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Israel Applicable international law Legal qualification of the conflict Views differ as to the legal qualification of the conflict between Israel and the Palestinians. One view is that the entire conflict, including the conflict in December 2008-January 2009 in the Gaza Strip, is an international armed conflict. According to one academic: "An armed conflict which takes place between an Occupying Power and rebel or insurgent groups – whether or not they are terrorist in character – in an occupied territory, amounts to an international armed conflict." (1) The Israeli Supreme Court took a similar position in the "Targeted Killings" case (see para 18). A different view is that the armed conflict in Gaza in December 2008 and January 2009 is an armed conflict of a non-international character between Israel and Palestinian non-state armed groups. This conflict takes place within the context of a broader military occupation by Israel governed by the relevant rules applicable to such a situation. See for further info: RULAC Qualification of armed conflicts Applicable Law The armed conflict in the Gaza Strip in January 2009 Whether the conflict in Gaza is international or of a non-international character, customary international humanitarian law (see pdf below) is applicable to the use of force by both Israel and the Palestinians. In addition, the ongoing military occupation of Gaza and the West Bank is govern by the law of military occupation (see below). International human rights law also applies extraterritorially to both the occupied West Bank and Gaza. The fundamental rules of international humanitarian law -- including the principle of distinction and the principle of proportionality -- apply to all armed conflicts. Principle of distinction According to the principle of distinction, the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Attacks must not be directed against civilian objects. Civilian objects are all objects that are not military objectives. Civilian objects are protected against attack, unless and for such time as they are military objectives. Indiscriminate attacks are prohibited. Indiscriminate attacks are those: Principle of proportionality Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. Common Article 3 to the 1949 Geneva Conventions In addition, Common Article 3 to the 1949 Geneva Conventions applies in the case of a non-international armed conflict and, as an absolute minimum, to all parties to an international armed conflict. According to the decision by the International Court of Justice in the 1986 Nicaragua case, its provisions represent customary international law (see § 218 of the decision, included in the pdf below). Common Article 3 provides as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. Law of military occupation The sources of the law of military occupation are the following: 1. The Regulations annexed to Hague Convention IV of 1907 (Articles 46-52). These provisions have become part of customary law (see the ICJ Advisory Opinion on the Wall, paragraph 89). 2. Geneva Convention IV of 1949 3. Additional Protocol I of 1977 to the Geneva Conventions (Articles 63, 68, 69 and 71). Israel is not a party to this Protocol. 4. A study by the International Committee of the Red Cross found that certain rules governing military occupation had attained the status of customary law (see pdf below).
The Oslo Accords of 1993 established the Palestinian Authority (PA) and divided the territories into three zones of control – areas A, B and C. Responsibility for security and public order within Area A was entirely transferred to the PA; Area B was placed under mixed control; while Area C remained under Israeli control. The consequences of these agreements with regard to the application of the law of military occupation is debated. According to a 2004 Advisory Opinion by the International Court of Justice, the West Bank remains entirely occupied (for legal purposes), even after the establishment of the PA and its control over Area A:
On the other hand, some scholars have argued that Israeli occupation ended in Area A, as it is the PA and not Israel that exercises effective control there. (4) The applicability of 1949 Geneva Convention IV The official Israeli Government position is that the 1949 Geneva Convention IV does not apply de jure in the West Bank, because of the lack of prior sovereignty over these territories (the Palestinians were not a "High Contracting Party" as required by Article 2 of the Convention). (5) Nevertheless, Israel has declared that it will apply de facto the humanitarian provisions of the Geneva Conventions. The Israeli High Court of Justice has never ruled on this issue. Israel's assertion that Geneva Convention IV does not apply as a matter of law has been rejected by the International Court of Justice, the International Committee of the Red Cross and the UN.
By 12 September 2005, Israeli troops completed their withdrawal from the Gaza Strip following the Israel's unilateral “disengagement plan.” However, although Israel removed its troop and citizens from the Gaza Strip, as observed by Professor Yuval Shany:
Thus, even before the January 2009 ground military operation, whether Israel's occupation of the Gaza Strip has ended for legal purposes was uncertain. The position of the Palestinian Authority and of the UN Special Rapporteur for the Occupied Palestinian Territories, Professor John Dugard, is that Gaza remains occupied. According to his report to the Human Rights Council in January 2007, for example:
The position of Professor Shany is that Gaza is under siege – from the air, sea and land – but not an occupied territory. Therefore, according to Shany the law of military occupation does not apply in its entirety, but some obligations do. (8) This position is shared by the Israeli High Court of Justice. The Court has ruled that Article 42 of the 1907 Hague Regulations is not fulfilled, and therefore Gaza is not occupied since the withdrawal of Israeli troops. However, the Court ruled that although Gaza is not occupied, Israel still has special obligations towards Gaza and its residents. These obligations are derived from Israeli control of the borders and the dependency created during 38 years of occupation:
Notes (1) A. Cassese, International Law, 2nd edn., Oxford University Press, UK, 2005, p. 420. This position has been supported by the Israeli High Court of Justice in the so-called 'Targeted Killings' case, 2006, § 18. (2) See, for example, the International Committee of the Red Cross study of the rules of customary international humanitarian law (pdf below). (3) ICJ, "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory," 2004, at § 78. (4) See, for example, Eyal Benvenisti, "Responsibility for the Protection of Human Rights under the Interim Israeli Palestinians Agreements," 28 Is. L. Rev. 297, 312 (1994). (5) For details of Israel's position and the international response regarding the applicability of 1949 Geneva Convention IV in the West Bank, see the 2004 ICJ Advisory Opinion, §§ 90-101. (6) Yuval Shany, "Faraway So Close: The Legal Status of Gaza after Israel’s Disengagement," Yearbook of International Humanitarian Law, Vol. 8, 2006. (7) Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, UN Doc. A/HRC/4/17, January 2007. (8) Yuval Shany, “Binary Law Meets Complex Reality: The Occupation of Gaza Debate,” 41(1) Israel Law Review, 2008. (9) Gabber v. Prime Minister, 30 January 2008, § 12. A similar ruling was rendered in June 2008, in the case dealing with the constitutionality of the “Unlawful Combatant Law.” See A. v. State of Israel, Crim. App. 6659/06, 11 June 2008, at § 11.
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