The legal status of the Gaza Strip following the 2005 Israeli ‘Disengagement’, as well as the applicability of the laws of belligerent occupation with regard to this territory, have sparked, and continue to generate, a lively academic debate, involving states, organisations and legal scholars. Nevertheless, this debate has seldom included an examination of the de facto policy exercised by Israel vis-à-vis Gaza residents themselves.
This article seeks to fill the gap by providing a thorough examination of Israel's legal position towards the residents of Gaza, and a critical analysis of its policy and practice with regard to their movement as well as the movement of goods. This review, based on dozens of policy papers, regulations and procedures, as well as numerous judgments handed down by Israeli courts, reveals that Israel maintains a deliberately deficient and ambiguous legal position with regard to the status of Gaza residents. Under this position, the residents are merely ‘foreign residents’ who have no particular rights in relation to Israel. I argue that this position establishes a major legal vacuum in the protection afforded to Gaza residents and is therefore incompatible with both the reality of Israel's continuous control over Gaza as well as the objects and norms of international humanitarian law.
1 Aeyal Gross, ‘Rethinking Occupation: The Functional Approach’, Opinio Juris, 23 April 2012, http://opiniojuris.org/2012/04/23/rethinking-occupation-the-functional-approach. A good example of a ‘practical’ discussion is Sari Bashi, ‘In Reluctant Defense of the Law of Occupation’, Opinio Juris, 24 April 2012, http://opiniojuris.org/2012/04/24/in-reluctant-defense-of-the-law-of-occupation.
2 All references to Israeli case law in this article are in Hebrew unless stated otherwise. HCJ 9132/07 Gaber Al-Bassiouni v The Prime Minister (unpublished, 30 January 2008), http://elyon1.Court.gov.il/files_eng/07/320/091/n25/07091320.n25.pdf (in English).
3 It is important to note that this lacuna cannot usually be bridged by other actors – such as the Palestinian Authority, Hamas or Egypt – as Israel exercises exclusive authority on many aspects of life in Gaza.
4 The definition of an ‘occupied territory’ is articulated in the Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (Ser 3) 461, art 42 (Hague Regulations).
5 See, eg, Shany, Yuval, ‘Binary Law Meets Complex Reality: The Occupation of Gaza Debate’ (2008) 41 Israel Law Review 68; Tristan Ferraro, ‘Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory’, International Committee of the Red Cross (ICRC) Report, March 2012, 26–33, http://www.icrc.org/eng/assets/files/publications/icrc-002-4094.pdf.
6 The Turkel Commission, ‘The Public Commission to Examine the Maritime Incident of 31 May 2010’, Part I, January 2011, 50–53, http://www.turkel-committee.gov.il/files/wordocs//8707200211english.pdf.
7 Israel Ministry of Foreign Affairs, ‘The 2014 Gaza Conflict: Factual and Legal Aspects’, 14 June 2015, paras 45 and 374, http://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf; Israel Military Advocate General (MAG), ‘The Legal Framework for the IDF's Activity in the Gaza Strip’, http://www.law.idf.il/935-4489-he/Patzar.aspx.
8 Israel Ministry of Foreign Affairs, ibid para 45 and fns therein.
9 In addition to the law of occupation, Israel also rejects the application of IHRL to the situation, as it generally opposes the extraterritorial application of human rights conventions to the Palestinian territories (and in Gaza all the more so): Ben-Naftali, Orna and Shany, Yuval, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003) 37 Israel Law Review 17. Interestingly, though, in HCJ 9329/10 A v Minister of Defense (unpublished, 14 April 2011), http://elyon1.Court.gov.il/files/10/290/093/t10/10093290.t10.pdf (Case of A), State Response (unpublished, 17 January 2011), para 79, Israel denied the application of IHRL based on the principle of lex specialis with the LoAC rather than based on issues of extraterritoriality.
10 This body of law compels Israel to ensure the passage of basic humanitarian goods to Gaza: Israel Ministry of Foreign Affairs (n 7) para 374; HCJ 5841/06 Association for Civil Rights in Israel and Others v Minister of Defense (unpublished, 13 March 2007) (ACRI), http://elyon1.Court.gov.il/files/06/410/058/N05/06058410.n05.pdf; State Response (unpublished, 13 July 2006), paras 58–62, http://gisha.org/UserFiles/File/LegalDocuments/Fuel_Petition06/StateResponse_13.7.2006.pdf; HCJ 9132/07 Gaber Al-Bassiouni v The Prime Minister, Preliminary Response by the State (unpublished, 2 November 2007), http://gisha.org/UserFiles/File/LegalDocuments/fueloct07/state_response_2_11_07.pdf.
11 Israel Ministry of Foreign Affairs, ‘The Cabinet Resolution regarding the Disengagement Plan’, 6 June 2004, https://goo.gl/TzBD6x. In the original plan, dated April 2004, it was stated explicitly that ‘as a result [of the withdrawal], there will be no basis for claiming that the Gaza Strip is an occupied territory’: Israel Ministry of Foreign Affairs, ‘The Disengagement Plan – General Outline’, 18 April 2004, https://goo.gl/5FLQzc. For a critical analysis of the plan, see Roy, Sara, ‘Praying with Their Eyes Closed: Reflections on the Disengagement from Gaza’ (2005) 34(4) Journal of Palestine Studies 64, 65, 67, 71–72.
12 The Entrance to Israel Order (Border Stations) (Amendment), KT 6425, 2005 (Israel). However, because of the unclear status of the Gaza Strip, Israel has decided that the entry into Israel of Gaza residents will remain on the basis of permits rather than passports and visas: Entrance to Israel Order (Exemption to Gaza Residents) (Provisional Order), 2005 (Israel). This provisional order was extended each year until 2013, when it became a permanent order: Entrance to Israel Order (Exemption to Gaza Residents) (Provisional Order) (Amendment), 2013 (Israel).
13 The 30th Israeli Government, Res No 4235, ‘The End of Israeli Presence in the Gaza Strip and “Philadelphi” Route’, 11 September 2005, http://www.pmo.gov.il/Secretary/GovDecisions/2005/Pages/des4235.aspx; Israel Defense Forces, ‘Proclamation regarding the End of Military Regime’, 12 September 2005, http://www.hamoked.org.il/items/7931.pdf (in Hebrew).
