Are the Laws of Belligerent Occupation Applicable to the Gaza Strip?
Are the Laws of Belligerent Occupation applicable to the Gaza Strip?
The legal debate is not very wide-spread, which can point at the politicization of positions rather than the pursuit of just interpretation of the law. In Israeli academia, two of the most acclaimed experts on International Humanitarian Law (IHL) tackled this question and reached conflicting conclusions. Prof. Yoram Dinstein supports the position that Partial occupation exists in Gaza, while Prof. Yuval Shany sources the obligation of Israel to the citizens of Gaza as ones governed by alternative sources such as Human Rights Law and Siege law covered by IHL.
Belligerent Occupation: Effective control is the conditio dine qua non of Belligerent Occupation – it is the applied test to determine the obligation of a power under the laws of occupation.
ICJ Advisory Opinion on the Construction of the Wall: A treaty must be interpreted in good faith according to the meaning in context and in light of its objects and purposes (Vienna Convention on the Law of Treaties). The purpose of the laws of belligerent occupation is to ensure the humanitarian obligations of the occupying Power to the citizens rather than determine the status of the territory (in political terms).
Israel’s High Court of Justice (HCJ) in the Bassiouni case determined that humanitarian obligations (which exceed the ones owed in armed conflict) exist to the people of Gaza. In addition, Israel has professed its right to pursue military objectives in Gaza. The main legal questions therefore are whether the humanitarian obligations derive from Occupation law and whether Israel’s power over Gaza amounts to effective control.
In my opinion, given the lacuna created in new situations due to the inability of the 1949 laws to adapt, we are currently seeing a situation of partial occupation, where the obligations of Israel exist, yet limited under the law of occupation to areas where it does exercise effective control. I. Yoram
The legal debate is not very wide-spread, which can point at the politicization of positions rather than the pursuit of just interpretation of the law. In Israeli academia, two of the most acclaimed experts on International Humanitarian Law (IHL) tackled this question and reached conflicting conclusions. Prof. Yoram Dinstein supports the position that Partial occupation exists in Gaza, while Prof. Yuval Shany sources the obligation of Israel to the citizens of Gaza as ones governed by alternative sources such as Human Rights Law and Siege law covered by IHL.
Belligerent Occupation: Effective control is the conditio dine qua non of Belligerent Occupation – it is the applied test to determine the obligation of a power under the laws of occupation.
ICJ Advisory Opinion on the Construction of the Wall: A treaty must be interpreted in good faith according to the meaning in context and in light of its objects and purposes (Vienna Convention on the Law of Treaties). The purpose of the laws of belligerent occupation is to ensure the humanitarian obligations of the occupying Power to the citizens rather than determine the status of the territory (in political terms).
Israel’s High Court of Justice (HCJ) in the Bassiouni case determined that humanitarian obligations (which exceed the ones owed in armed conflict) exist to the people of Gaza. In addition, Israel has professed its right to pursue military objectives in Gaza. The main legal questions therefore are whether the humanitarian obligations derive from Occupation law and whether Israel’s power over Gaza amounts to effective control.
In my opinion, given the lacuna created in new situations due to the inability of the 1949 laws to adapt, we are currently seeing a situation of partial occupation, where the obligations of Israel exist, yet limited under the law of occupation to areas where it does exercise effective control. I. Yoram