6. The Palestinian Territory has been occupied for so long — 40 years — that there is a tendency in certain quarters to overlook this reality and to treat the Occupied Palestinian Territory as an “unoccupied” entity. This leads to the perception of Israel and Palestine as two States poised against each other, with Israel as the victim and Palestine as a neighbouring aggressive, terrorist State. This, of course, is very far from the truth. The Palestinian Territory, including the West Bank, East Jerusalem and Gaza, remains occupied territory, occupied by Israel. Insofar as there is a “victim” party, it is Palestine as inevitably an occupied party has such a status vis-à-vis the occupier.
7. That Israel is the occupier of the Palestinian Territory, subject to the obligations imposed by international law as an occupying Power, was reaffirmed by the International Court of Justice in the Wall opinion when it held that the Palestinian territories (including East Jerusalem) “remain occupied territories and Israel has continued to have the status of an occupying Power”.4 The consequence of this, said the International Court, was that the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) applies to the Occupied Palestinian Territory, as do the International Covenants on Human Rights of 1966.5
8. Israel’s obligations have not diminished as a result of the prolonged nature of the occupation.6 On the contrary, they have increased as a result of the nature of Israel’s occupation which has given rise to the argument that Israel’s occupation has over the years become tainted with illegality.7 In these circumstances, the Special Rapporteur proposed in his report to the Human Rights Council in March 2007 (A/HRC/41/17) that the International Court of Justice be asked to give a further advisory opinion, on the legal consequences of prolonged occupation. The Court might be asked to consider the legal consequences of a prolonged occupation that has acquired some of the characteristics of apartheid and colonialism and has violated many of the basic obligations imposed on an occupying Power. Has it ceased to be a lawful regime, particularly in respect of “measures aimed at the ‘occupant’s own interests’”.8 And, if this is the position, what are the legal consequences for the occupied people, the occupying Power and third States? Such an opinion might not only produce legal clarity on the consequences of Israel’s occupation of the Palestinian Territory but also put further pressure on the international community to compel Israel to comply with its obligations as occupying Power. It is true that the 2004 advisory opinion on the wall has to date had little effect. However, it must be remembered that the United Nations requested four advisory opinions from the International Court of Justice to guide it in its approach to South Africa’s occupation of South West Africa/Namibia.
9. The Wall advisory opinion was concerned with the construction of a wall in the West Bank and East Jerusalem. As the Court was not asked to pronounce on the legal status of Gaza it, possibly, confined its reaffirmation of the occupied status of the Occupied Palestinian Territory to the West Bank and East Jerusalem.9 This fact, together with the evacuation of Israeli settlements and the withdrawal of the permanent IDF presence from Gaza in 2005, has given rise to the argument that Gaza is no longer occupied territory. On 15 September 2005 Prime Minister Sharon told the General Assembly that Israel’s withdrawal from Gaza meant the end of its responsibility for Gaza. Subsequently, in submissions before the Israeli High Court, the Government of Israel has taken the position that it no longer occupies Gaza and that it is no longer bound by international humanitarian law in its actions vis-à-vis Gaza residents. Recently, on 8 July, Israel’s Ministerial Committee for Legislative Affairs approved a draft bill recognizing Gaza as “a foreign entity”. Essentially, Israel’s position is that responsibility for the civilian population of Gaza, including the functioning of Gaza’s economy, is the sole responsibility of the Palestinian Authority.