14 Israel, Security Cabinet Decision No B/34, 19 September 2007 (unpublished); Israel Ministry of Foreign Affairs, ‘Security Cabinet Declares Gaza Hostile Territory’, 19 September 2007, http://www.hamoked.org/files/2013/114320_eng.pdf. This designation has no legal meaning under Israeli domestic law. Nevertheless, Israel has used it to justify sanctions imposed on Gaza residents relating to the entry of goods as well as movement of people. For a critical analysis of the declaration and its meaning, see James, Carey, ‘Mere Words: The Enemy Entity Designation of the Gaza Strip’ (2009) 32 Hastings International and Comparative Law Review 643; Darcy, Shane and Reynolds, John, ‘An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law’ (2010) 15 Journal of Conflict & Security Law 211, 240–41.
15 The 33rd Israeli Government, The Torts Order (State Liability) (Declaration on Enemy Territory – Gaza Strip), 2014 (Israel). Interestingly, a similar amendment from 2005, which exempted Israel from any liability over action that occurred in Gaza after the ‘Disengagement’, was struck down as unconstitutional: HCJ 8276/05 Adalah – Legal Centre for Arab Minority Rights in Israel and Others v Minister of Defense and Others 2006 PD 62(1) 1 , http://elyon1.Court.gov.il/files_eng/05/760/082/a13/05082760.a13.pdf (in English).
16 Adalah, ibid, Judgment of President Barak, para 36. Two days later, the Court referred to Gaza as part of the ‘area’ in which the law of occupation still applies, but this determination was insignificant as the judgment focused on the application of the LoAC: HCJ 769/02 Public Committee against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006)  (Extra-Judicial Killings), Judgment of President Barak, paras 16–20, http://elyon1.Court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf (in English).
17 ACRI (n 10) para 6. HCJ 11120/05 Osama Hamdan and Others v Commander of the Southern Command and Others (unpublished, 7 August 2007) (Osama Hamdan), para 13, http://elyon1.Court.gov.il/files/05/200/111/T22/05111200.t22.pdf (in which it was stated: ‘We believe a “full” legal determination on the legal situation of Israel vis-à-vis Gaza would, for the time being, be a mistake, due to the fluidity of the situation’). See also HCJ 9522/07 Physicians for Human Rights v IDF Commander in Gaza (unpublished, 28 November 2007), para 4(1), http://elyon1.Court.gov.il/files/07/220/095/T06/07095220.t06.pdf.
18 HCJ 5429/07 Physicians for Human Rights and Others v Minister of Defense and Others (unpublished, 28 June 2007), para 2, http://elyon1.Court.gov.il/files/07/290/054/T04/07054290.t04.pdf; Osama Hamdan, ibid.
19 Al-Bassiouni (n 2) para 12; CrimA 6659/06 A and Others v The State of Israel, 2008 PD 62(4) 329, para 11, http://elyon1.Court.gov.il/files_eng/06/590/066/n04/06066590.n04.pdf (in English). This position was repeated in many later cases, including, inter alia, HCJ 5268/08 Rami Anbar and Others v Commander of the Southern Command and Others (unpublished, 9 December 2009), para 6, http://elyon1.Court.gov.il/files/08/680/052/v05/08052680.v05.pdf; HCJ 9594/03 B'tselem and Others v Military Advocate General (unpublished, 21 August 2011), para 13, http://elyon1.Court.gov.il/files/03/940/095/n22/03095940.n22.pdf.
20 Al-Bassiouni (n 2) para 12.
21 The words ‘in its entirety’, which appear in the original version of the judgment published in Hebrew, were for whatever reason omitted from the English translation published by the Israeli Courts Administration.
22 Al-Bassiouni (n 2) para 11 (‘The respondents are required to discharge their obligations under international humanitarian law, which requires them to allow the Gaza Strip to receive only what is needed in order to provide for the essential humanitarian needs of the civilian population’); see also paras 12–15. This ruling corresponded with Israel's own position, presented to the Court: see references in paras 3, 4, 6, 14, 15, 19, 21 and 22 of the judgment.
23 ibid para 12. Certain legal scholars have criticised the Court's laconic reasoning with regard to the legal basis of these humanitarian duties, which, in that case, related to a duty to provide Gaza with fuel and electricity: see, eg, Shany, Yuval, ‘The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. The Prime Minister of Israel’ (2009) 42 Israel Law Review 101; Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009) 279; Darcy and Reynolds (n 14) 229–32. For an additional analysis and reference to this judgment see Israeli Experts’ Opinion, ‘Israel's Duty to Supply Gaza with Water and Electricity During Operation “Protective Edge”’, Haoketz, 20 July 2014, http://goo.gl/5pFCrX (in Hebrew).
24 Al-Bassiouni (n 2) paras 21–22. The Court, however, did approve a 5 per cent cut in the supply of electricity, and some cuts in the supply of fuels.
25 The Court simply referred to ‘certain duties’ or the ‘humanitarian’ duties Israel owed to Gaza residents, without elaborating: see, eg, CrimA A (n 19); Anbar (n 19); HCJ 201/09 Physicians for Human Rights and Others v The Prime Minister of Israel and Others 2009 PD 63(1) 521 (PHR Cast Lead), para 14 (President Beinisch), http://elyon1.Court.gov.il/files_eng/09/010/002/n07/09002010.n07.pdf (in English); AdminA 4620/11 Omima Kishawi and Others v Minister of Interior and Others (unpublished, 7 August 2012), para 6 (Justice Fogelman), http://elyon1.Court.gov.il/files/11/200/046/m14/11046200.m14.pdf; HCJ 2088/10 Hamoked Center for the Defense of the Individual and Others v Commander of the West Bank Area and Others (unpublished, 24 May 2012), paras 15 and 19, http://elyon1.Court.gov.il/files/10/880/020/n21/10020880.n21.pdf.
26 eg, Case of A, State Response (n 9) 63 (‘the entire Law of Belligerent Occupation … is no longer relevant and instead other duties emerge, which stem from alternative sources … it is not, then, the continuous application of the same duties in a different normative cover, but rather these are different duties, both qualitatively and quantitatively’) (emphasis in original).
27 eg, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment  ICJ Rep 168, para 173; ECtHR, Banković and Others v Belgium and Others, App no 52207/99, 12 December 2001, paras 71, 80–82; ECtHR, Chiragov and Others v Armenia, App no 13216/05, Judgment (Merits), 16 June 2015, para 96; ECtHR, Sargsyan v Azerbaijan, App no 40167/06, Judgment (Merits), 16 June 2015, para 94; Marko Milanovic, ‘European Court Decides that Israel Is Not Occupying Gaza’, EJIL: Talk!, 17 June 2015, http://www.ejiltalk.org/european-Court-decides-that-israel-is-not-occupying-gaza.
