Fourth Geneva Convention – Jonathan Kuttab

Israel Has Effective Control over Gaza

Jonathan Kuttab, international human rights lawyer — Fri, 03 Apr 2020 22:35:28 +0000

Arab Center Washington DC

See original publication here

MARCH 27, 2020

Jonathan Kuttab

The current coronavirus pandemic has placed great responsibilities on governments to provide necessary guidance, testing, and regulations regarding social distancing and treatment of those who are infected. Governments also are required to ensure the delivery of medical supplies, masks, respirators, and hospital beds in large quantities to meet the needs of the populations in their charge. As cases of COVID-19 are confirmed in the Gaza Strip and fears of its rapid spread in that densely populated area increase, Israel’s legal and humanitarian obligations toward Gaza and its population become salient and take center stage.

Legal Context and Current Conditions

Under customary international law, the duties of a belligerent occupier toward the civilian population are very clear and include ensuring law and order and public safety. The Fourth Geneva Convention specifically codified and detailed the responsibilities of an occupying power in a situation akin to the current one by stating that: “to the fullest extent of the means available to it, the occupying power has the duty of ensuring the food and medical supplies of the population. It should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.”

There is no question that Gaza’s medical resources are extremely limited and its hospitals, already under great strain, are woefully deficient and cannot meet the requirements of this pandemic. There are some 60 ventilators for a population of two million people, and Israel has provided only 200 testing kits for COVID-19. Ghada Majadle of Physicians for Human Rights-Israel has put the responsibility on Israel “by virtue of international law to provide the required means to the Health Ministry in Gaza.”

Israel not only has failed to live up to its responsibilities of providing for the needs of Gaza’s civilians, it has also added to their hardship by the crippling siege it has imposed on the strip since 2007.

Israel not only has failed to live up to its responsibilities of providing for the needs of Gaza’s civilians, it has also added to their hardship by the crippling siege it has imposed on the strip since 2007, severely limiting economic activities and controlling all exports as well as the import of all goods and supplies, including food, medical provisions, fuel, and building materials. According to B’Tselem, the Israeli human rights organization, “[a]fter decades of occupation in which it avoided any investment there, and after more than 12 years of blockade, Israel has turned Gaza into the biggest open-air prison in the world.” It has also impeded the ability of civilians and their families to seek medical care outside the Gaza strip for cases that cannot be handled there. Through its control over the border crossings, Israel’s military determines who can leave to seek medical care in Israel, the West Bank, or farther afield in Jordan.

“Disengagement” and Responsibility

The department of the Israeli army responsible for issuing or withholding such permits is the office of the Coordinator of Government Activities in the Territories (COGAT). While COGAT exercises full control over many aspects of Palestinians’ lives in Gaza and the West Bank, the official position of the Israeli government has been that since its removal of Jewish settlers and redeployment and withdrawal of its ground forces from the center of Gaza in 2005, Israel’s occupation of Gaza ended at that time; therefore, power and responsibility for the people of Gaza devolved to the Palestinians themselves. Furthermore, since Gaza came under the control of Hamas in 2007, Israel announced that it considered Gaza a “hostile entity” and felt free to impose sanctions on its population as a means of pressuring or punishing Hamas, which it considers a terrorist organization.

The argument that Israel has “disengaged” and “withdrawn” from Gaza and is therefore not accountable is no longer a rational or appropriate one to make.

The argument that Israel has “disengaged” and “withdrawn” from Gaza and is therefore not accountable—which has currency in Israel and is repeated by some of its supporters abroad—is no longer a rational or appropriate one to make. Indeed, no countries around the world have accepted such a stance and all continue to view the Gaza Strip as well as the West Bank as under occupation. While Israeli forces withdrew from the city centers and delegated some power to Palestinians, they remain—and act—very much as occupiers. The fact that Hamas, unlike the Palestinian Authority, is much more antagonistic to Israel does not change this reality. In the words of Shannon Maree Torrens, “That Israel denies that it is an occupying power in relation to Gaza should have no effect on the international community holding it to account for responsibilities it has long neglected.”

