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The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. The Prime Minister of Israel

Published online by Cambridge University Press:  19 March 2012

Yuval Shany
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Abstract

Although Israel no longer effectively controls Gaza, Israel's overwhelming physical dominance over Gaza, coupled with the historical links of dependence, were likely central to the balancing formula applied by the High Court of Justice in Bassiouni v. The Prime Minister. The proposed solution—Israel assumes obligations that go beyond the requirements of International Humanitarian Law (IHL) in situations of siege but that fall short of the requirements applicable in situations of occupation—is the “basic humanitarian needs” standard.

The main weakness of the Court's decision is not the final outcome it prescribes but the underdeveloped legal analysis of the alternative grounds for imposing obligations on the Israel. This unnecessarily complicates attempts to grasp the full implications of the decision and to identify its precedential value. However, the judgment should be viewed as endorsing the need to step outside IHL and look for additional legal norms governing humanitarian interests which may reflect our moral sensibilities and contemporary needs in a more appropriate manner than the traditional rules of IHL.

Type
Symposium on Complementing International Humanitarian Law: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations
Information
Israel Law Review , Volume 42 , Issue 1 , 2009 , pp. 101 - 116
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 HCJ 9132/07 Gaber Al-Bassiouni v. The Prime Minister [Jan. 30, 2008] (unpublished). See the Israeli Supreme Court website for an official English translation, http://elyonl.court.gov.il/files_eng/07/320/091/n25/07091320.n25.pdf.

2 Press Release issued by the Prime Minister's Office, Security Cabinet Declares Gaza Hostile territory, Sept. 19, 2007, available at http://www.mfa.gov,il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+territory+19-Sep-2007.htm [hereinafter The Gaza Strip decision].

3 Id. (“Additional sanctions will be placed on the Hamas regime in order to restrict the passage of various goods to the Gaza Strip and reduce the supply of fuel and electricity”) (emphasis added Y.S.).

4 The Gaza Strip decision, supra note 2, at para. 4 (“The sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis.”).

5 See GCIV, art. 33, (“Collective penalties and likewise all measures of intimidation or of terrorism are prohibited”).

6 See, e.g., GCIV, art. 56 (the duty to maintain health services); id. art. 59 (the duty to facilitate relief schemes); The Hague Convention and The Hague Regulations, art. 43 (duty to ensure public order and life); API, art. 69 (1) (“the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory”); International Covenant on Economic, Social and Cultural Rights, art. 11-12, Dec. 16, 1966, 993 U.N.T.S. 3 (duty to realize the right to adequate standard of living and the highest attainable standard of health). For a legal analysis of the permissibility of applying collective sanctions to the inhabitants of occupied territories, see Gisha, , Gaza Closure Defined: Collective Punishment (2008)Google Scholar, available at http://www.gisha.org/UserFiles/File/publications_english/Publications%20and%20Reports_English/Gaza%20Closure%20Defined%20Eng(l).pdf.

7 For a discussion of the legal framework governing economic sanctions applied between warring Parties see in this issue Cohen, Amichai, Economic Sanctions in IHL—Suggested Principles, 42 Isr. L. Rev. 117 (2009)CrossRefGoogle Scholar.

8 Press Release issued by the IDF Spokesperson, Exit of IDF Forces from the Gaza Strip Completed, Sept. 12, 2005, available at http://www.mfa.gov.il/MFA/Government/Communiques/2005/Exit+of+IDF+Forces+from+the+Gaza+Strip+completed+12-Sep-2005.htm.

9 U.S. v. List (Hostages case), VIII Law Reports of Trials of Major War Criminals 38, 56 (1949)Google Scholar.

10 HCJ 102/82 Tsemel v. The Minister of Defense [1983] IsrSC 37(3) 365. But see Armed Activities on the Territory of the Congo, 2005 I.C.J. 166, ¶ 173 (Dec. 19):

In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an “occupying Power” in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question.

Arguably, this formulation emphasizes the actual and not potential exercise of authority.