28 Benvenisti, Eyal, The International Law of Occupation (2nd edn, Oxford University Press 2012) 211–12; Shany (n 23); Shany, Yuval, ‘Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement’ (2005) 8 Yearbook of International Humanitarian Law 369; Adam Roberts, ‘The Termination of Military Occupations’, in Ferraro (n 5) Appendix 2, 41–49; Ruth Lapidoth, ‘Unity Does Not Require Uniformity’, Bitterlemons.org, 22 August 2005, http//www.bitterlemons.org/previous/bl220805ed30.html#isr2; Nicholas Rostow, ‘Gaza, Iraq, Lebanon: Three Occupations under International Law’ (2007) 37 Israel Yearbook on Human Rights 205, 217–19; Pnina Sharvit-Baruch, ‘Is the Gaza Strip Still Occupied by Israel?’, Opinio Juris, 25 April 2012, http://opiniojuris.org/2012/04/25/is-the-gaza-strip-still-occupied-by-israel; Solomon, Solon, ‘Occupied or Not: The Question of Gaza's Legal Status after the Israeli Disengagement’ (2011) 19 Cardozo Journal of International and Comparative Law 59, 70, 76; Bell, Abraham, ‘International Law and Gaza: The Assault on Israel's Right to Self-Defense’ (2008) 7 Jerusalem Issue Brief 29.
29 Shany (n 5); Ferraro (n 5).
30 Shany (n 23); Shany (n 28); Bell, Abraham and Shefi, Dov, ‘The Mythical Post-2005 Israeli Occupation of the Gaza Strip’ (2010) 16(2) Israel Affairs 268; Samson, Elizabeth, ‘Is Gaza Occupied? Redefining the Status of Gaza under International Law’ (2010) 25 American University International Law Review 915, 935–54; Elizabeth Samson, ‘Israel, Gaza, and the End of “Effective Control”’, Opinio Juris, 26 April 2012, http://opiniojuris.org/2012/04/26/israel-gaza-and-the-end-of-effective-control.
31 Solomon (n 28) 60, 81–82, 84; Samson (2010) (n 30) 917, 963–67; Zemach, Ariel, ‘What are the Legal Duties of Israel towards the Gaza Population’ (2009) 12 Mishpat Umimshal [Law and Government] 83 (in Hebrew) (contending that Israel has no duties towards Gaza stemming from primary rules of international law but rather only duties stemming from secondary rules of state responsibility for wrongful acts).
32 Israel Ministry of Foreign Affairs, ‘The Operation in Gaza, 27 December 2008–18 January 2009: Factual and Legal Aspects’, July 2009, para 30, https://goo.gl/PFulnj (‘[t]he Gaza Strip is neither a State nor a territory occupied or controlled by Israel. In these sui generis circumstances, Israel, as a matter of policy, applies to its military operations in Gaza the rules of armed conflict’). See also Osama Hamdan (n 17); Case of A (n 9) para 20.
33 Shany (n 23) 110–14; Shany (n 28) 383.
34 Shany (n 23) 106–07; Darcy and Reynolds (n 14) 237–39. Israel declares that it upholds the international rules of a maritime blockade, which is a kind of siege: The Turkel Commission (n 6) 56–63.
35 Rubin, Benjamin, ‘Disengagement from the Gaza Strip and Post-Occupation Duties’ (2010) 42 Israel Law Review 528. For more on post-occupation law in general see Ronen, Yaël, ‘Post-Occupation Law’ in Stahn, Carsten, Easterday, Jennifer and Iverson, Jens (eds), Jus Post Bellum: Mapping the Normative Foundations (Oxford University Press 2014) 428.
36 Solomon (n 28) 60, 84–88; Shany (n 23) 115.
37 Darcy and Reynolds (n 14) 232, 243; Solomon (n 28) 80–81.
38 Dinstein (n 23) 277–80; Darcy and Reynolds (n 14) 235; James (n 14); Scobbie, Ian, ‘An Intimate Disengagement: Israel's Withdrawal from Gaza, the Law of Occupation and of Self-Determination’ (2006) 11 Yearbook of Islamic and Middle Eastern Law 3; Ferraro, Tristan, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’ (2012) 94 International Review of the Red Cross 133; Maurer, Peter, ‘Challenges to International Humanitarian Law: Israel's Occupation Policy’ (2012) 94 International Review of the Red Cross 1503; Maurer, Peter, ‘Challenges to Humanitarian Action in Contemporary Conflicts: Israel, the Middle East and Beyond’ (2014) 47 Israel Law Review 175; Bashi, Sari and Mann, Kenneth, ‘Control and Responsibility: The Legal Status of the Gaza Strip after the “Disengagement”’ (2011) 14 Hamishpat 35 (in Hebrew); Stephanopoulos, Nicholas, ‘Israel's Legal Obligations to Gaza after the Pullout’ (2006) 31 Yale Journal of International Law 524; Mari, Mustafa, ‘The Israeli Disengagement from the Gaza Strip: An End of the Occupation?’ (2005) 8 Yearbook of International Humanitarian Law 356; Valentina Azarova, ‘Disingenuous “Disengagement”: Israel's Occupation of the Gaza Strip and the Protective Function of the Law of Belligerent Occupation’, Opinio Juris, 24 April 2012, https://goo.gl/J4OQeS.
39 Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (25 September 2009), UN Doc A/HRC/12/48, paras 276–80; Human Rights Council, Report of the International Fact-Finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance (27 September 2010), UN Doc A/HRC/15/21, paras 63–64; Human Rights Council, Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1 (24 June 2015), UN Doc A/HRC/29/CPR.4, paras 26–30. This view is also shared by the Office of the Prosecutor, International Criminal Court (ICC): ICC, ‘Situation on Registered Vessels of the Comoros, Greece and Cambodia: Article 53(1) Report’, 6 November 2014, para 24–29. See also ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’, 32nd International Conference of the Red Cross and Red Crescent, 31 October 2015, 11–12; Human Rights Watch, ‘Israel/Occupied Palestinian Territories (OPT) – Events of 2005’, http://www.hrw.org/world-report/2006/country-chapters/israel/palestine; Amnesty International, ‘Israel/Gaza Conflict: Questions & Answers’, 25 July 2014, https://www.amnesty.org/en/latest/news/2014/07/israelgaza-conflict-questions-and-answers/; B'tselem, ‘Background on the Gaza Strip’, 11 November 2017, http://www.btselem.org/hebrew/gaza_strip (in Hebrew); Gisha – Legal Center for Freedom of Movement (Gisha), ‘Disengaged Occupiers: The Legal Status of Gaza’, January 2007, http://gisha.org/publication/1649.
