Talk of Israeli reoccupation of Gaza raises questions of legal obligations and responsibilities

Special An Israeli tank crossing the border into the Gaza strip amid ongoing battles between Israeli forces and Hamas. Gaza’s possible return to Israeli control raises questions about what responsibilities occupying power would have. (AFP)
An Israeli tank crossing the border into the Gaza strip amid ongoing battles between Israeli forces and Hamas. Gaza’s possible return to Israeli control raises questions about what responsibilities occupying power would have. (AFP)
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Updated 19 November 2023
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Talk of Israeli reoccupation of Gaza raises questions of legal obligations and responsibilities

Talk of Israeli reoccupation of Gaza raises questions of legal obligations and responsibilities
  • More than a month since it launched military offensive, Israel seen to be lacking coherent postwar policy
  • Under international humanitarian law, an occupying power is obligated to intervene in civilian governance

LONDON: Israel has left open the prospect of its reoccupation of the Gaza Strip after the anticipated defeat of the Palestinian militant group Hamas, claiming it will be responsible for finding a civilian administration to take over the Palestinian territory.

The prospect of a return to direct Israeli administration, however, raises a host of questions about what obligations and responsibilities it would have as an occupying power, given Gaza’s unique characteristics in relation to international law.

More than a month since the fighting began, Israel still lacks a coherent post-conflict policy for Gaza, with the government facing down far-right politicians’ provocations for Palestinian expulsion while flip-flopping on its own intentions.

Having early in the conflict told ABC News that Israel would have “overall security responsibility … for an indefinite period” over the Palestinian enclave, a strong reproach from the US caused Prime Minister Benjamin Netanyahu to flip, telling Fox News just days later that occupation was, in fact, not the intention.

Rather, he said the plan was to “demilitarize, deradicalize, and rebuild” the Gaza Strip while holding responsibility for finding a “civilian government” to manage the territory, leaving the door ajar for an interim occupation.

Certainly, this is where experts see the situation heading.




Palestinians with their belongings flee to safer areas in Gaza City after Israeli air strikes, on October 13, 2023. (AFP)

Writing in The Conversation earlier this month, Durham University peace and security studies lecturer Rob Geist Pinfold said he expects a replay of Israel’s previous “diverse occupations to date.”

In practice, he said, Israel would likely move to “indefinitely” occupy parts of Gaza and seek “to eschew responsibility for civilian governance elsewhere in the territory.”

While it may seek to avoid responsibility, under international humanitarian law, Israel could nonetheless find itself obligated to intervene in civilian governance.

Eugenie Duss, a research fellow at the Geneva Academy of International Humanitarian Law and Human Rights, told Arab News the law of belligerent occupation is designed to allow civilians to continue their lives “as normally as possible.”

As such, she said, the existing local system must ensure provision of food, health services, hygiene, spiritual assistance and education.

“However, if the needs of the local population cannot be thus satisfied, the occupying power must itself provide goods and services while respecting local traditions and sensitivities,” she said.

“If it still cannot satisfy the needs of the local population, the occupying power must agree to and facilitate external humanitarian assistance.”

Occupation, though, is nothing new for Gaza.




sraeli soldiers shoot at stone-throwing Palestinian teenagers in Khan Younes in the Gaza Strip during clashes in October 2000. (File Photo/AFP)

Israel may have dismantled and removed its 21 settlements from the Strip in 2005 as part of former Prime Minister Ariel Sharon’s policy of disengagement, but there is something approaching consensus within the international legal community that the government retained effective control over the territory as an occupying force.

Duss said this “majority view” stems largely from Israel having retained control over Gaza’s airspace, territorial waters, land border crossings, supply of civilian infrastructure, and key governmental functions such as management of the Palestinian population registry.

When pushed on this, Israel has long maintained that Gaza was not, and is not, occupied. As justification, it says the territory had not been recognized as a “high contracting party” vested with rights and obligations under international law at the time of its initial occupation in 1967.

“The International Court of Justice rejected Israel’s argument, stating that it was sufficient that Jordan and Israel (the ICJ only had to address the West Bank’s status) were, at the relevant time, parties to the conventions and engaged in an armed conflict that led to the West Bank’s occupation,” said Duss.

“It is therefore irrelevant whether occupied territory belongs to another state.”

Concurring, Emily Crawford, professor of international law at the University of Sydney, told Arab News that recognition of Palestinian statehood was immaterial. Indeed, of the 193 UN states, 138 have acknowledged Palestine as a sovereign state.

