A recent judgment of the Israeli Supreme Court in the case of HCJ 10265/05 Physicians for Human Rights v Defense Minister (judgment of 7 October 2008) reexamines a number of questions concerning not only the status of the Gaza Strip and Israel’s obligations towards the local population. Equally, the Court’s reluctance to address the violations of IHL and human rights law of the Israeli military powers in the Gaza or West Bank, and the practice of ‘putting out fires’ whilst assuring that the matter would be resolved without needing to enforce the state’s gross violations of its international legal obligations.
Justice Levi of the Israeli High Court of Justice (HCJ) notes that the petition was filed in 2005 demanding that the respondent cease the air force operations that create sonic booms in the Gaza Strip region and that he avoid the use of such tactics in the future. The judgment recalls that the petition submitted that “these operations caused symptoms of anxiety, panic, sleep disorders, etc. in those residing in the region and especially in children”.
In response to the petition, the Court depicts the state’s submissions that claimed: “since the state of Israel had evacuated its forces from the borders of the Gaza Strip, it is not found under a belligerent occupation, and the laws of war apply to it”. According to the respondent, the Court notes, “there is nothing erroneous in the use of air force planes, and in any case the petition is directed at a military-operational activity outside of the state’s borders, which as a rule is not a matter for judicial consideration and determination due to its institutional non-justiciability”.
Since the exchanges between the two parties, in November 2005 manuscripts addressing three questions were ordered to be submitted by the Court – (i) the legal framework that applies to the Israeli army’s operations in the Gaza Strip after the termination of the military regime; (ii) the justiciability of belligerent operations taking place in foreign territory outside the state’s borders; and (iii) the treatment by international law of the military’s operations in which sonic bombs are used. Following the Court’s order the two sides submitted their positions on the matters but, as the Court explains carefully, “meanwhile something happened, and we refer to the fact that since 5 July 2006 there was no subsequent use of sonic bombs”.
Despite the fact that the respondent emphasised that it retains the right to revert to the use of these measures at any point in the future, the Court “considered the positions of the sides, and at the end of the day decided not to decide on the petition’s requests and to order its deletion. We act in this manner since it is true for the present time that we speak of a theoretical dispute, and this being the matter it does not require the determination of the Court”.
The Court’s refusal to consider the matter that it lists in the third paragraph of its limited judgment in the case attests to its generally perceived approach to matters concerning the occupied Palestinian territories (OPT) and particularly the Gaza Strip since disengagement. The latter arouses a number of thought-provoking questions with regards to the true position of the international law of occupation on the indicators important for the appraisal of the persistence of an occupation (see the traditional definition of an occupation found in Article 42 of the Hague Regulations 1907; see the more recent interpretations of “effective control” particularly in the ICJ’s Congo v Uganda (2005)).
The Court has rejected the applicability of the law of occupation to the Gaza Strip since its determination in the ‘gas and electricity’ judgment in HCJ 9132/07 Jaber Albassyoni (see here for a previous post on this judgment and its full text), where human rights organizations petitioned against the decrease in supplies to the Strip on the grounds that it is a basic humanitarian obligation that Israel, as a Belligerent Occupant, owes the occupied population, still dependent on Israel’s concessions for the purpose of enjoying its most basic rights. It should be noted that this submission is tenable even if the unilateral termination of occupation was admissible and effectively discharged in the present case.
Furthermore, an issue that is less often recalled with regards to Israel’s legal position as per the applicable legal framework to the Strip is its recurring references to the Oslo Accords. It is indisputable that the law implementing the disengagement plans issued in the form of a military order in 2005, which cancelled the military regime and particularly all the military legislation brought into effect during this time, this includes Military Order No. 7 which was legislated to transpose the provisions of the Interim Accords between Israel and the Palestinian Authority signed during the Oslo peace processes in 1995. When the former was annulled, the latter ceased to apply. An implication of this reality, inter alia, is that Israel’s basing of its control of the water, air and land ways to the Strip as well as the continued administration of various civil affairs, e.g. the population registry, does not stand.
Various legal positions have arisen as a result of a vivid debate which has lasted over three years. Whilst some scholars such as Shany have noted that a prolonged occupation such as the case at hand imposes positive obligations on the occupant, even post unilateral disengagement, since the current state of affairs could tenably be equated to a post-occupation siege of the region, it does not constitute an occupation per se similarly to the status of the pre-occupation siege. He also notes that where the belligerent power cannot actually control the various aspects of public life in order to affirm its occupation, it cannot be obliged to comply with the relevant obligations that fall upon a belligerent occupant. Nevertheless, this should be regarded in light of the fact that it was Israel who ‘produced’ the present reality in the Strip due to its failure to comply with its legal obligations as an occupant in the first place and to maintain public life and civil order (as per Article 43 of the Hague Regulations).
Concurrently, academics such as Benvenisti have stated that the definition of “effective control” goes beyond the ‘actual’ and encompasses the ‘potential’ control that the belligerent power can effectuate in the territory (and administration) under question. Regardless of which perspective one adheres to, whether ‘potential control’ or even the post-occupation obligations that subsist in the context of a long and all penetrating nature, the Strip is occupied for all intents and purpose as Israel persists to control the monumental locations in the region, regardless of actual number and locations of the troops (see ICJ’s Congo judgment supra), maintaining a complete closure on the ‘big Gaza prison’, it is obliged to provide for the population and comply with clear and unequivocal IHL and international human rights norms.
The following scholars (also cited above) have presented some interesting submissions on these questions more recently which are worth considering:
Shany, Yuval. “The Law Applicable to Non-Occupied Gaza.” Complementing IHL:
Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations, An International Conference, 1-3 June 2008, Jerusalem;
Benvenisti, Eyal. “The Law on the Unilateral Termination of Occupation.” in Zimmermann E. Giegerich T. The Law on the Unilateral Termination of Occupation, 2009; and