40 UNSC Res 1860 (8 January 2009), UN Doc S/RES/1860; UNGA Res 63/96 (18 December 2008), UN Doc A/RES/63/96 (2008); UNGA Res 64/92 (10 December 2009), UN Doc A/Res/64/92.
41 Human Rights Council (2015) (n 39) 26–27; Ferraro (n 38) 158; Dinstein (n 23) 279; Bashi and Mann (n 38) 55–57.
42 For example, US Military Tribunal at Nuremberg, United States v List and Others, Judgment, 7, 19 February 1948, 38, 55–56; ECtHR, Loizidou v Turkey, App no 15318/89, Judgment, 18 December 1996, para 56; ICTY, Prosecutor v Naletilic and Martinovic, Judgment, IT-98-34-T, Trial Chamber, 31 March 2003, –; ECtHR, Ilaşcu and Others v Moldova and Russia, App no 48787/99, Judgment, 8 July 2004, paras 314–19, 392. Interestingly, the HCJ has also supported this approach: HCJ 102/82 Tzemel v Minister of Defense 1983 PD 37(3) 365, 373.
43 Bashi and Mann (n 38) 52, 56; Darcy and Reynolds (n 14) 243; Shany also argues that preferring the ‘de facto control’ test for the application of the law of occupation might lead occupying states to minimise their presence in the territory in order to refrain from fulfilling their duties toward the population, thus creating ‘legal black holes’, leaving civilians bereft of governmental protection: Shany (n 28) 376–78.
44 These provisions include, for example, the Hague Regulations (n 4) art 43, and Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention), art 67: Dinstein (n 23) 279–80; Bashi and Mann (n 38) 37; Aeyal Gross, ‘The Binary Approach to Occupation: A Double Bind?’, Opinio Juris, 26 April 2012, http://opiniojuris.org/2012/04/26/the-binary-approach-to-occupation-a-double-bind.
45 Such an abuse of power would create a legal gap in the protection of civilians: Darcy and Reynolds (n 14) 243; Gross (n 1); Bashi (n 1); Azarova (n 38).
46 Gross, Aeyal, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge University Press 2017) 130, 132–35; Gross (n 1).
47 Gross (2017) ibid 213–15. See also Gisha, ‘Scale of Control: Israel's Continued Responsibility in the Gaza Strip’, November 2011, http://gisha.org/publication/1660.
48 Gross, ibid 224.
49 Human Rights Council (2015) (n 39) 31; Maurer (2014) (n 38) 179; ICRC (2015) (n 39) 12; ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2nd edn, ICRC 2016), paras 305–13.
50 Dinstein (n 23) 279–80; Ferraro (n 38); Bashi and Mann (n 38) 37–38, 50–52, 56, 60; Bashi (n 1); Eitan Diamond, ‘Outside the Range of Considerations: Rights, Duties and Principles Not Taken into Account in the Decision to Prevent a Gazan Runner from Participating in the Palestine Marathon: Case Review of HCJ 2486/14 Nader Masri v. the Minister of Defense’ (2014) 28 Hamishpat Online: Human Rights – An Online Law Review 6 (in Hebrew).
51 Al-Bassiouni (n 2) 12; see also Gross (n 46) 219.
52 eg, Rami Anbar and Others v Commander of the Southern Command and Others, State Response (unpublished, 23 October 2008), paras 31–41, http://www.hamoked.org.il/items/110491.pdf (in Hebrew); Kishawi (n 25) para 8 (Justice Fogelman, citing the government's position).
53 Osama Hamdan (n 17) State Response (unpublished, 20 March 2007) para 43, http://www.gisha.org/UserFiles/File/state_response_20_3_2007.pdf (in Hebrew). See also HCJ 6475/07 Rajda Abu-Laban and Others v Commander of the Southern Command and Others (unpublished, 31 July 2007), http://elyon1.Court.gov.il/files/07/750/064/M04/07064750.m04.pdf; HCJ 4906/10 Fatma Sharif v Minister of Defense (unpublished, 7 July 2010), http://elyon1.Court.gov.il/files/10/060/049/c02/10049060.c02.pdf; HCJ 495/12 Azza Azat and Others v Minister of Defense and Others (unpublished, 24 September 2012), http://elyon1.Court.gov.il/files/12/950/004/t09/12004950.t09.pdf; Reply Affidavit by the State (unpublished, 13 August 2012), paras 7–8, 21–31, 63, http://gisha.org/UserFiles/File/LegalDocuments/affidavite/affidavit.pdf (in Hebrew). For a critical analysis of Israel's arguments in this case, see Sari Bashi, ‘Justifying Restrictions on Reconstructing Gaza: Military Necessity and Humanitarian Assistance’ (2016) 49 Israel Law Review 149, 163–64.
54 eg, HCJ 2277/06 Hamoked Center for the Defense of the Individual and Others v The State of Israel and Others, Complementing Response by the State (unpublished, 20 August 2006), para 20, http://www.hamoked.org.il/items/8224.pdf (in Hebrew); HCJ 2748/12 Rafik Maslam and Others v Commander of the West Bank Area and Others (unpublished, 16 April 2012), http://elyon1.Court.gov.il/files/12/480/027/s04/12027480.s04.pdf.
55 HCJ 1742/14 Abir Hamdan and Others v Commander of the West Bank Area and Others (unpublished, 17 March 2014), http://elyon1.Court.gov.il/files/14/420/017/h02/14017420.h02.pdf; State Response (unpublished, 16 March 2014), para 4; HCJ 4496/07 Wesam Madhun and Others v Commander of the Southern Command and Others (unpublished, 4 June 2007), http://elyon1.Court.gov.il/files/07/960/044/N04/07044960.n04.pdf; PHR 9522/07 (n 17) 3–4.
56 Abir Hamdan, State Response, ibid 5–8.
57 See text at n 10.
58 See, eg, HCJ 5651/17 Thaer Taia v Minister of Defense, Preliminary Response of the State (unpublished, 18 July 2017), paras 5, 27, 31, 37, http://gisha.org/UserFiles/File/LegalDocuments/5651-17/response.pdf.
59 These courts were authorised to discuss petitions filed against decisions of the Military Commander with regard to entry permits to Israel: Administrative Courts Law, 2000 (Israel), First Addendum, s 12.
60 Azat (n 53) para 13 (Justice Rubinstein), paras 2–3 (Justice Zilbertal); Hamoked (n 25) 17–20; HCJ 1583/10 Fadia Abu-Hamida and Others v Commander of the West Bank Area and Others (unpublished, 25 March 2010), http://elyon1.Court.gov.il/files/10/830/015/p02/10015830.p02.pdf.
