22 June 2008|
... relevant to the Gaza Strip and the Free Gaza Campaign
Is Gaza under Israeli occupation?
Israel claims that it no longer occupies the Gaza Strip. This position is calculated to avoid the responsibilities of an occupying power under international law. But as a matter of fact Israel occupies the Gaza Strip because it maintains effective control over it. The international law relevant to occupied territories become applicable whenever a territory comes under the effective control of hostile foreign armed forces.
According to the International Committee of the Red Cross:
The question of "control" calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC\'s Commentary to the Fourth Geneva Convention (1958).
An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation.
Although Israel\'s position on the applicable international law fluctuates a great deal, its general approach has been to adopt this latter interpretation. This is reflected in Israel\'s claim that the Palestinian Authority is responsible for the welfare of Gaza\'s population. Yet the Palestinian Authority lacks the capacity to meet this responsibility due to Israel\'s effective control of the Gaza Strip.The residents of Gaza require Israel\'s consent to travel to and from Gaza, to take their goods to Palestinian and foreign markets, to acquire food and medicine, and to access water and electricity. The Palestinian Authority must seek Israel\'s permission to perform several key functions of government. These include the provision of social and health services, security, setting immigration policy, developing the Palestinian economy, and allocating resources. In other words Israel has total control of Gaza is obliged under international law to provide these services, but does not. If Israel does not wish to provide these services it must end its occupation of Gaza.
Israel\'s obligations as occupying power
Under international law Israel is obliged to uphold certain specified basic standards to protect both the population under its control and the land on which that population lives. These obligations are expressed in the Hague Regulations of 1907, the Fourth Geneva Convention of 1949, and the First Additional Protocol to the Fourth Geneva Convention of 1977.
Israel\'s control of Gaza\'s borders
If Gaza was not under occupation its residents would be free to leave and control its borders, including the sea. However Israel maintains effective control of Gaza\'s borders, its airspace, and the waters beyond the Gaza coast. Palestinian use of the coastal waters is subject to severe restrictions. Palestinian boats are prohibited from going out beyond a prescribed distance, and foreign vessels are prohibited from coming within 12 nautical miles off the coast. Furthermore, the Israeli navy retains the right to "take any measures necessary against vessels suspected of … any… illegal activity."
Israel has maintained regular bans on fishing off the Gaza coast, such as its total ban on fishing between June to late October 2006. In late October 2006, Israel partially relaxed the ban. However in the same month the UN Office for the coordination of humanitarian affairs noted:
The fishing industry has been paralysed by the complete ban imposed by the IDF on fishing grounds off the Gaza Strip for over 50 days. On 14 August , the General Syndicate of Marine Fishers requested the assistance of the international community to support the needs of the fishermen and their families – there are almost 3,000 licensed fishermen in the Gaza Strip, most support sizeable families.
The Israeli military has fired on and destroyed boats, and killed fishermen who have gone out to sea despite the ban. Furthermore, the Palestinians cannot develop maritime trade opportunities or develop natural resources located within the territorial waters without Israel\'s permission.
Advisory Opinion of the International Court of Justice
International Committee of the Red Cross
Negotiation Affairs Department, Palestine Liberation Organisation
United Nations Office for the Coordination of Humanitarian Affairs
See in particular Section III Hague Regulations Articles 43 (restore public order and safety) and 46 (protection of individual and group liberty); and the Fourth Geneva Convention Articles 6 (lists relevant articles), 48 (freedom of movement outside occupied territory), 53 (destruction of property prohibited), 55 (obligation to provide food and medical supplies), 59 (occupying power obliged to provide free passage to consignments for the relief of the needy population under occupation)
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