Sharon’s Gaza Redeployment plan:

A Denial of Human Rights, not an end to occupation.

 

by the

 

Palestinian Centre for Human Rights

October 2004

 

 

 

 

 

 

 

Dear friends and colleagues,

 

Thank you for taking the time to examine our document on the proposed Gaza “disengagement plan”.  The current plan has not been publicly debated in any fashion which strikes at the core of the Israeli strategy.  This document intends to provide the reader with an explanation of the real ramifications of the proposed plan.

 

It is important that human rights organisations evaluate the legal and political context within which they are operating.  In the final analysis of this plan PCHR contends that the occupation will continue and that the Israeli government is seeking to make life even more unbearable for Palestinian civilians.  This will have long term implications for our work as an organisation trying to realise human rights in the oPt.

 

In 1993, after the Oslo Accords were signed, we flowed against the euphoria of peace and clearly stated that Oslo was a flawed settlement which would not bring a lasting peace because of its failure to address substantive issues of human rights.  Now we are concerned to illustrate the real effects of a document which once again displaces human rights and democracy from the centre of the debate.

 

I hope that upon reading this document you will understand our genuine concerns that this plan is a step away from peace, human rights and democracy – not closer to it.  I hope that you will combine this understanding with positive and real action taken to ensure that Israel complies with its obligations under international law so that the Palestinian civilians can be guaranteed their full complement of rights.

 

Thank you for your ongoing support of PCHR and the cause of human rights and democracy for all in Palestine.

 

Warm regards,

 

 

 

Raji Sourani

Director

PCHR

 

 

 

 

Executive Summary

 

The announcement of a unilateral “disengagement” plan by the government of Israel sparked a flurry of statements across the globe that peace was on the march, that hope was on the way.  The redeployment plan was portrayed as an end to occupation and seen by Palestinian militants as a victory and by the Israeli right wing as submission to “terrorists”.

 

In fact the plan is neither – in reality it will compound and continue the belligerent Israeli occupation, now in it’s thirty-seventh year.  The plan amounts to a strategy by the Israeli Prime Minister which aims to deflect the focus on the deteriorating human rights situation in the oPt, brought about by continued violations by Israeli forces while, simultaneously, creating time and space to prevent the implementation of the ICJ Advisory Opinion by creating new “facts on the ground” in the West Bank.

 

PCHR firmly contends that the plan will facilitate Israel’s desire to “cut-off” the Gaza Strip from their legal responsibilities, through the continued denial of the applicability of IHL.  Further, the Israeli plan aims to compound and increase the isolation imposed on the Gaza Strip and consequently increase the economic and social suffocation of the civilian population.

 

PCHR argues in this paper that IHL (specifically the Fourth Geneva Convention) will remain applicable in the event of an Israeli military redeployment as the occupying power will still “exert control” across the Gaza Strip.  Further, PCHR contends that unilateralism and a disregard of human rights obligations will never lead to a just and peaceful end to this conflict.

 

 

 

 

  

 

A Denial of Human Rights, not an end to occupation: the unilateral Israeli Redeployment Plan for the Gaza Strip.

 

Contents

 

Executive Summary ……………………………………………………………… 3

Introduction ……………………………………………………………………….. 5

Status of the occupied Palestinian territory…………………………………. 8

The Gaza Strip: IOF Control of land, sea and air……………………………. 9

Unlawful Annexation of Occupied Territory…………………………………. 13

Refugees…………………………………………………………………………… 16

Conclusion………………………………………………………………………… 18

PCHR Recommendations to the International Community……………….. 19

 

 

 

 

 

  

Introduction

 

The Palestinian Centre for Human rights (PCHR) expresses grave concern regarding a “Disengagement Plan”[1] proposed by Israeli Prime Minister Ariel Sharon, on April 14^th 2004, for military redeployment in the Gaza Strip, including limited redeployment in some areas of the West Bank.  PCHR is particularly concerned that, according to details published so far by the Israeli Prime Minister’s Office[2], this proposed plan of “disengagement” and additional related statements will facilitate Israel’s continued abrogation of its legal and moral obligations under international law, including: the right of return for refugees; the derailment of the implementation of the ICJ decision regarding the Annexation Wall; and the right of self determination.

