This article is written by Tarannum Vashisht, a student of the Rajiv Gandhi National University Of Law, Punjab. It is meant to analyse the history of the Gaza Strip, to determine its legal status.
This article is an attempt to study the history of the Gaza strip by analysing the Arab Israeli conflict or the Israel Palestine issue. This to gain a clear picture of the conflict that exists concerning the legal status of Gaza. Conflict over the disputed area of Gaza strip dates back to the 19th century when the place we now know as Gaza was ruled by the Ottoman Empire. The ethnic population of the land back then was 87% Muslims, 10% Christians and 3% jews, and Arabic was the daily language. The capital, Jerusalem, witnessed an equal population of all these three religions, yet the overall life in the ottoman empire was peaceful, with the friendly coexistence of people of all religious faiths.
The Arab – Palestine conflict and the Gaza Strip: explained
The inception of nationalism in Jews can be traced back to the late 19the century European hypernationalism when all the 10 states were under the Habsburg- Austro Hungarian empire. From here germinated the concept of Jewish nationalism, called Zionism. It is pertinent to note that these people were largely secular and wanted a state for the Jews and not a Jewish state.
Formation of a Jewish state
The first development in the formation of a Jewish state was the issuance of the Balfour Declaration by the British government, which promised the establishment of a national home for the Jews in Palestine.
A lesser-known fact is that a year before this declaration, the British had promised a split of the Arab territories, and Palestine was to remain with Britain. On the other hand, the British promised Sharif Hussain, the ruler of Mecca, that he would rule over the Arab territories, including Palestine if he cooperated with them. Concluding, Britishers promised Palestine to Zionists, Meccans and themselves.
The Tables Turned
After World War 1, Britishers established Palestine as their colony, the reasoning that they gave for this move was that Palestinians were not yet ready to rule themselves and as soon as that happens, they would leave the territory. As the Britishers ruled, they created separate institutions for people of all religions. This is where the ethnic distinctions started their journey into a reign of conflict, all thanks to the British “divide and rule” policy.
The First Revolt by Arab Palestinians
Meanwhile, the Jewish population of Palestine increased between 1920 and 1938, and they started purchasing more and more land. Most of the land was purposefully bought from absentee non-Palestinian Arab landowners and then the Palestinian farmers working on those lands were evicted. These were efforts to establish a more secure community of Jews in Palestine, by controlling both land and labourers. An obvious result of these developments was increased tensions between the Arab Palestinians and the Jewish population.
Another significant development during this time period was the germination of nationalism in the hearts of Arab Palestinians which finally erupted in the form of a revolt against the British rule in 1936. They were brutally suppressed by the British who received major help from the Jews.
Loosening Hold of the British
However, after this British issued a white paper enabling the establishment of a joint Arab and Jewish state within 10 years, also limiting the immigration of Arabs into Palestine. This move made both the communities extremely unhappy. The Jews were unhappy as this was the time when a lot of Jews had to leave Europe and now had no place to live. The Arabs were unhappy as they had to accept the long waiting period of 10 years to enjoy the fruits of freedom.
Meanwhile world war two hit the world community and made the Britishers realize that their colonies are a danger to their own existence. Therefore, they decided to hand over the issue of Palestine to the newly formed United Nations. The UN in 1947 voted in favour of a division of the country into two separate states, one for the Jews and one for the Arabs. However, the map drawn for partition was haphazard and drawn in such a way that it seemed impossible to achieve.
Arab-Israeli Wars and the UN Resolution
Soon after this plan was announced the infamous Arab-Israeli war of 1948 broke out, with Israel on one side and the Palestinians and some other Arab states on the other. The war ended in a win for Israel, acquiring a third more land than they were supposed to get under the partition plan chalked out by the United Nations. Meanwhile, Jordan annexed Jerusalem and the West Bank and Egypt established its control over the Gaza strip.
Due to this, there was an influx of 700000 Palestinians into the neighbouring Arab countries. Israelis became the founders of a new nation, while a major chunk of the Palestinians became stateless. In the year 1967, another war between these two communities broke out. This six-day war ended with another victory of Israel, after which it captured the Gaza strip, along with some other territories.
After this war, the United Nations passed a peace resolution directing Israel to return all the territories acquired in the recent war. Along with this, the peaceful existence of both Palestine and Israel was voted upon. The Israeli government, however, arranged for Jewish settlements in the acquired territories of Gaza, West Bank and East Jerusalem. According to international law, these settlements are illegal. Israeli government however vehemently propagated that Palestine cannot be called a state and hence these settlements are not illegal.
Birth of Hamas
In the 1980s, the Palestinians boycotted Israeli products and taxes in protest. This was followed by a crackdown by the Israeli government, which resulted in widespread violence in that area. This was the first intifada (meaning uprising, rebellion or resistance), which gave birth to Hamas, a terrorist organisation, which launched its forts suicide bombing in 1993.