61 That is, as opposed to the West Bank, no military orders were from that moment on applicable in the Gaza Strip: A (n 19) 37; HCJ 4487/08 Physicians for Human Rights and Others v Commander of the Southern Command and Others 2008 PD 63(1) 149 (PHR 4487/08), para 6.
62 Citizenship and Entry into Israel Law (Temporary Provision), 2003; Internment of Unlawful Combatants Law, 2002; Criminal Procedure Law (Detainee Suspected of a Security Offence) (Temporary Provision), 2006 (which authorises the administrative internment and prosecution of Gaza residents (A (n 19)). According to Darcy and Reynolds (n 14) 236, the enactment of these rules, immediately after the ‘Disengagement’, was designed to maintain Israel's direct control over matters of law in Gaza; Defense Export Control Law, 2007; and Defense Export Control Order (Controlled Dual-Use Equipment to the Palestinian Civil Jurisdiction Areas), 2008 (which regulate the entry into Gaza of goods which are considered to have ‘dual use’); Amendment and Extension of the Emergency Regulations Law (Judea and Samaria – Criminal Jurisdiction and Legal Assistance), 2007; Emergency Regulations Order (Judea and Samaria and Gaza Region – Criminal Jurisdiction and Legal Assistance) (Palestinian Council Areas – Legal Assistance in Civil Matters), 1999.
63 Israel Security Cabinet Res no B/34, 19 September 2007 (unpublished); Security Cabinet Res no B/44, 20 June 2010 (unpublished); Security Cabinet Res (No unknown), 11 June 2017 (unpublished).
64 COGAT, working under the auspices of the Israeli Ministry of Defense and in itself a branch of the Israeli army, is the body in charge of civil contact with Palestinians living in the West Bank and the Gaza Strip as well as Israel's policy towards them. To this end COGAT has published many procedures and protocols, the key of which are ‘Policy for the Movement of People between the State of Israel and the Gaza Strip’, 2011 (Policy Paper), http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/entering_and_exiting_gaza/03.pdf (in Hebrew), and ‘Permission Status for the Entry of Palestinians to Israel, Their Passage between the West Bank and the Gaza Strip and Their Exit Abroad’, updated on a monthly basis and last viewed on 22 January 2018, https://goo.gl/HjbGXe (in Hebrew). For a list of all of the procedures, see the COGAT website at http://www.cogat.mod.gov.il/en/Pages/default.aspx and Gisha website at http://gisha.org/legal/procedures-and-protocols.
65 Only after Gisha filed two Freedom of Information petitions against COGAT did the latter start to publish in an orderly fashion dozens of procedures and protocols and later translated most of them into Arabic: AdmC (TA) 51147-05-14 Gisha v COGAT and Others, 10 May 2016, http://gisha.org/UserFiles/File/LegalDocuments/foiucogat/judment.pdf. See Natasha Roth, ‘How Israel's Military Gov't Keeps Palestinians in the Dark’, 972 Magazine, 14 January 2016, https://goo.gl/9wHTsI.
66 Citizenship and Entry into Israel Law (n 62). Despite the ‘Disengagement’, the Law still refers to the ‘Area’ as including both the West Bank and the Gaza Strip (s 1). See also PHR 4487/08 (n 61); HCJ 4047/13 Najma Hadri and Others v The Prime Minister and Others (unpublished, 14 June 2015), http://elyon1.Court.gov.il/files/13/470/040/c17/13040470.c17.pdf.
67 Citizenship and Entry into Israel Law (n 62) s 3(b).
68 These permits are, of course, subject to many conditions and limitations: COGAT, Policy Paper (n 64).
69 For the updated list see COGAT, Permission Status (n 64).
70 Azat, Reply Affidavit by the State (n 53) para 38; Azat (n 53) para 4 (Justice Zilbertal).
71 Gisha, ‘Separating Land, Separating People’, June 2015, http://gisha.org/publication/4379. These situations do not even include, according to Israel's policy, unification between spouses or between a parent and a child: COGAT, ‘Procedure for the Treatment of Settlement Requests by Gaza Residents in the Judea and Samaria Area’, July 2013, https://goo.gl/VjufFX (in Hebrew) (Settlement Procedure); Abir Hamdan (n 55); Jack Khoury, ‘Trapped in Gaza: The Faces behind the Blockade of the Gaza Strip’, Ha'aretz, 9 June 2015, https://www.haaretz.com/.premium-the-faces-behind-the-blockade-of-gaza-1.5370116. It should be noted that Israel can control movement between the two Palestinian areas since entry to the West Bank can be carried out solely through its territory. In addition, Israel still administers the Palestinian population registry and thus can decide who will be allowed to change his or her residential address to the West Bank: Alon Margalit and Sarah Hibbin, ‘Unlawful Presence of Protected Persons in Occupied Territory? An Analysis of Israel's Permit Regime and Expulsions from the West Bank under the Law of Occupations’ (2010) 13 Yearbook of International Humanitarian Law 245.
72 COGAT, ‘Procedure for the Coordination of Foreigners’ Entry to the Gaza Strip’, June 2015, https://goo.gl/vjZRSP (in Hebrew); HCJ 9910/08 Association of Foreign Reporters in Israel v Commander of Southern Command (unpublished, 2 January 2009), http://elyon1.Court.gov.il/files/08/100/099/n06/08099100.n06.pdf; Bashi (n 53) 160; Human Rights Watch, ‘Unwilling or Unable: Israeli Restrictions on Travel to and from Gaza for Human Rights Workers’, April 2017, http://www.hrw.org/report/2017/04/02/unwilling-or-unable/israeli-restrictions-access-and-gaza-human-rights-workers.
73 Formally, Israel has no control over the Rafah crossing, and its opening is dependent on a mutual decision by Egypt and Hamas. Gaza residents who wish to leave Gaza through Rafah must register in advance. To date, the list of persons asking to cross through Rafah exceeds 30,000: Gisha, ‘Rafah Crossing Has Been Closed for Five Months; Longest period in the Last Decade’, 8 August 2017, http://gisha.org/updates/8077.
74 Israel is the only outlet through which Gaza can receive the supply of goods of any kind as, to date, the Kerem-Shalom crossing is the only merchandise crossing between Gaza and the rest of the world.
75 See text at n 63. Israel's control over the supply of any item and commodity to Gaza is articulated in the Gaza-Jericho Agreement: Economic Protocol, 29 April 1994, Annex IV, https://goo.gl/hzJuw9 (which is seemingly still in force, notwithstanding the ‘Disengagement’).
