By Dr. Atul Alexander – Assistant Professor, The West Bengal National University of Juridical Sciences – and Richa Maria Reginald – 2nd Year, Rajiv Gandhi National University of Law, Punjab

Over the past few months, countless images and videos have surfaced on the internet, shedding light on the sheer horror of the acrimonious conflict that individuals residing in the Israeli-occupied region of Gaza have witnessed. As an aftermath of the major terror attack carried out by the Palestine militant group Hamas on 7 October 2023, Israel declared that it was at war. This unleashed blitz, which led to an estimated killing of 1,200 Israeli civilians, has now earned the title of being designated as the Black Saturday. In retaliation to this animosity, Israel cut off supplies to basic facilities like water, electricity and bombarded the Gaza Strip relentlessly, resulting in the displacement of millions of people and causing fatalities of more than 28, 500 civilians. The underlying reason for the attack by Hamas is the military occupation of the West Bank and the blockade of the Gaza Strip for the past 56 years.

States around the world are divided in terms of support – the European Council’s stance is ‘that Israel has the right to defend itself in line with humanitarian and international law’. Meanwhile, the Arab States stand firmly with the Palestinians and have halted cooperation with Israel. The UN chief, Antonio Guterres, has termed Israeli’s retaliation as a clear breach of International Humanitarian Law (IHL), which is underscored by the fact that attacking civilian targets and using prohibited weapons like white phosphorus is in blatant breach of core provisions under the Geneva and Hague Conventions. Further, as an occupying power, Israel’s counter-offensive also breaches its international human rights obligations.

The Occupied Palestinian Territory and the Law of Occupation

Although Israeli troops and settlers withdrew from Gaza in 2005, it is widely accepted that Israel continues to remotely occupy and exercise control over Gaza. The Occupied Palestinian Territory (hereinafter ‘OPT’) consists of the West Bank, which includes East Jerusalem and Gaza. Art. 42 of the Regulations annexed to the IV Hague Convention Respecting the Laws and Customs of War on Land (1907) codifies the test to determine whether a territory is occupied by ascertaining ‘effective control’ requiring physical presence. However, in the Tsemel case, the Israeli Supreme Court observed that there is no requirement for actual control over territory and population, but the mere capability to do so would suffice. This has, essentially, relaxed the ‘effective control’ standard. According to Iain Scobbie, Professor of Law at the University of London, ‘Under the Disengagement Plan, Israel retains absolute authority over Gaza’s airspace and territorial sea.’ 

Since the occupation of the Gaza Strip, West Bank and East Jerusalem in 1967, the Israeli government has been accused of imposing military rule in Palestine with disregard for basic human rights protection. There are three principles governing the law of occupation that have to be respected by the occupying power. Firstly, the occupation must be ‘temporary.’ In the present scenario, Israel seems to exercise perpetual control and de facto sovereignty over the OPT by exercising remote effective control over OPT for more than 50 years. Secondly, the occupying power has the duty of good governance for the period of occupation, and thirdly, the occupying power can take measures to protect its interest. According to Art. 43 of Hague Convention 1907, the occupying power has an obligation ‘… to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.’ The Israeli government’s policy entails discrimination against Palestinian citizens in terms of access to land for housing. According to Eric Goldstein, acting Middle East executive director at Human Rights Watch, ‘These practices are well-known when it comes to the occupied West Bank, but Israeli authorities are also enforcing discriminatory land practices inside Israel.’

The Commission of Inquiry (COI) on the OPT, including East Jerusalem and Israel, noted in its recommendation that in the occupied regions, international human rights law applies alongside international humanitarian rights law, thereby condemning Israeli authorities for the breach of human rights. The COI further clarified that Israeli’s political policies in the occupied region constituted de facto annexation, which constituted war crimes. As a result of the coercive regime, the Palestinian people are unable to fulfil their right to self-determination. The UN Special Rapporteur Albanese further backs this claim on the situation of human rights in 2022 by observing that ‘The wave of deadly violence sweeping through the occupied West Bank since the beginning of this year is the inexorable consequence of an acquisitive and repressive occupation with no end in sight, and the culture of lawlessness and impunity Israel has nurtured and enjoyed’.

 The Fourth Geneva Convention relative to the Protection of Civilian Persons in Times of War or the Fourth Geneva Convention (hereinafter ‘GCIV’), aims to delve into humanitarian protections for civilians in a war zone. The ICJ has affirmed that the Geneva Conventions constitute ‘intransgressible principles of international customary law’. Art. 49 of the GCIV blatantly prohibits the occupying power to forcibly transfer its civilian population into the occupied territory, regardless of their motive. Israel has been consistently accused of such deportations and evacuations because of its illegal settlement policy. The Palestinian individuals residing within the occupied territory of West Bank and the Gaza Strip are very much entitled to fall within the definition of ‘protected persons’ under the GCIV, with Art.27 detailing that protected persons are ‘entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.’ The provision, which is considered as the ‘basis of the Convention’ as it discusses the inviolable character of the human rights of men and women, further provides that such persons must be treated humanely at all times, and ‘protected against all acts of violence’. As UN rights chief Volker Turk observed, “The imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.”

Earlier this year, the Israeli forces carried out raids in Haram Al-Sharif compound and Al-Aqsa Mosque during the Holy Month of Ramadan. Some of these attacks likely constitute war crimes and crimes against humanity. Notwithstanding the coordinated air strikes by Hamas, it should also be taken into cognisance that Israeli forces have been carrying out sporadic attacks in the occupied territory for several years. The counter offence by Israel has not only destroyed the Hamas launchpads but also the civilian targets in northern Gaza. Beyond the breach of the Geneva Conventions, Israel has plausibly violated its international human rights violation as well.

