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Justifying Restrictions on Reconstructing Gaza: Military Necessity and Humanitarian Assistance

Published online by Cambridge University Press:  26 May 2016

Sari Bashi
Sari Bashi*
Affiliation:
Co-founder of Gisha – Legal Center for Freedom of Movement; Israel and Palestine Country Director at Human Rights Watch. sari.bashi@gmail.com.
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Abstract

This article analyses the relationship between the scope of security needs that are cited as justification for restricting humanitarian assistance in situations of occupation and the scope of the occupant's obligation to facilitate and/or proactively provide humanitarian relief. It argues that, compared with a non-occupant, an occupying power may consider broader security goals as reasons to restrict humanitarian assistance, but that doing so imposes a greater responsibility on the occupying power to provide alternatives to the humanitarian assistance being restricted. In addition, as a normative matter, as increasingly long-term security goals are included in the ‘military necessity’ cited as a reason for restricting humanitarian assistance, the ambit of what is included in humanitarian assistance should be expanded to include the economic development and investment in infrastructure needed to provide for humanitarian needs in the long term. This kind of regime would enhance the self-regulation of warring powers by requiring those with the ability to engage in long-term security planning to use that ability also to provide for the long-term humanitarian needs of the civilian population. The article examines restrictions on humanitarian assistance in Gaza as an example of how this normative arrangement might work in practice.

Keywords

GazaIsraelmilitary necessityhumanitarian interventionoccupation
Type
Articles
Information
Israel Law Review , Volume 49 , Issue 2 , July 2016 , pp. 149 - 168
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2016 

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References

1 See, eg, Maurer, Peter, ‘Challenges to Humanitarian Action in Contemporary Conflicts: Israel, the Middle East and Beyond’ (2014) 47 Israel Law Review 175, 177Google Scholar; Lieblich, Eliav and Benvenisti, Eyal, ‘The Obligation to Exercise Discretion in Warfare: Why Autonomous Weapons Systems are Unlawful’, Global Trust Working Paper Series, October 2014, 18–20Google Scholar, http://globaltrust.tau.ac.il/wp-content/uploads/2014/11/Eliav-and-Eyal-Autonomous-Weapons-Systems-WPS-10-141.pdf.

2 I will not address here the differences that may apply in cases of non-international armed conflict but rather note that most of the provisions discussed in this article would apply to both situations: see, eg, Meron, Theodor, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239, 260–63CrossRefGoogle Scholar.

3 ibid 245.

4 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461 (Hague Regulations), art 43. See also Eyal Benvenisti, The International Law of Occupation (Princeton University Press 1993) 9–12, and Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge University Press 2009) 91–94.

5 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention or GC IV).

6 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I or AP I).

7 GC IV (n 5) art 50.

8 ibid art 56.

9 ibid art 55; AP I (n 6) art 69, which enlarges the list of supplies enumerated in GC IV to all supplies essential for the survival of the civilian population.

10 GC IV (n 5) art 59.

11 The obligation to restore public order, as outlined in art 43 Hague Regulations (n 4), is to be fulfilled by the occupant taking ‘all the measures in his power’ and ‘as far as possible’. That qualification is repeated, in varying forms, in GC IV, arts 55, 56 and 59, and in AP I, art 69.

12 GC IV (n 5) art 23; AP I (n 6) art 70.

13 AP I (n 6) art 70, which applies in situations other than those of occupation, and incorporates by reference the broader definition of ‘supplies’ in art 69. According to its commentary, art 70 essentially replaces the justifications for thwarting humanitarian action outlined in CG IV, art 23 with the more general requirement of ‘urgent necessity’: International Committee of the Red Cross (ICRC), Commentary on the Additional Protocols I and II of 8 June 1977 (Martinus Nijhoff 1987) 815–30 (ICRC Commentary).

14 AP I (n 6) art 71.

15 GC IV (n 5) art 23, which applies in situations of both occupation and non-occupation, and AP I, art 70, which explicitly applies except in occupied territory.

16 GC IV (n 5) art 59.

17 Hague Regulations (n 4) art 43.

18 Francis Lieber, ‘Instructions for the Government Armies of the US in the Field’, promulgated as General Orders No 100 by President Lincoln, 24 April 1863, art 14, reprinted in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflict: A Collection of Conventions, Resolutions and Other Documents (3rd edn, Martinus Nijhoff 2004) (Lieber Code).

