Gaza and International Humanitarian Law

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Gaza and International Humanitarian Law:The humanitarian situation in Gaza and the obligations of Israel, Hamas and Egypt towards the Right to Humanitarian AssistanceMasters Thesis in Public International LawUtrecht Universitypresented by : Manar Usama Alshiekh


<ul><li><p> Gaza and International Humanitarian Law: The humanitarian situation in Gaza and the obligations of Israel, Hamas and Egypt towards the Right to Humanitarian Assistance </p><p>Masters Thesis LLM Program: Public International Law </p><p>Utrecht University Thesis Advisor: Professor T. Gill Student Name: Manar Usama Alshiekh Student ID: 3441407 Date: 12 July, 2010 </p></li><li><p> 2 </p><p>Index </p><p>1.Introduction 5 2. Historical Background and Factual Considerations relating to Gaza 8 </p><p>2.1 The Gaza Strip Legal Status Prior to 1967 8 2.2 Israeli Occupation and Disengagement including Legal Consequences 9 </p><p>2.2.1 The Law of Belligerent Occupation 9 2.2.2 The law of Occupation under the Hague Regulations 11 </p><p>2.2.3 Occupation under the Fourth Geneva Convention 12 2.2.4 The Revised Disengagement Plan 13 2.2.4.a Aspects of Israeli control as envisaged in the disengagement plan 14 2.2.5 Assessment of the legal status subsequent to the Disengagement Plan 16 </p><p>2.3 Hamas de facto control of Gaza and reactions of Egypt and Israel 17 2.3.1 Hamass Electoral Victory early 2006 18 2.3.2 The Israeli blockade following Hamas control over Gaza 19 </p><p> 2.3.3 Egyptian Border Breach 20 2.3.4 Operation Cast Lead and its implications on the blockade 20 2.3.5 Hamass Control 21 </p><p>2.4 Erection of the Steel Wall 22 2.4.1 Implications of the tunnels on Egypt 23 2.4.2 Legal issues arising from the construction of the wall 24 </p><p> 2.5 the Current Legal Status of the Gaza Strip 24 </p><p>3. The Applicable Law in the Context of the Current Factual Background 27 3.1 International Humanitarian Law 27 </p><p>3.1.1 The Obligation to Respect and to Ensure Respect 27 3.1.2 The Right to Humanitarian Assistance under International Humanitarian Law 28 3.1.2.a General Rules on Humanitarian Assistance 29 3.1.2.b Conditions for Humanitarian Assistance 30 3.2 International Human Rights Law 31 3.2.1 The Concurrent Application of International Humanitarian Law and Human Rights Law 31 3.2.2 The Application of the ICCPR and ICESCR during Armed Conflicts 34 3.2.3 The Application of Human Rights in the context of Occupation 35 3.2.4 Application of Human Rights Law subsequent to the Israeli Disengagement 2005 36 </p></li><li><p> 3 </p><p>4. Obligations incumbent upon the Parties 38 4.1 Israel 38 </p><p>4.1.2 The legality of the Blockade 39 4.1.3 Restrictions of Movement 40 </p><p> 4.1.3.a Border Control 40 4.1.3.b Denial of Goods 41 </p><p>4.1.4 Impeding Humanitarian Missions 42 4.1.4.a Administrative Restrictions 42 4.1.4.b Attack on Humanitarian Missions 43 </p><p> 4.2 Hamas 45 4.2.1 Application of Human Rights Law to Non-State Actors 45 </p><p>4.2.2 Hamas practices with respect to Humanitarian Assistance 47 4.3 Egypt 48 </p><p>4.3. 1 Border Control and Responsibility of Egypt towards the ESC Rights 49 4.3.2 The impact of the Steel Wall on the Realization of the Right to Water 51 </p><p> 5.Conclusion 52 6.Bibliography 56 </p></li><li><p> 4 </p><p> The Gaza Strip border crossings Source:BBC news </p></li><li><p> 5 </p><p>1. Introduction The Gaza Strip has been occupied by Israel in the context of the Six-Day War in 1967. Since then, the civilian population of Gaza has been mainly dependent on the provision of humanitarian assistance to sustain its needs.1 During that period Israel has maintained effective control over the territory amounting to occupation as envisaged by the Hague Regulations.2 As an occupying power, Israel was bound by the provisions of the Fourth Geneva Convention to provide for the basic needs of the population under its control and ensure the fulfillment of their right to food, shelter, education and medical care.3 In 2005, Israel has announced its unilateral evacuation from Gaza by removal of Israeli armed forces and settlements, while still in control of Gazas airspace, territorial waters and border crossings. The new Israeli policy certainly had some impact on qualifying the legal status of Gaza as occupied territory. Following the intensifying rivalry between the successive Palestinian Authority and Hamas, the latter successfully seized Gaza and became the de facto administrative government in 2007. As hostilities escalated between Israel and Hamas, Israel has imposed a blockade on Gaza by severely restricting the movement of people and access of humanitarian assistance into Gaza. The Israeli measures have dire consequences on the humanitarian situation on the livelihood of the