76 Al-Bassiouni, Preliminary Response by the State (n 10) 23–38.
77 AdminA 3300/11 Gisha v The State of Israel (unpublished, 5 September 2012), http://elyon1.court.gov.il/files/11/000/033/e12/11033000.e12.pdf. See also Gross, Aeyal and Feldman, Tamar, ’We Didn't Want to Hear the Word ‘Calories’: Rethinking Food Security, Food Power, and Food Sovereignty—Lessons from the Gaza Closure’ (2015) 33 Berkeley Journal of International Law 379.
78 COGAT, ‘Procedure for the Coordination of the Entrance of Goods into the Gaza Strip’, June 2015, http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/merchandise/20.pdf (in Hebrew).
79 This phrase accounts for items that may have a military use alongside their ordinary civilian use. Obviously, the entry of military equipment per se is utterly forbidden. According to Defense Export Control Law (n 62) s 20, every ‘dual-use’ item must receive a special permit from COGAT before it may enter Gaza.
80 For the full list see the Defense Export Control Order (n 62). For a critical review of the list, see Gisha, ‘Dark-Gray Lists’, January 2016, http://gisha.org/UserFiles/File/publications/Dark_Gray_Lists/Dark_Gray_Lists-en.pdf.
81 See, eg, HCJ 4356/16 and 7061/16 Maslah and Others v Minister of Defense (unpublished, 23 April 2017), http://elyon1.court.gov.il/files/16/560/043/b12/16043560.b12.pdf.
82 Defense Export Control Law (n 62) s 32(a)(4).
83 Gisha, ‘A Costly Divide: Economic Repercussions of Separating Gaza and the West Bank’, February 2015, http://gisha.org/UserFiles/File/publications/a_costly_divide/a_costly_divide_en-web.pdf.
84 Gisha, ‘For the First Time since the Closure: A Truckload of Cucumbers Left Gaza For Sale in the West Bank’, November 2014, http://gisha.org/updates/3671.
85 COGAT, ‘Response to a Freedom of Information Act Application’, January 2015, http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/merchandise/64.pdf (in Hebrew).
86 A (n 19); HCJ 1912/08 Physicians for Human Rights and Others v Commander of the Southern Command and Others (unpublished, 16 April 2008) (PHR Medical Treatment), paras 7–8, http://elyon1.Court.gov.il/files/08/120/019/r05/08019120.r05.pdf; Kishawi (n 25) 5, 8; Azat (n 53) paras 17 and 22 (Justice Rubinstein), para 2 (Justice Naor), para 3 (Justice Zilbertal).
87 This policy was in force from 2007 to 2012, when – despite the ruling in Anbar (n 19) – visits from Gaza were allowed for the first time in years. Visits were prohibited once again in 2014 and again renewed following operation ‘Protective Edge’, in October 2014. Recently, however, in June 2017 Israel decided once again to stop visits by prisoners’ families from Gaza: Yaniv Kubovich and Jack Khoury, ‘Israel Halts Family Visits for Hamas Prisoners from Gaza’, Ha'aretz, 30 June 2017, https://www.haaretz.com/israel-news/israel-halts-family-visits-for-hamas-prisoners-from-gaza-1.5490551.
88 Anbar (n 19) 8.
89 This policy was implemented from 2007 to October 2014, when – despite the ruling in Kishawi (n 25) and following operation ‘Protective Edge’ – Israel decided to allow, for the first time, prayers for Gazan Muslims in Jerusalem. However, in December 2016, Israel once again prevented the entry of Muslims for prayers without clearly or publicly explaining why: Gisha, ‘Friday Prayers at al-Aqsa Mosque Cancelled for Gaza Residents’, 11 December 2016, http://gisha.org/updates/5682.
90 Kishawi (n 25) 5.
91 This policy has been in force since 2000: Gisha, ‘Student Travel between Gaza and the West Bank 101’, September 2012, http://www.gisha.org/UserFiles/File/publications/students/students-2012-eng.pdf.
92 Azat (n 53) para 17 (Justice Rubinstein).
93 PHR Medical Treatment (n 86) 8 (‘The [military] authority is the state's “gatekeeper”, and therefore its power is vast, granting it a broad discretion when reaching a decision regarding giving a permit’); Kishawi (n 25) 5–6; Azat (n 53); HCJ 9657/07 Sabah Garboa and Others v Commander of the West Bank Area and Others (unpublished, 24 July 2008), http://elyon1.Court.gov.il/files/07/570/096/s09/07096570.s09.pdf; AdminC (BS) 462/09 Issam Hamdan v Minister of Interior (unpublished, 21 January 2010), paras 4–5, http://gisha.org/UserFiles/File/HiddenMessages/PsakDin210110.pdf.
94 Azat (n 53) para 13 (Justice Rubinstein), paras 2–3 (Justice Zilbertal); Hamoked (n 25) 17–20; Abu-Hamida (n 60).
95 Azat (n 53) para 17 (Justice Rubinstein), para 3 (Justice Zilbertal).
96 Kishawi (n 25) 8. The reference of Gaza residents as foreign nationals living in an ‘enemy state’ can be found also in PHR Medical Treatment (n 86) 7.
97 Kishawi (n 25) para 4 (Justice Fogelman).
98 ibid para 8.
99 These students applied to a US State Department programme: Azat, Reply Affidavit by the State (n 53) para 58.
100 ibid para 61. This indicates that the state's decision was not based on security reasons but rather on policy considerations and can thus be regarded as arbitrary. Only following the petition did the state argue that two of the five petitioners were individually prevented based on security reasons (but that was inconsequential in light of the general policy).
101 Azat (n 53) para 4 (Justice Naor).
102 HCJ 2486/14 Nader Masri v Minister of Defense and Others (unpublished, 7 April 2014), http://elyon1.Court.gov.il/files/14/860/024/a02/14024860.a02.pdf; State Response (unpublished, 6 April 2014), http://gisha.org/UserFiles/File/LegalDocuments/2486-14/masri_state_response-he.pdf.
103 Masri, ibid 4.
104 Even then, if a resident is defined as a security risk, his entry will be denied: PHR Medical Treatment (n 86) (in which the entry of a terminally ill cancer patient was denied because he allegedly presented a security risk).
105 For a non-exhaustive review see Kishawi (n 25).
106 Hamoked (n 25) (this case confirmed the Settlement Procedure (n 71)). See also Hamoked and B'tselem, ‘So Near and Yet So Far: Implications of Israeli-Imposed Seclusion of Gaza Strip on Palestinians’ Right to Family Life’, January 2014, https://goo.gl/d8UNkA. In Abir Hamdan the state refused to let a bride move to the West Bank in order to marry, arguing that she had no right to choose her place of marriage and that she could not create a new humanitarian ground: Abir Hamdan, State Response (n 55) 29, 34 and 38. See also HCJ 1892/10 Naser Abu-Sardane and Others v Commander of the West Bank Area (unpublished, 11 August 2010), http://elyon1.court.gov.il/files/10/920/018/h05/10018920.h05.pdf. Israel did not even allow a bride to exit Gaza in order to marry abroad: Edo Konrad, ‘Israel Preventing Gaza Woman from Attending Her Own Wedding’, 972 Magazine, 20 November 2015, https://goo.gl/JYTfgN. In addition, the movement of Gaza residents to Israel for the purpose of family reunification has been entirely forbidden since 2008: Hadri (n 66).