19 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes in Weight, 1868, 138 CTS (St Petersburg Declaration).

20 Lieber Code (n 18) art 14.

21 St Petersburg Declaration (n 19) Preamble, para 3.

22 AP I (n 6) art 52(2).

23 Pietro Verri, Dictionary of the International Law of Armed Conflict (ICRC 1992) 75.

24 AP I (n 6) art 51(5)(b).

25 Carl von Clausewitz, On War (1832) 594–601. See also the interesting discussion in Carnahan, Burrus M, ‘Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity’ (1998) 92 American Journal of International Law 213, 219–24Google Scholar.

26 United Kingdom Joint Doctrine and Concepts Centre, ‘The Joint Service Manual of the Law of Armed Conflict’, Joint Service Publication 383, 2004, para 2.2, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/27874/JSP3832004Edition.pdf.

27 North Atlantic Treaty Organization, NATO Standardization Agency, ‘NATO Glossary of Terms and Definitions’, AAP-6(2008), at 2-M-6, https://fas.org/irp/doddir/other/nato2008.pdf.

28 Blum, Gabriella, ‘The Fog of Victory’ (2013) 24 European Journal of International Law 391, 391–94CrossRefGoogle Scholar. See also Roberts, Adam, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 American Journal of International Law 580CrossRefGoogle Scholar.

29 On the relationship between the duration of the occupation and the extent of the obligations owed to the civilian population, see Roberts, Adam, ‘Prolonged Military Occupation: The Israeli Occupied Territories since 1967’ (1990) 84 American Journal of International Law 44Google Scholar.

30 HCJ 69/81 Abu Ita v West Bank Commander 1981 PD 37(2) 197, para 24(c); HCJ 393/82 Jamiat Askan Elmaalmon v West Bank Commander 1982 PD 37(4) 785, para 22. See also Roberts, ibid.

31 Meron (n 2).

32 Eyal Benvenisti notes that, because of the inherent tension between the interests of the occupant and the local population, observers should apply ‘healthy suspicion’ to an occupying power's motives in its dealings with civilians: Eyal Benvenisti, ‘Occupation and Territorial Administration’, Global Trust Working Paper Series, November 2015, 22, http://globaltrust.tau.ac.il/wp-content/uploads/2015/08/Occupation-and-territorial-administration-WPS-11-20151.pdf.

33 On the application of human rights law in occupied territories, see generally European Court of Human Rights (ECtHR), Loizidou v Turkey, App no 15318/89, 18 December 1996; ECtHR, Behrami v France, Saramati v France, Germany and Norway, Apps nos 71412/01 and 78166/01, 2 May 2007; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, paras 106–13; Armed Activities on the Territory of the Congo (Congo v Uganda), Judgment [2005] ICJ Rep 168, 216. The Israeli Supreme Court has expressed willingness to presume that international human rights law applies to the actions of a military commander in a territory held under belligerent occupation and/or during armed conflict: HCJ 10356/02 Haas v IDF West Bank Commander (unpublished, 4 March 2004); HCJ 1890/03 Bethlehem Municipality v State of Israel (unpublished, 3 February 2005); HCJ 3969/06 Head of Deir Samit Village Council al-Harub v IDF West Bank Commander (unpublished, 22 October 2009); HCJ 769/02 Public Committee Against Torture in Israel v Government of Israel 2006 PD 57(6) 285.

34 For example, the Committee on Economic, Social and Cultural Rights (CESCR) recommended that Israel ensure the availability of trauma care for people in Gaza, especially children, an obligation that could overlap with the duties outlined in GC IV (n 5) art 50: UN Economic and Social Council, ‘Concluding Observations of the CESCR’, 2 December 2011, UN Doc E/C.12/ISR/CO/3, para 32.

35 International Covenant on Economic, Social and Cultural Rights (entered into force 2 January 1976) 993 UNTS (ICESCR), art 12.

36 UN Convention on the Rights of the Child, ‘Concluding Observations on the Second to Fourth Periodic Reports of Israel’, 14 June 2013, UN Doc CRC/C/ISR/CO/2-4, para 5.