 

The full disengagement plan has neither been published nor finalised however the structure and the concept which has been released, so far, is of deep concern to human rights organisations who can be confident that the plan does not serve international humanitarian law or human rights law.  The plan does not amount to an end of the occupation.  In fact it reinforces the position of the Israeli authorities as the occupying power.  Israel will still be able to exert complete control over the Gaza Strip and consequently the Fourth Geneva Convention should remain the primary legal document governing the occupied Palestinian territory (oPt).

 

Prime Minister Ariel Sharon first announced in December 2003 a proposed “Disengagement Plan” for the Gaza Strip and related action in the West Bank as a unilateral action to be taken outside any negotiated settlement with Palestinian counterparts[3].   The plan itself is a political and military strategy which has grave implications for the economic, social, political status of the Palestinian people.  Human Rights organisations must consider the legal, political and military aspects of this plan as part of their strategy of actively seeking the implementation of the Fourth Geneva Convention, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in the oPt.

 

PCHR is concerned that the attempt to implement this plan, which fails to respect international human rights and humanitarian law, will result in a further deterioration in the military, political and economic situation on the ground.  This position paper seeks to demonstrate the failings of this proposal in respect of both Israel’s obligations under international law and the impact of such a plan on the human rights and humanitarian situation in the occupied Palestinian territory.  The paper will provide a critical analysis  on the plan which has so far been severally lacking from the debate.  To date the “disengagement plan” has been portrayed variously as an end to the occupation of Gaza (both in the media and by the Israeli government) or victory (by some elements in Palestinian society).  In fact it is neither of these. 

 

The members of the Quartet issued a statement after the announcement of the “disengagement plan” which included a fundamental misunderstanding of the nature of the plan:

 

“The Quartet took positive note of the announced intention of Israeli Prime Minister Sharon to withdraw from all Gaza settlements and parts of the West Bank. The Quartet welcomes and encourages such a step, which should provide a rare moment of opportunity in the search for peace in the Middle East.”

 

The Quartet further emphasised that the “disengagement  plan” supported the Road-Map process.  In fact the plan is neither one of peace nor opportunity.  Its scope is designed to limit the progress of peace by forcing a deterioration in the economic, social and political status of the oPt, while excluding the PLO/PNA (in clear breach of the Road-Map) and tightening real control over the West Bank and the Gaza Strip.

 

PCHR is deeply concerned that the “Disengagement Plan” is actually a method of facilitating a strategy by the Israeli government to:

 

(i)                  deflect the focus from the deteriorating human rights situation in the oPt, characterised by an increased number of killings of civilians, house demolitions and extra-judicial executions, among others;

(ii)                eliminate the role of the PLO from negotiations on the future status of Palestine[4];

(iii)               Continue the economic and social stranglehold being imposed on the Gaza Strip and in so doing continue the belligerent occupation;

(iv)              Stop the debate over the implementation of the ICJ advisory opinion regarding the Annexation Wall, which aims to annex some 58% of the territory in the West Bank.  In so doing this will give Israel an increased opportunity to accelerate construction and to implement its fait a complis strategy which ultimately aims to render a Palestinian state completely untenable;

(v)                Place responsibility for the security situation in the Gaza Strip with the Egyptian government while still permitting the IOF to make incursions into Gaza;

(vi)              Facilitate the accelerated expansion of Israeli settlements, which are illegal under international humanitarian law, in the West Bank;

(vii)             Prevent the return of Palestinian refugees, which is their legal right under international law;

(viii)           Put an end to the demands set out by the international community in various resolutions at the UNSC and UNGA.

