Since the beginning of the second intifada, Israel has imposed harsh restrictions on freedom of movement to and from the Gaza Strip. As part of this policy, Israel has almost completely severed the Gaza Strip from the West Bank, causing Palestinian movement between the two areas to fall drastically. Entry of residents of the Gaza Strip to Israel for family visits or to enable spouses to live together is forbidden, and family visits to Gaza by Arab citizens and residents of Israel have been reduced to a minimum. Israel has made it difficult for Gaza residents to go abroad, and many have been denied exit altogether.
Import and export of goods is limited, and frequently stopped completely. In addition, only a small number of Gazans have been allowed to work in Israel, and tens of thousands of Gazans have lost their source of income. The restrictions on movement of goods and workers have caused a deep recession in Gaza, impaired Gazans' ability to work, and brought about a sharp decrease in the standard of living. The poverty rate has risen by more than 40 percent.
In September 2005, Israel completed implementation of its Disengagement Plan from the Gaza Strip, which included dismantling all the settlements there, evacuating the settlers to Israel and withdrawing the military. After the plan was fully implemented, Israel issued an order declaring the end of its military rule in the Gaza Strip, indicating it was no longer responsible for the safety and well-being of the population in Gaza.
The military withdrawal and the dismantling of the settlements led to considerably improved freedom of movement for Palestinians in the Gaza Strip. However, even after the implementation of the Disengagement Plan, Israel retained control of the crossings from Gaza into Israel, with access to the West Bank, as well as Gaza’s air space and territorial waters. Also remaining at Israel’s discretion were the movement of persons and goods into and from Gaza. In practice, Israel continues to control important aspects of the lives of 1.7 million Palestinians living in Gaza, a million of whom UNRWA considers refugees. Although Rafah Crossing on the Egyptian border operated for seven months after the disengagement, in accord with an agreement reached by Israel and the Palestinian Authority, enabling movement to Egypt, it was closed after the abduction of the soldier Gilad Shalit in June 2006.
In June 2007, after Hamas seized control of the Gaza Strip, Israel further tightened its control of the crossings and rarely allowed Palestinians to enter or leave Gaza, or to import or export goods. Three months after the Hamas takeover, in response to the continued firing of Qassam rockets at Israel, Israel’s security cabinet declared the Gaza Strip a hostile entity and adopted collective punitive measures, including cutting back the electricity and fuel supply to Gaza.
Israel’s siege on Gaza has led to substantially reduced availability of basic supplies and medicines and a sharp rise in prices. Most factories and hundreds of businesses have closed. In 2009, there were as many as 140,000 unemployed in the Gaza Strip, some 40 percent of its workforce.
On 20 June 2010, in view of international pressure on Israel for its takeover of the Turkish flotilla to Gaza, Israel’s security cabinet decided to ease restrictions on import into Gaza. This measure included expanding the list of goods permitted into Gaza and permission to bring in certain quantities of construction materials. The cabinet decision did not, however, alter the policy regarding export from Gaza. Only six months later would the Israeli government announce it would slightly lift export restrictions, permitting agricultural, furniture and textile exports.
In May 2011, Egypt announced it would open Rafah Crossing to Palestinians, permanently and officially. As of December 2011, passage is relatively free, subject to Egyptian restrictions. Goods, however, may not be transported through the crossing.
After the implementation of the Disengagement Plan, some Palestinian groups in Gaza carried on firing rockets and mortars at Israeli communities near the Green Line, in contravention of international humanitarian law, which prohibits intentionally targeting civilians. Moreover, rockets and the shells are imprecise weapons, rendering them illegal even if targeting military objectives. In addition, Palestinians often launch the rockets from areas heavily populated by civilians, endangering them. Between the time the implementation of the Disengagement Plan in Gaza was completed on 11 September 2005 and Operation Pillar of Defense began on 14 November 2012, rockets and mortars fired by Palestinians killed thirteen Israeli civilians, one foreign civilian and two soldiers (one inside the Gaza Strip). In addition, an Israeli minor and a soldier were killed by an anti-aircraft missile.
For its part, Israel used a variety of military means at its disposal, including artillery fire at what the Israeli military classified as “Qassam launching areas”. It designated areas near the border between Gaza and Israel “death zones,” imposing open-fire regulations that permit firing at Palestinians found in those zones even if they pose no mortal danger. In addition, Israel continued carrying out targeted killings of Palestinians allegedly involved in attacks against Israel. Targeted killings have also resulted in the deaths of many uninvolved bystanders. According to B’Tselem’s figures, since the implementation of the Disengagement Plan, Israel has killed 155 Palestinians in targeted-killing operations, including 87 Palestinian who were the actual target and 68 bystanders (including 34 minors). Since the disengagement, the Israeli military has conducted several operations in the Gaza Strip, including bombing civilian infrastructure and ground-force incursions into heavily populated areas.
Over the course of Israeli military operations from the disengagement un to 26 December 2008, at least 516 Palestinians who did not take part in the hostilities were killed. This number includes 192 minors, 49 women, and 25 men over 50.
On 27 December 2008, Israel launched Operation Cast Lead, its most extensive operation in Gaza. The operation, which ended on 18 January 2009, resulted in unparalleled harm to the civilian Palestinian population: 1,391 Palestinians were killed, including at least 759 civilians who did not take part in the hostilities; thousands were wounded. Israel also extensively damaged buildings and infrastructure, so that electric, water, and sewage facilities, which were on the verge of collapse even before the campaign, ceased functioning altogether. According to UN figures, Israel destroyed over 3,500 residences, rendering tens of thousands homeless. During the operation, Palestinians fired rockets and mortar shells at Israel, with the declared purpose of striking Israeli civilians. These attacks killed three Israeli civilians and one member of the Israeli security forces, and wounded dozens. Nine soldiers were killed within the Gaza Strip, four by friendly fire. More than 100 soldiers were wounded, one critically and 20 moderately to seriously.
