|
In the wake of Hamas’ takeover of Gaza, Israeli National Infrastructure
Minister Binyamin Ben-Eliezer was reported to have declared: “I am stopping
everything until I understand what is happening over there. We simply have to
increase the isolation of Gaza from Judea and Samaria; close them off
completely. The only opening that should remain open is toward Rafah.”
Furthermore, the Israeli government, while lifting its economic boycott of the
now Fatah-led Palestinian government in Ramallah, has announced plans for
far-reaching economic isolation of the Gaza Strip.
This raises the question whether the State of Israel, as an occupying power, is in a position to decide on the question of its economic relationship with the Occupied Palestinian Territory (OPT) based merely on considerations of political opportunity. It must not be
forgotten that under the international law of occupation, Israel is
subject to a series of legal obligations, substantially limiting its legitimate
political scope of action.
Despite the complex and multifaceted discourse on
international law issues, one must not lose sight of the very core principle of
international humanitarian law. As being a part of so-called international
humanitarian law (IHL), it serves first and foremost humanitarian concerns, i.e., as the term indicates, the basic needs
of the human beings involved. This
is expressed, inter alia, in Articles
7 and 47 of the 1949 Fourth Geneva Convention (FGC)
which states that any special agreement between the parties to a conflict shall
in no way adversely affect the situation of the occupied population nor
restrict the rights which the Convention confers upon it.
This means that the civilian population must be kept
as far as possible out of the disarray brought about by a situation of belligerent
occupation. Article 47 leaves no doubt that neither the authorities of the
occupied territory nor the occupying power are, for what purpose ever,
permitted to hold the civilian population hostage in order to put political
pressure on the other side: “Protected persons who are in occupied territory
shall not be deprived, in any case or in any manner whatsoever, of the benefits
of the present Convention by any change introduced.”
Not entering the protracted debate whether it is de jure bound by the FGC, the Government
of Israel has long declared that it was prepared to apply its humanitarian provisions at least on a de facto basis. There can be no doubt
that Article 47 belongs to that category, as does the provision of Article 55 which
deserves to be fully cited here: “To the fullest extent of the means available
to it, the Occupying Power has the duty of ensuring the food and medical
supplies of the population; it should, in particular, bring in the necessary
foodstuffs, medical stores and other articles if the resources of the occupied
territory are inadequate.”
Those duties are complemented by a series of further
obligations: “To the fullest extent of the means available to it, the Occupying
Power has the duty of ensuring and maintaining, with the cooperation of
national and local authorities, the medical and hospital establishments and
services, public health and hygiene in the occupied territory.” (Article 56)
“If the whole or part of the population of an occupied territory is
inadequately supplied, the Occupying Power shall agree to relief schemes on
behalf of the said population, and shall facilitate them by all the means at
its disposal.” (Article 59) And according to Article 33, “collective penalties
and likewise all measures of intimidation or of terrorism are prohibited”.
The list could be continued at length. According to
the quasi-unanimous standpoint of the community of states (including the US) and of international
scholars, the FGC is fully and unreservedly applicable to the OPT. Furthermore,
the International Court of Justice in its 2004 Advisory Opinion completely
embraced this view. Reading the original
wording of the Convention with all its superlatives and in all its unambiguous
language manifests that there is an international consensus that a civilian
population already victim of a situation of occupation might in no way be exploited
by one of the sides involved.
Against that background, all projects for a complete
or almost complete isolation of the Gaza Strip and thus endangering its already
highly inadequate supply with food, electricity, fuel, etc. must be considered manifestly
incompatible with Israel’s duties as an occupying power under international law—totally
irrespective of what one might think of the current regime in place in the Gaza
Strip.
For the one and a half million human beings living in
the Gaza Strip under most desperate conditions, the critical developments of
the last days are not a game. And nobody has the right to put them at stake. They
must be kept out of the game—that’s the Geneva Convention’s message.
Andreas Th. Müller, Department of European Law and
Public International Law, University
of Innsbruck (Austria)
|
News 