 

PCHR firmly contends that the plan, which amounts to a redeployment of Israeli forces in the Gaza Strip, will mean the continuation of the Israeli military occupation.  Further, the continued military presence of the occupation power does not involve a transfer of sovereignty to a Palestinian state.  This further illustrates the fact that the Israeli plan is a means of destroying the scope and the capacity of the Palestinian people to build an independent state while wishing to create the illusion of an end to occupation.

 

Status of the occupied Palestinian territory

 

The Gaza Strip and West Bank, including occupied East Jerusalem, have been under an ongoing belligerent occupation by Israel since 1967.  As a consequence, the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, which governs the protection of civilians during conflict and under occupation, is the primary legal framework for all activities in the Gaza Strip and West Bank, including occupied East Jerusalem.  The de jure applicability of this Convention to the oPt has been repeatedly reconfirmed by the international community, including UN fora, governments, the International Court of Justice and international organizations.  Israel is the only state in the world which does not recognise the de jure applicability of the Convention 

 

The Gaza Strip is 365 square kilometres in area.  It has an 11km land border with Egypt and 51 km land border with Israel.  These borders and the coast (45km) are controlled by Israel.  The Israeli military has established an electronic fence around the land borders of the Gaza Strip and continue to expand a buffer zone of cleared land between the fence and Palestinian areas.  More than 1.3 million Palestinians live in the Gaza Strip, most are refugees from 1948.  Since the Oslo Accords, Israel has taken direct control over 58% of the Gaza Strip, for the exclusive use of the military and settlers, including settlements, military posts, roads and buffer zones designed to protect the settlements.  Approximately 6000 settlers currently reside in the 19 settlements in the Gaza Strip.  As the land razing and confiscation policy of the Israeli military has continued, the area of land under de facto Israeli control continues to be expanded.  The Israeli military regularly truncates the Gaza Strip into three separate areas using military checkpoints to close roads in the north, middle and south of the Strip. This means that the military effectively exerts control over the movement of the entire civilian population of the Gaza Strip. Alongside this, a number of areas, including al Mawasi and al Sayafa, are completely  fenced off from the rest of the Gaza Strip and access is controlled through Israeli military checkpoints.

 

Despite the presence of an electronic fence around the Gaza Strip, Israeli military operations in the Gaza Strip have escalated since September 2000 and have been characterized by regular and repeated ground incursions and aerial attacks on residential areas in the north, middle and southern areas of the Gaza Strip.  The existence of this electronic fence is the model used to justify the construction of the West Bank Annexation Wall – yet the  failure of this “security” model is clearly indicated by the escalation in incursions into residential areas of the Gaza Strip.  In addition to their intention to annex large parts of the West Bank the Israeli authorities will be able to impose the same regime of economic and social strangulation on the West Bank under the pretence of “security concerns”.

 

The Gaza Strip: IOF Control of land, sea and air.

It is clear from the details provided in the plan that, if implemented, the Gaza Strip will effectively remain under Israel’s economic and social control, including, through an ongoing presence internally and on all border areas. 

The plan specifically provides that Israel will “relocate military installations and all Israeli villages and towns in the Gaza Strip”[5], thereby retaining some internal military posts and bases.  The plan also provides that

“Israel will continue to maintain a military presence along the border between the Gaza Strip and Egypt (Philadelphi Route)…At certain locations security considerations may require some widening of the area in which the military activity is conducted.”[6] 

Thus not only will this military presence continue, it will also be expanded.  Recent announcements regarding the construction of a trench along the border line further highlight concerns regarding expansion of Israeli military presence in this area[7].  This area of the Rafah refugee camp along the border with Egypt has seen the most frequent Israeli military activity, largely in the form of destruction of civilian homes.  Land has been cleared of Palestinian homes in a broad buffer zone parallel to the border line.  This buffer zone extends up to 200metres from the original border line, resulting in destruction of hundreds of refugee homes.  This buffer zone is now an “area of military activity” which Palestinians are not allowed to enter.

It is further explicitly stated in the plan that Israel will retain control of the airspace, coast and all land borders.  The letter from the US President on the plan states that

“…after Israel withdraws from Gaza and/or parts of the West Bank, and pending agreements on other arrangements, existing arrangements regarding control of air space, territorial waters, and land passages of the West Bank and Gaza will continue”[8].

