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Disengagement from the Gaza Strip and Post-Occupation Duties

Published online by Cambridge University Press:  19 March 2012

Benjamin Rubin
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Abstract

Israel's disengagement from the Gaza Strip has created a situation in which this territory is dependent on the supply of various necessities by Israel, in particular the supply of electricity, In 2008 Israel decided to withhold 5% of the supply of electricity to the Gaza Strip, prompting several Gaza residents as well as human rights organizations to petition the Supreme Court of Israel against this decision. In Jaber Al-Bassiouni Ahmed v. The Prime Minister the Court assumed that the Israeli occupation of the Gaza Strip had ended with the disengagement and treated this issue on the basis of general humanitarian law. The basic questions of whether the occupation had ended, and whether certain duties remained with Israel, even assuming that Gaza is no longer occupied, have not been explored. This Article addresses these two questions.

It is the conclusion of this Article that regardless of the terms imposed by Israel after disengagement and other reservations that have been raised in this regard, occupation ended following the complete withdrawal of any Israeli presence in the Gaza Strip. Israel's disengagement raised difficulties that are not only unique to the Gaza Strip; these difficulties emerge in most cases when occupation is replaced by a process of self-determination rather than the return of the former sovereign. The contention presented herein is that Israel continues to have certain post-occupation duties even after the occupation of Gaza. These duties correspond to the occupant's duties to care for order and civil life in the territory during the occupation. These obligations will end once the new regime in the area is able to perform the duties that fell upon the shoulders of the occupant during the occupation, or until the non-performance of the new regime is attributable to its own failures and not to the ending of the occupation. In light of these contentions, Israel is still under certain obligations regarding the Gaza Strip, among them the regular supply of electricity to that area.

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Articles
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Israel Law Review , Volume 42 , Issue 3 , 2009 , pp. 528 - 563
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 Press Release issued by the Prime Minister's Office, Security Cabinet Declares Gaza Hostile Territory, Sept. 19, 2007, http://www.mfa.gov,il/MFA/Govemment/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+territory+19-Sep-2007.htm (last visited December 15, 2009).

2 HCJ 9132/07 Jaber Al-Bassiouni Ahmed v. The Prime Minister [Jan. 30, 2008] (unpublished), English translation available at http://elyon1.court.gov.il/files_eng/O7/320/091/n25/07091320.n25.pdf [hereinafter Bassiouni].

3 Id. ¶ 73.

4 Id. ¶ 11.

5 Special reference was made to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 23, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention], and to Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, arts. 54 & 70, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I].

6 Bassiouni, supra note 2, ¶ 12.

7 For a similar attitude of England's High Court, see R (Islamic Human Rights Commission) v. Civil Aviation Authority (2006) EWHC 2465 (Admin).

8 Infra notes 20 & 37.

9 See infra note 17.

10 On the legal history of the Gaza Strip see Farhi, Carol, On the Legal Status of the Gaza Strip, in Military Government in the Territories Administered by Israel 1967-1980, the Legal Aspects 61 (Shamgar, Meir ed., 1982)Google Scholar.

11 See, e.g., infra notes 16 & 92. The barrier to accepting the status of an occupant formally was mainly psychological. This resulted in the slightly comic adoption of a new Hebrew term as a substitute for the commonly used one. Instead of using the term kibush tzva'ee which is the Hebrew equivalent of “belligerent occupation,” a new expression was coined and used in legal writing including court judgments: tfisa lohamit. Both terms have precisely the same meaning, but the new terminology has not yet acquired the derogatory undertones of occupation. Unless the occupation of the West Bank ends soon, it is to be expected that yet another name for this much-maligned institution will be required.

12 Declaration of Principles on Interim Self-Government Arrangements (Israel-P.L.O.), Sept. 13, 1993, reprinted in 32 I.L.M. 1525 (1993)Google Scholar.

13 The Cairo Agreement, Israel-PLO Agreement on the Gaza Strip and the Jericho Area, May 4, 1994, reprinted in 33 I.L.M. 622 (1994)Google Scholar,

14 Interim Agreement on the West Bank and the Gaza Strip (Israel-P.L.O), Sept. 28, 1995, reprinted in 36 I.L.M. 551 (1997)Google Scholar [hereinafter Interim Agreement].

