Despite Israel ‘s extensive control over the Gaza Strip, in its decision on the disengagement plan, the government stated that implementation of the plan would “invalidate the claims against Israel regarding its responsibility for the Palestinians in the Gaza Strip.” In response to several petitions filed in the High Court of Justice following implementation of the disengagement plan, the State Attorney’s Office has argued that, with the termination of the military government in the Gaza Strip, Israel has no obligation whatsoever under international law toward residents of Gaza, who should now direct all their claims and requests to the Palestinian Authority. Implicit in this claim is that Israel ‘s control over the lives of Palestinians living in the Gaza Strip, described above, exists in a normative vacuum in which Israel is not responsible for its acts and their consequences. As we shall see below, the argument is baseless, both under international humanitarian law and under international human rights law.
One source of the obligations imposed on Israel toward residents of the Gaza Strip is the laws of occupation, which are incorporated in the Hague Convention (1907) and in the Fourth Geneva Convention (1949). These laws impose general responsibility on the occupying state for the safety and welfare of civilians living in the occupied territory. The laws of occupation apply if a state has “effective control” over the territory in question. The High Court has held contrary to Israel ‘s claim, stating that the creation and continuation of an occupation does not depend on the existence of an institution administering the lives of the local population, but only on the extent of its military control in the area. Furthermore, a certain area may be deemed occupied even if the army does not have a fixed presence throughout the whole area. Leading experts in humanitarian law maintain that effective control may also exist when the army controls key points in a particular area, reflecting its power over the entire area and preventing an alternative central government from formulating and carrying out its powers. The broad scope of Israeli control in the Gaza Strip, which exists despite the lack of a physical presence of IDF soldiers in the territory, creates a reasonable basis for the assumption that this control amounts to “effective control,” such that the laws of occupation continue to apply.
Even if Israel ‘s control in the Gaza Strip does not amount to “effective control” and the territory is not considered occupied, Israel still bears certain responsibilities under international humanitarian law. IHL is not limited to protecting civilians living under occupation, but includes provisions intended to protect civilians during an armed conflict, regardless of the status of the territory in which they live. Given that Israel contends that an armed conflict exists between it and the Palestinian organizations fighting against it, which has continued even after the disengagement, such provisions apply. These provisions are found, for example, in the Fourth Geneva Convention, pursuant to which Israel must protect the wounded, sick, children under age fifteen, and pregnant women, enable the free passage of medicines and essential foodstuffs, enable medical teams to provide assistance, and refrain from imposing collective punishment.
Another legal source for Israel ‘s responsibility towards the residents of the Gaza Strip is derived from international human rights law. The founding instrument of this branch of law is the Universal Declaration of Human Rights (1948). Its principal provisions have been enshrined over the years in six international conventions that have been adopted by the United Nations and ratified by Israel . These conventions recognize the right of every person to freedom of movement, to work, to an adequate standard of living, to education, to adequate health care, and to family life. Each party to the conventions undertakes to carry out the provisions not only inside its own sovereign territory, but also as regards persons under its control.
According to the UN Human Rights Committee, which is composed of independent experts from around the world, the main question in determining a state’s responsibility relating to a certain act is not whether the act was carried out in the state’s sovereign territory, but the nature of the relations between the individual harmed and the state. In other words, the responsibility of a state to respect the human rights of a particular population is a function of the state’s control over the population, and not necessarily the status of the territory in which the population lives. This conclusion is also inevitable in light of the universal principle that, in the language of Article 1 of the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights.”
Thus, Israel cannot evade its legal responsibility to respect the human rights of residents of the Gaza Strip in those areas of life that Israel controls. Even after the disengagement, Israel continues to bear legal responsibility for the consequences of its actions and omissions concerning residents of the Gaza Strip. This responsibility is unrelated to the question of whether Israel continues to be the occupier of the Gaza Strip.
(www.btselem.org / 22.09.2011)