For Crawford, Palestinian accession to the Geneva and Hague conventions between 2014 and 2018 provided it with protections under international humanitarian law and rendered Israel obligated to occupy Palestinian territory per the conventions’ edicts.

Those rules are “pretty expansive and cover some fundamental principles,” said Duss.

INNUMBERS

* 12,000+ Palestinians killed in Gaza in Israeli military offensive, according to Palestinian health authorities.

* 1,200 Israelis and foreigners killed in Hamas attack on Oct. 7, according to Israeli authorities.

* 230+ People held hostage by Hamas and allied groups, according to Israeli authorities.

“Protected persons may neither be forcibly transferred or otherwise deported out of the occupied territory nor forcibly transferred within the occupied territory.

“Also, the occupying power may not transfer parts of its own population, even if they consent, into the occupied territory.”

Furthermore, protected persons in an occupied territory may only be deprived of their liberty as civilian internees for imperative security reasons, in view of a criminal trial or to serve a criminal sentence.

And for those who are detained, the law provides guarantees that they are to be treated humanely and within their own territory.

Local legislation remains applicable and local institutions must be allowed to continue to function, said Duss, with the occupying power only allowed to amend local laws in four scenarios: to protect the security of its forces; to comply with international humanitarian law; to respect its obligations under international human rights law; and where explicitly authorized by the UN Security Council.

Even private property has protections under the law. This includes property dedicated to religion, charity, education, the arts, and sciences, none of which may be confiscated, although Duss said it may be requisitioned for the needs of the occupying army.




A Palestinian woman shouts as her children search 15 April 2001 through the remains of their home destroyed by the Israeli army in Rafah in the southern Gaza Strip. (AFP/File Photo)

“It may be argued that the concept of property also covers both tangible and intangible interests,” said Duss.

“The destruction of private property is only permitted when rendered absolutely necessary by military operations. Movable enemy public property, including cash, that can be used for military operations may be seized as war booty.”

One question left lingering, though, concerns whether an occupation is in itself legal.

Both Crawford and Duss note that an occupation’s legality is essentially dependent upon whether it has received authorization from the UN Security Council.

If so, then an occupation can be deemed legal. As an example, Crawford noted the interim occupation of Kosovo that ran from 1999 to its declaration of independence in 2008.

Given there is widespread support for the claim that Israel has in fact occupied Palestine for more than 50 years, one is left questioning the effectiveness of this body of law.

“Is the law fit for purpose? Sort of — but only in situations where it is not a prolonged occupation,” said Crawford.

“The entirety of the law of occupation is geared toward occupation being temporary, so in situations where it is less than temporary … the system starts to strain.”

As with a lot of things in international law, she said, policing behavior is dependent upon how much the state in question plans to follow the rules. Nonetheless, she stressed there are mechanisms that third parties can use to force the occupier’s hand.




“The lesson we are taking away from the Gaza crisis is the need to go back to the two-state solution,” said Anwar Gargash, foreign policy adviser to the UAE president. (AFP)

“There is always the option of non-judicial enforcement mechanisms, like sanctions, embargoes, diplomatic pressure, as well as postbellum criminal trials or taking the question to the International Court of Justice,” said Crawford.

Many non-legal factors also contribute to respect of international humanitarian law, including routine, military interest in discipline and efficiency, public opinion, ethical and religious factors, positive reciprocity, and a desire to re-establish a durable peace, said Duss.

While the media “all too often” spotlights violations, the reality is that international humanitarian law is more often than not “respected rather than violated,” she added.

Some may scoff at the latter suggestion, with the court in the past having proved powerless, particularly if one looks at its 1986 Contras entanglement with the US, which, when ruled against, simply denied the court’s jurisdiction.

But what makes things different in the case of Gaza is the “unprecedented public attention being focused on it,” said Crawford.

“For the first time in my memory, we’re seeing widespread protests not just from Palestinian groups but from concerned Israelis and Jewish groups both in and outside Israel regarding what is taking place,” she said.

“There seems a huge groundswell against Netanyahu and the response by the Israeli government, which has been described as disproportionate, and perhaps driven by other motives than self-defense.

“In time, that may prove to be a powerful force in controlling and even ending what is taking place.”


