Chapter Four

LEGAL ANALYSIS

This chapter provides a legal analysis of Israel’s closure policy. It is argued that the 1949 IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War remains applicable; that Israel, as the Occupying Power, continues to be bound by it; and that the Palestinian civilian population continues to be entitled to the benefits conferred by it, and that the severe closures such as those imposed in 1996 are unlawful.95

The system of international law in place in the Occupied Territories include inter alia: the IV Geneva Convention, human rights law (the 1948 Universal Declaration of Human Rights and the 1966 Intemational Covenants on Civil and Political, and Economic, Social and Cultural Rights), and the Interim Agreements.

Although it is a significant omission that recognition was not given in the Interim Agreements, nor explicitly by the international community, to Israel’s continuing de jure occupation of the Gaza Strip, West Bank and East Jerusalem and the continuing applicability of the IV Geneva Convention; it is argued that notwithstanding the status of the territory the Palestinian people are inherently entitled to minimum standards of treatment and guarantees of their fundamental rights, in accordance with internationally-accepted norms of human rights law.

i Legal Status of the Occupied Territories

Since the beginning of its occupation in 1967 of the Gaza Strip and the West Bank including East Jerusalem, Israel has been recognised by the international community as the belligerent occupant and these areas as occupied territories. Further, the international community recognises the applicability of the IV Geneva Convention and has persistently demanded that Israel comply with the Convention, to which it is a Party, in respect of the occupied population. 96 This position has been repeated regularly by the international community, including the Government of the United States, and various specialised humanitarian agencies, particularly the International Committee of the Red Cross.

Successive Israeli Governments have however consistently rejected both this consensus of the international community and the de jure applicability of the IV Geneva Convention to the Occupied Territories on the basis of the following:

Israel bases this assertion on a restrictive reading of Article 2 of the Geneva Convention, which determines its application, providing that “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”. Pictet's authoritative Commentary on IV Geneva Convention97 explains that the aim of Article 2 is to ensure that “the temporary disappearance of sovereign States as a result of annexation or capitulation [is not] put forward as a pretext for not observing... the humanitarian Conventions”.98

Thus the applicability of the IV Geneva Convention does not depend upon the preceding government of a territory being its sovereign or legitimate government Article 2 of the Convention renders it applicable in all situations of belligerent occupation, regardless of the nature of the government prior to the occupation, the time period it was in power, or the conditions in which the occupation came about. The temporary nature of both administration and occupation of territories militate against succession of the rights or status of an occupying or administrating entity.

It is apparent that Israel is bound by the IV Geneva Convention. This has strong support from the following: the provisions of the Convention itself and Pictet's Commentary; the consensus of the international community; the lack of international legal norms to the contrary; the fact that Israel is the de facto OP in the Gaza Strip, West Bank and East Jerusalem; and the fact that these territories have not surrendered, nor has an agreement been reached which hands over sovereignty to Israel.

Notwithstanding Israel's arguments against the de jute application of the IV Geneva Convention, the Israeli Government took the decision to de facto apply the “humanitarian” provisions of the Convention. However the Israeli Government has not defined the provisions of the IV Geneva Convention which it considers to be humanitarian and therefore applicable. The UN Security Council adopted Decision No. 681 on 20th December 1990, which affirms the applicability of the IV Geneva Convention to the Occupied Territories and demands that Israel, as the OP, applies the Convention de jure in respect of the territories which it de facto occupies. The Decision requests High Contracting Parties to the IV Geneva Convention to fulfil their obligations under Article I therein.

ii. Legal Status During the Interim Period

On 13th September 1993, the PLO signed the Declaration of Principles on behalf of the Palestinian people, with the Government of Israel. This was followed by the signing of two further agreements between the two parties in 1994 the Cairo - Interim Agreement on the Gaza Strip and West Bank, and in 1995 the Taba - Interim Agreement on the Gaza Strip and West Bank. The signing of these Agreements brought about a temporary sui generis situation in the Gaza Strip and parts of the West Bank, which raised issues in relation to the continued application of the provisions of the IV Geneva Convention. These issues relate to the international obligations of Israel and the PNA, and in regard to the guarantees to which the Palestinian civilian inhabitants of these areas are entitled under international law. In consideration of these legal elements it must be emphasised that the situation created by the signing of the Interim Agreements is temporary.