15 See Second Report, infra note 20; Benvenisti, Eyal, The Present Status of the Palestinian Authority, in The Arab-Israeli Accords: Legal Perspectives 47, 53 (Cotran, Eugene & Shibli, Mallat eds., 1996)Google Scholar [hereinafter Benvenisti, Palestinian Authority]. See also Benvenisti, Eyal, Responsibility for Protection of Human Rights under the Interim Israeli-Palestinian Agreements, 28 Isr. L. Rev. 297 (1994)CrossRefGoogle Scholar. But see Sina, Stephan, Der Völkerrechtliche Status des Westjordanlandes und des Gaza-Streifens nach den Osloer Verträgen 192–205 (2004)Google Scholar [hereinafter Sina]. One argument in support of the opinion that Israel was an occupant at that time is Israel's insistence on having residual jurisdiction in the whole of the Gaza Strip, see Singer, Joel, The Oslo Process: A View from Within, in New Political Entities in Public and Private International Law 17, 26 (Shapira, Amos & Tabory, Mala eds., 1999)Google Scholar, Mr. Singer was the Legal Adviser of the Israel Ministry of Foreign Affairs and one of the drafters of the various Oslo Accords. No state claims residual jurisdiction in a place it has just evacuated and over which it claims to have ceased being the occupant.

16 HCJ 1661/05 Gaza Coast Regional Council v. The Knesset [2005] IsrSC 59(2) 481, 514Google Scholar.

17 Government of Israel, Decision of June 6, 2004 on the Revised Disengagement Plan, available at http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+Disengagement+Plan+6-June-2004.htm [hereinafter Disengagement Plan].

18 Id. at sec. 2(A)(3.1).

19 Id. at sects. 3 (one); 5 ¶ 2; 6.

20 Israeli Practices affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory, delivered to the General Assembly, U.N. Doc. A/60/271 (Aug. 18, 2005) [hereinafter First Report], and ECOSOC Commission on Human Rights, Report on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, delivered to General Assembly U.N. Doc. E/CN4/2006/029 (Dec. 22, 2005) [hereinafter Second Report].

21 First Report, supra note 20, ¶ 9.

22 Benvenisti, Eyal, The International Law of Occupation 4 (2d ed. 2004)Google Scholar.

23 In the final sentence of the above quotation from Bassiouni (supra note 2) the Court based its statement of law not just on lack of duty on Israel's part, but on lack of ability as well.

24 UK Ministry of Defence, The Manual of the Law of Armed Conflict ¶ 11.3, 275 (2004)Google Scholar [hereinafter British Manual].

25 Department of the Army, Field Manual 27–10: The Law of Land Warfare, July 18, 1956Google Scholar, sec. 356 (revised July 15, 1976) [hereinafter U.S. Manual]. See also U.S. v. List (Hostages case), in VIII Law Reports of Trials of Major War Criminals 38, 56 (1949)Google Scholar [hereinafter List].

26 See British Manual, supra note 24, U.S. Manual, supra note 25, The German Bundeswehr, Humanitarian Law in Armed Conflicts Manual ¶ 526 (1992) [hereinafter German Manual]; List, supra note 25, at 55-56; Bruderlein, Claude, Legal Aspects of Israel's Disengagement Plan under International Humanitarian Law, Policy Brief published by the Harvard Program on Humanitarian Policy 6–8, available at http://www.miftah.org/Doc/Misc/briefing3466.pdfGoogle Scholar [hereinafter Harvard Brief] and HCJ 102/82 Tsemel v. The Minister of Defense [1983] IsrSC 37(3) 360, 363Google Scholar.

27 Case Concerning Armed Activities in the Territory of the Democratic Republic of Congo (DRC v. Uganda), 2005, I.C.J.7, (Dec. 19) at ¶173 [hereinafter Armed Activities].