The decision by the Israeli authorities to prevent the reopening of Rafah International Airport indicates their intention to prevent free movement of people, services and goods in and out of the Gaza Strip.  Further to this Palestinian fishermen will still be restricted from travelling outside of a 8-10km area along the coast of Gaza, which is patrolled by the Israeli navy.[9]  Fishermen are also prevented from travelling more then half way down the coastal waters of the Gaza strip.  This also denies the Palestinians access to resources of natural gas in their territorial waters.  Combine this with the destruction of the international port in Gaza (and the denial of the Egyptian request to allow its reconstruction) and it becomes clear that the occupying power will increase the level of suffocation on the economic and social life of the Gaza Strip. 

In parallel to the “disengagement plan” Israel has made an application to the World Bank to move the Rafah international crossing to Israeli territory.  Although the plan is opposed by the Egyptians, whose consent is required, the aim of Israel is to claim complete legal and military control over the passage of Palestinian goods and people.  If this strategy is successful the closures, hardships and humiliations afflicted on the Palestinian people will be under the sovereignty of Israel and will not be subject to the observations of the international community.  In effect the moving of the Rafah crossing point will mean the final act of isolation of the Gaza Strip from the rest of the world.

 

Heavy restrictions will be increased on the export of agricultural and other products from Gaza because the IOF will maintain control of all the borders and crossing points.  As well as this, Israel has committed itself to ending all access for Palestinian workers to Israel by 2008.  However the strict closure imposed on the Erez Military Checkpoint, in the north of Gaza, already means that these workers are being denied access to their workplaces on a daily basis.  This ongoing stifling of the economic and social growth of the Gaza Strip will escalate if the proposed plan is implemented.

The Gaza Strip is an isolated, occupied area which, under optimal circumstances, trades using Egypt’s Port Said and Cairo airport[10].  Under the “disengagement plan” this will become increasingly difficult, particularly if Rafah international crossing is moved. The effect of this increased economic strangulation will be to increase the suffering of Palestinians while peddling the illusion of withdrawal to the international community.  Increased economic suffering will have multiple effects.  In the first instance it will drive hundreds of thousands of Palestinians out of the Gaza Strip on a permanent basis. 

Secondly, for those Palestinians who remain in Gaza, life will become almost completely unbearable.  This level of suffering will force an inevitable political and, more significantly, military reaction by some elements of Palestinian society.  Such a reaction will provide further justification for Israel to increase the level of military activity (which manifests itself in various forms of breaches of humanitarian law; collective punishment, extra-judicial executions, disproportionate and indistinct attacks against civilians).  The plan provides for this eventuality when it specifies that Israel will retain the right to undertake military actions in the Gaza Strip:

“Israel reserves for itself the basic right of self defense, including taking preventive steps as well as responding by using force against threats that will emerge from the Gaza Strip.” 

In effect, under the plan as published to date, the status of the Gaza Strip as occupied territory will not change; article 42 of the Convention IV Respecting the Laws and Customs of War on Land, 1907 (Hague Convention 1907) clearly states that

“Territory is considered occupied when it is actually placed under the authority of the hostile army.  The occupation extends only to the territory where such authority has been established and can be exercised”. 

Israel contends that this plan will serve to “dispel claims regarding Israel’s responsibility for the Palestinians in the Gaza Strip”.   Israeli policies and practices demonstrate that Israel currently retains effective authority over the Gaza Strip and the details of the disengagement plan strongly indicate that this authority is not likely to diminish, rather it will increase.  As such the occupation of the Gaza Strip will continue even in the event of the implementation of this plan and the Fourth Geneva Convention will remain applicable.   The Convention, in Article 6, specifies that the occupying power shall be bound by the Convention until such time as the occupation ends.

