LAW MANTRA     (Think Beyond Others)

Unrelenting War of Israel and Gaza: Legal Issues, Immediate Causes and Consequences of Recent Clash

UNRELENTING WAR OF ISREAL AND GAZA: LEGAL ISSUES, IMMEDIATE CAUSES AND CONSEQUENCES OF RECENT CLASH

INTRODUCTION

In the most recent tension that the world saw between the Israel and Gaza in the month of November, 2012, is quite a proving indication that there exists almost no panacea for the halt of conflict between the two nations. The two nation have always, since the inception of Israel as a nation been in conflict with each other. Many times it seemed that there is a possibility of a mutual formation of tranquility but the history tells us that it was never a ‘dream come true’ scenario and things always moved from short lived-peaceful conditions to again disturbance.

Recently there was a large-scale military assault launched by Israel on Gaza, and the way both Israel and Palestine are fighting this war, raise numerous serious questions over the large scale violations of human rights and international humanitarian law (IHL). Such kinds of violations have always been the omnipresent element in the Israeli-Palestinian conflict; yet we have never seen significant legal proceedings which can be said to be a benchmark for indicating the supremacy of the international criminal laws and human rights.

“As Gaza-based human rights campaigner Raji Sourani described it in the midst of the current violence, human rights is the “skin” to protect civilians from the all-out aggression of those who attack them” and these words are the sole reason of the fact that there have been a deep criticism since time immemorial that the human rights between the conflict of Israel and Gaza are crushed like crushing a nuts in a grinder. International Humanitarian Law (IHL) is a branch of International Law which seeks to mitigate the impact of wars and armed conflicts on the lives of human beings and to minimize their suffering. Generally, IHL can be defined as a set of rules that are applicable in armed conflicts; supposedly a device by which a balance can be struck between humanitarian concerns and military requirements. Even in the recent war it can be said that the international laws impact in many ways like, whether the violence set out by each side act in accordance with or violates International Humanitarian law, taking into account the Geneva Conventions of 1949 in particular and their Additional Protocol I of 1977. And other way in which it can be seen that the international law comes in to picture, is that the legal status of Gaza and its relationship to Israel is also a questionable in itself, this extremely affects and is important with respect to international laws as to what sort of violence Israel can apply there. In fact is Gaza a occupied land of Israel or Israel has no control over Gaza at present is a debatable question and has opposite explanation from both sides.

Israel has always denied that Geneva Convention does not apply to it but isn’t it a dubious issue. The Geneva convention are considered to be the customary international laws and therefore accordingly they can be applied to any party that uses armed force to wage a war on the enemy country and at any time and any place.

THE CONTROVERSY OF ‘SETTLEMENTS’

To go into the details of the war the first thing which demands attention towards it is the problem of settlements. This can be called as the root cause of every problem occurring between Israel and Palestine. And even after attempts to solve this, it is still very much prevalent in the region.

The issue which has taken the most of the attention of the world involved in the conflict of Israel and Palestine is the “settlement” issue and who rules this land. The conflict lays its foundation on the question that who has to claim the Gaza and other territories. The partition of the land in 1947 which was done by the United Nations did not prove to be the final solution to this problem and there was no lasting settlement of this problem of claim. Settlements are generally the Jewish civilian communities that are situated on the land captured by Israel and these are also found in Gaza. This land dispute has brought many wars between Israel and Palestine and this has mainly centered at the Israel’s occupation of Gaza, west bank and east Jerusalem. Israel has dominated and took over these regions as their own territory to which the Palestinian have opposed heavily with every possible act of violence and protest. At last the whole world had to participate in the solving of the problem and the issue was intervened by the international peace keeping body, the United Nations.  In the year 1967, the UN Security Council Resolutions 242 came up and it was also unable to fulfill its responsibility for which it was sought to work and then came UN Security Council resolution 338 which also sought to a result that Israel must withdraw totally from these territories.

Later on Israel withdrew from the Gaza Strip on 12 September 2005, that historic moment is still of a very significant step but it also was a build up for the future problems because it continues to build many Jewish settlements in the other territories, actions deemed illegal by virtually all other states.  These settlements are highly criticized move of Israel and it is intensely opposed by Palestine for this act.