37 States also have a duty to protect against human rights violations from private actors.

38 Indeed, where ‘deterrence’ is viewed as a military necessity, civilians are at risk because of the danger of withholding humanitarian aid to pressurise political actors or armed groups. There is a brief description by a senior Israeli military official of how civilian suffering could be used as a tool for deterring military and political actors in the context of Israel's conflict with the armed Lebanese group, Hezbollah. The former head of Israel's National Security Council has argued for the ‘necessity’ of making civilians in Lebanon suffer, in order to pressurise the Lebanese government to rein in Hezbollah and thus prevent a further round of violence: ‘There is one way to prevent the Third Lebanon War and win it if it does break out (and thereby prevent the Fourth Lebanon War): to make it clear to Lebanon's allies and through them to the Lebanese government and people that the next war will be between Israel and Lebanon and not between Israel and Hizbollah. Such a war will lead to the elimination of the Lebanese military, the destruction of the national infrastructure, and intense suffering among the population. There will be no recurrence of the situation where Beirut residents (not including the Dahiya quarter) go to the beach and cafes while Haifa residents sit in bomb shelters. Serious damage to the Republic of Lebanon, the destruction of homes and infrastructure, and the suffering of hundreds of thousands of people are consequences that can influence Hizbollah's behavior more than anything else’: Eiland, Giora, ‘The Third Lebanon War: Target Lebanon’ 11(2) INSS Strategic Assessment, November 2008Google Scholar.

39 Subject to the qualifications outlined in GC IV (n 5) art 23 and AP I (n 6) arts 70–71: see discussion at text to nn 12–14.

40 HCJ 10265/05 Physicians for Human Rights v Israel Defense Minister, State's Submission (unpublished, 11 July 2006) (challenging the practice of creating sonic booms over the skies of Gaza); HCJ 769/02 Public Committee Against Torture in Israel v Government of Israel, State's Submission (5 December 2005), para 5 (challenging the practice of targeted assassinations); HCJ 11120/05 Hamdan v Southern Military Commander and related cases (unpublished, 7 August 2007), State's Response (19 January 2006) (brought by ten occupational therapy students, Gaza Community Mental Health Program, Bituna, Our Home for Community Development, and Gisha, challenging the ban on Gaza students studying in the West Bank), http://www.gisha.org.

41 Sari Bashi and Tamar Feldman, ‘Scale of Control: Continued Israeli Responsibility in Gaza’, Gisha, November 2011, http://www.gisha.org/UserFiles/File/scaleofcontrol/scaleofcontrol_en.pdf; see also Bashi, Sari and Mann, Kenneth, ‘Israeli Responsibilities in Gaza after the Disengagement’ (2010) 14 Hamishpat 25Google Scholar (in Hebrew); Sari Bashi and Kenneth Mann, ‘Disengaged Occupiers: The Legal Status of Occupiers’, Gisha, January 2007, http://www.gisha.org/UserFiles/File/publications_english/Publications_and_Reports_English/Disengaged_Occupiers_en.pdf.

42 HCJ 9132/07 Al Bassiouni v Defense Minister (unpublished, 30 January 2008), para 12, http://elyon1.court.gov.il/Files_ENG/07/320/091/n25/07091320.n25.pdf.

43 For arguments that the law of occupation applies, see Dinstein (n 4) 277–80; van der Vyver, Johan D, ‘Legal Ramifications of the War in Gaza’ (2009) 21 Florida Journal of International Law 403, 411Google Scholar; Scobbie, Ian, ‘An Intimate Disengagement: Israel's Withdrawal from Gaza, the Law of Occupation and of Self-Determination’ (2006) 11 Yearbook of Islamic and Middle Eastern Law 3, 30–31Google Scholar. The ICRC, which considers Gaza to be part of the occupied Palestinian territory, has adopted the functional approach to applying the law of occupation in situations such as that existing in Gaza: ICRC, ‘International Humanitarian Law and the Challenge of Contemporary Armed Conflicts’, Inner Report 32IC/15/11, October 2015, 12, https://www.justsecurity.org/wp-content/uploads/2015/11/2015-ICRC-Report-IHL-and-Challenges-of-Armed-Conflicts.pdf. See also an article by the ICRC legal division's thematic expert on the law of occupation: Ferraro, Tristan, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’ (2012) 94 International Review of the Red Cross 133Google Scholar. For arguments that the law of occupation does not apply, but human rights law applies, see Yuval Shany, ‘The Law Applicable to Non-Occupied Gaza’, Israeli Democracy Institute, 27 February 2009. For arguments that Gaza is a unique case to which the laws of combat apply, see Elizabeth Samson, ‘Is Gaza Occupied? Redefining the Legal Status of Gaza’, Begin-Sadat Center for Strategic Studies, Bar-Ilan University, January 2010, http://www.biu.ac.il/Besa/MSPS83.pdf. This last argument reflects the position of the Israeli government.