Israeli’s Human Rights Obligation as an Occupying Power

International Human Rights Law (hereinafter ‘IHRL’) is widely accepted to be applicable in situations of occupation. These obligations are binding on the occupying power of Israel for the treaties it has ratified. IHRL broadens the content of IHL and concretises the specific provisions of IHL. The two core human rights treaties Israel has ratified are the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’). In the Wall Opinion case, the ICJ accepted that ‘the protection of the International Covenant on Civil and Political Rights does not cease in times of war.’ Hence, the International Court of Justice (hereinafter ‘ICJ’) added that ‘…some rights may be matters of both these branches of international law.’ Even the jurisdictional scope of ICCPR is broad as it covers individuals outside the territory but is subject to States jurisdiction. This position has also been affirmed by the Human Rights Committee (hereinafter ‘HRC’) and the travaux préparatoires. With regard to the current conflict, the question is whether individuals in the occupied territory fall within the jurisdiction of Israel; the Wall Opinion has affirmed this position.

Interestingly, the ICJ has categorically observed that the construction of walls and creation of enclaves have impacted the freedom of movement in OPT, which is in blatant contravention to Art. 12 (1) of the ICCPR and impedes basic human rights like health, education and adequate standard of living. In 1968 the General Assembly 2443 (XXIII) established the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, one of the mandate of the committee is to investigate the policies and practices in the Occupied Palestinian Territory (OPT)  in its 2003 report ‘an estimated 100,000 dunums [approximately 10,000 hectares] of the West Bank’s most fertile agricultural land, confiscated by the Israeli Occupation Forces, have been destroyed during the first phase of the wall construction, which involves the disappearance of vast amounts of property, notably private agricultural land and olive trees, wells, citrus grows and hothouses upon which tens of thousands of Palestinians rely for their survival.’  The recent attacks by Israel have only deteriorated the deplorable plight of the residents of OPT.   

In the Wall Opinion, the ICJ made it clear that the construction of the barricade constituted de facto annexation and violated the territorial sovereignty and Right to Self-Determination. Thereby, Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the OPT. Israel, as occupying power, is prohibited from using force to prevent the Palestinian people from exercising the Right to Self-Determination. Under the UNGA Resolution 2625, ‘Every state has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.’

The Violation of the Right to Life

Human rights obligations apply extraterritorially, provided that the State exercises effective control over the territory.  This approach (Spatial) has proved to be too restrictive as it is inadequate to cover situations of airstrikes or transboundary environmental harm. The other approach is the ‘personal approach’ where the State exercises control or authority over the individual; the HRC endorsed this approach in Lopez v Uruguay. Therefore, Israel’s human rights obligation of the right to life extends to occupying territory by its ‘effective control.’ The United Nations General Assembly (hereinafter ‘UNGA’), in the emergency special session (2023) on the Israel-Palestine conflict, condemned Israel for its recent attacks on civilians and destroying critical infrastructure. According to the UNGA President Dennis Francis, ‘to deprive the people of Gaza of unimpeded access to essential livelihood supplies – would be a clear violation of their human rights and an affront to international humanitarian law.’ It is reported that the Israeli airstrike targeted residential areas and hospitals, also damaging 20 United Nations Reliefs and Works Agency (UNRWA) installations across the Gaza Strip. Israel also bombed Rafah, blocking any movement in and out of Gaza.

Further, on 9 October 2023, the Israeli Defence Minister announced the cutting of essential supplies to Gaza and also threatened any attempts to provide humanitarian aid to the Gaza Strip. In addition to violating the principles of IHL, like distinction and proportionality, the attacks also infringe on the right to life. According to Amnesty International, over 200 Palestinians were arbitrarily detained in the West Bank and 105 in the Gaza Strip, with ill-treatment and torture being prevalent in the interrogation centres in these areas. It is alleged that white phosphorous, being used in civilian areas of Gaza, has the potential to cause incendiary effects, thus violating the right to life. Reports state that by mid-December, Israel had dropped 29,000 bombs, munitions and shells on the besieged enclave, destroying or damaging nearly 70 per cent of Gaza’s homes. The Palestinian Health Minister Mai al-Kaila has also further acknowledged that Gaza’s health services were in a ‘disastrous’ state, with at least 30 staff arrested by Israeli forces and over 250 killed. Currently, the ICJ is slated to decide on the advisory opinion sought by UNGA on ‘Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem’, it is expected to address the human rights violations in the OPT.

Conclusion

To ascertain the occupied status of a territory, the test involves the scrutiny of the ‘effective control’ requiring physical presence. But this test was relaxed in the Tsemel case, wherein the Israeli Supreme Court observed that there is no requirement for actual control over territory and population, but the mere capability to do so would suffice. In its recent series of actions, Israel has not only acted in contravention of the principles enshrined in the GC IV but also violated its international human rights obligations. Since IHRL is widely accepted to be applicable in situations of occupation, these obligations are binding on the occupying power of Israel for the treaties it has ratified. Human rights obligations also apply extraterritorially provided that the State exercises effective control over the territory, which means that Israel’s human rights obligation of the right to life extends to occupying territory by its ‘effective control.’ Thus, it becomes pertinent for Israel to realize its obligations towards the citizens living in Gaza and follow its responsibilities under the Geneva Conventions, which the States ratified on 6 July, 1951.  As has been observed in the past few weeks, the death count is rising unbridged in spite of international recognition of the issue unfolding in Gaza. Most recently, On 29th December South Africa initiated proceedings at the ICJ for provisional measures on the grounds of the ‘genocidal acts’ in Gaza, as these acts were ‘intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.’ The ICJ observed that the acts of Israel might plausibly constitute genocide with respect to Art. III of the Genocide Convention and ordered provisional measures. As the ICJ is yet to render its judgement on merits, only time can tell the possible implication of the proceedings.