The Oslo Accords (1993) and the Road Map (2003) have failed to reach a land agreement between the parties or to bring Israeli withdrawal. The details of the Oslo accord are that it was officially known as “Declaration of Principles on Interim Self-Government Arrangements”, and this document was signed by the Palestine Liberation Organization and the representatives of the State of Israel in September 1993. This agreement was a very insightful step towards the resolving of old conflicts between Arabs and Jews in Palestine. It was held in Washington U.S. President Bill Clinton and with him was the then prime minister of Israel, Yitzhak Rabin and Yasser Arafat, the president of PLO, both of them tried to annihilate all the hostility between Israel and Palestine. But it did not bring any long lasting results and the problem was not solved with such a positive step too.

This agreement, which was the result of the Madrid Conference in 1991, contained a set of general principles pertaining to a five year interim self-rule period allowed to Palestine, mutually agreed upon by the both parties. The issue of “permanent status” was to be initiated in the third year so that the negotiations would lead to the implementations that were to take effect at the end of this interim period.

Since 2002, the Israeli government has been building a “security fence” that winds deep into Palestinian territory, claiming the barrier would keep Palestinian suicide bombers from striking Israeli citizens. But this separation wall is a major de facto annexation of Palestinian territories. By building the wall and increasing settlement expansion, Israel retains control over important Palestinian economic areas, agricultural grounds and natural resources like water. The International Court of Justice has ruled that Israel’s West Bank barrier violates international law, but the unequal struggle over the land of Palestine continues. As of July 2012, the estimated Jewish population of the nearly 130 officially recognized West Bank settlements was 350,150. Critics suggest these figures imply territorial compromise with the Palestinians is impossible; however, the distribution of the Jewish population is such that a solution is not only conceivable but also very plausible and practical.

NAM ALSO SHOWED ITS CONCERN AND SUPPORT

The Non- Aligned Movement, NAM has also come up with their stand and sticking to their objective of condemning the wrongdoer, condemned the continuation of human rights violation in Palestinian region by the Zionist regime and has called for the help and involvement of international community’s fleet effort to stop the regime’s inhumane acts on the suffering Palestinians.

According to IRNA news agency, during a speech in the meeting of Special Political and Decolonization committee of NAM, the Deputy Permanent Envoy of the Islamic Republic of Iran to the UN,  Eshagh Ale Habib, described the kidnapping and detaining of Palestinians, demolishing Palestinian homes and expansion of settlements in the Palestinian territories, the settlers’ attacks against Palestinians, and the continuation of Gaza siege, as a serious concern and emphasized, “NAM members calls for the Israeli regime to respect human rights in the Palestine.”

Ale Habib reiterated NAM is concerned about the illegal actions by the Zionist regime aiming at removing the Palestinian citizens from the strategic regions in the Palestinian territories, including the east Al-Quds, expanding settlement activities, building barrier, compulsory deportation, destruction of homes, and abolishing Palestinians’ residence.

LEGALITY OF WAR ON GAZA

Since a long time, there have been very interesting changes in the situations of the relations of Israel and Palestine and Palestine has also come up very strongly in front of Israeli domination. Israeli war on the Gaza is questioned by many scholars and after the unilateral withdrawal of settlers and armed forces in 2005 does Israel really has any jurisdiction over looking after the normal life of the civilians of that region. Besides from the evaluating the particular measures of the Israeli military during the present conflict, the main issue of whether Israel can in a legal purview launch a large-scale military attack on Gaza must be looked into with great detail.