44 For data and comparative data, see ‘Movement of People via Rafah Crossing’, Gisha, http://gisha.org/graph/2399.

45 Organisations must obtain recognition by the Israeli Ministry of Welfare. They may then request access for foreign personnel, subject to a security check and a five-business-day waiting period: Israeli Coordinator for Government Activities in the Territories, ‘Procedure for the Passage of Foreigners into the Gaza Strip via Erez Crossing’, September 2013 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/foreign_nationals/54.pdf.

46 Subject to recognition by the Israeli Ministry of Welfare, security checks and numerical quotas: Israeli Coordinator for Government Activities in the Territories, ‘COGAT Order: Status of Permissions for Palestinians to Enter Israel, Travel Abroad and Cross between the Gaza Strip and Judea and Samaria’, November 2015, 12–13 (in Hebrew), http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/general/50.pdf.

47 HCJ 9132/07 Al Bassiouni v Defense Minister, State Response (2 November 2007), para 44, http://www.gisha.org/UserFiles/File/Legal%20Documents_/fuel%20and%20electricity_oct_07/state_response_2_11_07.pdf.

48 HCJ 11120/05 Hamdan v Southern Military Commander and related cases, State Affidavit (20 March 2007), paras 47–52, http://www.gisha.org/UserFiles/File/state_response_20_3_2007.pdf.

49 Gisha, ‘What is the Separation Policy?’, June 2012, http://www.gisha.org/UserFiles/File/publications/Bidul/bidul-infosheet-ENG.pdf. See also Sari Bashi and Eitan Diamond, ‘Separating Land, Separating People: Legal Analysis of Access Restrictions between Gaza and the West Bank’, Gisha, June 2015.

50 Al Bassiouni (n 42) para 49.

51 See, eg, HCJ 2486/14 Masri v Defense Minister (unpublished, 7 April 2014), State Response (6 April 2014), paras 18–23, http://gisha.org/UserFiles/File/LegalDocuments/2486-14/masri_state_response-he.pdf. The Israeli Justice Ministry explains that for policy reasons, it permits certain categories of people to travel between Gaza and the West Bank for reasons that exceed basic humanitarian needs, but argues that it has no legal obligation to do so.

52 Noga Kadman, ‘Rafah Crossing: Who Holds the Keys’, Gisha, March 2009, 26, http://www.gisha.org/userfiles/File/publications/Rafah_Report_Eng.pdf.

53 For monthly graphs of construction materials entering Gaza, see Gisha, ‘Entrance of Construction Materials’, http://gisha.org/graph/2395.

54 Gisha, ‘Unemployment in Gaza Highest Since 2009’, 25 May 2014, http://gisha.org/updates/2901.

55 Shelter Cluster, ‘Gaza Response Update’, 11 October 2014, http://reliefweb.int/sites/reliefweb.int/files/resources/Shelter%20Cluster%20update%2011Oct2014.pdf.

56 See, eg, Rami Shani, ‘Yaalon on Stopping Cement Transfers into Gaza: The Population Will Pay the Price’, Walla!, 3 November 2013 (in Hebrew), http://news.walla.co.il/item/2691174.

57 One of the military procedures cites, as one of the goals of expediting small-scale construction projects, ‘legitimization for Israel via implementation of the policy’: Coordinator of Government Activities in the Territories, ‘Procedure for Implementation of Internationally Funded Projects in the Gaza Strip’, App C, 26 October 2011, 4(a), unofficial English translation available at http://www.gisha.org/UserFiles/File/freedomofinformation/Translations/AppendixC-ProjectProcedures-Oct2011.pdf (Construction Materials Procedure).

58 ibid, Table, 6, fn 1 of s 7(d) notes that projects that change the topography of the territory require approval from the planning and operations departments, respectively, of the Israeli military, while repairs that do not change the landscape do not require such approval.

59 Yaakov Katz, ‘Exclusive: “No” to UNRWA School “Near Hamas Base”’, The Jerusalem Post, 22 October 2010, http://www.jpost.com/Israel/Article.aspx?id=192368. The procedure for requesting approval for a school lasts for months or even years; during that time the Israeli military did not attack the area that it said was a military training site, which indicates that its considerations were forward looking.