10. The argument that Israel’s occupation of Gaza has come to an end is not supported by law or fact. This is emphasized by a study entitled Disengaged Occupiers: The Legal Status of Gaza, written by Sari Bashi and Kenneth Mann of Gisha, The Legal Center for Freedom of Movement, an Israeli non-governmental organization (NGO), published in January 2007. This study shows, convincingly, that the test under international law for deciding whether a territory is occupied is not the permanent ground presence of the occupying Power’s military in the occupied territory, but effective control.10 Technological developments have made it possible for Israel to assert control over significant aspects of civilian life in Gaza without a permanent troop presence. This is done by:
(a) Substantial control of Gaza’s six land crossings. The Erez crossing is effectively closed to Palestinians wishing to cross to Israel or the West Bank. The Rafah crossing between Egypt and Gaza, which is regulated by the Agreement on Movement and Access entered into between Israel and the Palestinian Authority on 15 November 2005 (brokered by the United States), has been closed by Israel for lengthy periods since June 2006. The main crossing for goods at Karni is strictly controlled by Israel and since June 2006 this crossing too has been largely closed, with disastrous consequences for the Palestinian economy;
(b) Control through military incursions, rocket attacks and sonic booms. Sections of Gaza have been declared “no-go” zones in which residents will be shot if they enter;
(c) Complete control of Gaza’s airspace and territorial waters;
(d) Control of the Palestinian Population Registry. The definition of who is “Palestinian” and who is a resident of Gaza and the West Bank is controlled by the Israeli military. Even when the Rafah crossing is open, only holders of Palestinian identity cards can enter Gaza through the crossing; therefore control over the Palestinian Population Registry is also control over who may enter and leave Gaza. Since 2000, with few exceptions, Israel has not permitted additions to the Palestinian Population Registry;
(e) Control of the ability of the Palestinian Authority to exercise governmental functions. Israel exercises control over the ability of the Palestinian Authority to provide services to Gaza and West Bank residents and the functioning of its governmental institutions, including control over the transfer of tax revenues which amount to 50 per cent of the Palestinian Authority’s operating income. Moreover, Gaza and the West Bank constitute two parts of a single territorial unit, with a unified and undifferentiated system of civilian institutions spread throughout Gaza and the West Bank, funded from the same central budget and run by the same central authority. Therefore, Israel’s continued direct control over the West Bank is a form of indirect control over Gaza.
11. The fact that Gaza remains occupied territory means that Israel’s actions towards Gaza must be measured against the standards of international humanitarian law and human rights law.
12. Since June 2006 Israel has engaged in both large-scale military operations and brief military incursions in Gaza.
13. In the course of Operations “Summer Rains” and “Autumn Clouds” between June and November 2006, IDF carried out 364 military incursions into different parts of Gaza, accompanied by persistent artillery shelling and air-to-surface missile attacks. Missiles, shells and bulldozers destroyed, or caused serious damage to, homes, schools, hospitals, mosques, public buildings, bridges, water pipelines and sewage networks. On 27 June the Israeli Air Force destroyed all six transformers of the only domestic power plant in the Gaza Strip, which supplied 43 per cent of Gaza’s daily electricity, and this resulted in depriving half of the population of Gaza of electricity for several months. Citrus groves and agricultural lands were levelled by bulldozers. And in the first phase of “Operation Summer Rains” F-16s flew low over Gaza, breaking the sound barrier and causing widespread terror among the population. Thousands of Palestinians were displaced from their homes as a result of Israel’s military action.
14. Beit Hanoun in northern Gaza, with a population of 40,000, was subjected to particularly vicious military action in November in the course of “Operation Autumn Clouds”. During a six-day incursion 82 Palestinians, at least half of whom were civilians (including 21 children), were killed by IDF. More than 260, including 60 children, were injured and hundreds of males between the ages of 16 and 40 were arrested. Forty thousand residents were confined to their homes as a result of a curfew as Israeli tanks and bulldozers rampaged through the town, destroying 279 homes, an 850-year-old mosque, public buildings, electricity networks, schools and hospitals, levelling orchards and digging up roads, water mains and sewage networks. Israel’s assault on Beit Hanoun culminated in the shelling of a home which resulted in the killing of 19 persons and the wounding of 55 persons on 8 November 2006. The house, situated in a densely populated neighbourhood, was the home of the Al-Athamnah family, which lost 16 members on that fateful day. Of the 19 killed, all civilians, seven were women and eight children. Unfortunately, Israel has refused to accept any international investigation into this matter. It refused to allow a Human Rights Council-mandated mission which was to have been led by Archbishop Desmond Tutu to enter Israel and the Occupied Palestinian Territory. The failure of Israel to allow an international investigation of the killing of
19 persons in Beit Hanoun, or to undertake an impartial investigation of its own, is regrettable as it seems clear that the indiscriminate firing of shells into a civilian neighbourhood with no apparent military objective constituted a war crime.