The background for determining the legality of Israel’s resort to military force must be judged against a reality which, although vehemently rejected by Israeli officials, nevertheless enjoys an overwhelming international consensus: Namely, that the entireties of the territories captured by Israel in 1967 remain occupied according to international law. So it is generally seen that even after different agreements which brought many administrative changes in the in Gaza and west bank by Israel and the PLO, Israeli occupation could have been possible till now as a result of international law. Among the authoritative sources affirming that these areas remain occupied is the International Court of Justice, which in its 2003 Advisory Opinion on the legality of the West Bank Wall “reaffirmed the applicability of the Fourth Geneva Convention as well as Additional Protocol I to the Geneva Conventions to the Occupied Palestinian Territory, including East Jerusalem”.The event which took place in the month of November, 2012 just was like a regular piece of war seen frequently between the Palestine and Israel and this time it again raise a question that does Israel has any responsibility to ensure a normal life for the civilian population and this is evident from the statement by the former Head of the International Law Department of the Military Advocate General’s Office, Israel no longer bears responsibility to “actively ensure a normal life for the civilian population”. But in fact neither the unilateral withdrawal nor any other thing Israel has done over the last decade negates the continuity of the occupation.

But in no way it can be said to be a true statement because even after the withdrawal of settlers and armed forces in 2005 the Israel kept its control on Gaza in many aspects. It just an argument which Israel makes to the world and present it in a way that it does not have any control and obligation over Gaza but the case is so and it is quite evident that it has not completely left the Gaza free from its power over it.

On contrary it is seen that Israel continued to exercise “effective control”, a legal designation with implications. As the Goldstone Report (paragraph 187) makes clear (supporting the conclusion of the 2003 ICJ decision), “in addition to controlling the borders, coastline and airspace… Israel continued to control Gaza’s telecommunications, water, electricity and sewage networks, as well as the population registry, and the flow of people and goods into and out of the territory while the inhabitants of Gaza continued to rely on the Israeli currency.”

It is clear from all these details that Israel was continuing its control and domination over the Gaza and was using forces to arrest suspects and take on their fate. These facts can be seen as a clear indication of smell of continuing illegal seize on Gaza of Israel.

As it is a known fact of the international law that the occupying state has no legal right to wage a full-scale war against an occupied population of that occupied region. But over here this is violated and the occupying state Israel is waging war against the occupied population. In fact the order should be that the occupying state should and is legally obligated to protect the rights and prioritize the interests of this population. So going according to this order Israel can be held as liable as offender of this rule and it has be a trail of long past which shows that Israel has been committing this illegality of waging war rather it has not even protected the interest of the population in a way which cannot be called as inhuman. Israel is still the de facto occupier of Gaza and therefore Israel cannot “wage war” on this territory of Gaza.

Richard Falk argues that despite its alleged “disengagement” from Gaza, Israel has kept the territory in a state of utter helplessness and thus still qualifies as occupying power of the territory. This status means it cannot legally “wage war” on Gaza, as that territory has no sovereignty.

If it has to be taken into account that the security of the occupier should be maintained then also these is restricted to taking of measures of a small police operation rather than waging a full scale war. Even in India, the naxalite problem is very intense but it is limited to taking of police actions and use small intensity of arms rather than waging full-scale of war to ensure its security.

But this right to maintain order and security of the occupying power is more rigorous and harsh than required to use on occupied population.

Israeli has given their own justification on this and has used large scale force against its own population.  It has asserted that Gaza no longer is occupied the Gaza and therefore declares that therefore it can wage war against the Hamas ruled Gaza and but moreover it describes Hamas as an ‘illegitimate’ and “terrorist” group that has no legal power to govern Gaza. so again there lies confusion that Israel takes Gaza to be governed by Hamas but Hamas is a terrorist and illegitimate group so in a way Gaza is independent and also described to be controlled by Israel at the same time because it’s not sovereign notwithstanding the fact that Hamas was the winning party in the 2006 Palestinian elections and took administrative control of Gaza in 2007.so the right to self defense is also curtailed from Gaza because it is not a legitimate governed independent territory. It is rather argued from Israeli side that militarized response was the only way out against the terrorist activities of the Hamas and therefore Israel supported its use of force against the Gaza population and denied their use of force even not for self defense. This is the main reason for the conflict between both Palestine and Israel, and their particular stand and ideology has been the root cause of the conflict.

