A few days ago, Palestinians in the Gaza Strip celebrated the anniversary of the redeployment of the occupation army from the Gaza Strip and the final evacuation of settlements from it. The Palestinian resistance calls this a victory over the occupation that forced it to withdraw from the Gaza Strip in September 2005. After this redeployment, Israel put forward and then applied the theory that it was no longer responsible for the Gaza Strip and that it was no longer an occupying power in the legal sense. It then imposed a tight siege on its population, causing very bad humanitarian effects on the pretext that it was in self-defence.
In this article, we discuss two points, the first is the legal assessment of this redeployment step, and does it constitute a military withdrawal that relieves the occupation of its legal responsibilities towards the residents of the Gaza Strip? And what legal term is best in this case? Second, is the siege imposed on the Gaza Strip legal or a prohibited hostile act imposed by an occupying Power under the pretext of self-defence and the fight against terrorism?
First: Legal Assessment of Israel's Withdrawal from Gaza
The Gaza Strip covers an area of 365 square kilometers, of which Israel controls its entire border and the 45-kilometer seashore. On September 12, 2005, the Israeli occupation army redeployed to the Strip, and Israel maintained for itself the population registry, water and space space, electricity and sewage networks, and the distribution of tax revenues and the telecommunications network. This plan aimed to fulfill Israel's desire to "separate" the Gaza Strip from its legal responsibility by continuing to refuse to apply the provisions of international humanitarian law. It also aimed to devote itself to expanding settlements in the West Bank, Judaizing Jerusalem and completing the construction of the apartheid wall.
Withdrawal or redeployment?
The redeployment of the Israeli army in the Gaza Strip, or what the Israeli government calls the "disengagement plan," was the first prelude to the start of the siege of the Strip. Despite the difference in the nomenclature between "withdrawal" and "redeployment", we prefer to use the legal term redeployment without diminishing the great achievement made by the Palestinian resistance, over decades of sacrifices, by forcing the occupation army to redeploy or withdraw, as the political forces call it resistance.
The occupation army, through the redeployment process, did not end the occupation in the physical and legal sense, as the Gaza Strip remained under the political responsibility of the Israeli military occupation.
After the redeployment of its forces, Israel retained extensive security powers and remained in control of all Gaza crossings, in addition to carrying out numerous large-scale aggression operations under security pretexts. The occupation remained the source of civil and security powers granted to the Palestinian side in the Gaza Strip. Moreover, the occupying authorities, in accordance with Israel's absolution of its responsibility towards the Gaza Strip, must repatriate the prisoners without any delay upon the cessation of active hostilities in accordance with Article 118 of the Third Geneva Convention, but the occupying authorities have not done so.
It is important to use precise terminology in this regard, not as an academic luxury, but as a matter of legal adaptation that entails criminal and civil liabilities. The subject of withdrawal or withdrawal is a political-legal term that must be dealt with in a specific and inexplicable manner, within a clear agreement and international witnesses.
Ongoing occupation
Even if we assume for the sake of argument that settlement in the Gaza Strip has ended under the Oslo Accords and that, according to the Israeli claim, this means the end of the occupation, Gaza and the West Bank, including East Jerusalem, represent a single geographical and political unit, "and ending the occupation in part does not mean its end."
For our part, if we accept the end of the occupation of the Gaza Strip, we are facing an unprecedented fallacy, especially since this means the abolition of the right to resistance, and at best the resistance behavior of the Palestinians is considered violence, as the Secretary-General of the United Nations said a few days ago. The occupation army, through the redeployment process, did not end the occupation in the physical and legal sense, as the Gaza Strip remained under the political responsibility of the Israeli military occupation, and this is the definition and content of the occupation.