107 Garboa (n 93); Abu-Hamida (n 60); HCJ 5829/09 Tahrir Mansur and Others v Commander of the West Bank Area (unpublished, 30 July 2009), http://elyon1.court.gov.il/files/09/290/058/s02/09058290.s02.pdf.
108 Anbar (n 19) 7.
109 Osama Hamdan (n 17) 17; Azat (n 53) paras 17–18 (Justice Rubinstein), para 2 (Justice Naor), para 2 (Justice Zilbertal); Sharif (n 53) 2.
110 Kishawi (n 25) 7.
111 This distinction was first introduced in June 2007, when the Erez crossing was mostly closed for security reasons and the state therefore decided to grant permits only for the most critical patients: PHR 5429/07 (n 18) Updating Announcement of the State (unpublished, 24 June 2007) paras 4–6, http://gisha.org/UserFiles/File/LegalDocuments/stateresponde5429-0724.5.07.pdf. However, this distinction remained in force for many years, notwithstanding the relatively regular activity of the crossing.
112 ibid para 6(5)(b). This phrase was later inserted into the policy papers as a criterion for receiving a permit: COGAT, Permission Status (n 64) s 2(a)(1), and COGAT, Policy Paper (n 64) s 7(a)(1).
113 For a critical analysis of the ‘minimum humanitarian’ with regard to food supply to Gaza, see Gross and Feldman (n 77).
114 Al-Bassiouni (n 2).
115 HCJ 1169/09 Legal Forum for the Land of Israel v The Prime Minister and Others (unpublished, 15 June 2009), para 21, http://elyon1.Court.gov.il/files/09/690/011/r09/09011690.r09.pdf.
116 This is true in peacetime as well as in time of war: PHR Cast Lead (n 25) paras 26–27 (President Beinisch); ACRI (n 10); HCJ 4258/08 Gisha and Others v Minister of Defense (unpublished, 5 June 2008), http://elyon1.court.gov.il/files/08/580/042/n04/08042580.n04.pdf.
117 Legal Forum (n 115).
118 In Al-Bassiouni (n 2) para 20, the Court stated: ‘Our role is limited to judicial review of compliance with the provisions of Israeli and international law that bind the State of Israel, which, according to the declaration of the respondents, are being scrupulously observed by the state’. See also PHR 5429/07 (n 18); Diamond (n 50) 13–17.
119 See, eg, Osama Hamdan (n 17). Unfortunately, the shying away from principled legal discussion is typical of the HCJ's mindset in recent years in deliberating on political or human rights issues. For a critical review of this trend see Michal Luft, ‘Guys, Haven't You Exaggerated a Bit? Where Has the Judicial Review of the Israeli Courts over State Actions Gone?’ (2014) 29 Hamishpat Online: Human Rights – an Online Law Review 25.
120 HCJ 7042/12 Maher Abu-Daka and Others v Minister of Interior and Others (unpublished, 16 December 2014), para 10, http://elyon1.Court.gov.il/files/12/420/070/t10/12070420.t10.pdf.
121 ibid para 19.
122 This is typical behaviour of the Court in both Gaza and West Bank-related petitions: Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (State University of New York Press 2002) 25–27, 69–70, 196 (arguing that the courts are more at ease with overturning a Military Commander's decision on the basis of Israeli administrative law than on the basis of international law, since the former is considered an internal rather than external constraint on the state). See also Kretzmer, David ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ (2012) 94 International Review of the Red Cross 207, 228–32. However, given the broad discretion granted to the state and the fact that administrative law is made up of principles that are inherently vague, most decisions are not dismissed but rather legitimised: Orna Ben-Naftali, ‘The Epistemology of the International Law Closet and the Spirit of the Law’ in Daphna Hacker and Neta Ziv (eds), Does Law Matter? (Tel Aviv University 2010) 527, 539–40 (in Hebrew); Koskenniemi, Martti, ‘Occupied Zone – “A Zone of Reasonableness”?’ (2008) 41 Israel Law Review 13.
123 eg, PHR Medical Treatment (n 86) 7–12; PHR 9522/07 (n 17) 4; Kishawi (n 25) 5; Hamoked (n 25) 18.
124 This estimate is based on a non-exhaustive review of many judgments on Gaza-related petitions over the past decade. To my knowledge, no empirical research in this field has been published to date. However, similar studies on the HCJ's scope of interference in petitions concerning West Bank issues and Gaza prior to 2005 reveal similar results: Kretzmer 2002 (n 122); Ronen Shamir, ‘Landmark Cases and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice’ (1990) 24 Law and Society Review 781.
125 Osama Hamdan (n 17) 1, 12 and 17; see also PHR Medical Treatment (n 86) 12; Azat (n 53) paras 1, 8 and 13 (Justice Rubinstein); Hamoked (n 25) 19; Masri (n 102) 4; HCJ 5649/12 Fahima Hamdan and Others v Commander of Southern Command and Others (unpublished, 16 August 2012), http://elyon1.Court.gov.il/files/12/490/056/c02/12056490.c02.pdf.
126 Fahima Hamdan, ibid 4. As a matter of policy, Israel generally prohibits Israelis from visiting family relatives who live in the Gaza Strip, except in extreme cases. This practice was approved by the HCJ, despite its grave breaches of the citizens’ constitutional right to family life: HCJ 7235/09 Hamoked Center for the Defense of the Individual v Commander of the Southern Command (unpublished, 16 September 2009), http://elyon1.court.gov.il/files/09/350/072/o03/09072350.o03.pdf.
127 eg, Hamoked (n 25) 19–20; Association of Foreign Reporters (n 72); Abu-Sardane (n 106) 3 (in which, despite dismissing the petition, the HCJ called on the state to review its decision with regard to the specific petitioners).