IS THERE A LONG TERM SOLUTION

The conflict has been a very long lasting and now what is important and for which the most emphasis should be given on is to think for the long term solution of this long lasting problem of conflict. U.S. Secretary of State Hillary Clinton also intervened in this subject matter because of its intensity and pursued a Gaza truce, with Israel and Hamas who are still at probability over key terms, she had to come forward for this issue when things were not going in right direction and Israeli air strikes shook the enclave continuously and a bomb exploded on a Tel Aviv bus making situation very tough. This truce can be considered as a solution to this problem and it is even welcomed by both Israel and Palestine. Fracas between Israel and Palestine was most probably going to increase if the truce was not brought in action. This truce has at least for now proved to be effective and this has been a very valuable piece of positive step.

first of all, she had talks in Ramallah with Palestinian President Mahmoud Abbas, Clinton then held a second meeting with Israeli Prime Minister Benjamin Netanyahu before she travelled to Egypt for discussions with President Mohamed Mursi, whose country is the main broker in efforts to end eight days of fighting between Israel and Gaza. Now what is important to see is that Netanyahu told Clinton he wanted a “long-term” solution. Failing that, Netanyahu made clear, that he stood ready to step up the military campaign to silence Hamas’ rockets and “A band-aid solution will only cause another round of violence,” said Ofir Gendelman, a Netanyahu spokesman.Secretary Clinton informed the president that the U.S administration is exerting every possible effort to reach an immediate ceasefire and the president expressed his full support for this endeavor,” said Palestinian chief negotiator Saeb Erekat.

The truce that came up between Israel and Gaza is a very vital step to stop the ongoing fighting but it has a very long way to go. It’s a question as to how long can this truce hold up another fight between them and how long it can resist both of them. Still there was blame-game everywhere and liability of this war was put on each other in this fight and no one was taking it on them

THE TRUCE

THE TRUCE BETWEEN ISRAEL AND GAZA HAS BEEN THE FACTOR FOR THE CEASEFIRE.

On making an investigation into the truce, it looks to be a very potent tool to solve the most recent conflict. In the truce, First of all, Israel has agreed to end all hostilities and targeted killings in the Gaza territory, and simultaneously all Palestinian factions will also be required to stop firing rockets into Israel from their side and also discontinue staging border attacks.

And this truce does not stop here with only demanding this rather it also has a including factor according to which Israel must also begin talks about opening Gaza’s border crossings and reducing as much as possible, the restrictions on the movement of people and goods in this respected region.

This truce has been like a ball thrown for just making sure that the status quo is maintained but it’s more likely to see practically impossible that either side sticking to it unless there are further talks and a broader peace plans are initiated between them in future.

 PALESTINE RESPONSE TOWARDS THE TRUCE

Palestine has seen this truce as their victory and they are right in showing this because of their long past of suppression where they have been victim of lethal war crimes and human rights and now it’s going to be reduced and abridged . Palestine has rarely got a chance before like this truce because if they got then the results were never successful and were just negligible in its effect.  This step has been largely in their favor. In this truce, there is also a point made according to which Israel has to begin talks about opening Gaza’s border crossings and easing the restrictions on the movement of people and goods because this has been like a open prison for the people living in Gaza and this was in demand since so long by the Gaza population but it’s the direct result of the truce that it is successful in making this dream come true.

Hamas’s exiled political leader Khaled Meshaal said Israel’s offensive had “failed” and that the deal met Hamas’s main demands. In Gaza only, Hamas spokesman Ihab Hussein hailed the truce as a victory for the Palestine and said that, these people made this victory by their patience, by the blood of our people.

PALESTINE NOW A NON MEMBER OBSERVER STATE: LATEST DEVELOPMENT

Palestine crushingly won a historical UN General Assembly vote which has given it a rise in its status to ‘non-member observer state’ at the international arena, regardless of the severe opposition from the US and Israel. This decision will be marked with red ink in the world history because it will be always highlighted in the course of solving the most crucial and disastrous subject matter which where world was seeking strong role of united nations in play.

It is interesting to see that India was among the 138 nations in the 193-member body that has voted in favor of the decision while nine countries opposed the resolution that was targeted for upgrading the long perplexed status of Palestinian Authority from just an existential piece of land to ‘non-member observer state. UN Secretary General Ban Ki-moon said “an important vote” has taken place in the General Assembly. “Today’s vote underscores the urgency of a resumption of meaningful negotiations. We must give new impetus to our collective efforts to ensure that an independent, sovereign, democratic, contiguous and viable State of Palestine lives side by side with a secure State of Israel,” Mr. Ban said in his remarks after the votes were cast. Forty-one countries abstained from this voting.