population of Gaza, which have been denounced as collective punishment against the civilians in the latest report by the UN Fact Finding Mission on Conflict of Gaza.4 The blockade has devastating effects on 1.5 millions impoverished Gazans by further deteriorating its economy, increasing aid dependency, worsening poverty and food insecurity.5 Egypt, which is the only country sharing a border with Gaza, has on its turn blockaded Gaza by restricting the operation of Rafah border crossing, the only remaining humanitarian resort not controlled by Israel. Furthermore, Egypt has begun the construction of a steel underground wall in order to curb the illegal smuggling across tunnels underneath the Egyptian borders. In addition to providing the basic commodities to the population of Gaza, the tunnels are also being used in other illegal contexts including transfer of arms and weapons to Hamas and other militias. The policies each of the aforesaid parties make certainly have had grave ramifications on the provision and effective delivery of humanitarian assistance to the affected civilian population of Gaza as will be covered throughout the thesis. The right to humanitarian assistance is fundamentally derived from basic norms of international humanitarian law and human rights law, both sharing the common objective to ensure the protection of human beings and their dignity. In that sense, the obligation of states is not solely limited to the parties to the conflict, but both legal regimes impose general obligations on all states and legally qualified entities to observe and ensure the realization of the right to humanitarian assistance. Recognizing the hostile environment in which humanitarian missions operate, The Office of Coordination of Humanitarian Affairs (OCHA) in 2009 published the Minimum Framework for the Provision of Humanitarian Assistance in Gaza which provides a guideline on the general rules of humanitarian assistance, originating from humanitarian law and human rights law, and the rights and responsibilities of parties to the conflict and other states. </p><p>1 General Assembly Res.2252 (1967) on the provision of assistance to Palestinian refugees. Res.194 (1948) and 302(1949) established UNRWA. General Assembly A/64/13. Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) 2009 2 UN resolution 242(1967) 3 Article 55 of GCIV. Israel is a party to the Four Geneva Conventions of 1949, but not to its additional protocols of 1977, however, it still remains bound by their customary provisions. 4 The United Nations Fact Finding Mission on the Gaza Conflict was established by the United Nations Human Rights Council (UNHRC) to investigate violations committed during the Gaza war (Cast Lead Operation. The findings of the mission were published in a report in 2009.Hereinafter; the Goldstone Report. 5 Amnesty International. Suffocating Gaza-the Israeli blockades effects on Palestinians. 1 June 2010. </p></li><li><p> 6 </p><p> In the current context of Gaza, this thesis attempts to explore the relationship between Israel, Hamas and Egypt with respect to the provision of humanitarian assistance in the Gaza Strip, and the obligations incumbent upon each party, from a different legal standing pursuant to its role, under both international humanitarian law and human rights law vis--vis the civilian population of Gaza. Two points need to be highlighted. First, the complexity of the conflict presents legal challenges relating to the traditional understanding of the law of occupations as envisaged in the Hague Regulations and the Fourth Geneva Convention. This would be given substantial consideration in Chapter 2 of the thesis. Second, while international humanitarian law is the primary legal regime in the context of armed conflict, human rights law is given special attention in the thesis since it provides more detailed obligations on the parties, and thus protection for the affected population. Since Egypt is not a party to the conflict, Human rights law is more relevant in this situation. Also, the current status of Hamas government makes it equally bound by the provisions of human rights law. Structure of the Thesis This thesis is written on the premise of the existing situation in the Gaza Strip during the months of May-June 2010.The recent developments relating to the Israeli blockade in Gaza will be given special attention. The thesis specifically deals with the humanitarian situation in Gaza pursuant to the Israeli disengagement in 2005. The legality of the conduct of hostilities in the context of ongoing-armed conflict between Israel and Hamas will not be covered. Chapter 2 deals with the current legal status of Gaza, which determines the extent of obligations of the parties to the conflict. Firstly, I will provide a theoretical background on the law