The Cairo Agreement established the PNA and transferred to it limited autonomy in Jericho and most of the Gaza Strip.99 These responsibilities are essentially in the sphere of internal civil affairs, and eresponsibility in respect of overall security and foreign relations. The Taba Agreement scheduled the geographical extension of the responsibilities of the PNA to several towns and their surrounding villages in the West Bank.100

It appears that the IV Geneva Convention remains applicable during the Interim Period, and Israel, as the de facto Occupying Power, remains subject to its provisions, and the civilian Palestinian population is entitled to the protection of its guarantees. This is because, notwithstanding that the Interim Agreements brought an end to the obvious signs of an Israeli military presence in the populous areas of the Gaza Strip and inside towns and villages of the West Bank, Israel's occupation of these areas remains both a legal and physical reality.

The Interim Agreements transformed the West Bank into what is effectively a small collection of Palestinian cantons, each surrounded by Israeli occupying forces which control their borders. Within the Gaza Strip, Israel maintains military positions around the Israeli settlements where there have been many incidents in which Palestinians have been assaulted and harassed by these soldiers.101 Some areas, such as the Kfar Darom Settlement, are situated immediately next to Palestinian villages.

The extent to which Israel remains in overall control of the Gaza Strip, West Bank and East Jerusalem is illustrated to some extent through its ability to impose closures as it has done since re-deployment. Palestinians still depend upon the goodwill and cooperation of Israel for basic necessities such as food and medical supplies and in order to exercise basic freedoms such as the freedom of movement, to found a family and the exercise of religious rights; the need for the basic guarantees and protection of the provisions of the IV Geneva Convention remains great.

iii Continuing Application of the Geneva Convention During the Interim Period

The application of the IV Geneva Convention continues notwithstanding the existence of the Interim Agreements. It will remain applicable until a comparable or higher standard of protection can be guaranteed by one of the following events: an agreement comes into force containing such guarantees, an agreement is reached which effectively ends the occupation and puts in place a system of national civil government; or the population surrenders.102

Geneva Law seeks firstly to insulate the application of the Convention from political events, for example by declaring inadmissible any special agreement between the OP and the occupied entity which diminishes the rights provided in the Convention;103 secondly it limits the activities of the Occupying Power in occupied territory (Occupiers Law); thirdly it seeks to protect the human rights of the occupied civilian population, and gives it predominance over the rights of the OP (Humanitarian Law).

Substantial issues in the Interim Agreements underpin the continuation of Israel's occupation and the status of the Gaza Strip, West Bank including East Jerusalem as occupied territories. Firstly the peace process is ongoing and there are several essential issues left unresolved which have been left for negotiation at the Final Status Negotiations. These issues include “Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbours and other issues of common interest”.104 Until these essential issues are resolved, and moreover, until the Palestinian people have obtained political and territorial independence and are free of Israel's military control, then Israel's occupation and its responsibilities under Geneva Law will not end.

Two further factors necessitate the continuing application of the IV Geneva Convention. The Interim Agreements maintain Israel’s Military Government, which facilitates the continuation of the military orders, and the military courts. In addition, the development and maintenance by Israel of its illegal settlements inside the Gaza Strip and West Bank and surrounding East Jerusalem continues.

Application of the Convention

Articles 6, 7, 8 and 47 of the Convention ensure its application notwithstanding political events. Article 6, paragraph three of the Convention is clear that the application of the Convention only begins to come to an end when there is an end to military operations.105

The continuing protection of the Geneva Convention during the Interim Period is augmented in Article 7, which states that although HCP’s are free to conclude special agreements, “No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.” This is the case except where “express provisions to the contrary are contained [in the special agreement] ... or where snore favourable measures have been taken”. This protection is reinforced in Article 47, which states that “Protected persons who are in occupied territory shall not be deprived in any case, or in any manner whatsoever, of the benefits of the present Convention by any change introduced ... into the institutions or the government of the ... territory, nor by any agreement comcluded between the authorities of the occupied territories and the Occupying Power”

There is not only a de facto Israeli military presence remaining inside the West Bank, but in addition the Interim Agreements recognise the de jure maintenance of Israel's military government of the Occupied Territories.106

Occupiers Law

Geneva Law seeks to limit the status of the Occupying Power to nothing more than the trustee or usufructory of the territory it occupies; the occupying authority is de facto merely considered to be the administrator and is de jure restricted to imposing its authority only to the extent necessary for maintaining l'ordre et la vie publics, i.e. for the general benefit of the occupied civilian population, except where a measure is necessary to ensure the security of the occupation107. The occupant is also forbidden from taking any measures which alter the status or title of the territory.108' Indeed, it must not be altered either until complete surrender by the indigenous population, or until the coming into force of a peace agreement. The OP is above all under an obligation to maintain the welfare of the civilian occupied population, and to respect and guarantee their fundamental human rights.

