In Al-Bassiouni v. Prime Minister, the Supreme Court of Israel held that since the disengagement in 2005, Israel does not have ‘effective control’ over the Gaza Strip. Because of the importance of this conclusion, the actual wording of the Supreme Court is cited below:
‘… since September 2005 Israel no longer has effective control over what happens in the Gaza Strip. Military rule that applied in the past in this territory came to an end by a decision of the government, and Israeli soldiers are no longer stationed in the territory on a permanent basis, nor are they in charge of what happens there. In these circumstances, the State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the laws of belligerent occupation in international law. Neither does Israel have any effective capability, in its present position, of enforcing order and managing civilian life in the Gaza Strip.’In its judgment, the Supreme Court further held that the main obligations imposed on the State of Israel vis-à-vis the inhabitants of the Gaza Strip derive from the existence of an armed conflict between Israel and the Hamas organization; the degree of control exercised by the State of Israel over the border crossings between it and the Gaza Strip; and the relationship of dependency that was created - at least in certain spheres, such as the electricity supply to the Gaza Strip - during the long period of military rule in the Gaza Strip.
The court also held, in accordance with the position presented by the State, that Israel is subject to the rules of customary international law that apply in armed conflict, including the requirement to permit the passage of ‘food and basic humanitarian supplies necessary for the survival of the civilian population.’
As previously noted, notwithstanding the Supreme Court's holding, several organizations have adopted the position that despite the disengagement, the Gaza Strip continues to be under Israeli occupation. This position is mainly based on the claim that although Israel no longer has a permanent military presence in the Gaza strip, Israel’s control of several areas that effect the fabric of life in the Gaza Strip amount to ‘effective control’ of the Gaza Strip. For example, the organization Gisha - Legal Center for Freedom of Movement presented before the Commission its position that Israel effectively continues to control the Gaza Strip for six reasons: (i) Israel controls movement to and from the Gaza Strip via land crossings; (ii) Israel exercises complete control over Gaza's airspace and territorial waters; (iii) Israel controls movement within Gaza through periodic incursions and a "no-go zone"; (iv) Israel controls the Palestinian population registry; (v) Israel exercises control over Gaza's tax system and fiscal policy; (vi) Israel exercises control over the Palestinian Authority and its ability to provide services to Gaza residents. A similar position was also presented by the representatives of the B’Tselem organization in their testimony before the Commission.
Indeed, academics have diverging opinions as to whether Israel has ‘effective control’ over the Gaza Strip. Certainly, the adoption of the position that Israel continues to be an occupying power in the Gaza strip requires an unjustifiably flexible and novel interpretation of the term ‘effective control.’ In other words, this interpretation would have to be based on the understanding that two different opposing powers can exercise ‘effective control’ in a territory at the same time: the Hamas and Israel. Moreover, the interpretation of the term ‘effective control’ needs to be assessed against the currently accepted approach in international law
that ‘occupation’ does not merely require military forces to be stationed in a certain territory, but also that the occupying power performs the functions of an existing government.
Indeed, during the long period that Israel had the Gaza Strip under effective control, the Gaza Strip did become dependent on Israel in certain spheres. However, as the Supreme Court of Israel held in Al-Bassiouni v. Prime Minister, this dependency is insufficient to establish ‘effective control.’ It should also be stated, inter alia, that insofar as the conclusion that Israel is an occupying power in the Gaza Strip derives from Israel’s control of the airspace of the Gaza Strip, there is no support in international law for the proposition that the control of airspace amounts to ‘effective control.’
With regard to land access to the Gaza Strip, it should be noted that the Gaza Strip also has a border crossing with Egypt (the Rafah crossing), even though Egypt, for its own reasons, also exercises control of the crossing from its territory into the Gaza Strip. Similarly, the imposition of a naval blockade does not create a situation in which the laws of occupation come into effect. It should be emphasized that the very lack of ‘control’ over the land territory in the Gaza Strip in the traditional sense of this term is what makes an external naval blockade necessary to control access to and egress from that territory. As a comparison, a land siege does not automatically result in the besieged city being held under occupation. States, and particularly those that might employ navies or air forces, either unilaterally or within the framework of a coalition, will
likely be wary of accepting the argument that the mere imposition of a naval blockade or influence over events on the shore of a State by the use of military power automatically creates a situation of occupation.
If Israel did indeed have effective control over the Gaza Strip, then it would have the power to act as the authority responsible for maintaining order in the Gaza Strip. The Israeli forces would then be able to wait on the coast of the Gaza Strip and intercept the vessels there. In practice, however, Israel does not control the coast of the Gaza Strip. This area is under the ‘effective control’ of the Hamas. The lack of effective control
over the Gaza Strip, including the ability to impose order there, and the security threat that the Hamas presents to the naval forces operating near the coast of the Gaza Strip, clearly indicate the underlying logic of international law that permits the enforcement of a naval blockade at some distance from the coast. Similarly, it is difficult to see how the Gaza situation differs in a practical sense from Lebanon in 2006, when the blockading Israeli warship INS Hanit was hit by a missile launched by Hezbollah from the Lebanese coast.
In light of the fact that the territorial waters of the Gaza Strip contain mainly small vessels that are capable of moving at high speeds, Israel’s naval forces are confronted with a significant risk. Examples such as the attack on the USS Cole in 2000 in Yemen and the attack on the French supertanker Limburg in 2002 highlight both the threat presented by small vessels and the difficulty in stopping them.
An examination of the arguments, both individually and cumulatively, therefore leads to the conclusion that Israel does not have ‘effective control’ in the Gaza Strip. Therefore, in alignment with the Supreme Court of Israel, the Commission takes the position that Israel’s effective control of the Gaza Strip ended when the disengagement was completed in 2005.
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