its obligations as the occupying power under international law and immediately lift the blockade."285 The freedom of movement of people should also be freely guaranteed into and out of Gaza in order to enable its people to seek medical assistance and to enjoy the right to education elsewhere, especially that educational institutions in Gaza are hardly equipped. Israel should refrain from taking any measures that would further lead to economic deterioration of Gaza and more aid dependency. Raw materials used for industrial or agricultural purposes should be admitted into Gaza to help flourish the economy and create more jobs opportunities. Similarly, goods should be allowed out of Gaza in order to create a flow of currency. The proper administration of the border would in fact enable Israel to inhibit illegal smuggling across the tunnels, when living commodities are openly allowed into the territory.

As for Hamas, it should equally ensure a facilitated operational environment for humanitarian organizations by easing bureaucratic procedures that hinder the effective delivery of aid.

Regardless of its tensed relation with PA and ongoing hostilities with Israel, Hamas should attempt to conclude special agreements with the other parties in order to facilitate humanitarian assistance, and refrain from taking any actions that might threaten the wellbeing of people under its control. This also obliges Egypt to make agreements with Hamas and Israel concerning the passage of humanitarian assistance and to facilitate the operation of Rafah border. Also, the implications of the steel wall on Gaza’s aquifer and buildings need to be adequately taken into consideration. If the wall is likely to produce such detrimental environmental consequences, the population of Gaza will be deprived of its primary source of water supply, this will result in a more devastating crisis than the denial of construction materials or even education. More rigorous studies need to be conducted by the Egyptian government on the impact of the wall, and if it is proven to be the case, the construction of the wall needs to be immediately stopped.

285

Amnesty International. “Israeli blockade must be lifted.” 17 June 2010.

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6. Bibliography

Books Emma Playfair,“ International Law and the Administration of Occupied Territories”. Oxford University Press 1992.

Dieter Fleck, “ The Handbook of International Humanitarian Law.” Oxford University Press.

Second Edition. 2008.

Christopher Greenwood, “ the Administration of Occupied Territory in International L”aw”.

Published in International Law and the Administration of Occupied Territories”. Oxford University Press 1992.

S.D. Dikker Hupkes,” What constitutes Occupation? Israel as the occupying power in the Gaza Strip after the Disengagement.” E.M. Meijers Instituut 2008.

Jean-Marie Henckaerts, Louise Dosweld-Beck.”ICRC: Customary international Humanitarian Law.” Internatinal Committee of the Red Cross. Cambridge University Press.2005.

Articles

Alexander Orakhelashvili .|The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?” European Journal of International Law (EJIL) (2008), Vol. 19 No. 1, p.161–182.

Andrew Clapham, “ Human rights obligations of non-state actors in conflict situations.”

International Review of the Red Cross. Volume 88 Number 863 September 2006. P.491-523.

Christa Rottensteiner,”The denial of humanitarian assistance as a crime under international law”.

International Review of the Red Cross 1999 No. 835, p. 555-582 .

Christian Hauswaldt. “Problems under the EC-Israel association agreement: the export of goods produced in the West Bank and the Gaza strip under the EC-Israel Association Agreement.”

EJIL (2003), Vol. 14 No. 3, p.591–611.

Christian Tomuschat. “Human Rights and International Humanitarian Law.” EJIL (2010) Vol. 21 No. 1, p.15–23.

Cordula Droege, “ the interplay between international humanitarian law and international human rights law in situations of armed conflict”. International Law Forum. Vol. 40, No.2, pp.

310-355, 2007.

“The Egypt-Gaza Border and its Effect on Israeli- Egyptian Relations”. Congressional Report Service. 1 February 2008 Elizabeth Mothershaw. Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law. The International Journal of Human Rights Vol. 12, No. 3, 449–470, June 2008.

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Hans-Joachim Heintze. “On the relationship between human rights law protection and international humanitarian law”. International Review of the Red Cross. December 2004 Vol. 86 N 856 p.796.

Jean-Daniel Vigny and Cecilia Thompson, ‘‘Fundamental Standards of Humanity: What Future?’’ Netherlands Quarterly of Human Rights, Vol. 20, 2002, pp. 185–99.

Jean Pictet. “Commentary, IV Genea Convention realtiev to the protection of Civilan persons in Time of war”. ICRC, Geneva 1958.

Laurence Boisson de Chazournes, Luigi Condorell: Common Article 1 of the Geneva Conventions revisited: Protecting collective interests. International Review of the Red Cross 2001 No. 837, p. 67-87.

Lyndsay Moir, “The Law of Internal Armed Conflict”, Cambridge University Press, Cambridge, 2002.

Jeffrey White. “IDF Military Action in Gaza: Options and Implications.”the Washington institute for near east policy. 18 December 2009 Marco Sassòli. “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers” EJIL (2005), Vol. 16 No. 4, p.661–694.

Mazen Qupty. “the application of international law in the Occupied territories as reflected in the Judgments of the High Court of justice in Israel’. In: Playfair, E.(ed.), at p.87.

Noam Lubell. “Challenges in applying human rights law to armed conflict.” International Review of the Red Cross. Volume 87 Number 860 December 2005. p. 745.

Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Right’, Human Rights Quarterly, Vol.9 (1987).

Randle C. DeFalco.Legal Implications of Operation Cast Lead Spring 2009 The Right to Food in Gaza: Israel’s Obligations Under International Law. Internet Journal of Rutgers School of Law Newark Volume 35.