On 14 November 2012 Israel launched Operation Pillar of Defense in the Gaza Strip. According to the IDF Spokesperson, over the course of the eight days of the operation, the Israeli military attacked approximately 1,500 targets, including underground rocket launchers, arms-smuggling tunnels and weapons storage facilities. According to B’Tselem’s figures for the operation, the Israeli military killed 167 Palestinians, including at least 87 who did not take part in the hostilities, 31 of whom were minors. According to data from Israel Security Agency, Palestinians launched 1,667 rockets from the Gaza Strip over the course of Operation Pillar of Defense, killing four Israeli civilians and two members of the Israeli security services. The operation ended on 21 November 2012, when Israel and Hamas agreed to a ceasefire.
Contrary to Israel’s contention that implementation of the Disengagement Plan would end its responsibility for Gaza’s population, international law imposes certain obligations on Israel, including the upholding of the rights of the local residents in matters of which it retained control. These obligations are based both on the extent of actual control over major facets of the residents’ lives that Israel retained even after disengagement as well as from the practically complete dependence of Gaza’s economy on Israel’s, a consequence of the prolonged occupation.
In times of armed conflict in the Gaza Strip, Israel is further bound by the provisions of international humanitarian law (IHL). Two fundamental IHL principles – namely, distinction and proportionality – categorically prohibit intentional attacks against civilians, and state that even when an attack target a military objective, the projected harm to civilians must not be excessive in comparison to the direct military advantage expected. In addition, during armed conflict, Israel must provide special protection to certain groups, including children, the sick and the wounded. It must allow medicines and essential foodstuffs to reach the area freely and enable medical personnel to treat the sick and wounded.
Israel’s responsibility: Control entails responsibility
In September 2005, Israel completed implementation of its Disengagement Plan from the Gaza Strip, which included dismantling all the settlements there, withdrawing its military forces, and declaring an end of its military rule there. Israel argues that once it has taken these measures, its position as an occupying power in Gaza has ended. In September 2007, after Hamas took control of Gaza, Israel declared the area a “hostile entity”, the same classification given to enemy countries. Israel claims that, apart from some fundamental humanitarian obligations to prevent a severe crisis in Gaza, it bears no other responsibility for the population in Gaza.
Yet Israel’s policy towards the Gaza Strip and its residents since 2005 makes this position untenable. Despite the declared end of military rule, Israel still controls many aspects of life in Gaza. In particular, Israel has full control crossings on the Israel-Gaza border as well as control of air- and sea-space and does not allow Palestinians to establishing an airport or seaport. Although the opening of Rafah Crossing depends on Egypt, not on Israel, ever since the Disengagement Plan was implemented in 2005, the crossing has been closed for long periods of time. Regardless, there is no regular transport of goods through the crossing. Consequently, Israel has virtually complete control of all movement of people and goods in and out of Gaza and administers it in consideration of Israeli interests. This is true also in cases when residents of Gaza request entry to Israel only as a throughway to the West Bank or to other countries.
Israel used its control of the border crossings to impose a prolonged siege on the Gaza Strip since 2007, which resulted in a severe economic crisis in Gaza. As the years went by, the impact of the siege was somewhat alleviated by the “tunnel economy”. However, as the tunnels are no longer in use, the effects of the siege are patently obvious, and there is no doubt as to the impact this policy has on the daily lives of Gaza residents.
The way in which Israel ended its occupation of the Gaza Strip has no precedent anywhere in the world. It is, therefore, not surprising that Israel’s legal obligations towards Gaza since 2005 are unclear. Israel’s High Court of Justice rejected a petition by human rights organizations that appealed the restriction of electricity supplied to Gaza. The court ruled that Israel is clearly no longer responsible for maintaining public order in the Gaza Strip, nor is it responsible for the well-being of Gaza residents under the laws of occupation. Nevertheless, the court ruled that Israel does have certain obligations:
Under the circumstances created, the main obligations of the State of Israel regarding the residents of the Gaza Strip are a result of the state of warfare between Israel and the Hamas organization, which controls the Gaza Strip; these obligations also derive from the scope of Israel’s control over crossings on its border with the Gaza Strip; and also from the situation created between Israel and the Gaza Strip after years of Israeli military rule in the area, the result of which is, at present, an almost absolute dependence of the Gaza Strip on the supply of electricity from Israel.
These statements make it clear that Israel’s obligations towards the residents of Gaza cannot be treated in the same as its obligations towards the residents of an enemy country, and that Israel – unlike Egypt – bears additional duties towards them. The precise extent of Israel’s responsibility towards the residents of Gaza will change according to the scope of its control. In cases in which Israel’s policy affects Gazan residents, directly or indirectly, it may not consider only how it will benefit in terms of its own security. It is obligated to consider also the implications of the policy for Gazan residents.
For years, Israel has prohibited almost entirely the import of construction supplies into the Gaza Strip. The impact of this prohibition has been relieved by the use of tunnels to bring to Gaza hundreds of thousands of tons of construction supplies every month. Now, when land crossings with Israel are the only avenue for importing construction materials, the construction needs of the 1.7 million residents of Gaza are unmet. The construction sector is not functioning and construction workers cannot make a living.
This reality increases Israel’s obligations. The Israeli security establishment must replace the policy that has been in effect since 2007 with a new policy that takes into account the needs of Gazan residents and does not consider only Israel’s security needs.
The extent of Israel’s control over the Gaza Strip entails clear responsibilities. Any other interpretation, based on formalistic arguments that do not accord with the spirit of international law, is unreasonable.