Hamas warns hostages doomed unless demands met

Hamas warns hostages doomed unless demands met
Updated 25 sec ago
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Hamas warns hostages doomed unless demands met

Hamas warns hostages doomed unless demands met
  • Hamas demands that all its members in Israeli prisons be freed in exchange for the hostages
  • Israel says there are still 137 hostages in Gaza, while activists say around 7,000 Palestinians are in Israeli jails

GAZA STRIP, Palestinian Territories: Hamas warned Sunday that no hostages would leave Gaza alive unless its demands for prisoner releases are met.

In a televised statement, a Hamas spokesman said Israel will not receive “their prisoners alive without an exchange and negotiation and meeting the demands of the resistance.”
Senior Hamas official Bassem Neim said in late November the movement was “ready to release all soldiers in exchange for all our prisoners.”
Israel says there are still 137 hostages in Gaza, while activists say around 7,000 Palestinians are in Israeli jails.

Hamas triggered the conflict with the deadliest-ever attack on Israel on October 7 in which it killed some 1,200 people, according to Israeli figures, and dragged around 240 hostages back to Gaza.
Israel has responded with a relentless military offensive that has reduced much of Gaza to rubble and killed at least 17,997 people, mostly women and children, according to the Hamas-run health ministry.
On Sunday, a source close to Hamas and Islamic Jihad told AFP both groups were engaged in “fierce clashes” with Israeli forces near Khan Yunis, where an AFP journalist also reported heavy strikes, as well as Jabalia and Gaza City’s Shejaiya district in the north.
Prime Minister Benjamin Netanyahu called on Hamas to give up.
“It is the beginning of the end of Hamas. I say to the Hamas terrorists: It’s over. Don’t die for (Yahya) Sinwar. Surrender now,” he said, referring to the Hamas chief in Gaza.
The Israeli army said Sunday it struck more than 250 targets in 24 hours, including “a Hamas military communications site,” “underground tunnel shafts” in southern Gaza, and a Hamas military command center in Shejaiya.
It said 98 soldiers have died and around 600 wounded in the Gaza campaign.
Some 7,000 “terrorists” have been killed, according to National Security Adviser Tzachi Hanegbi.
“Hamas should not exist, because they are not human beings, after what I saw they did,” Menahem, a 22-year-old soldier wounded on October 7, told AFP during a military-organized tour that did not allow him to give his surname.
After more than two months of war, the World Health Organization said Gaza’s health system was collapsing.

“Gaza’s health system is on its knees and collapsing,” said World Health Organization chief Tedros Adhanom Ghebreyesus, with only 14 of 36 hospitals functioning at any capacity.
WHO’s executive board on Sunday adopted a resolution calling for immediate, unimpeded aid deliveries.
The UN estimates 1.9 million of Gaza’s 2.4 million people have been displaced — roughly half of them children — many forced south and running out of safe places to go.
AFP visited the bombed-out ruins of Gaza City’s Al-Shifa hospital and found at least 30,000 people taking refuge amid the rubble after Israeli forces raided the medical facility last month.
“Our life has become a living hell, there’s no electricity, no water, no flour, no bread, no medicine for the children who are all sick,” said Mohammed Daloul, 38, who fled there with his wife and three children.

UN Secretary-General Antonio Guterres said the Security Council’s “authority and credibility were severely undermined,” after the United States blocked a cease-fire resolution on Friday.
“I can promise, I will not give up,” Guterres told Qatar’s Doha Forum.
Qatar, where Hamas’s top leadership is based, said it was still working on a new truce like the week-long cease-fire it helped mediate last month that saw 80 Israeli hostages exchanged for 240 Palestinian prisoners and humanitarian aid.
But Israel’s relentless bombardment was “narrowing the window” for success, said Qatari Prime Minister Sheikh Mohammed bin Abdulrahman Al Thani.
US Secretary of State Antony Blinken on Sunday again rejected a cease-fire.
“With Hamas still alive, still intact and... with the stated intent of repeating October 7 again and again and again, that would simply perpetuate the problem,” he told ABC News.
But Blinken also told CNN that Israeli forces should ensure “military operations are designed around civilian protection.”
In Rafah in southern Gaza, one displaced woman said she had been stuck there for 18 days despite having an Egyptian passport.
“Whenever I want to go somewhere, we hear bombing and shelling and feel scared and go back,” said Noura Al-Sayed Hassan.
“I’ve been searching for bread for my daughter for over a week now.”

