• Introduction

Over the past few months, numerous images and videos have emerged online, revealing the harrowing reality of the bitter conflict experienced by individuals living in the Israeli-occupied territory of Gaza. Following a major terrorist attack perpetrated by the Palestinian militant group Hamas on October 7, 2023, Israel declared itself at war. This unleashed onslaught, resulting in an estimated 1,200 Israeli civilian casualties, has now been dubbed Black Saturday. In response to this hostility, Israel implemented drastic measures, including cutting off vital supplies such as water and electricity, and launching relentless bombardments on the Gaza Strip. These actions led to the displacement of millions and claimed the lives of over 28,500 civilians. The underlying motive behind Hamas’s attack is attributed to the ongoing military occupation of the West Bank and the blockade of the Gaza Strip for the past 56 years.

Internationally, support for the conflicting parties is divided. While the European Council maintains Israel’s right to defend itself within humanitarian and international law, Arab States firmly support the Palestinians and have suspended cooperation with Israel. UN Secretary-General Antonio Guterres has condemned Israel’s retaliation, citing violations of International Humanitarian Law (IHL), including attacks on civilians and the use of prohibited weapons like white phosphorus. Additionally, as an occupying power, Israel’s actions breach its international human rights obligations.”

• The Occupied Palestinian Territory and the Law of Occupation :

Despite the withdrawal of Israeli troops and settlers from Gaza in 2005, there is a widely held belief that Israel still maintains remote occupation and control over the region. The Occupied Palestinian Territory (hereinafter referred to as ‘OPT’) encompasses the West Bank, which includes East Jerusalem, as well as Gaza. Article 42 of the Regulations appended to the IV Hague Convention Respecting the Laws and Customs of War on Land (1907) establishes the criteria for determining the occupation of a territory, emphasizing the need for ‘effective control’ that involves physical presence. According to Iain Scobbie, a Professor of Law at the University of London, “Under the Disengagement Plan, Israel maintains absolute authority over Gaza’s airspace and territorial sea.”

Since the Israeli occupation of the Gaza Strip, West Bank, and East Jerusalem in 1967, the Israeli government has faced accusations of imposing military rule in Palestine with little regard for basic human rights protections. There are three fundamental principles governing the law of occupation that the occupying power must adhere to. Firstly, the occupation must be deemed ‘temporary.’ However, in the current scenario, Israel appears to exercise enduring control and de facto sovereignty over the Occupied Palestinian Territory (OPT), having maintained remote effective control for over 50 years. Secondly, the occupying power is tasked with the responsibility of ensuring good governance throughout the period of occupation. Thirdly, the occupying power is entitled to take measures to safeguard its interests. According to Article 43 of the Hague Convention of 1907, the occupying power is obligated to “restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” The Israeli government’s policies have been criticized for discriminating against Palestinian citizens, particularly concerning access to land for housing. Eric Goldstein, the acting Middle East executive director at Human Rights Watch, asserts, “These practices are well-known in the occupied West Bank, but Israeli authorities are also implementing discriminatory land practices within Israel.”

The Commission of Inquiry (COI) on the Occupied Palestinian Territory (OPT), including East Jerusalem and Israel, highlighted in its recommendations that both international human rights law and international humanitarian law are applicable in the occupied regions. Consequently, the COI condemned Israeli authorities for violations of human rights. Moreover, the COI underscored that Israeli political policies in the occupied region effectively amount to de facto annexation, constituting war crimes. This coercive regime has resulted in the denial of the Palestinian people’s right to self-determination.

 The Fourth Geneva Convention, also known as the GCIV, is dedicated to safeguarding the welfare of civilian populations during times of conflict. Recognized as foundational to international customary law, the Geneva Conventions embody principles that are considered inviolable. Article 49 of the GCIV explicitly prohibits the occupying power from forcibly transferring its civilian population into the occupied territory, irrespective of their motivations. Israel has faced consistent allegations of engaging in such deportations and evacuations due to its contentious settlement policy. Palestinians residing in the occupied territories of the West Bank and the Gaza Strip are unequivocally classified as “protected persons” under the GCIV. Article 27 delineates their entitlement to respect for their personhood, honour, family rights, religious beliefs, and cultural practices under all circumstances. This provision, regarded as the cornerstone of the Convention, underscores the immutable nature of human rights, mandating that protected persons be treated with dignity and shielded from all forms of violence. As noted by UN rights chief Volker Turk, the imposition of sieges that jeopardize civilian lives by depriving them of essential goods violates international humanitarian law.

• Israel’s Responsibilities Regarding Human Rights as an Occupying Authority:

International Human Rights Law (hereinafter referred to as ‘IHRL’) is widely recognized as applicable in situations of occupation. These obligations are legally binding on Israel, the occupying power, by virtue of the treaties it has ratified. IHRL serves to expand upon and specify the provisions of International Humanitarian Law (IHL). Israel has ratified two fundamental human rights treaties: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (hereinafter referred to as ‘ICCPR’). In the Wall Opinion case, the International Court of Justice (ICJ) acknowledged that the protection afforded by the ICCPR persists even during times of war. Therefore, the ICJ affirmed that certain rights may fall under the purview of both IHRL and IHL. Moreover, the jurisdictional reach of the ICCPR is extensive, encompassing individuals beyond territorial boundaries, subject to state jurisdiction. This stance has been corroborated by the Human Rights Committee (HRC). In light of the ongoing conflict, the pertinent question arises as to whether individuals residing in the occupied territory are subject to Israel’s jurisdiction. The Wall Opinion has confirmed this assertion.