Rebecca Barber. “ Facilitating humanitarian assistance in international humanitarian and human rights law”.Internatonal Review of the Red Cross. Volume 91 Number 874. June 2009.

Robert Kolb, “Occupation in Iraq since 2003 and the powers of the UN Security Council”.

International Review of the Red Cross. Volume 90 Number 869 March 2008.p.29-50.

Ruth Abril Stoffels. Legal Regulation of humanitarian assistance in armed conflict: achievements and gaps. International Review of the Red Cross. Volume 86 Number 855. September 2004.

P.515-546.

Todd Howland. “The Multi-State responsibility for extra territorial violations of Economic, Social, and cultural Rights”. Denver Journal of International Law and Policy. VOL. 35:3/4 .24 March 2008. P.404.

Yves Sandoz,Christophe Swinarski, Bruno Zimmermann, Commentary on the Additional Protocols of 197 to the Geneva Conventions of 12 August 1949, ICRC, Geneva 1987.

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NGO Reports, Press Releases, Media Reports Amnesty International. “Israel cuts electricity and food supply to Gaza”. 21 January 2008.

Amnesty International. “ Gaza reduced to bare survival.” 5 December 2008.

Amnesty International. “Israel Gaza blockade must be completely lifted.” 17 June 2010.

Al-Zaytouna Centre for Studies and Consultations. “The "Steel Wall" with Gaza Strip: Purpose and Implications.” 10 February 2010.

B’Teslem. “Human Rights Review: 1 January 2009 to 30 April 2010.” June 2010.

Gisha Report, “Israel Undermines Higher Education – and its Own Best Interest – in Gaza”. 22 October 2007.

Gisha Report. “Gaza Closure Defined: Collective Punishment.” December 2008.

Gisha Report, “Three Years of Gaza Closure By the Numbers.” June 2010.

Gisha Report,” Electricity Shortage in Gaza: Who Turned Out the Lights?” May 2010.

Gisha Release. “Partial List of Items Prohibited/Permitted into the Gaza Strip.” June 2010 ICRC. “Gaza: ailing health-care system puts lives at risk.” Interview with Eileen Daly, ICRC's health coordinator. 1 July 2010.

ICRC News Release.” Gaza closure: not another year”. 14 June 2010.

International Crisis Group, “Ruling Palestine I: Gaza under Hamas” Middle East Report N°73 – 19 March 2008 “Gaza under Hamas”, B’Teslem. “The siege on Gaza and intensified economic sanctions” 2010.

The Palestinian Centre for Human Rights. “An Education denied: report on the Impact of the closure of border crossings on students from the Gaza Strip studying abroad.” 22 November 2009 OXFAM briefing note.” Breaking the impasse: ending the humanitarian stranglehold on Palestine.”

November 2007 OXFAM. “the Gaza Strip: a Humanitarian Implosion”. March 2008.

OXFAM. “Failing Gaza: No rebuilding, no recovery, no more excuses”. December 2009.

UNRWA. “Updated quick response plan for Gaza: An assessment of needs six months after the war”. July 2009.

UNOCHA. The Gaza Strip: Access Report.” September- December 2005, March-June 2010.

UNOCHA. "Field Update on Gaza From the Humanitarian Coordinator".05 February 2009.

UNOCHA. “Humanitarian Monitor”. May 2010

Other documents: Israel’s Revised Disengagement Plan, 06 June 2004( Addendum A- Main Principles) http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+Disengagemnt+plan+6 -June-2004.htm#A Israel Ministry of Foreign Affairs press release, 19 September 2007, ‘Security Cabinet declares Gaza hostile territory’

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http://www.mfangov.il/MFA/Governemnt/Communiques/2007/Secuirty+Cabinet+declares+Gaza+h ostile+territory+19-Sept-2007.htm

Table of Cases International Court of Justice

Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, in ICJ Reports 1986, at p.14.

Illegality of the Threat or Use of Nuclear Weapons (Advisory Opinion), in: ICJ Reports 1996, at p.226.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), in: ICJ Reports, at p.3.

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, in: ICJ Reports 2005, p. 168.

Case Concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain), in ICJ Judgment 1964.

International Military Tribunal Sitting at Nuremberg (IMT Nuremberg) The hostages Trial; Wilhelm list and others, in: Law Reports of Trials of War Criminals, selected and prepared by the united Nations War Crimes Commission. Vol. VIII, His Majesty’s Stationary Office, London 1949, at p.34 ICTY Prosecutor v. Dario Kordic and Mario Cerkez; Judgment. Case No. IT-95-14/2, trial chamber, 26/02/2001.

The Prosecutor v. Zoran Kupreskic and others, Trial Chamber, Judgment. Case No. IT-95-16-T. The Hague, 14 January 2000.

Prosecutor v. Kunarac. Judgment. Case no. IT-96-23 & IT-96-23/1 – A. 22 February 2001.

Israeli cases: H.C. 302/72, Hilu et al. v. The Government of Israel, 1972, PD 27(2).

H.C. 201/09, Physicians for Human Rights v. Prime Minister, 19 January 2009.

H.C. 9132/07, Jaber al Bassiouni v. The Prime Minister, 30 January 2008.

European Court of Human Rights Cyprus v. Turkey. 25781/94 . 10 May 2001.

Issa v Turkey, 31821/96. 10 November 2004.

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