60 Construction Materials Procedure (n 57) s 5(2). It is not clear to what extent the limitation of not wanting to facilitate construction projects sponsored by the Hamas government is based on political reasons, and to what extent the limitation is based on concerns that the construction materials would be used for military purposes.

61 Construction Materials Procedure (n 57) s 5(1).

62 Given the extremely limited effectiveness of the restrictions in actually preventing the fortification of tunnels, on the one hand, and the substantial harm to civilians and civilian infrastructure on the other, the restrictions are a disproportionately harmful means of achieving what would otherwise be a legitimate security goal. For more information see Gisha, ‘Frequently Asked Questions about Construction Materials’, October 2014, http://gisha.org/publication/3610.

63 Gisha (n 49).

64 ibid 7.

65 Hamdan State Affidavit (n 48).

66 Hamdan (n 40).

67 Roberts (n 29); Abu Ita (n 30).

68 ICRC, ‘Assistance Policy’, 29 April 2004, Introduction, https://www.icrc.org/eng/assets/files/other/irrc_855_policy_ang.pdf. See also ICRC Commentary (n 13) paras 2779–80 (on AP I, art 69, noting that the extent of the obligation of the occupying power to ensure supplies depends on the local conditions and can include providing housing, fuel and other goods).

69 ICESCR (n 35) art 13. For a discussion of the parallel application of human rights law and IHL, see Ben-Naftali, Orna and Shany, Yuval, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003) 37 Israel Law Review 17Google Scholar. For the most recent comments of the Human Rights Committee, see Convention on the Rights of the Child: Concluding Observations (n 36) para 5. In para 12 the Committee called on Israel to ensure that any restrictions on freedom of movement of people and goods be consistent with Israel's obligations under the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171.

70 Al Bassiouni (n 42) paras 11–18.

71 Gisha, ‘Food Consumption in the Gaza Strip – Red Lines’, October 2012, http://www.gisha.org/UserFiles/File/publications/redlines/redlines-position-paper-eng.pdf.

72 Maj-Gen Eitan Dangot (Israeli Coordinator of Government Activities in the Territories) and Caspar Veldkamp (Dutch Ambassador to Israel), ‘Joint Declaration’, 26 February 2012, http://gisha.org/UserFiles/File/LegalDocuments/freedomofinformation_5_2014/agreement.pdf.

73 Protocol of the 19th Israeli Parliament's 39th Assembly, 18 December 2013, Defence Minister Moshe Yaalon's Comments in Response to MK Michal Rozin's Parliamentary Inquiry, unofficial English translation available at http://www.gisha.org/userfiles/file/publications/sheilta_en.pdf. The Defence Minister explained that the scanner could be used for checking goods to be exported to Europe via Israeli ports but not to be sold in the West Bank:

Whether goods from Gaza can be shipped to Judea and Samaria is a different question. It has nothing to do with the scanner. It has to do with a security policy whereby, according to the recommendation of all security agencies, we should not allow merchandise to be transferred to [sic] the Gaza Strip and the West Bank for security reasons. And why?

Yes, the scanner is effective. If a person tries to hide or if someone tries to smuggle certain weapons, the scanner is supposed to detect that. But the scanner does not detect everything people want to smuggle from the Gaza Strip to Judea and Samaria; we are talking about a security situation from the Gaza Strip. There is a functional Hamas command center today. As an example, there are other actors at play there – Palestinian Islamic Jihad, Salafist organizations, global Jihad organizations, who would very much like to export terrorist activity to Judea and Samaria.

The Hamas command centre in Gaza has been trying for a long time to set up, establish and activate Hamas cells in Judea and Samaria and the reason they have had a hard time doing this has to do with their ability to communicate with Judea and Samaria. If we open this channel, that allows shipping merchandise, it will be possible to hide things in this merchandise that we don't want to reach the Judea and Samaria from Gaza and which the scanner can't detect.

74 As background, see Barak Ravid, ‘Israel Tells Holland? Security Trumps Prosperity When It Comes to Dutch Scanner’, Ha‘aretz, 3 December 2013, http://www.haaretz.com/news/diplomacy-defense/.premium-1.562465.

75 ICESCR (n 35) art 13.