On September 19, 2007, the government of Israel announced that it had decided to designate the Gaza Strip as a hostile entity and that it would impose restrictions to be applied, after examining their legal aspects and taking into account humanitarian issues, in the Gaza Strip. In terms of international humanitarian law, there is no difference in the description we mentioned earlier, as Israel occupies the Gaza Strip, as shown in the context of evidence and legal texts, and therefore Israel's duties will be more binding on it, as it has declared a state of hostility in addition to its continued occupation of the Strip.
Second: The siege of the Gaza Strip is illegal
The research on this point stems from an important issue, which is that the occupation did not only evade its responsibilities towards the Gaza Strip, but imposed a tight siege on it, and between this and that, the occupation promotes its behavior on a large scale in Western circles and even Arab ones, especially after the normalization process with a number of Arab countries. The blockade of the Gaza Strip is sometimes understood and supported by major Powers at times, as well as the fragility of Arab positions in general.
Definition of blockade
The blockade is one of the methods of international punishment, without resorting to the use of armed force, and it is a means that states or international organizations may have to resort to in their international dealings. Black's Dictionary of Law defines a blockade as "an act directed against an enemy State with the intent to isolate, impede or prevent communications, commerce, supplies and persons from entering or exiting that State. This can be by sea, land or both."
Blockades imposed by the same states without the authorization of the Security Council are contrary to the Charter and a violation of international law, just as the occupying power is doing towards the Gaza Strip.
According to this definition, a blockade is originally directed against an "enemy state", not against a people or resistance movement, especially if that people or movement is under occupation.
Legal restrictions on the use of the blockade
Although the definition of aggression in article III, paragraph (c), spoke of the maritime blockade of a State's ports or coasts, the legal debate reached the same conclusion, namely the prohibition of a land blockade and considering it also an act of aggression. In general, international law has absolutely prohibited blockades of all kinds, whether peaceful or belligeous, whether maritime or land.
Although Article 51 of the Charter of the Nations allows every State to resort to "self-defence" when its territory is subjected to external attack, there is today a near unanimity among international jurists that blockade is not a means of self-defence provided for in Article 51.
Hence, it is clear that the Charter of the United Nations has left only one space in which the embargo is allowed to be used as a means of resolving international disputes, and that is when the embargo is mandated by the Security Council itself. The Security Council has imposed several cases under Chapter VII since the end of the cold war. In short, these cases included: Sudan 1989, Iraq 1990, former Yugoslavia 1991, Somalia 1993, Libya 1993 and Rwanda 1994.
Blockades imposed by the same States without the authorization of the Security Council are contrary to the Charter and international law, just as the occupying Power is doing with regard to the Gaza Strip.
The pretext of self-defense
Israel justifies its blockade of the Gaza Strip as a legal blockade of self-defense, as Hamas, which controls the Gaza Strip, fires rockets at the civilian population of Israel, which requires it to be the state of defense of its citizens against any "aggression." Although this argument is weak in the face of categorical legal opinion and in the face of the serious humanitarian consequences of this blockade, it must be recalled that Israel is an occupying power under the provisions of international humanitarian law.
The question is: Can the Israeli blockade of the Gaza Strip be justified as a non-military retaliation under international humanitarian law?
General international law and even international humanitarian law detail the cases in which non-military reprisals may be resorted to, and these cases must not include any measure that violates the basic rules of the Charter of the United Nations and the Universal Declaration of Human Rights, such as the Israeli blockade of the Gaza Strip, because it contradicts many humanitarian rules and deprives innocent people of their innate rights, such as the right to life.
Consequences of proper legal assessment
A sound legal assessment of the status of the Gaza Strip as occupied territory entails clear legal rights and obligations from which the Palestinian people under occupation can benefit, the most important of which is their right to defend themselves and confront occupation. In turn, the occupation itself also entails obligations towards the civilian population, the failure to respect which can constitute war crimes and entail grave criminal and civil liabilities.
The blockade imposed on the Gaza Strip on the basis that the occupation considers the Gaza Strip a hostile entity is illegal because it is a blockade imposed by an occupying Power on a people for which it is already responsible for providing comprehensive protection.