28 Id. ¶ 173 (emphasis added B.R.).

29 Id. ¶ 177.

30 Id. ¶ 173.

31 Benvenisti, supra note 22, at 5.

32 See Banković v. Belgium, 2001-XII Eur. Ct. H.R. 333.

33 The famous examples are the ending of occupation in Germany and in Japan following the Second World War.

34 See http://dover.idf.il/IDF/English/opcast/default.htm (last visited Nov. 15, 2009).

35 Benvenisti, Palestinian Authority, supra note 15, at 47, 57.

36 Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A) at ¶ 62 (1995) (GC) (Preliminary Objections) [hereinafter Loizidou (Preliminary Objections)]. In Armed Activities, supra note 27, the ICJ was prepared to base its decision regarding the occupation of Congolese territory on this assumption. However, upon the facts of the case, the Court could not find that the rebel groups were “under the control” of Uganda (¶ 177). Similarly, in his report the Secretary General of the UN presented certain requirements for confirming an Israeli withdrawal in accordance with the implementation of Security Council resolutions 425 (1978) and 426 (1978), see U.N. Doc. S/2000/590 (June 16, 2000). One of those was the dismantling of the South Lebanese Army, as this group was viewed as an auxiliary of the Israeli forces.

37 First Report, supra note 20, ¶¶ 8 & 9, Second Report, supra note 20, ¶ 8. See also Stephanopoulos, Nicholas, Israel's Legal Obligations to Gaza after the Pullout, 31 Yale J. Int'l L. 524, 525 (2006)Google Scholar.

38 Amira Hess, For His Honor's Information, Ha'aretz, Dec. 14, 2005. available at http://www.haaretz.co.il/hasite/pages/ShArt.jhtml?itemNo=657746&contrassID=2&subContrassID=3&sbSubContrassID=0, supra note 32.

39 Banković, supra note 32.

40 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR].

41 Banković, supra note 32, ¶ 52.

42 Id. ¶ 46.

43 Id. ¶ 47.

44 Id. ¶ 75.

45 Id. ¶ 71 (emphasis added B.R.). The fact that the Court speaks in terms of exercising governmental powers rather than the ability to exercise such powers should be attributed to its human rights context.

46 Second Report, supra note 20, ¶ 8.

47 Id.

48 Id.

49 Armed Activities, supra note 27.

50 The decision in the Banković case was hailed by the House of Lords (Al-Skeini and Others v. Secretary of State for Defence, [2004] EWHC 291 1) as “a definitive judgment on this fundamental issue” (id. ¶ 108). It was also noted that a different decision “would make redundant the principle of effective control of an area” (id. ¶ 127).

51 Stephanopoulos, supra note 37, at 525 & n.12 submits that “under the Fourth Geneva Convention, degrees of occupation exist depending on the extent to which the occupying power exercises function of Government.” However, this assertion is wholly based on an isolated, and not very clear, sentence in the paragraph in Article 6 of the Convention that mentions the esoteric issue of “one year after the close of the general hostilities.” This provision lost any relevance in view of AP I, supra note 5.

52 Commentary on the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War 60 (Pictet, J.S. ed., 1958)Google Scholar [hereinafter Pictet Commentary].

53 First Report, supra note 20, ¶ 8

54 Second Report, supra note 20, ¶ 8.

55 The continued validity of the Oslo Accords has been the subject of some controversy. The fact that the five years timeframe of the Oslo process has long expired may give rise to the contention that the accords have also expired at the end of the five years period. Another legal argument would be that by now the Oslo Accords have lost their validity due to frequent violations from both sides. It is also arguable that the accords have simply lost their political purpose, and agreements of that kind, whether or not they are formally in force, are significant only as long as they are still on course toward achieving their political purpose.

Experience shows that there is still political life left in the old accords and in particular in the Interim Agreement. In April 2003 the parties gave their consent to “a roadmap” for a settlement of the conflict proposed by President George W. Bush. The road map was sometimes hailed as an alternative to the Oslo Accords, but even this document based itself inter alia on “agreements previously reached by the parties.” Neither of the parties to the accords ever saw fit to repudiate them formally. It should be recalled that under Article 60 of the Vienna Convention on the Law of Treaties (May 23, 1969, 1155 U.N.T.S. 331) a material breach per se does not bring a treaty to an end. It merely opens to the injured party the option to terminate the treaty. Neither of the parties has so far availed itself of this option. Moreover, everyday relations between Israel and the Palestinians are still based on the Interim Agreement. One such example is that Israel regularly turns over to the Palestinian Authority money it collects in taxes on its behalf. It should also be remembered that following the victory of Hamas in the January 2006 elections to the Palestinian Council, world opinion, including that of the chairman of the Palestinian Authority, required the new government to abide by existing agreements with Israel.