It is noteworthy that the International Court of Justice (ICJ) has unequivocally stated that the construction of walls and establishment of enclaves have significantly restricted freedom of movement in the Occupied Palestinian Territory (OPT), directly contravening Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR). This infringement also hampers fundamental human rights such as access to healthcare, education, and an adequate standard of living.

In 1968, the General Assembly Resolution 2443 (XXIII) established the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories. One of the mandates of this committee is to probe into the policies and practices within the OPT. In its 2003 report, it highlighted that approximately 100,000 dunums (approximately 10,000 hectares) of the West Bank’s most fertile agricultural land had been confiscated by the Israeli Occupation Forces during the initial phase of wall construction.

In its Wall Opinion, the ICJ clearly stated that the construction of the barrier amounted to de facto annexation, breaching territorial sovereignty and the Right to Self-Determination. Consequently, Israel is obligated to cease violating its international obligations arising from the wall’s construction in the OPT. As the occupying power, Israel is prohibited from using force to obstruct the Palestinian people from exercising their Right to Self-Determination. According to UNGA Resolution 2625, every state is duty-bound to refrain from any coercive actions that deny peoples their right to self-determination, freedom, and independence.

• The Violation of the Right to Life :

Human rights obligations are applicable beyond national borders, provided that a state exercises effective control over the territory. This spatial approach, however, has proven to be too limited, as it fails to adequately address situations such as airstrikes or transboundary environmental harm. Another approach, known as the ‘personal approach,’ endorsed by the Human Rights Committee (HRC) in the case of Lopez v Uruguay, focuses on the state’s control or authority over individuals. Consequently, Israel’s obligation to uphold the right to life extends to territories it occupies through effective control.

During the emergency special session of the United Nations General Assembly (UNGA) in 2023 on the Israel-Palestine conflict, Israel was condemned for its recent attacks on civilians and destruction of critical infrastructure. UNGA President Dennis Francis emphasized that depriving the people of Gaza of unimpeded access to essential supplies would constitute a clear violation of their human rights and international humanitarian law. Reports indicate that Israeli airstrikes targeted residential areas and hospitals, causing damage to 20 installations of the United Nations Relief and Works Agency (UNRWA) across the Gaza Strip. Additionally, Israel’s bombing of Rafah resulted in the blockade of movement in and out of Gaza.

Moreover, on 9 October 2023, the Israeli Defence Minister declared the cessation of essential supplies to Gaza and issued threats against any attempts to provide humanitarian aid to the Gaza Strip. These actions not only violate fundamental principles of International Humanitarian Law (IHL), such as distinction and proportionality but also encroach upon the right to life. According to reports from Amnesty International, more than 200 Palestinians were arbitrarily detained in the West Bank and 105 in the Gaza Strip, with instances of ill-treatment and torture prevalent in interrogation centers in these regions. Allegations suggest the use of white phosphorus in civilian areas of Gaza, posing risks of incendiary effects and thus violating the right to life.

By mid-December, reports indicate that Israel had deployed 29,000 bombs, munitions, and shells on the besieged enclave, resulting in the destruction or damage of nearly 70 percent of Gaza’s homes. Palestinian Health Minister Mai al-Kaila has also acknowledged the dire state of Gaza’s health services, with at least 30 staff members arrested by Israeli forces and over 250 individuals killed.

Currently, the International Court of Justice (ICJ) is set to deliberate on the advisory opinion requested by the United Nations General Assembly (UNGA) regarding “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem.” It is anticipated that this decision will address the human rights violations in the OPT.

• Conclusion

To determine the occupied status of a territory, the assessment revolves around the concept of ‘effective control,’ which traditionally necessitates a physical presence. However, this criterion was relaxed in the Tsemel case, where the Israeli Supreme Court ruled that actual control over territory and population is not mandatory; rather, the mere capability to exert control would suffice. In recent actions, Israel has not only disregarded the principles outlined in the Fourth Geneva Convention (GC IV) but has also breached its international human rights obligations.

Given that International Human Rights Law (IHRL) is widely acknowledged to be applicable in situations of occupation, Israel’s obligations under IHRL are binding due to the treaties it has ratified. These human rights obligations extend extraterritorially when a state exercises effective control over a territory. Consequently, Israel’s obligation to uphold the right to life also encompasses territories it occupies through effective control. Therefore, it is crucial for Israel to recognize its responsibilities towards the inhabitants of Gaza and adhere to its commitments under the Geneva Conventions, which were ratified by the State on 6 July 1951.

Despite international acknowledgment of the unfolding crisis in Gaza, the death toll continues to escalate unchecked. Most recently, on 29th December, South Africa initiated proceedings at the International Court of Justice (ICJ) for provisional measures, citing ‘genocidal acts’ in Gaza aimed at destroying a substantial part of the Palestinian national, racial, and ethnic group. The ICJ acknowledged that Israel’s actions could potentially amount to genocide under Article III of the Genocide Convention and ordered provisional measures. As the ICJ is yet to deliver its judgment on the merits, only time will reveal the possible implications of these proceedings.