of belligerent occupation under the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949 dealing with the civilian population, and the obligations of the occupying power towards the civilian population subject to its control. Secondly, I will assess the legal status of Gaza at 2 stages; pursuant to the Israeli disengagement in 2005 and Hamass seizure of Gaza in 2007. For that purpose, I will shed some light on the Israeli aspects of control over Gaza and whether this amounts to effective control, and thus qualifies to occupation under the Hague Regulations. Also, I will discuss Hamass power over Gaza and whether it has any effect on the Israeli control and thus the legal status of Gaza. The Egyptian policies concerning the closure of Rafah and the construction of the steel wall will be covered in this chapter. Chapter 3 deals with the legal framework applicable to Gaza with respect to the right to humanitarian assistance. First, I will discuss the right to humanitarian assistance under international humanitarian law, which is the primary legal regime in this context. I will cover in details the relevant provisions dealing with duties of the parties to the conflict, specifically the duty of occupying power. Second, I will provide a brief overview of the relationship between international humanitarian law and human rights law and their concurrent application during armed conflict, and particularly occupation. Then, I will discuss how the right to humanitarian assistance is broadly defined under international human rights law. </p></li><li><p> 7 </p><p>In chapter 4, I put the findings of chapter 2 and 3 into practice by addressing the obligations of Israel, Hamas and Egypt respectively with respect to the right to humanitarian assistance, and their responsibility in response to their current policies and practices. Lastly, I present my conclusion and recommedations in chapter 5. </p></li><li><p> 8 </p><p>2. Historical Background and Factual Considerations relating to Gaza The Israeli occupation of the Gaza Strip resulted from the Arab-Israeli war of 1967. In spite of the Israeli withdrawal from Gaza in 2005 and Hamass de facto control over the Gaza Strip in 2007, Israel is still de jure the occupying power of the Gaza Strip with all that may entail from obligations on its side vis--vis the civilian population of the Gaza Strip.6 However, from 2007 Israel has imposed a blockade on Gaza on all borders under Israeli control thereby denying the population basic humanitarian necessities and violating its duties under both international humanitarian law relevant to occupation and international human rights law. Consequently, the only remaining humanitarian outlet for the population became the Rafah border crossing with Egypt. While Egypt is not a party to the conflict, it is still bound by international humanitarian law and, in particular, international human rights law to fulfill its obligations towards the population of the Gaza Strip. Similarly, any policy that Egypt makes which might have an extra-territorial implication on the humanitarian situation in the Gaza Strip may hold it accountable. In this chapter, I will briefly discuss the subsequent development in the Gaza Strip and consequences in terms of its current status from a legal perspective. 2.1 The Gaza Strip Legal Status Prior to 1967 Following the end of World War I, the League of Nations established the mandate system in order to administer parts of the former Ottoman Empire. The mandatory authorities were to be: Responsible for placing the country under such political, administrative, and economic conditions as will secure the establishment of the Jewish national homeand the development of self-governing institutions and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.7 Until 1948, the Gaza Strip was put under the administration of Great Britain. Since the establishment of the Jewish settlements was also entrusted under the mandate, that period witnessed growing hostilities between the newly Jewish settlers and the Arabs residing in the territories. With the British mandate of Palestine coming to an end, on November 1947, the United Nations proposed a partition plan of the Palestinian mandate under the General Assembly Resolution 181.8 The plan recommended the partition of Palestine into independent Jewish and Arab states with Jerusalem and Bethlehem being put under special international administration. The Arabs rejected the plan that provided 55 per cent of the territory to the proposed Jewish state, including the most arable lands already owned by the Arab inhabitants.9 On 14 May 1948, a day before the expiry of the mandate, Jewish leaders declared the independence of the state of Israel. Consequently, War b...</p></li></ul>


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