Following on from yesterday’s guest post, we are please to welcome this second post from Dr Susan Power. Susan lectures International Criminal Law at Griffith College Dublin and is a legal researcher for Al-Haq, a Palestinian human rights organization based in Ramallah, Palestine. The views expressed are those of the author and do not represent those of the institutions for which the author currently works.
On 22 June 2015, the United Nations Commission of Inquiry (COI) published its report on violations of international humanitarian law (IHL) and international human rights law (IHRL) in the Occupied Palestinian Territory (OPT) comprising the West Bank including East Jerusalem and the Gaza Strip. The COI was mandated to investigate all violations of IHL and IHRL in the OPT “in the context of military operations conducted since 13 June 2014, whether before during or after to establish the facts” including Israel’s so-called Operation Brothers Keeper in the West Bank and Operation Protective Edge in the Gaza Strip. The COI examining the pattern and gravity of attacks concluded that Israel may have committed war crimes during its military operations in the Gaza Strip and West Bank including East Jerusalem. It further concluded that senior Israeli officials were responsible for Israel’s military policies, which may also violate the laws of war and considered Israel’s accountability mechanisms inadequate giving rise to prevailing impunity for violations of IHL and IHRL. This article examines the focus of the COI on Israel’s post conflict obligations in relation to the occupation of the Gaza Strip and the blockade.
(1) Belligerent Occupation
Contextually, one of the first hurdles of the COI was in relation to the legal framework and the categorization of Gaza as occupied territory. The COI considered Gaza occupied under Article 42 of the Hague Regulations, applying an effective control test to denote Israel’s control over the territory. Israel has argued that it does not exercise the requisite control over the Gaza Strip since its ‘disengagement’ of troops in 2005. However the COI, drawing from the ICTY Naletelic case and the Nuremberg Hostages Trial, determined that “the continuous presence of soldiers on the ground is only one criterion to be used in determining effective control”. Instead the COI considered that the condition was satisfied by the fact that Gaza was almost completely surrounded by Israel which “facilitates the ability for Israel to make its presence felt”. Although the COI concluded that the Gaza Strip was occupied it considered Israel’s obligations towards the Gaza Strip were “consistent with the level of control it exercises”. The net effect of this conclusion has been an unsavoury dilution of Israel’s obligations, which is evident throughout the Report particularly in relation to post conflict reconstruction of the Gaza Strip.
During the hostilities the civilian infrastructure of the Gaza Strip was targeted. A staggering 2,251 Palestinians were killed in Gaza, and 11,231 injured with 10% suffering resulting permanent disability. In addition, 80,000 housing units were damaged or destroyed, leaving 100,000 people displaced months after hostilities had ended. Gaza’s power plant was attacked on five separate occasions seriously impacting the delivery of electricity, water and sanitation facilities long after the close of hostilities. However, the COI failed to highlight Israel’s continuing administrative and humanitarian obligations to ensure the provision of essential services stemming from its continued belligerent occupation of the Gaza Strip. Instead, the COI emphasized the need for international and NGO donor aid for the reconstruction effort, while sidestepping Israel’s overarching responsibilities as belligerent occupant. The COI concluded, “all parties have obligations to respect and take steps towards the realization of these rights, including Israel, the State of Palestine, the authorities in Gaza and the international community” (para 599).
The treatment of post conflict Gaza in the report represented a serious departure from the findings of the 2009 Goldstone Report, which devoted a substantial section to Israel’s obligations as Occupying Power in the Gaza Strip to ensure vital humanitarian guarantees were met (paras. 1300-1335). For example, the Goldstone Report had examined the impact of the blockade and military operations on the people of Gaza and their human rights, examining the economy, livelihoods and employment, food and nutrition, housing, water and sanitation, environment, physical and mental health, education, impact on women and children, persons with disabilities, and the impact of humanitarian assistance provided by the United Nations. It concluded that Israel had obligations to the Gaza Strip under international humanitarian law, customary international law and a number of international human rights treaties.
The COI considered that “the impact of the 2014 hostilties on the Gaza Strip cannot be assessed separately from the blockade imposed by Israel”. However, while the Commission had presented a detailed legal appraisal of the application of occupation law to Gaza, it did not examine the legality of the blockade. The conclusion that Gaza is occupied places it squarely within the categorization of an international armed conflict (IAC). Although blockades are legal within the context of an IAC, the belligerent occupant has obligations under Article 59 of GCIV to permit and guarantee the free passage of consignments of foodstuffs, medical supplies and clothing, while Article 70 of Protocol 1, provides that parties to the conflict facilitate the passage of articles essential for the civilian population at the earliest opportunity, without delay. In addition, Article 102 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994) considers a blockade prohibited where:
(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.”
In this vein, United Nations Security Council resolution 1860 (2009) called for the reopening of crossing points based on the 2005 Agreement on Movement and Access between the Palestinian Authority and Israel, and the “unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment”. It would appear that the legality of the blockade may be challenged in this regard. The failure of the COI to address the legality of the blockade, represents a missed opportunity, and is out of step with many international opinions on point. For example, in September 2012, a number of United Nations experts, pronounced on the illegality of Israel’s naval blockade of the Gaza coast, suggesting that the naval blockade must be recognized as an integral part of the closure policy towards Gaza which amounted to the war crime of collective punishment. Similarly, the 2009 Goldstone Report had found that Israel’s policy of closure in the Gaza Strip amounted to a collective penalty in violation of Article 33 of the Fourth Geneva Convention (para. 1331).
Despite the determination that the Gaza Strip was occupied, the COI avoided pronouncing on Israel’s continuing obligations towards protected persons in occupied Gaza. In 2014, the World Bank reported that economic decline in Gaza was “directly linked with armed conflict, movement restrictions, and recently the blockade”. However by linking Israel’s obligations with the level of control it chooses to apply over the OPT, the COI supported Israel’s deliberately engineered role as ‘inactive custodian’ a relationship at odds with the object and purpose of the Hague Regulations.