Hamas gained widespread support in Gaza due to its social welfare schemes like the formation of schools, clinics and mosques in that territory. Another important consequence of this intifada was the insurance of peace talks between Israel and Palestine, which eventually led to Oslo accords.
In September 2000, prime ministerial candidate of Israel, with his followers, paraded into Al- Aqsa mosque in Jerusalem, which resulted in the second intifada. Due to this violence broke out and three thousand Palestinians and one thousand Israelis were killed. In 2005, Hamas won a majority of seats in parliamentary elections in Palestine. Since then the government has been divided into Hamas and Palestinian Authority, which has resulted in poor governance. Over the coming 10 years, many attacks were launched by Hamas on Israel, to which the latter violently reacted.
Recent developments of the Status of Gaza Strip
After this violence never stopped in that area, with each party claiming to be reacting to the other’s provocation. So this is how the conflict between Israel and Palestine ensued and is far from the verge of ending.
Coming to the specific question of Gaza, after the second war between Israel and Palestine, it was captured by Israel. The United Nations Resolution, concerning this issue, clearly pointed at returning this captured territory to Palestine. Therefore, the continued occupation of Gaza by Israel is against international law. The recent settlement of Israelis in the Gaza strip, organised by the government of Israel is another illegality on their part. So far, the Gaza strip is a disputed region, for which the fight continues between the two countries.
Gaza under the International Law
The detailed history to understand the issue of the Gaza strip has been provided, now let us move to the current stance on its legal status from the view of international law. According to the rules of international law, the Gaza strip lies under the overall military occupation of the government of Israel and Hamas, has nothing but nominal control over the area.
It is pertinent to note here that Israel retains control over Gaza strip, according to the legal definition, in spite of the fact that it has removed all its soldiers and illegal settlers from that area. This is because Israel has “unconsented to effective” control over Gaza strip, as it still controls the latter’s coastline, airspace, and other virtual entry and exit gates. Therefore, Israel, without doubt, qualifies as the occupying power of the Gaza strip.
This occupation of Israel has been acknowledged by not just the United Nations, but also worldwide recognized NGOs like Amnesty International, Red Cross, Human Rights Watch etc. Therefore, it can be concluded that Israel’s disengagement with Gaza in no way relieves the former from its responsibility towards the latter. Hence, Israel holds the dole responsibility of Gaza’s citizens.
Israel’s Blockade Of Gaza: Legal Status
Israel’s blockade of Gaza was first of all scrutinized by the Palmer Report, released in 2011. It held that though the blockade was legal, it was specifically targeted at human rights groups. However, soon after this, another report of the United Nations was released by an independent group of scholars. The finding of the report was that this move of Israel was a grave abrogation of the International humanitarian law and human rights.
This was succeeded by the World Health Organization and 50 other such international organizations jointly calling upon Israel to end its blockade on Gaza strip.
In 2010, a fact-finding mission of the UN formed to find out the reason behind the blockade of Gaza concluded that this reign of terror which ensued in Gaza was because Israeli government was unhappy that the citizens of Gaza chose Hamas over it. According to international law, this move by the Israeli government is nothing less than collective punishment on the people of Gaza.
The Israeli officials have themselves admitted to this fact that their actions were aimed to be economic warfare against the people of Gaza, which without a doubt comes within the ambit of collective punishment.
What are Israel’s Duties as an Occupying Power?
From the situation explained above, it is clear that Israel is the occupying power of the Gaza Strip. Therefore, according to international law, it is the duty of the former that it looks after the welfare of citizens of the Gaza strip.
Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) and The Hague Convention Regulations (1907) sets the rules regarding the obligations that Israel now has under international law.
The Fourth Geneva Convention’s Article 33, prohibits collective punishment. The logic behind this is that no one should be punished for something that she has not specifically done. Article 55 of this same convention specifically stipulates that the occupying power is obligated to provide adequate food supplies and medical facilities to the population of the area which it has occupied.
Similarly, Article 56, of this convention makes it compulsory for the occupying power to ensure public health and hygiene, the establishment of hospitals and all other requisite medical fasciitis for the population.
From the above discussion, it is evident that the Gaza Strip’s legal status is difficult to determine, because of its confusing history. For a long time, Gaza has remained a disputed territory, occupied by Israel in 1967, despite criticism by the world community. Israel refused to recognize Palestine as an independent nation and hence, didn’t recognize its claims over the Gaza strip. Recently, the government of Israel removed its troops and illegal settlers, but they still retain virtual control over the Gaza strip by controlling all its entry and exit points. Now, it propagates that it has disintegrated itself and hence does not hold any responsibility towards the citizens of Gaza. However the United Nations and various internationally recognized NGOs are of the firm belief that Israel has the responsibility to do the same as legally it is still the occupying power of Gaza. Therefore, it can be concluded that under International law, the Gaza Strip is occupied by Israel.
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