The Occupation of Gaza Continues

While Israel has in fact redeployed its ground troops out of the populated centers and does not handle the daily affairs of Gazans, it continues to exercise very effective control, from the outside, on all aspects of life there. Specifically, Israel’s dominance is evident and exercised in the following areas:

Whenever they desire, the Israel Defense Forces enter Gaza and carry out operations both openly and clandestinely.
Israel regulates the borders so that no persons or goods can enter or leave the area without its permission. Although one part of Gaza’s southern border is controlled by Egypt, a joint agreement between Israel and Egypt ensures that no goods or personnel can enter or exit without coordinating with Israel. Illegal tunnels that attempt to circumvent this system of control are frequently bombed or flooded by Israel and Egypt.
Israel commands the airspace above Gaza. Its planes and drones constantly conduct surveillance and military operations.
Israel controls the sea coast and territorial waters. It regularly prohibits fishermen from fishing beyond the limits it sets and changes from time to time. The Israeli navy blockades the coast, fires on fishing boats, and interdicts any attempts to break the siege by sea flotillas, even in international waters. Israel also exploits—for its own purposes exclusively—the subterranean natural gas fields in the Mediterranean Sea off Gaza’s shores.
Israeli currency is used in Gaza and Israel controls the flow of any other currency.
Israel controls the entry of any humanitarian assistance into the area.
The population register for Gaza is in Israeli-controlled computers and all Gazans are required to use Israeli-issued ID numbers. To be effective, documents officially issued by the Palestinian Authority or Hamas require numbers that are issued and approved by Israel.
Postal, telephone, and internet connections between Gaza and the outside world are all “hosted” and conducted through Israel.
While Hamas ostensibly runs internal day-to-day affairs in Gaza, both Israel and the Palestinian Authority deny its legitimacy. Daily affairs are conducted within the parameters of Israeli approval. While such cooperation is not always acknowledged by either side, in fact Israel considers Gaza to be a territory under its effective control. In practice, Israel is happy to cede the responsibility for running the affairs of the Gaza Strip but it has never relinquished control or power over the area in any matter that it deemed was in its interest.

In reality, therefore, Gaza continues to be effectively under Israeli occupation. The responsibility for protecting Gaza’s citizens from the spread and serious effects of the coronavirus must rest with Israel. Gaza’s Health Ministry has issued warnings about the epidemic and has appealed to Israel to provide necessary supplies in order to help stem the impact of the virus. To be sure, Israel must understand and implement its obligations toward Gaza’s citizens and abide by its responsibilities under the Geneva Conventions.

Jonathan Kuttab is a leading human rights lawyer and a Non-resident Fellow at Arab Center Washington DC. He is a resident of East Jerusalem and a partner of Kuttab, Khoury, and Hanna Law Firm there. He is the co-founder of Al-Haq, the first international human rights legal organization in Palestine, and of the Palestine Center for the Study of Nonviolence.

Israel’s Arguments for the Legality of Settlements under International Law

Jonathan Kuttab, international human rights lawyer — Tue, 26 Nov 2019 05:44:46 +0000

NOVEMBER 21, 2019

Jonathan Kuttab

original article Arab Center Washington DC

The illegality of Israel’s civilian settlements in territories it occupied in 1967 is one of the few clearly settled issues in international law. The Geneva Conventions provisions on this issue are clear and explicit: civilian settlement activities are considered grievous breaches and war crimes. Furthermore, the issue was litigated and decided by the International Court of Justice in a rare, almost unanimous ruling of 15 judges in the case of Israel’s Separation Wall in 2004. The lone dissenting judge in that case wrote that even he agrees with the majority on the issue of the applicability of the Geneva Conventions.

So how does Israel justify such a clearly blatant violation? The answer lies in a number of arguments offered over the years, both in courts (primarily the Israeli High Court) and in legal publications and the press, as well as statements of Israeli officials. Following is a list of such arguments with a brief response, in bold italics, to each:

1. Israel voluntarily applies the “humanitarian” but not the “political” provisions of the Geneva Conventions. Settlements are political issues and therefore are not to be governed by the Geneva Conventions.

No distinction like this has ever been known in international law, and Israel has not even tried to specify which provisions of the Geneva Conventions it considers to be “humanitarian.”

1. While Israel signed the Geneva Conventions, its Knesset did not ratify them; therefore, they never became part of Israeli domestic law. The Israeli courts are therefore not free to apply them as Treaty law but must only apply the Hague Conventions, being part of traditional (conventional) international law, which is automatically part of Israel’s law—but not Treaty law, which needs to be specifically ratified and incorporated into Israeli law by the Knesset.

This argument explains how the Israeli High Court, as a domestic court, avoided the obligation to apply the Geneva Conventions, but it does not address Israel’s international obligation to follow the Geneva Conventions, which it signed.