As long as both parties view the Oslo Accords as having political uses and as long as neither party repudiates them, it may be safely assumed that the accords apply. Some of their provisions are obviously not relevant any more, but the Oslo Accords should now be applied mutatis mutandis.

56 See text at supra note 24.

57 (Emphasis added B.R.) Article 2 of the Fourth Geneva Convention also refers to “all cases of partial or total occupation of a country.” See also Greenspan, Morris, the Modern Law of Land Warfare 213 (1959)Google Scholar.

58 This question came before the Supreme Court of Israel in the case of HCJ 7015/02 Ajouri v. The IDF Commander in the West Bank [2002] IsrSC 56(6) 352, an English translation available at http://elyon1.court.gov.il/files_eng/02/150/070/A15/02070150.a15.pdfGoogle Scholar. Under discussion was the power of the Military Commander to place protected persons in assigned residence under Article 78 of the Fourth Geneva Convention. The petitioner argued that the location of the assigned residence must be within the occupied territory. In this case, a resident of the West Bank was given an assigned residence in the Gaza Strip. The Court took note of all the differences between the two territories, but ruled that in interpreting Article 78, the Gaza Strip and the West Bank should be viewed as a single occupied territorial unit. The reasoning behind the court's ruling is limited to Article 78 alone. The following was stated by then President Barak: “Indeed, the purpose underlying the provision of Article 78 of the Fourth Geneva Convention, and which restricts the validity of assigned residence to one territory, lies in the societal, linguistic, cultural social and political unity of the territory, out of a desire to restrict the harm caused by assigning residence to a foreign place” (id. ¶ 22). This reasoning is open to criticism which is beyond the subject our discussion. No criteria are offered regarding the general issue of whether these two areas form a single unit, and nothing in this judgment contributes towards dealing with that question. For a general critique of this decision, see Benvenisti, Eyal, Case Review: Ajuri et al—Israel High Court of Justice, 3 Eur. Pub. L. 481 (2003)Google Scholar.

59 S.C. Res. 242, U.N. Doc. S/RES/242 (Nov. 22, 1967) adopted shortly after the Six Day War was generally accepted as the favored formula for the solution to the conflict in the Middle-East. The resolution is founded on the assumption that future of the occupied territories is to be agreed upon by the existing states in the region. The Palestinian issue is referred to only in the paragraph that calls for “a just solution to the refugee problem’ (Id. ¶ 2(b)).

60 Roberts, Adam, The End of Occupation in Iraq 3 (2004) available at http://www.ihlresearch.org/iraq/pdfs/briefing3461.pdf.Google Scholar

61 See Harvard Brief, supra note 26.

62 Starting with GA Res. 2672C (XXV), U.N. Doc. A/RES/2672 (Dec. 8, 1970).

63 Stephanopoulos, supra note 37, at 525-26.

64 von Glahn, Gerhard, The Occupation of Enemy Territory 257 (1957)Google Scholar.

65 See Oppenheim, , International Law, II (Disputes, War and Neutrality) 616–20 (Lauterpacht, Hersch ed., 1952)Google Scholar; Feilchenfeld, Ernst, The International Economic Law of Belligerent Occupation 144–45 (1942)Google Scholar; Von Glahn, supra note 64, at 257-61; Morgenstern, Felice, Validity of the Acts of the Belligerent Occupant, 28 Brit. Y.B. Int'l L. 291 (1951)Google Scholar.

66 On the subject of occupation by a decision of an international organization, see Ratner, Steven R., Foreign Occupation and International Territorial Administration: The Challenges of Convergence, 16 Eur.. J. Int'l L. 695 (2005)CrossRefGoogle Scholar.

67 Harvard Brief, supra note 26.

68 The Harvard Policy Brief argues that the additional measures imposed by Israel may maintain the status of the Gaza Strip as occupied territory. It is, however, the opinion of the authors of that paper that on the assumption that the occupation is at an end, Israel would be released from the obligations of the occupant under the law of occupation (id. at 12).