 

Even if this plan is implemented Israel will remain the Occupying Power with clear and broad ranging obligations to the Palestinian civilian population in the oPt who will continue to be defined as protected persons under article 4 of the Fourth Geneva Convention,

“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the Conflict or Occupying Power of which they are not nationals.”  

 

Unlawful Annexation of Occupied Territory

Israel’s settlement programme in the oPt; the settlements, settlement outposts, settlement infrastructure, including military posts; are a clear violation of international humanitarian law.  Specifically, the transfer of parts of the population of the Occupying Power to occupied territory is a grave breach of the Fourth Geneva Convention, and is further defined as a war crime in article 85 of the First Additional Protocol to the Geneva Conventions.  Settlements also contradict the general principle of international law that an Occupying Power cannot alter the character of the territory occupied with the exception of military necessity and where such changes will benefit the occupied population. 

 

Israel’s settlement programme, including the policies and practices implemented in order to maintain it, neither benefits the Palestinian population, and can not be considered a militarily necessary.  That settlements are a grave breach of international humanitarian law, and a war crime, has been reiterated repeatedly by numerous international and inter-governmental bodies, including the United Nations.

However, the “Disengagement Plan” also explicitly confirms the Israeli government intentions regarding the unlawful annexation of Palestinian land in the West Bank;

 

“It is clear that in the West Bank, there are areas which will be part of the State of Israel, including cities, towns, and villages, security areas and installations, and other places of special interest to Israel.”[11]

This latest expression of Israel’s annexationist aims is further supported by the statement by the US President;

“In light of new realities on the ground, including already existing major Israeli population centres, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949…”.   

 

Israel’s “Annexation Wall”, currently under construction in the West Bank, is the largest manifestation of Israel’s policy of annexation. The UN Special Rapporteur to the oPt, John Dugard, most recently stated that “…the main purpose of the Wall is the annexation, albeit by de facto means, of additional land for the State of Israel.”[12]  The plan provides for the accelerated construction of Israel’s Annexation Wall.   Israel has claimed, including in this plan, that the Wall is

“a security rather than political barrier, temporary rather than permanent, and therefore will not prejudice any final status issues, including final borders”.

However, such statements are entirely contradictory to the facts on the ground;  the Wall is being constructed not along the Green Line, the 1967 border, but rather largely within the West Bank; its construction is currently estimated to cost approximately US$ 4.7 million per kilometre[13]; the construction has included destruction of large areas of Palestinian agricultural land and crops, destruction of homes, civilian infrastructure and facilities; the wall consists of permanent 8 metre high concrete structures, trenches, electric fences, sophisticated monitoring equipment and roads.  The Wall is neither intended as a temporary barrier, nor is it specifically for security reasons.  Israeli Deputy Attorney General Malchiel Balass was reported in Haaretz as saying that even if there was a total end to infiltration by Palestinian militant groups into Israel the Israeli government would only “dismantle segments” of the Wall.[14]  This further indicates the Israeli government aims to erect the Wall as a permanent structure.

The strategy behind the “disengagement plan” is closely linked to that behind the “Annexation Wall”.  The Israeli plan is to redeploy from 4 of the West Bank settlements.  However this will be coupled with a comprehensive annexation of large parts of the West Bank so the total effect will be to impose the same restrictive regime on the West Bank: restrictions on freedom of movement, denial of right to food, right to water, destruction of social and cultural life, imposition of cruel, inhuman and degrading treatment (particularly at checkpoints), eradication of work and educational opportunities.[15]  

Israel continues to allow its own political and military considerations to override international humanitarian law.  This is indicated by the condemnation which emanated from the Ministry of Defence in response to the comments by the Israeli Attorney General that Israel should “thoroughly examine” the possibility of applying the Fourth Geneva Convention de jure.  The Attorney General was told that his department did not understand matters of “defence and security”.  The Israeli rejection of the applicability of the Fourth Geneva Convention, and the ICCPR and ICESCR, is motivated by a desire to assert Israel’s absolute control over the legal and political status of the occupied Palestinian territory.  As Israel insists on its right to determine the legal future of the oPt, through abandonment of the negotiating process and partner, it follows that Israel remains in complete legal control of the oPt (despite its attempts to deny such a responsibility through the claim of “withdrawal”).