1. The movement of civilians into occupied territories, which is prohibited by the Geneva Conventions, only applies to forced marches and the imposed movement of civilians. It has no application where the movement of civilian Israeli settlers is a voluntary action by the settlers themselves.

The authoritative Pictet Commentary on the Geneva Convention, issued by the International Committee of the Red Cross, addresses this very argument and specifies that any movement of civilians into or out of the occupied territories is illegal. It does not accept this interpretation.

1. The settlements are needed for security and are therefore legitimate, even though they are civilian complexes. As a “belligerent occupier,” the Israeli army has every right to set up security structures; Israeli settlements were initially started inside army compounds as part of the occupation and only later were turned over to civilian rule. Given Israel’s democratic and egalitarian nature, civilian settlements—and not just a professional full-time army—have always played a central role in the defense of the country. This argument was used by the Israeli High Court in its Elon Moreh decision, which did, in fact, hold that the status of the occupied territories is “belligerent occupation.” However, the court said it needs to examine in each case whether the security or ideological consideration were predominant in taking private Arab land for settlements. Where security considerations were predominant, or where the land in question was public and not private, the High Court will not intervene.

Whatever the merits of that argument under Israeli domestic law, it has no weight whatsoever in international law, which categorically prohibits the movement of civilians into the occupied territories. It is disconcerting that US Secretary of State Mike Pompeo says that only Israeli courts can judge this issue of the illegality of settlements.

1. The Geneva Conventions only apply to territories captured in a war of aggression, but not to territories that come under the control of a country in a defensive war where others are the aggressors.

The Geneva Conventions and international law do not make such a distinction. Apart from the difficulty of establishing which wars are “aggressive” and which are “defensive,” particularly when the army that starts hostilities claims it is acting in a “preemptively defensive” fashion, the Geneva Conventions were concerned with protecting civilians who fall under the rule of another army. They also addressed the disruptive effect on the international order of any acquisition of territories after a war, where moving civilian populations into or out of occupied territories would be a complicating factor.

1. The Geneva Conventions only apply to territories taken from a recognized sovereign. Egypt was not, nor claimed to be, a sovereign in Gaza, and Jordan’s claim to sovereignty is weak and was only recognized by England and Pakistan. Therefore, there was no sovereign whose property and population comes under the purview of the Geneva Conventions.

This argument is very problematic. It does not address the question of the Golan Heights, which was clearly Syrian sovereign territory. In addition, Jordan’s claim over the West Bank was generally accepted internationally (as much as Israel’s claim to West Jerusalem). More importantly, the thrust of the Geneva Conventions was not to settle historic or national claims between countries but to provide protection for civilians and to prevent demographic changes from occurring as a result of armed conflict. The entire structure of the international order would be in great jeopardy if the 190+ countries of the world were to resort to war to acquire land, which they claim on a historic or ethnic basis, and then move their civilian populations into the lands they occupy by force.

1. In the absence of a legitimate sovereign, the Jewish people are the “missing reversioners” and the true sovereign in the area in light of their genuine sovereignty over 2,000 years ago. That claim is greater than the claim of any other country, and in the absence of other legitimate claims, Israel itself is the sovereign and cannot be an “occupier” of what is its historic right.

This argument was first offered by Yehuda Blum, Israel’s representative at the United Nations, and has been quoted repeatedly by Israeli writers. It has never been used or accepted by any international authorities and is often referred to as “novel.” Historically, the whole of Palestine lying at the intersection of three continents has seen many invaders and empires set up rule over it, and modern countries that claim descent from these historic invaders would include Syria, Iraq, Iran, Saudi Arabia, Egypt, Turkey, Greece, and Italy.

1. If the settlements stay long enough, gradually the world will accept them and they will become part of the reality which must be dealt with. Even Palestinians have accepted, and will accept, the settlements, or at least the settlement blocs, and they will negotiate about the rest.

This seems to be the most powerful argument, and it is one that Israeli Prime Minister Benjamin Netanyahu has been using frequently. He perhaps thinks that if international law prohibits this, then he can change international law. At its heart, this argument of establishing facts on the ground or “might makes right” is a thorough repudiation of international law and an invitation to international chaos and lawlessness. That is the danger in President Donald Trump’s positions, whether on the Golan, Jerusalem, or the issue of settlements.

Jonathan Kuttab is a Human Rights Lawyer and a Non-resident Fellow at Arab Center Washington DC