69 The Resolution was accompanied by a statement of the President of the Security Council announcing, inter alia that “The members of the Security Council welcome the handover of full responsibility and authority for governing Iraq to the fully sovereign and independent Interim Government of Iraq, thus ending the occupation of the country. The members of the Council reaffirm the independence, sovereignty, unity and territorial integrity of Iraq” (Press Release, Security Council, President, On Handover of Sovereignty to Iraq, U.N. Doc. SC/8136). See also Wolfrum, Rudiger, Iraq – form Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference, 9 Max Planck Y.B. U. N. L. 1, 34 ff (2005)Google Scholar. But see Roberts supra note 60, and Sassòli, Marco, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, 16 Eur. J. Int'l L. 661, 683–84 (2005)CrossRefGoogle Scholar.

70 S.C. Res. 1546, ¶ 10, U.N. Doc. S/RES/1546 (June 8, 2004).

71 Id. ¶ 14.

72 In the Preamble to the Resolution, the Council recognizes the request made by Iraq to retain the presence of the MNF, and the importance of consent in this regard. The same idea is repeated in ¶ 9.

73 UN Security Council Resolution under Chapter VII of the UN Charter. Annexed to U.N. S.C. Res. 1546, U.N. Doc. S/RES/1546 (2004) (proclaiming the end of occupation in Iraq).

74 Sassòli, supra note 69, at 684.

75 Preface to the paperback edition of Benvenisti, supra note 22, at XV.

76 AP I, supra note 5.

77 Reprinted in 39 Am. J. Int'l L. 171–72 (1945)CrossRefGoogle Scholar.

78 See, e.g., Kelsen, Hans, The Legal Status of Germany According to the Declaration of Berlin, 39 Am. J. Int'l L. 518 (1945)CrossRefGoogle Scholar and Benvenisti, supra note 22, at 93.

79 von Laun, Kurt, The Legal Status of Germany, 45 Am. J. Int'l L. 267 (1951)CrossRefGoogle Scholar.

80 Id. at 268-69.

81 Id. at 274-83. It is interesting to note that some of von Laun's contentions involve the applicability of the Universal Declaration on Human Rights. This is an extraordinarily early suggestion that human rights rules apply in territory under military occupation.

82 Id. at 274.

83 Shany, Yuval, The Law Applicable to Non Occupied Gaza: A Comment on Bassiouni v. The Prime Minister of Israel, 42 Isr. L. Rev. 101, 114–15 (2009)Google Scholar.

84 Id. at 115.

85 Roberts' work typifies that approach. Take, for example, Roberts' explanation for applying the law of occupation in rather doubtful circumstances of occupation by consent: “the Convention embodies important general rules for the protection of civilians from a foreign military power in whose hands they are, and these rules should be faithfully observed irrespective of whether the situation is designated as an ‘occupation’ or as something else” (Roberts, Adam, What is Military Occupation, 54 Brit. Y.B. Int'l L. 249, 279 (1984))Google Scholar, Roberts applies this approach to the various types of occupation he describes (for example “Occupation by a non-state entity” id. 292-93).

86 Article 9 of Annex III.

87 Article 17 of Annex III.

88 Supra note 15.

89 See also the assertion that Israel was still obliged to assume responsibility for human rights within the Palestinian Authority area of jurisdiction as far as it still had any influence there (Sina, supra note 15).

90 Supra note 69.

91 On the legal aspects of this process see Benvenisti, supra note 22, at 123-44.

92 This rationale for the integration is given in the Supreme Court of Israel judgment in the case of HCJ 69/81 Abu-Aita v. The Military Commander, West Bank [1983] IsrSC 37(2) 197, available at http://elyon1.court.gov.il/files_eng/81/690/000/Z01/81000690.z01.pdf.Google Scholar

93 The remarkable work done by the Aix-en-Provence group puts this rather vague obligation in more specific terms. See in particular, Israel and Palestine: Between Disengagement and the Economic Road Map, available at http://www.aixgroup.org/between_disengagement_and_the_ERM.pdf.

94 See supra note 1.

95 This word, used in the Cabinet decision, is somewhat presumptuous in this context. “Authority” over airspace can never be exercised unilaterally, the most Israel can do is exercise unilateral control.

96 On the questions of the air and sea ports under the Oslo Accords, see Watson, Geoffrey R., The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (2000)CrossRefGoogle Scholar.