The head of the UN agency for Palestinian refugees (UNRWA) voiced alarm over what he feared would be a mass expulsion of Palestinians into Egypt.
In an opinion piece Saturday in the Los Angeles Times, Philippe Lazzarini said “the developments we are witnessing point to attempts to move Palestinians into Egypt.”
An Israeli spokesman responded: “There is not, never was, and never will be an Israeli plan to move the residents of Gaza to Egypt.”
The fighting in Gaza has sparked pro-Palestinian protests in many countries, including large gatherings in Morocco, Denmark and Turkiye on Sunday.
But there were also demonstrations against anti-Semitism, including in Brussels where European Commission President Ursula von der Leyen helped light a huge Hanukkah menorah candelabrum.
There are fears of regional escalation with frequent cross-border exchanges between Israel and Lebanese militants, and attacks by pro-Iran groups against US and allied forces in Iraq and Syria.
Syrian state news agency SANA reported late Sunday that Israeli strikes hit targets near the capital Damascus, although the country’s air defense systems was able to deter some “and losses were limited to materials.”
The Syrian Observatory for Human Rights reported that Israeli bombings “targeted Lebanese Hezbollah sites” including areas near the Damascus International Airport, noting that the bombing “was in three rounds.”
Meanwhile, Yemen’s Iran-backed Houthi rebels threatened to attack any vessels heading to Israel unless more aid was allowed into Gaza.
France said Sunday one of its frigates in the Red Sea had shot down two drones launched from Yemen.
 


UN General Assembly likely to vote Tuesday on Gaza cease-fire demand — diplomats

UN General Assembly likely to vote Tuesday on Gaza cease-fire demand — diplomats
Updated 37 min 18 sec ago
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UN General Assembly likely to vote Tuesday on Gaza cease-fire demand — diplomats

UN General Assembly likely to vote Tuesday on Gaza cease-fire demand — diplomats
  • The move comes after the US vetoed on Friday a UN Security Council demand for immediate humanitarian cease-fire in Gaza

NEW YORK: The 193-member United Nations General Assembly is likely to vote Tuesday on a draft resolution demanding an immediate humanitarian cease-fire in the conflict between Israel and Palestinian militants Hamas in the Gaza Strip, diplomats said on Sunday.
The move comes after the US vetoed on Friday a UN Security Council demand for immediate humanitarian cease-fire in Gaza.
The General Assembly in October adopted a resolution — 121 votes in favor, 14 against and 44 abstentions — calling for “an immediate, durable and sustained humanitarian truce leading to a cessation of hostilities.”

 

 


Israel’s Netanyahu calls on Hamas militants to ‘surrender now’

Israel’s Netanyahu calls on Hamas militants to ‘surrender now’
Updated 11 December 2023
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Israel’s Netanyahu calls on Hamas militants to ‘surrender now’

Israel’s Netanyahu calls on Hamas militants to ‘surrender now’
  • The militants late on Sunday boasted of success in their fight with Israeli forces in Gaza

JERUSALEM: Israel’s Prime Minister Benjamin Netanyahu on Sunday called for Hamas militants to lay down their arms, saying the Palestinian Islamist group’s end was near, as the war in the Gaza Strip raged more than two months after it began.
“The war is still ongoing but it is the beginning of the end of Hamas. I say to the Hamas terrorists: It’s over. Don’t die for (Yahya) Sinwar. Surrender now,” Netanyahu said in a statement, referring to the chief of Hamas in the Gaza Strip.
“In the past few days, dozens of Hamas terrorists have surrendered to our forces,” Netanyahu said.
The military has, however, not released proof of militants surrendering, and Hamas has rejected such claims.
Almost one month ago, Israel’s Defense Minister Yoav Gallant said Hamas had “lost control” of Gaza.
The militants late on Sunday boasted of success in their fight with Israeli forces in Gaza.
Izzat Al-Rishq, a senior member of the Hamas political bureau, said history would “remember Gaza as the clearest of victories” for the Palestinian militants.
“The end of the occupation has begun in Gaza,” Rishq said.
Hamas triggered the conflict with the deadliest-ever attack on Israel on October 7 in which it killed around 1,200 people, according to Israeli figures, and dragged around 240 hostages back to Gaza.
Israel has responded with a relentless military offensive that has reduced much of Gaza to rubble and killed at least 17,997 people, mostly women and children, according to the Hamas-run health ministry.


