Israel’s Claim of the “Legitimate Right of Self-Defence” regarding the Gaza Strip in Light of International Law. A Palestinian Lawyer’s Position
| Author | Yousef Shandi |
| Position | Professor in Law at the Faculty of Law and Public Administration of Birzeit University, Palestine |
| Pages | 387-406 |
Yousef Shandi. Professor in Law at the Faculty of Law and Public Administration of Birzeit University, Palestine. Ph.D. (Strasbourg). The author may be contacted at: yshandi@birzeit.edu/Address: Faculty of Law and Public Administration, Birzeit University, P.O. Box: 14, Birzeit, Palestine. The opinions presented in this paper do not necessarily represent the views of any government or organization.
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Israel occupied the Gaza Strip and the West Bank including East Jerusalem after the end of the war in June 1967. It placed the Gaza Strip under direct military rule from within the Gaza Strip and lasted until Israel implemented its unilateral disengagement plan from the Gaza Strip in September 2005.1 Upon the implementation of this plan, Israel declared that it finally relinquished the Gaza Strip and thus was no more responsible for the protection, care and welfare of its civilian population. Despite the disengagement plan, Israel has not actually given up effective control over the Gaza Strip judging that it has maintained full control of its land, sea borders, and airspace. In addition, Israel has imposed a strict military siege since Hamas took over authority in Gaza on June 19, 2007, declaring it ‘enemy territory.’2
Under the disengagement plan, Israel has escalated its settlement activities in the West Bank including East Jerusalem. Furthermore, Israel has intensified military aggression and assaults in the Gaza Strip and its inhabitants through incursions and assassinations in public places and the homes of several resistance movement leaders causing many civilian deaths. Israel has also launched several large-scale military offensives in the Gaza Strip, including Operation Cast Lead,3 which left thousands either dead or wounded, destroyed tens of thousands of residential houses, schools, hospitals, places of worship and police stations, and caused massive destruction to infrastructure and all sources of livelihood in the Gaza Strip.
Israel attempts to justify its military operation in Gaza Strip (including Operation Cast Lead) as a right of self-defence in accordance with Article 51 of the UN Charter, which states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UnitedPage 389 Nations, until the Security Council has taken measures necessary to maintain international peace and security . . .
The primary aim of this paper is to critically analyze Israel’s position regarding the right of self-defence of the Gaza Strip from an international legal perspective since the disengagement plan was implemented. A comprehensive study of this topic requires identifying the legal status of the Gaza Strip under the disengagement plan. The main purpose is to examine the legitimacy of the implementation of the disengagement plan from the perspective of international law, whether it changes the legal status of the Gaza Strip as an occupied territory, and what are the legal consequences irrespective of Israel's real intentions. There are two sub-topics: one discusses whether the Israeli occupation of the Gaza Strip has ended; the other examines the legitimacy of Israel’s claim of the right to self-defence regarding the Gaza Strip.
The former Israeli Prime Minister Ariel Sharon announced the disengagement plan in mid-June 2004. Following its approval at the Knesset, the plan was implemented in September 2005 with a wide-scale Israeli media campaign asserting that Israel did not have any international obligations to the civilian population of the Gaza Strip.4 The plan contained the following points:
• Withdrawing all Israeli forces and settlers residing in the Gaza Strip, amounting to 7500 settlers;
• Evacuating seventeen settlements in the Gaza Strip and four settlements in the North West Bank, and dismantling all existing establishments;
• Maintaining Israel’s full security control of the land borders, as well as the sea and airspace of the Gaza Strip; and
• Expanding settlement activity in the West Bank, asserting that any future solution must take into consideration Israel's demands to maintain major population gatherings, Israeli cities and villages and other land of security and strategic significance for Israel in the West Bank.
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Opinions varied about the legal nature of Israel’s disengagement plan.5 While Israel announced that its real goal was to improve its security, political, economic and demographic conditions,6 Israel in fact aimed at aborting the idea of an independent Palestinian state in all of the 1967 Occupied Territories and separating the Gaza Strip from the West Bank. The ultimate goal of Israel was to completely settle down the so-called Palestine question through such conditions as enhancing settlement activity in the West Bank, judaizing Jerusalem, and imposing a political solution based on the Israel’s military superiority.7
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Article 42 of the Hague Regulations of 1907 regarding the Laws and Customs of War on Land stipulates that:
Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
Following the regulation, the only decisive criterion to determine the land occupation is ‘effective authority.’Such authority or control does not necessarily require the presence of armed military forces inside the occupied territories, but the ability to exercise authority in that territory. Occupation ends when the foreign army ceases to exercise authority over the occupied territories.
Given the status quo in the Gaza Strip after the implementation of the disengagement plan, Israel continues to exercise actual authority over the Gaza Strip through large-scale military operations,8 effective control over all land, sea, air border crossings and airspace of the Gaza Strip,9 and the stifling blockade imposed in 2007. Israel controls access of persons and goods and issues entry and exit permits to Gaza inhabitants, international missions and even convoys of humanitarian aid. It makes administrative decisions that accept or deny reunion petitions submitted by Gaza inhabitants. Therefore, it is undeniable that Israel remains an occupying power from an international legal perspective.10
In the Advisory Opinion on the Separation Wall case, meanwhile, the International Court of Justice (“ICJ”) already confirmed the applicability of the description of occupied territory of the Gaza Strip. The ICJ stated that: “[T]he Gaza Strip and the West Bank including East Jerusalem remain occupied territories and Israel has continued to have the status of an Occupying Power. Subsequent events to 1967 in these territories have done nothing to alter this situation, that these are occupied territories.”11 AlthoughPage 392 this Advisory Opinion is not binding on Israel, it is particularly important because it undermines the Israeli claim that the said Palestinian Territories are “not occupied, but disputed territories.”12 Moreover, the Security Council Resolution 1860 of 2009, the International Committee of Red Cross, the UN Commission on Human Rights (currently, Human Rights Council) and other international agencies have recognized that Israel is still occupying the Gaza Strip even under the Disengagement Plan. It signifies that Israel continues to have ‘effective authority’over the Gaza Strip.13 Hence, Israel's claim that it has ended its control over the Gaza Strip with the implementation of the Disengagement Plan is legally baseless. Furthermore, the Disengagement Plan is illegal per se based on the following evidences.
(1) Israel Has Not Actually Withdrawn Its Military Forces from the Gaza Strip, but Merely Redeployed or Re-positioned Its Forces.
Israel’s occupation is not fully complete considering that Israel just evacuated its armed forces from the land territory of the Gaza Strip. Instead, Israel has maintained effective control over Gaza’s airspace imposing a strict land, sea and air military siege. Such evacuation or disengagement has not resulted in exercising Palestinian sovereignty in the Gaza Strip. The Disengagement Plan itself, however, has illustrated the nature of the withdrawal from the Gaza Strip. The plan clearly states that:
The state of Israel will evacuate the settlements in the Gaza Strip and will redeploy outside the Strip . . . Upon completion of this process, there shall no longer be any permanent presence of Israeli security forces in the land territory of the Gaza Strip which have been evacuated.14
As provided in Article 42 of the Hague Regulations of 1907, the absence of permanent military bases in occupied territories neither refutes the presence of effective control over that territory, nor consequently denies the existence of occupation. Regarding thePage 393 real goals of this Plan, Noam Chomsky stated as follows:
The Sharon government realized that it is useless to support few thousands of Israeli settlers in Gaza, who required significant resources and the protection of a significant number of Israeli forces, so it decided to move them to the West Bank and the Golan Heights, both of which are more valuable to it.15
The Disengagement Plan has...
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