Amnesty International: Israel Remains the Occupying Power in Gaza and is Thus Bound By the Law Of Occupation

American and Israeli Media Fail to Tell the Big Story

Amnesty International notes today:

Israel maintains sole control of Gaza’s air space and territorial waters, and continues to prohibit any movement of people or goods in or out of Gaza via air or sea. Israel directly controls all but one of Gaza’s land border crossings, and continues to close three out of the four crossings for commercial goods, restrict the volume of key imports, and ban most exports, all of which have a serious impact on humanitarian and socioeconomic conditions in Gaza. Israel continues to control the Palestinian population registry, which covers residents of both the Gaza Strip and the West Bank, so any change in these records and all Palestinian Authority identity documents (including ID cards and passports) require Israeli approval. An Israeli-approved ID card or passport is required for any Palestinian to leave Gaza, including through the Rafah crossing. And the Gaza Strip continues to depend on Israel for the majority of its electricity supply.

What does that mean?

Amnesty explains that Israel has the duty under international law towards the residents of Gaza:

Article 42 of the Hague Regulations defines occupation: “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.” In interpreting this definition with respect to particular situations, the notion of “effective control” over the territory in question is central. In cases where the occupying power has withdrawn its forces from all or parts of the occupied territory, but has maintained key elements of an occupying power’s authority, this retention of authority can amount to effective control. In such cases, occupation law, or at least the provisions relevant to the powers it continues to exercise, continues to apply.

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[Israel] remains the occupying power in Gaza and continues to be bound by the law of occupation, particularly as regards the powers it continues to exercise.

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This means that Israel’s actions in the Gaza Strip must be governed by the Law of Occupation, as well as the rules of international humanitarian law on the conduct of hostilities and international human rights law. The inhabitants of an occupied territory are entitled to special protection and humane treatment. Among other things, the rules prohibit the occupying power from willfully killing, ill-treating or deporting protected persons. The occupying power is responsible for the welfare of the population under its control. This means it must ensure that law and order is maintained and basic necessities of the population are provided for.

Israel has chosen not to fulfill many of its positive obligations as an occupying power. But this does not negate the existence of these obligations. At the very least, it is incumbent upon Israel not to actively obstruct relief for the civilian population of Gaza. Its military blockade, which has continued for over seven years, and goes well beyond reasonable security measures, is contrary to its obligations as an occupying power and constitutes collective punishment.

Daniel C. Maguire – Professor of Moral Theology at Marquette University, a Catholic, Jesuit institution in Milwaukee, Wisconsin, and author of A Moral Creed for All Christians – is even more blunt:

Doesn’t Israel have a right to defend itself?

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It is akin to asking Does a rapist during a rape have a right to defend himself if the victim resists?

With collective amnesia, Israel and the United States brush aside basic realities of warfare. Siege (or blockade) is an act of offensive warfare. Indeed it is among the most devastating of weapons, condemned by both “Just War” theory and — very much to the point — by Jewish and Christian ethics of war.

Maimonides in the Twelfth Century summed up the Talmudic view of siege, saying it could only be justified if it left one side open for citizens to escape. Of course, it would then no longer be a siege. Conclusion: a siege is immoral. 

As Michael Walzer says in his treatment of “War Against Civilians,” “more people died in the siege of Leningrad than in the infernos of Hamburg, Dresden, Tokyo, Hiroshima and Nagasaki taken together.” The health effects of the long-term and ever-tightening siege on children and others in Gaza are horrific.

The people of Gaza are equivalently on death row since the current Israeli attack will tighten the siege. Flotillas have attempted to break the siege of Gaza by bringing desperately needed medicine and food and they have been repulsed by Israel; in one case Israelis shot and killed nine of those on a peace flotilla, one of them an American citizen.

Now back to the question that undergirds Israeli and American feeble rationalizations: does the besieger have a right to defend itself from its victim during the siege? Does not the right of the besieged to end the siege trump the claims of the fourth strongest military force in the world, which is suffocating 1.7 million people imprisoned in the narrow confines of Gaza?

The unambiguous fact on the ground is that the people of Gaza are indeed on a form of death row. With Israel on one side and the hostile and powerful Egypt on the other, with the tunnels which were economic lifelines (and not just conduits for defensive weapons) being destroyed, the siege has become catastrophic.

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What Israelis call “The War of Independence,” and the Arabs with more accuracy call al Nakba, the catastrophe, happened in 1948. Over 700,000 Palestinians were driven from their homes, over 500 of their villages destroyed and rebuilt with Hebrew names…. It continues apace as Israel rejects repeated Arab offers to recognize Israel if it retreats to the pre-1967 borders. Land-theft euphemized as “settlements” continue to gobble up Palestinian land, making all talk of a “two-state” solution a cynical illusion.

By way of background:

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