Gaza war having ‘catastrophic’ health impact: WHO chief

Tedros Adhanom Ghebreyesus, Director General of the World Health Organization (WHO). (AP)
Tedros Adhanom Ghebreyesus, Director General of the World Health Organization (WHO). (AP)
Updated 11 December 2023
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Gaza war having ‘catastrophic’ health impact: WHO chief

Tedros Adhanom Ghebreyesus, Director General of the World Health Organization (WHO). (AP)
  • There is no health without peace and no peace without health, Tedros Adhanom Ghebreyesus tells special session

GENEVA: The war between Israel and Hamas is having a catastrophic impact on health in Gaza, the WHO chief warned on Sunday, with medics facing an “impossible” job in unimaginable conditions.

Tedros Adhanom Ghebreyesus told a special session of the World Health Organization’s executive board that the Palestinian territory’s health system was in free fall.
“The impact of the conflict on health is catastrophic,” Tedros told the Geneva meeting.
“As more and more people move to a smaller and smaller area, overcrowding, combined with the lack of adequate food, water, shelter and sanitation, are creating the ideal conditions for disease to spread,” he said.
The UN health agency’s chief said there were worrying signs of epidemic diseases — and the risk was expected to worsen with the situation deteriorating and winter conditions approaching.
“Gaza’s health system is on its knees and collapsing,” Tedros said, with only 14 out of 36 hospitals functioning with any capacity at all, and, only two of those in the north of the coastal territory.
Only 1,400 hospital beds out of an original 3,500 are still available, while the two major hospitals in southern Gaza are operating at three times their bed capacity, Tedros added.
Tedros said that since Oct. 7, the WHO had verified more than 449 attacks on healthcare in Gaza and the occupied West Bank, and 60 on healthcare in Israel.
“The work of the health workers is impossible, and they are directly in the firing line,” he said, with medics who are “physically and mentally exhausted and are doing their best in unimaginable conditions.”
“There is no health without peace and no peace without health,” Tedros concluded.
The special session was called by 17 of the 34 countries on the executive board, which normally meets twice a year. Its main job is to advise the World Health Assembly, the WHO’s decision-making body, and then implement its decisions.
A draft resolution proposed by Afghanistan, Morocco, Qatar and Yemen calls for the immediate, sustained and unimpeded passage of humanitarian relief into the Gaza Strip and the granting of exit permits for patients.
It seeks the supply and replenishment of medicine and medical equipment to the civilian population and for all persons deprived of their liberty to be given access to medical treatment.
It voices “grave concern” at the humanitarian situation, laments the “widespread destruction,” and urges protection for all civilians.
Palestinian Health Minister Mai Al-Kaila, speaking via video link from Ramallah, called for the immediate cessation of the “brutal war in Gaza” and the immediate, unconditional flow of fuel, water, aid, and medical supplies into the territory.
“The daily horrors we all witness defy international law and shatter the essence of our shared humanity,” she said.
“Now is the time for decisive action. The world cannot stand neutral while innocent lives are lost, and the basic rights of the Palestinian people are compromised.”
Meirav Eilon Shahar, Israel’s ambassador in Geneva, said that on Oct. 6, “there was a ceasefire with Hamas. On Oct. 7, we woke up to a new reality.”
She said Israel’s military operation “is directed toward Hamas. It has never been against the Palestinian people. And I recognize the suffering in Gaza.
“Let there be no mistake, however: Hamas is responsible for this suffering.
“The reality is, if we stop now, Hamas will carry out another Oct. 7.”

 


Syria intercepts Israeli rockets fired on Damascus surroundings

Syria’s air defenses intercept missiles in Masyaf, northwestern Syria. (File/AP)
Syria’s air defenses intercept missiles in Masyaf, northwestern Syria. (File/AP)
Updated 10 December 2023
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Syria intercepts Israeli rockets fired on Damascus surroundings

Syria’s air defenses intercept missiles in Masyaf, northwestern Syria. (File/AP)

DAMASCUS: Syria’s air defense intercepted Israeli rockets fired at the surroundings of the capital Damascus, Syrian state media said on Sunday.

Meanwhile, violence escalated at Lebanon’s border with Israel on Sunday as Hezbollah launched explosive drones and powerful missiles at Israeli positions and Israeli air strikes rocked several towns and villages in south Lebanon.
Israel and the Iran-backed Hezbollah have been trading fire since the war in Gaza erupted two months ago, in their worst hostilities since a 2006 conflict. The violence has largely been contained to the border area.
An Israeli air strike on the town of Aitaroun destroyed five homes and damaged many more, Ali Hijazi, a local official, said.