OP may apply security measures and measures of constraint that are necessary to maintain its occupation but these are strictly limited, can only be taken in extreme circumstances and Pictet comments that this reservation does not in any way undermine the absolute nature of the fundamental rights of the protected civilian population.109

Legislation

Article 64 of the IV Geneva Convention seeks to limit the extent of the powers of the OP by proscribing changes to the penal and civil laws in place in the territory under occupation, unless they constitute a threat to its security or an obstacle to the application of the Convention. Pictet comments that these reservations are of a strictly limitative nature. The overriding obligation of the Occupying Power is to preserve the laws in force in the Occupied Territories “unless absolutely prevented”.110

Paragraph 2 of Article 64 limits the legislative powers of the OP to an exhaustive list which includes: a) the application of the Convention in respect of child welfare, labour, food, hygiene and public health, b) those necessary to maintain “the orderly government of the territory” in its capacity as the Power responsible for public law and order; and c) the promulgation of penal provisions for its own protection.111

The OP can enact orders only in extraordinary situations to "protect" the security of its forces and it must otherwise maintain and respect the laws in force. Pictet comments that the powers of the occupier are delimited by the temporary nature of its control; it must not promulgate laws which are in violation of the Convention’s provisions and must not “under any circumstances serve as a means of oppressing the pop.”112

 

 

When the Israeli occupation began, its military authorities took control of the West Bank, East Jerusalem, and the Gaza Strip through a catalogue of military orders which pervaded all levels of Palestinian society. The extent to which these orders infringe the rights of the population, some individually and collectively, exceed the limitations set by the IV Geneva Convention. They interfere with and control details of Palestinian life which are not related to the security of Israel's occupation forces; these include for example, water usage, land usage (Israel has confiscated much Palestinian land from inside the Gaza Strip for the establishment of settlements, which are illegal under international

law), and collective measures, many of which are excessive.

Settlements

Geneva Law prevents the OP from transferring its civilian population into occupied territory. Article 49 explicitly prohibits, regardless of motive, such transfers. Israel has violated this provision by establishing settlements in the Gaza Strip and transferring thousands of Israeli settlers. Moreover it has continued to maintain and develop these settlements since the signing of the Interim Agreements. Although the issue of settlements is to be addressed at the Final Status talks, it is without doubt that they are illegal and violate the IV Geneva Convention.

Jerusalem

The issue of Jerusalem is also left for the Final Status Negotiations, East Jerusalem has been occupied by Israeli military forces since 1967. One of the essential aspects of Humanitarian Law is that it ensures that the activities of the OP accord with the temporary nature of the occupation. During this period the status of the occupied territory cannot be deprived of either its statehood or its sovereignty. Annexation of occupied territory is a violation of Article 47 of the Convention unless it is achieved through a peace agreement with the occupied entity. Pictet comments that any annexation without such agreement has no effect on the rights or status of protects persons, the Convention continues to apply to them and to the annexed territory; its status unchanging since the time of occupied territory.113

The postponement of discussions in regard to the status of Jerusalem is ominous, and suggests that Israel does not intend East Jerusalem to be treated as occupied or as Palestinian territory. East Jerusalem remains de jure under occupation, but Israel is actively changing the facts on the ground around Jerusalem, isolating it from the rest of the Occupied Territories, undermining the rights of its Palestinian inhabitants and confiscating Palestinian land, on which it is building Israeli settlements which encircle the city.

The consensus of the international community on Israel’s status as the Occupying Power and on the Gaza Strip, West Bank including East Jerusalem is reflected in UN Security Council Decision No.681 of 20th December 1990.114 It is necessary that this recognition is reaffirmed for the new context which was created by the Interim Agreements. This new context has not restricted Israel’s power, and its ability to control the lives and development of the Palestinian occupied areas, which it does so through its closure policy. In fact this structure has not prevented Israel from violating the human rights of the Palestinian people nor from exploiting the natural resources in the areas it occupies.

Humanitarian and Human Rights Law

It has been discussed above that the IV Geneva Convention continues to apply in respect of the Palestinian Occupied Territories, including the humanitarian provisions of this body of law, and in respect of the Palestinian civilian population in these areas. In addition, Israel has obligations in respect of international norms of human rights law.115 Until the Palestinian territories are liberated and the Palestinian people are free to determine their own political, economic and cultural development, free of Israel’s military control, then Israel will continue to hold a number of obligations and duties, under international humanitarian and human rights law, adherence to which will considerably improve the lives of Palestinian people in the Occupied Territories.