11 Prosecutor v. Naletilić, Case No. IT-98-34-T (Trial Chamber), para. 217 (Mar. 31, 2003). This dictum seems to mirror the language of the U.S. Field Manual see Department of the Army, Field Manual 27-10: The Law of Land Warfare, July 18, 1956, at sec. 356 (revised July 15, 1976) [hereinafter U.S. Field Manual 27-10].

12 Al-Bassiouni v. The Prime Minister, supra note 1, at 12 (emphasis added Y.S.).

13 For a more detailed exposition see Shany, Yuval, Faraway So Close: The Legal Status of Gaza after Israel's Disengagement, 8 Y.B. Int'l Human. L. 359 (2007)Google Scholar.

14 See Prosecutor v. Naletilić, supra note 11, at ¶ 173 (“the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly”). See also Roberts, Adam, What is a Military Occupation?, 55 Y.B. Int'l L. 249, 300 (1984)Google Scholar.

15 U.S. Field Manual 27-10, supra note 11, at sec. 356.

16 Prosecutor v. Naletilić, supra note 11, at para. 173; List, supra note 9, at 56.

17 But see Al Skeini, R. v. Secretary of State for Defence, [2005] 2 W.L.R 1401Google Scholar (Eng.), at para. 124 (“it is quite impossible to hold that the UK, although an occupying power for the purposes of the Hague Regulations and the Geneva IV, was in effective control of Basrah City for the purposes of ECHR jurisprudence at the material time”). This case thus supports the dubious proposition that occupation without significant effective control can take place.

18 For a parallel interpretative exercise, drawing from the language of Article 43 in order to interpret Article 42's requirement of a clear transfer of authority, see U.S. Dep't of Army Pamp. 27-161-2, 2 International Law 160 (1962)Google Scholar, cited in Paust, Jordan J., ASIL Insight: The US. as Occupying Power Over Portions of Iraq and Relevant Responsibilities Under the Laws of War (Apr. 2003)Google Scholar, available at http://www.asil.org/insigh102.cfm.

19 Siege warfare may be defined as “encircling an enemy military concentration, a strategic fortress or any other location defended by the enemy, cutting it off from channels of support and supply.” Dinstein, Yoram, Siege Warfare and the Starvation of Civilians, in Humanitarian Law of Armed Conflict: Challenges Ahead 145, 145 (Delissen, Astrid J. M. & Tanja, Gerard J. eds., 1991).Google Scholar

20 For example, U.S. Field Manual 27-10 envisions both sequences of events: the existence of pockets of resistance not governed by the laws of occupation under two alternative scenarios—a fort or defended area not subjugated by the invading army (U.S. Field Manual 27-10, supra note 11, at sec. 356) and any part of the territory over which the power of the occupant is effectively displaced for any length of time (id. at sec. 360).

21 Al-Bassiouni v. The Prime Minister, supra note 1, at para. 12.

22 See, e.g., API, art. 51, 52, 54, 70; Hague Regulations, art. 27. These provisions reflect customary international law applicable in both international and non-international armed conflicts, and thus bind Israel notwithstanding the fact that it had not joined the Protocol. Henkaertz, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law 25-30, 186–200 (2005)CrossRefGoogle Scholar. See also GCIV, art. 17.

23 Fuel is delivered to Gaza by a privately owned Israeli corporation (Dor-Alon). It is thus debatable whether Israel “supplies” fuel to Gaza. At the same time, electricity is provided to Gaza by the Israel Electric Company, a government-owned corporation. See Bar-Eli, Avi, Palestinians Completely Dependent on Israel for Electricity, Gasoline, Fuel and Water, Haaretz, June 18,2007Google Scholar, http://www.haaretz.com/hasen/spages/872205.html.

24 API, art. 70(3)protects the right of the conflicting Parties to “prescribe the technical arrangements, including search, under which such passage is permitted” and to subject the permission to distribute consignments on that “the distribution of this assistance being made under the local supervision of a Protecting Power.” In other words, a siege-laying Party may adopt measures designed to ensure that the right to receive relief consignments is not abused. Moreover, Article 70(3) also permits diverting relief consignments in order to meet the more urging humanitarian needs of the civilian population concerned.