Because of its allusions to “withdrawal” the “disengagement plan” has deflected the focus on implementation of the ICJ advisory judgment against the Wall.  The plan has created space for the Israeli military and political authorities to accelerate the construction of the Wall and in so doing create more, permanent, “facts on the ground”.  As stated earlier, the “security” justification for the construction of the Wall has been completely undermined by the failure of the Gaza security model.  They key strategic goal is to ensure annexation of territory and to facilitate economic and social strangulation of the West Bank.

Refugees

As a longer term component of this plan, Israel and the US appear to have also reached agreement of the refugee issue.  The US President stated in his letter to the Israeli Prime Minister that

“It seems clear that an agreed, just, fair, and realistic framework for a solution to the Palestinian refugee issue as part of any final status agreement will need to be found through the establishment of a Palestinian state, and the settling of Palestinian refugees there, rather than in Israel”. 

The right of return for those forcibly exiled from their homes is guaranteed in international law.   Article 12.4 of the International Covenant on Civil and Political Rights, to which Israel is a state party, specifically provides that “No one should be arbitrarily deprived of the right to enter his own country”.   This has been broadly interpreted by the UN Human Rights Committee to include

“at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them.”[16] 

Thus, Israel’s intention to settle Palestinian refugees outside the land from which they were exiled is contrary to the fundamental rights of refugees, including the right to compensation and to choose to re-settle in the land from which they were exiled or elsewhere.

 

 Conclusion

 

This plan proposed by the Israeli Prime Minister is an attempt to circumvent Israel’s absolute legal obligations as the Occupying Power.  Israeli authorities, backed by the United States, are proposing to engage in a unilateral move that will deny the right of return, continue illegal military activities, continue the siege and closure of the oPt, and increase the economic and social suffocation of Palestinian civilians and in so doing exert control over all aspects of Palestinian life.   As such, this initiative is entirely contrary to international human rights and humanitarian law.

As an initiative that undermines fundamental legal obligations as defined in international humanitarian and human rights law, support for this plan from other states, particularly the US, raises serious issues regarding their own legal obligations, particularly as High Contracting Parties to the Fourth Geneva Convention.  Article 1 of the Convention confers an absolute obligation on all High Contracting Parties to respect the Convention and to ensure respect for the Convention.  In relation to the oPt, this obligates the High Contracting Parties to ensure Israel respects the Convention and that they themselves respect the Convention in their activities related to the oPt.  Failure to act to ensure Israel’s respect for the Convention is a breach of this obligation.  A further breach may occur where a state actively supports Israeli violations of the Convention, including those perpetrated in the context of the “Disengagement Plan”.

PCHR thus calls upon the High Contracting Parties to the Convention to demand a resolution to the situation in the oPt that is founded on international law, including through the enforcement of the provisions of the Fourth Geneva Convention until such time as the occupation ends.  A just and sustainable peace in this region can only succeed where it is based on the fulfilment of the rights afforded to the Palestinian civilian population under international law, including the rights of refugees, the non-admissibility of acquisition of territory by force, the right of self-determination.

 

 

PCHR Recommendations to the International Community regarding the “disengagement plan”:

(i)                  Full implementation of the Fourth Geneva Convention in the oPt, de jure, including after any redeployment of Israeli forces;

 

(ii)                An immediate end to economic and social suffocation of the Gaza Strip, by allowing full control of air, sea and land space;

 

(iii)               Implementation of the ICJ opinion regarding the West Bank Annexation Wall as a preventative measure against increased economic and social strangulation of the West Bank, in accordance with the “Gaza model”;

 

(iv)              A comprehensive and genuine handover of sovereignty to the Palestinian people and the establishment of an independent Palestinian state;

 

(v)                The inclusion of international human rights and international humanitarian law as an integral part to any final settlement on the future of Palestine.