The central principle of the humanitarian provisions of Geneva Law is to limit the negative effects of belligerent occupation on the civilian occupied population, and specifically to ensure the respect for their fundamental human rights above and beyond the security concerns of the OP.116 The Convention ensures the protection of its application in Article 47. The Convention prevails, unless the Interim Agreements provide a higher standard of protection for the rights of the civilian population, which they do not, there is no express provision in the Interim Agreements which excludes the continued application of the IV Geneva Convention.117

Collective Punishment and Reprisal

The inherent nature of the absolute closures imposed this year by Israel on the Occupied Territories were punitive, retaliatory and collective. Measures of any of these characteristics taken against protected persons in occupied territory are absolutely prohibited by Geneva Law.

 

Article 33, IV Geneva Convention

The absolute closures are inherently illegal, and their consequences violate international humanitarian law and fundamental non-derogable norms of international human rights law. Thus the nature of the restrictive closures imposed by Israel in 1996 are in clear violation of Geneva Law due to their retaliatory and collective nature.

The right to adequate food and health

The rights to adequate food and health were jeopardised by Israel’s deliberate restriction of the entrance into the Gaza Strip of necessary medical and food supplies during the closures of 1996.

Although the PNA is working towards accepting full responsibility for economic conditions in the areas under its jurisdiction, including the assurance of adequate food supplies and health services, Israel maintains control of the borders around the Occupied Territories, thus holding principle responsibility for the entry of supplies.

Reservations permitted by the IV Geneva Convention in respect of security measures which can be taken by the OP are strictly limitative and in most Articles those listed are exhaustive. There is no explicit exception for restrictions on the provision of adequate food and health facilities on grounds of security. In fact Geneva Law gives priority to the well-being of the civilian population, while placing strict limitations on what is admissible for the OP to do on the basis of its security interests.

IV Geneva Convention

Israel is a High Contracting party to the IV Geneva Convention and all HCPs are under the obligation to ensure that the provisions of the Conventions are respected by other HCPs. In addition Israel is an Occupying Power and has specific obligations in this respect.

The right to education

Israel’s continued prevention of access for Gaza students to education institutions in the West Bank, is inconsistent with human rights and humanitarian norms, and the spirit of the peace process.

It is clear that Israel has given no such recognition to these fundamental human rights in its treatment of Palestinians in the Occupied Territories through the strict and absolute closures of 1996.

iv. Legal Aspects of Closure as an Economic Weapon

Where punitive closures, imposed with unprecedented severity by Israel this year, have prevented access for Palestinian civilians to basic necessities, then they have gone beyond what can be justified as a security measure and amount to collective punishment. Such closures may be described as reprisals which are absolutely prohibited against civilians, both in customary international law, and in Article 33 of the IV Geneva Convention. It is pertinent to consider the economic implications of the closure, in regard to the Occupied Territories, particularly as their economies are at a weak and vulnerable development stage and the Palestinian people are engaged in a struggle for self-determination.

Customary international law presupposes a right of States to adopt their respective economic policies, Thus, barring any conflicting treaty obligations, and subject to applicable rules of international law, a State may ordinarily sever at will its trade relations with another State. But in the context of relations with weak and developing economies such as that of the Gaza Strip, such a policy is not appropriate, and is in contravention of international, including human rights norms.

Economic independence for the Occupied Territories is inextricably linked with human rights and self-determination. A. 1(2) of the 1966 United Nations International Covenant on Economic Social and Cultural rights provides: “In no case may a people be deprived of its own means of subsistence”.123 Israel has maintained the Gaza Strip in a state of total dependency, a relationship which has been reinforced by the Interim Agreements,124 and a sudden disruption in the supply of vital commodities to Gaza, wherein there, are no alternative supplies, violates these international norms.

International law forbids the taking of any I measures for national security which infringe fundamental human rights. The national security of Israel does not justify the decimation of the Gaza economy and the restriction on the access of Palestinian people therein to basic food and medical necessities; such extreme measures contravene the principle of proportionality.

Article 1 of the1966 UN International Covenants guarantee the right of all peoples to self determination and to freely pursue their own economic, social and cultural development. The following General Assembly Resolutions.125 reiterate the right of peoples’ to self determination, and the prohibition on third states from any aggressive intervention, including of an economic nature in this development: 1965 Declaration on the Admissibility or Intervention; the 1970 Declaration on Friendly Relations and Co-operation Among States; the 1974 Definition of Aggression.126

The extensive and prolonged nature of the closure is an aggressive policy, effective amounting to a blockade. Such measures are incompatible with the atmosphere of diplomacy which is supposed to exist between the PNA and the Government of Israel. It is without doubt that customary norms prohibit the use of aggression against a people seeking self-determination. The situation of the Gaza Strip is distinct because of its total dependence on Israel.

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