The current conflict in the Gaza Strip raises an interesting question in international law: is Israel justified by the doctrine of “self-defense” to launch attacks in the Gaza Strip? The right of self-defense is clearly protected by Article 51 of the UN Charter, and there is little question that the rockets launched from the Gaza Strip by Hamas do constitute an armed attack on the state of Israel. So it seems to most observers that Israel has the right to respond to the attacks.
But the status of the Gaza Strip is ambiguous. The United Nations and virtually every country in the world considers the Gaza Strip to be Occupied Territory which is governed by International Humanitarian Law. The International Committee of the Red Cross spells out the laws on Occupied Territory:
The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations (arts 42-56) and the Fourth Geneva Convention (GC IV, art. 27-34 and 47-78), as well as in certain provisions of Additional Protocol I and customary international humanitarian law.
Agreements concluded between the occupying power and the local authorities cannot deprive the population of occupied territory of the protection afforded by international humanitarian law (GC IV, art. 47) and protected persons themselves can in no circumstances renounce their rights (GC IV, art. 8).
The main rules o f the law applicable in case of occupation state that
The occupant does not acquire sovereignty over the territory
Occupation is only a temporary situation, and the rights of the occupant are limited to the extent of that period.
The occupying power must respect the laws in force in the occupied territory, unless they constitute a threat to its security or an obstacle to the application of the international law of occupation.
The occupying power must take measures to restore and ensure, as far as possible, public order and safety.
To the fullest extent of the means available to it, the occupying power must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.
The population in occupied territory cannot be forced to enlist in the occupier’s armed forces.
Collective or individual forcible transfers of population from and within the occupied territory are prohibited.
Transfers of the civilian population of the occupying power into the occupied territory, regardless whether forcible or voluntary, are prohibited.
Collective punishment is prohibited.
The taking of hostages is prohibited.
Reprisals against protected persons or their property are prohibited.
The confiscation of private property by the occupant is prohibited.
The destruction or seizure of enemy property is prohibited, unless absolutely required by military necessity during the conduct of hostilities.
Cultural property must be respected.
People accused of criminal offences shall be provided with proceedings respecting internationally recognized judicial guarantees (for example, they must be informed of the reason for their arrest, charged with a specific offence and given a fair trial as quickly as possible).
Personnel of the International Red Cross/Red Crescent Movement must be allowed to carry out their humanitarian activities. The ICRC, in particular, must be given access to all protected persons, wherever they are, whether or not they are deprived of their liberty.
The Gaza’s status as Occupied Territory does something strange to the idea of self-defense. It is not a “foreign power” but rather a territory that is controlled by Israel. Israel does not recognize the Gaza Strip as Occupied Territory. It argues that it disengaged from the Gaza in 2005 and that the control of the territory was handed over to the Palestinian Authority (and, subsequently, due to the split in the PA, to Hamas).
However, Israel does control Gaza Strip’s airspace, territorial waters and controls the movement of people or goods in or out of Gaza by air or sea. After the two armed conflicts with Hamas, Israel has also controlled the flow of food, fuel, medicine, and water into the area. Moreover, the Palestinian Authority is barred from raising a military for the defense of the territory.
Thus, the Gaza Strip is not a sovereign state, and one could make the argument that it is a territory subordinated to the control of the Israeli government. Does Hamas meet the criteria of a sovereign state? Not by any traditional metric. It more accurately fits the traditional definition of a colony.
Does the right of self-defense extend to attacks from a colony? Or are the Palestinians merely freedom fighters whose cause has traditionally been recognize by the international community within the realm of self-determination? There is no clear answer to that question.
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