25 Al-Bassiouni v. The Prime Minister, supra note 1, at 12.

26 Id. at para. 12.

27 Rio Declaration on Environment and Development, Principle 2, 31 I.L.M. 874 (1992).Google Scholar

28 For a general discussion of extraterritorial jurisdiction, see Ryngaert, Cedric, Jurisdiction in International Law 75–82 (2008).CrossRefGoogle Scholar

29 See, e.g., Soering v. U.K., 161 Eur. Ct. H.R. (ser. A) (1989); Chahal v. U.K., 23 Eur. H.R. Rep. 413 (1996); Human Rights Committee, Judge v. Canada, U.N. Doc. CCPR/C/78/D/829/1998 (Aug. 5, 2002).

30 See, e.g., Legal Consequences of a Wall; Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216; López Burgos v. Uruguay, U.N. Doc. CCPR/C/OP/1 at 88 (1984). For a different position on the matter, see Dennis, Michael J., Non-Application of Civil and Political Rights Treaties Extraterritorially during Times of International Armed Conflict, 40 Isr. L. Rev. 453 (2007)CrossRefGoogle Scholar.

31 Human Rights Committee, General Comment 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004)Google Scholar.

32 Id. para. 10 (emphasis added Y.S.).

33 See, e.g., Öcalan v. Turkey, 41 Eur. Ct. H.R. 985 (2005); Burgos, supra note 30; Montero v. Uruguay, Comm. No. 106/1981, U.N. Doc. CCPR/OP/2, at 136 (1983/1990); Montero v. Uruguay, U.N. Doc. Supp. No. 40 (A/38/40) at 186 (1983); Al Skeini v. Secretary of State for Defence [2007] UKHL 26.

34 Ilaşcu v. Moldova, 40 Eur. Ct. H.R. 46 (2004).

35 Id. at paras. 392-93.

36 It may be noted that the Ilaşcu judgment refers to Russia's “decisive influence” over the local authorities as a basis for attributing in effect violations committed by the latter. In the case of Gaza, Israel does not have decisive influence over the conduct of the local authorities, but has decisive influence over the actual human rights situation on the ground. Arguably, the same rationale of linking power to responsibility would support imposing human rights obligations in both cases.

37 Banković v. Belgium, 2001–XII Eur. Ct. H.R. 333.

38 Id. at para. 75.

39 See, e.g., Issa v. Turkey, 41 Eur. Ct. H.R. 27 (2004); Ilaşcu v. Moldova, supra note 34; Pad v. Turkey, App. NO. 60167/00 (June 28, 2007). The European Commission on Human Rights had applied the Convention to legal acts with effect in other States, notwithstanding the lack of effective control over the said territory by the acting State. See X v. Switzerland, 9 Eur, Comm'n H.R. Dec. & Rep. 57, 73 (1977).

40 For a discussion see, e.g., Ben-Naftali, Orna & Shany, Yuval, Living in Denial: The Co-application of Humanitarian Law and Human Rights Law to the Occupied Territories, 37 Isr. L. Rev. 17, 80–84 (2004)Google Scholar; Wilde, Ralph, The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: Is it Relevant to Extraterritorial State Action?, 2 Eur. Hum. Rts. L. Rev. 115 (2005)Google Scholar.

41 Restatement Third, The Foreign Relations Law of the United States, §403(2).

42 Id. (emphasis added Y.S.)

43 Hague Regulations, art. 55.

44 International Law Commission, Draft Articles on State Responsibility of Internationally Wrongful Act, art. 37, U.N. GAOR, 56th Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001):

1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation;

2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality;

3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.

45 See, e.g., U.N. Charter, art. 74.

46 North Sea Continental Shelf (Denmark and Netherlands v. F.R.G.), 1969 I.C.J. 3, 48. The Martens Clause, which refers to the “principles of humanity” and the “dictates of public conscience,” may also support such a solution. Hague Convention, preamble; AP I, art. 1(2).

47 Incidentally, a similar outcome may have been reached through application of the laws of State responsibility governing countermeasures. ILC Draft Articles, supra note 44, art. 50.