2009 | The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni V. Prime Minster Of Israel, by Yuval Shany, Hebrew University of Jerusalem, International Law Forum, Research Paper No. 13, February 2009
This article by Yuval Shany analyses Israel’s legal obligations vis-à-vis the population of Gaza.
In Bassiouni v. Prime Minister Case (HCJ 9132/07, 30 January 2008), the Israeli Supreme Court stated that Israel has neither the duty nor the effective capability to ensure the welfare of the residents of Gaza, since – as of 2005 - Israel no longer holds effective control in the Gaza Strip. Gaza is no longer occupied, and thus Israel is not subject to the obligations attaching to the status of an occupying force. The Court nevertheless finds that Israel has a duty to supply basic humanitarian needs to the civilian population of Gaza, however it fails to indicate the legal basis of this duty.
Shany explores the precise implications of this judgment, exploring possible bases for imposing on Israel certain duties towards the residents of non-occupied Gaza. First of all, Israel would be bound by international law relating to armed conflicts; even if Gaza is not occupied, it is still subject to a state of siege, the rules of which are also governed by international humanitarian law. Secondly, extraterritorial application of international human rights law would impose additional obligations on Israel, not as an occupying power but as a state that undeniably exercises de facto power over the Gaza Strip. Finally, Shany mentions that Israel has certain duties as a former occupying force; this might involve reparation for damages. However, the precise legal bases for these post-occupation obligations and the extent to which they would obtain vis a vis Gaza, remains largely unclear.
The article can be downloaded via this link.