Analysis: Gaza no longer ‘occupied territory'

The Turkel C'tee says with humanitarian aid, import restrictions do not constitute collective punishment since they are imposed for security reasons.

By DAN IZENBERG
January 24, 2011 05:02
A DRIVER prepares to deliver his truck full of goo

Gaza Truck 311. (photo credit: Yaakov Lappin)

 
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The first section of the Turkel Commission’s report deals with several legal issues regarding Israel’s policies vis-à-vis the Gaza Strip that predate the seizure of the Gaza flotilla on May 31 and have been a focus of international controversy for many years.

The commission’s opinion on these matters obviously has no more authority in the international sphere than any other body, be it that of academics, human rights organizations or even the Supreme Court of Israel.

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It should also be kept in mind that the members of the commission were chosen by the Israeli government and therefore it can by no means be considered a disinterested body. If this statement needs to be qualified in any way, it is by virtue of the fact that the commission hired two outstanding legal experts, Dr. Wolff Neitschel von Heinegg and Prof. Michael Schmitt, to provide expertise on matters of international law after the death of Prof. Shabtai Rosenne.

Be that as it may, the following are the commission’s conclusions on some of the key issues that are in dispute regarding Israel’s relations with the Gaza Strip.

Is Gaza occupied territory?

The commission concluded that Israel stopped occupying the Gaza Strip after its unilateral withdrawal in 2005. This despite the fact that it controls all but one of the land crossings to Gaza and is in full control of its airspace and territorial waters.

Those who maintain that Israel still occupies Gaza argue that it has “effective control” over the territory for various reasons, including those noted above. But the members of the commission maintained that one would have to have “an unjustifiably flexible and novel interpretation of the term ‘effective control” in order to maintain that position. It would have to be based on acceptance of the fact that two different and opposing powers can exercise effective control simultaneously.”



It would also, the commission continued, need to be assessed against “the currently accepted approach in international law that occupation does not merely require military forces to be stationed in a certain territory, but also that the occupying power performs the functions of an existing government.”

The commission also argued that Israel does not maintain total control over land access to Gaza, and that neither control of airspace nor the imposition of a naval blockade amount to “effective control” over the territory.

Has Israel violated its humanitarian obligations toward the civilian population of Gaza?

Assuming that Israel does not have the responsibilities of an occupying power towards the civilian population of Gaza, it nevertheless has the same humanitarian obligations that all states do, including towards other states or entities with which they are at war.

Many accuse Israel of violating these fundamental obligations. The commission disagrees.

For one thing, it justifies Israel’s restrictions on imports to Gaza via the overland border crossings.

“The land crossings policy sought to achieve two goals,” it wrote. “A security goal of preventing the entry of weapons, ammunition and military supplies into the Gaza Strip in order to reduce the Hamas attacks on Israel and its citizens, and a broader strategic goal of ‘indirect economic warfare,’ whose purpose is to restrict the Hamas’s economic ability, as the body in control of the Gaza Strip, to take military action against Israel.”

The commission found that Israel was not in violation of the San Remo Manual, one of the key legal documents setting down what is permissible or forbidden in the application of a naval blockade. For example, a blockade is forbidden if its sole purpose is to starve the civilian population or deny it other objects essential for its survival.

The commission concluded that the IDF was working in close collaboration with the Palestinian Authority, human rights organizations and the international community to prevent starvation.

It also accepted Israel’s position that “the restrictions imposed by Israel considered this humanitarian obligation and were planned precisely in order to prevent a situation of starvation.”

The committee also addressed the San Remo provision which bars a blockade from denying objects essential for the survival of the civilian population. It specifically examined the question of the supply of fuel and diesel oil to Gaza and found that Israel does not restrict the supply of electricity.

Even if Israel limits the amount of diesel oil, which is needed to operate the power plant in Gaza, Israel is still in compliance with its humanitarian obligations since, as the Supreme Court wrote, Palestinian authorities have made it clear they can carry out load reductions if limits are placed on the power lines.

Is Israel guilty of collective punishment in Gaza?

The commission found that it was clear that by applying a naval blockade and land import restrictions, the civilian population of Gaza would suffer. But this did not mean the blockade and import restrictions were necessarily illegal.

On the contrary, the commission found that they were legal.

Therefore, the fact that the civilian population is bound to suffer from such a blockade does not mean that the blockade automatically constitutes collective punishment.

“Since one of the purposes of imposing a naval blockade is to use coercion against a hostile entity or state that is a party to an armed conflict, the affected population will generally feel the effects of this pressure,” the commission wrote.

“The issue is not that there is coercive action which impacts the population collaterally, but rather what the impact is and what mitigating humanitarian measure are put in place… “Thus, the fact that the fabric of economic life of the civilian population is adversely affected as a result of economic warfare does not, in itself, amount to collective punishment.”

Since Israel monitors and coordinates humanitarian aid, and since the restrictions are imposed for security reasons, Israel is not guilty of collective punishment, the commission concluded.

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