15. There have been sporadic military incursions into Gaza for the past months. In the period 20 to 27 June 2007 there were seven IDF incursions into Gaza resulting in at least 17 Palestinian deaths (including six civilians, among them two children) and 39 injuries. In the period 27 June to 3 July, 19 Palestinians were killed: eight by an IDF tank shell (including a 10-year-old boy), seven by Israeli air strikes, three during armed clashes with IDF soldiers and one of wounds sustained earlier. In addition 43 Palestinians were injured during IDF operations. On 5 July 11 Palestinians were killed and 25 wounded as a result of an Israeli attack involving aircraft, tanks and bulldozers.
16. Israel has largely justified its attacks and incursions as defensive operations aimed at preventing the launching of Qassam rockets into Israel, the arrest or killing of suspected militants or the destruction of tunnels. Clearly the firing of rockets into Israel by Palestinian militants without any military target, which has resulted in the killing and injury of Israelis, cannot be condoned and constitutes a war crime.11 Nevertheless, serious questions arise over the proportionality of Israel’s military response and its failure to distinguish between military and civilian targets. It is highly arguable that Israel has violated the most fundamental rules of international humanitarian law, which constitute war crimes in terms of article 147 of the Fourth Geneva Convention and article 85 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol I). These crimes include direct attacks against civilians and civilian objects and attacks which fail to distinguish between military targets and civilians and civilian objects (articles 48, 51 (4) and 52 (1) of Protocol I); the excessive use of force arising from disproportionate attacks on civilians and civilian objects (articles 51 (4) and 51 (5) of Protocol I); the spreading of terror among the civilian population (article 33 of the Fourth Geneva Convention and article 51 (2) of Protocol I); and the destruction of property not justified by military necessity (article 53 of the Fourth Geneva Convention).
17. Gaza has become a besieged and imprisoned territory as a result of the economic sanctions imposed by Israel and the West, following the election success of Hamas in the January 2006 elections, the capture of Corporal Gilad Shalit in June 2006 and the seizure of power by Hamas in June 2007. External borders have been mainly closed and only opened to allow a minimum of imports and exports and foreign travel. This has produced a humanitarian crisis, one carefully managed by Israel, which punishes the people of Gaza without ringing alarm bells in the West. It is a controlled strangulation that seriously violates norms of human rights law and humanitarian law but which apparently falls within the generous limits of international toleration.
18. There are six crossings into Gaza, all of which are controlled by Israel. Rafah, the crossing point for Gazans to Egypt, and Karni, the commercial crossing for the import and export of goods, are the principal crossing points. They are the subject of the Agreement on Movement and Access, which provides for Gazans to travel freely to Egypt through Rafah and for a substantial increase in the number of export trucks through Karni. Since 25 June 2006, following the arrest of Corporal Shalit, and more particularly since mid-June 2007, following the Hamas seizure of power in Gaza, the Rafah crossing has been closed for lengthy periods of time as a result of Israel’s refusal to allow members of the European Border Assistance Mission, responsible for operating Rafah, to carry out their task. From mid-June to early August some 6,000 Palestinians were stranded on the Egyptian side of the border, without adequate accommodation or facilities and denied the right to return home. Over 30 people died while waiting. No regard is had to the hardships suffered by ordinary Palestinians by Israel in its decision to close the Rafah crossing. The Karni crossing has likewise been closed for long periods of time during the past 18 months, and more particularly since mid-June 2007.
