Global Policy Forum

According to the "Disengagement Plan", the Israel maintains a right of self-defence, both preventive and reactive, including where necessary the use of force, in respect of threats emanating from the Gaza Strip.[2] Such a reservation presupposes a surveillance network and high-readiness military assets, which make the idea of a virtual occupation quite credible.[3] The same "Disengagement Plan" rules that no foreign security presence could enter the Gaza Strip without being coordinated with and approved by Israel, while Palestinians cannot leave the Strip by air, as the Agreement on Movement and Access (AMA) negotiated in November 2005 has never been implemented.

Since 2005, groups of petitioners before the High Court of Justice claimed the observance of the obligations imposed on Israel toward residents of Gaza by the laws of occupation, resulting from the Hague Convention (1907) and in the Fourth Geneva Convention (1949). The Israeli government refused so far to assume such a responsibility. It is supported in its determination by a decision of the Supreme Court of June 2008, in which it held that "the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties required of an occupying power under international law."[4]

Military occupation entails the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate [such] violence by any third party.[5] The different sets of rules apply contextually and reinforce each other.

Israel continues to maintain complete control over the air and sea space of the Gaza Strip. Consequently, it should guarantee to the inhabitants of Gaza their fundamental rights, under both the law on occupation and international human rights.

In the Goldstone's report, the pervasive control of the airspace over the Gaza Strip, through continuous surveillance by aircraft and unmanned aviation vehicles (UAVs), is used to affirm that, despite the 2005 "disengagement", Israel has remained an occupying power under international humanitarian law. The Report cited the Tribunal for the former Yugoslavia (ICTY) in the Naletilic case to point out that the obligation to implement the Fourth Geneva Convention "does not require that the occupying Power has actual authority." Further, it cited the ICTY decision in the part in which it stressed that "in the hands" of a hostile army or an occupying power is being understood not in its physical sense, but in the broader sense of being "in the power" of a hostile army.[6]

On the point, professor Cassese expressed the view that "by exercise of authority one should mean not only the display of sovereign or other powers (lawmaking, law enforcement, administrative powers, etc.) but also any exercise of power, however limited in time (for instance, the use of belligerent force in an armed conflict)."[7]

Military power is the most egregious form of power, and airpower is the most egregious form of military power. The exercise of such a power, in the form of continued surveillance and ubiquitous possibility of airstrikes put inhabitants of Gaza in the power and within the jurisdiction of Israel.

Clearly, the uncritical endorsement of such an approach could expand the scope of extraterritorial obligations beyond any reasonableness, as the enjoyment of some fundamental rights needs an administrative presence on the ground. However, the focus here is not upon the general ability of a State to impede the enjoyment of human rights beyond its borders. Instead, it is on the use of a particularly strong form of state's power, in order to admit redress against the state itself in case of violations of fundamental rights, even when the state has no "boots on the ground".

As expressed by the Inter-American Commission on Human Rights in Alejandre v. Cuba, and by the International Court of Justice in the Wall opinion, liability for extraterritorial acts descends also from a violation of the negative obligations (to abstain from violating human rights) deriving from power or authority or control over individuals (and not over territory). Although it seems that the possibility that a state's obligations may encompass positive duties in an extraterritorial context only in situations of effective control of the territory, negative obligations should apply wherever a state acts.

With reference to those negative obligations, the state's liability should thus apply to the conduct of state's agents anywhere it can project its power. Even without "boots on the ground", Israel is an occupying power under international humanitarian law. As such, it should protect the population of Gaza from all acts of violence or threats. In addiction, as it exercises extraterritorial jurisdiction over the Strip, it should at least assure respect for the negative obligations enshrined in the 1966 Covenant on Civil and Political Rights.