The long time dilemma of the world has got its answer with this decision. The vote has provided Palestinian’s the privilege to have the access of the bodies like the International Criminal Court in The Hague; this was the most basic priority which has come to the hands of Palestinian’s because the ICC is a body which prosecutes people for genocide, war crimes and major human rights violations.

This decision has shown that Palestine has got the reward for its long struggle and this is evident from the fact that the entire global has given its majority decision in favor of them and most nations have rejected from supporting the Israel and USA

In his address to the General Assembly before the vote, Palestinian Authority President Mahmoud Abbas said the vote will “issue a birth certificate of the reality of the state of Palestine” and he added that “Our people have witnessed, and continue to witness, an unprecedented intensification of military assaults, the blockade, settlement activities and ethnic cleansing, particularly in occupied East Jerusalem, and mass arrests, attacks by settlers and other practices by which this Israeli occupation is becoming synonymous with an apartheid system of colonial occupation, which institutionalizes the plague of racism and entrenches hatred and incitement,” Mr. Abbas said.

According to the address of Mr. Abbas it was clear that he wished to say that the moment has arrived for the world to say clearly: enough of aggression, settlements and occupation,” and these were his words of some hope of seeing a future tilted towards the side of peace in Palestine.

But the prosecution procedure against Israel will not be very easy task because it will content various political and legal issues and the most logical argument given against this is that the Palestinians themselves have been wrong at various occasions.

Robbie Sabel, a former legal adviser to the Israeli Foreign Ministry, said he thinks the Palestinians “will seriously hesitate” taking action against Israel. He said Israel, for instance, could try to hold the Palestinian Authority responsible for rocket attacks out of the Hamas-ruled Gaza Strip aimed at Israeli cities. Palestinian President Mahmoud Abbas, who lost control of Gaza to Hamas five years ago, claims to represent both territories on the international stage.

“Any Hamas person who launches a rocket could then be subject to ICC ruling. They have to expose their own people first,” said Sabel, who is now a law professor at the Hebrew University.

 

CONCLUSION

This new episode of conflict brought a very significant change in the status of both Israel and Palestine; which has taken indirectly Palestine from a status of an ‘entity’ has transferred into ‘non-member observer state’ because after this recent conflict between two demanded of a very quick step towards something which could look a bit act of peace. All nations which showed their support towards the Palestine proved their stand by voting in favor of Palestine’s status as a ‘non member observer state’ at the U.N, so that Palestine could also enjoy the advantages of different international bodies which have been working to eradicate the friction from society, like for instances international criminal court is now accessible to Palestinians if they suffer any war crime or violation from Israel or any other nation which looks criminal in nature.    

The question which is still to be answered is that who really won in the November, 2012 conflict between Israel and Palestine, then to answer this it can be said that both Israel and Palestine got something out of it. Israel is successful in weakening Hamas and has killed many senior officers. And Hamas has been successful in securing a deal to ease border crossings. The cease-fire agreement intimate that Israel, which uphold a near-blockade of the impoverished Palestinian territory, might loosen border restrictions.

When we analyze the situation then the result is that both the involved parties in the conflict that is Palestine and Israel are the wrongdoers. Both have adopted the ways of war crime and have used wrong means towards each other. The situation cannot be solved till one of the two that is either Palestine or Israel works as a big matured brother and stop fighting and solve things more diplomatically. If they both will be still fighting for their share using unethical means than nothing could be achieved except war, some nations will support Israel and some will support Palestine and this game will again divide the world in to two factions and again we will see a phenomenon of something equivalent to NAM coming up just like we saw at the time of cold war. So the only ways is to understand and work out things mutually but without adopting ways which are unethical.

 

Submitted by:- SHASHANK PATHAK

 

                         B.A LL.B (HONS)

 

                         SEM 5TH

 

                        NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY,ASSAM

 

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