19. The siege of Gaza has had a major impact on the economy of Gaza. Employment has suffered dramatically. On 9 July 2007 the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) announced that it had halted all its building projects in Gaza because it had run out of building materials, such as cement. This has affected 121,000 jobs of people building new schools, houses, waterworks, and health centres. Eighty per cent of the 3,900 factories operating in Gaza have likewise been compelled to close because of the failure to obtain building materials through the Karni crossing. This has affected the livelihoods of 30,000 people. The border closures have also prevented agricultural products from being exported, depriving farmers of their income. Fishing has virtually come to an end as a result of the ban on fishing along the Gaza coast, rigorously enforced by Israeli gunboats. The public service, while employed in theory, is largely unpaid as a result of Israel’s withholding of funds due to the Palestinian Authority. According to the World Bank 3,200 businesses closed in June leaving 65,000 people unemployed.
20. The cancellation of the Gaza customs code by Israeli authorities has also meant that more than 1,300 containers of commercial materials destined for Gaza remain stranded at Israeli ports, and essential items such as milk powder, baby formula and vegetable oil are now in short supply. Military incursions have forced the closure of schools. Eighty-one items on the essential drugs list were out of stock, according to the Palestinian Ministry of Health, because of the financial crisis. Mental health is a serious problem as a result of the trauma inflicted by military incursions.
21. Poverty is rife. Over 90 per cent of the population live below the official poverty line. UNRWA and the World Food Programme provide food assistance to 1.1 million Gazans of a population of 1.4 million. Recipients of food aid receive flour, rice, sugar, sunflower oil, powdered milk and lentils. Few can afford meat, fish (virtually unobtainable anyway as a result of the ban on fishing), vegetables and fruit. Morale is low. The very fabric of Gazan society is threatened by the siege.
22. In a report of 11 July 2007 the World Bank declared that the prolonged closure of Gaza’s border crossings could lead to the “irreversible” economic collapse of Gaza. On 19 July Karen AbuZayd, Commissioner-General of UNRWA, warned that without the Karni crossing the Gaza economy will “collapse”.
23. Israel’s siege of Gaza violates a whole range of obligations under both human rights law and humanitarian law. The International Covenant on Economic, Social and Cultural Rights provisions that everyone has the right to “an adequate standard of living for himself and his family, including adequate food, clothing and housing”, freedom from hunger and the right to food (art. 11) and that everyone has the right to health have been seriously infringed. Above all, the Government of Israel has violated the prohibition on collective punishment of an occupied people contained in article 33 of the Fourth Geneva Convention. The indiscriminate and excessive use of force against civilians and civilian objects, the destruction of electricity and water supplies, the bombardment of public buildings, the restrictions on freedom of movement, the closure of crossings and the consequences that these actions have had upon public health, food, family life and the psychological well-being of the Palestinian people constitute a gross form of collective punishment. The capture of Corporal Shalit and the continuing firing of Qassam rockets into Israel cannot be condoned. On the other hand, they cannot justify the drastic punishment of a whole people in the way that Israel has done.
24. Gaza is no ordinary State upon which other States may freely impose economic sanctions in order to create a humanitarian crisis or take disproportionate military action that endangers the civilian population in the name of self-defence. It is an occupied territory in whose well-being all States have an interest and whose welfare all States are required to promote. According to the advisory opinion of the International Court of Justice on the wall, all States parties to the Fourth Geneva Convention have the obligation “to ensure compliance by Israel with international humanitarian law as embodied in that Convention”.12 Israel has violated obligations of an erga omnes character that are the concern of all States and that all States are required to bring to an end. In the first instance, Israel, the occupying Power, is obliged to cease its violations of international humanitarian law. But other States that are a party to the siege of Gaza are likewise in violation of international humanitarian law and obliged to cease their unlawful actions. It is no excuse that Gaza is governed by a “terrorist group”. Terrorism is a relative concept, particularly in the context of occupation, as opposition to the occupying Power will always be seen as terrorism by the occupying Power and its accomplices. French resistance fighters were viewed as terrorists by the German occupation, and members of the South West Africa Peoples’ Organization that opposed South Africa’s occupation of Namibia were seen as terrorists by the South African regime. Today such resistance fighters are seen as heroes and patriots. This is the inevitable consequence of resistance to occupation.