128 Masri (n 102) 4. For a critical review of this judgment see Diamond (n 50).
129 Hamoked (n 25) 19–20.
130 Abu-Daka (n 120) 20.
131 Azat (n 53) paras 18–19 (Justice Rubinstein).
132 Until June 2017, Israel sold Gaza 120 megawatts through ten electricity lines: Gisha, ‘Hand on the Switch’, January 2017, 3–9, http://gisha.org/UserFiles/File/publications/infrastructure/Hand_on_the_Switch-EN.pdf. On 11 June 2017, Israel's Security Cabinet decided to cut 40 per cent of this amount, which means that Israel supplied Gaza with only 70 megawatts, seven from each line: Samuel Osborne, ‘Israel Cuts Power Supply to Gaza Strip as Palestinian Authority pressures Hamas’, Independent 13 June 2017, http://www.independent.co.uk/news/world/middle-east/israel-gaza-strip-power-cuts-palestinian-authority-hamas-settlements-a7787916.html.
133 Jack Khouri, ‘Israel to Double Amount of Water Supplied to Gaza’, Ha'aretz, 4 March 2015, https://www.haaretz.com/israel-to-double-amount-of-water-supplied-to-gaza-1.5332185.
134 For an analysis of Israel's control over construction projects in Gaza, see Bashi (n 53) 161–64.
135 Gisha (n 132) 7, 17–19.
136 COGAT, ‘Procedure for the Coordination of Transfer of Cash between the Palestinian Authority Territories and Israel or Overseas’, April 2015, http://www.gisha.org/UserFiles/File/LegalDocuments/procedures/general/108.pdf (in Hebrew).
137 Israeli military forces are stationed all along the land and maritime borders of Gaza and can thus shoot live ammunition on persons who cross beyond the authorised area. The incidents of March and April 2018, in which dozens of Gazans were shot dead during protests in Gaza in proximity to the border with Israel, illustrate this element of control: Isabel Kershner and Iyad Abuheweila, ‘Israeli Military Kills 15 Palestinians in Confrontations on Gaza Border’, The New York Times, 30 March, 2018, https://www.nytimes.com/2018/03/30/world/middleeast/gaza-israel-protest-clashes.html; ‘Israeli Navy Shoots Gaza Fisherman Dead’, Al Jazeera, 15 May 2017, http://www.aljazeera.com/news/2017/05/israeli-navy-shoots-gaza-fisherman-dead-170515191205958.html.
138 Israel did not declare that with its withdrawal from Gaza it would relinquish its control over the area. On the contrary, continuous Israeli control is embedded in the ‘Disengagement’ Plan. Gross rightly argues that Israel sought to end the discussion about control, rather than to end the control itself: Gross (n 46) 205–26.
139 Defense Export Control Order (n 62) (last amended on November 2015).
140 eg, Shber, discussed below (n 162 and onwards).
141 These security ‘talks’ are essentially investigations of Gaza residents who are being summoned to Erez crossing for this special purpose, or who happen to cross the border on that day. They are conducted by Israel Security Agency investigators: Jen Marlowe, ‘In Gaza, Medical Permits Linked to Intelligence Gathering’, Al Jazeera America, 19 November 2015, http://america.aljazeera.com/articles/2015/11/19/medical-permits-tied-to-intelligence-gathering.html; Amira Hass, ‘Shabak has Increased Investigations of Traders and Businessman from Gaza to Gather Information’, Ha'aretz, 29 January 2016, https://www.haaretz.co.il/news/politics/.premium-1.2834058 (in Hebrew).
142 Jack Khoury, ‘Israel Barring Palestinians from Entering for Medical Care over Cellphones, Witnesses Say’, Ha'aretz, 23 February 2017, https://www.haaretz.com/middle-east-news/palestinians/israel-barring-palestinians-from-entering-for-medical-care-over-cellphones-witnesses-say-1.5440483.
143 The Oslo Accords determined that despite the transfer of certain responsibilities to the Palestinian Authority, the Israeli Military Commander would retain residual authority over the entire area: Israel Ministry of Foreign Affairs, Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993, art VIII, https://goo.gl/LRPjof. For more details and a commentary on the legal status of the West Bank following the Oslo Accords, see Gross (n 46) 181–204.
144 Case of A, State Response (n 9) 38.
145 Case of A (n 9) Amended Petition (unpublished, 30 January 2011) paras 77–111.
146 ibid paras 182–205.
147 ibid paras 206–23.
148 Case of A (n 9) State Response to the Amended Petition (unpublished, 7 February 2011) para 36.
149 ibid para 40 (emphasis added).
150 ibid para 41 (emphasis added).
151 Case of A, State Response (n 9) para 55.
152 ibid 79. Such a claim distorts and makes both erroneous and cynical use of the lex specialis doctrine, which is designed to promote IHRL purposes by applying its norms to the greatest extent possible, alongside the LoAC: Ben-Naftali and Shany (n 9) 56.
153 Case of A, State Response (n 9) para 79 (emphasis added).
154 Osama Hamdan (n 17) (‘It is obvious that the law is not in the center of the circumstances, which are unique, sui generis in every sense of the word’); Azat (n 53) para 17 (Justice Rubinstein) (‘The situation of Israel vis-à-vis the Palestinians … in Gaza is not “normal”, and it has complexity and uniqueness’). See also Gross (n 46) 223.
155 Interestingly, the HCJ in the past had opposed the granting of ‘special status’ to other groups of persons in light of the vague content of such statuses: see, eg, HCJ 282/88 Mubarak Awad v The Prime Minister and Others 1988 PD 42(2) 424, para 9 (where President Barak ruled that one should prefer interpretation to legislation which ‘prevents the existence of legal “holes” and advances equality’). The Court repeated this statement in AdminA 5829/05 Salah Dari and Others v Ministry of Interior (unpublished, 20 September 2007), http://elyon1.Court.gov.il/files/05/290/058/Z19/05058290.z19.pdf.
156 Case of A (n 9) para 20 (emphasis added).
157 It should be noted that commensurate with the government's own arguments, the Court did not refer at all in this case to Israel's ‘humanitarian duties’ towards Gaza residents.
158 Gross argues that in many aspects of Israel's policy (and rhetoric) towards Gaza, one can identify an attempt to shift from an ‘occupation paradigm’ to a ‘belligerent paradigm’: Gross (n 46) 235–47.
159 Add.HCJ 2493/11 A v Minister of Defense and Others (unpublished, 18 May 2011), http://elyon1.Court.gov.il/files/11/930/024/04p/11024930.04p.pdf.
160 As mentioned, Israel has retained the authority to arrest and detain Gaza residents following the ‘Disengagement’. Such power is currently applied in a harsher manner than before the ‘Disengagement’: A (n 19).
161 This was the penalty under the law that was in force at the time of the offence.
162 Cited in Oth.CrimR 1780/15 Abdelhakim Shber v The State of Israel (unpublished, 23 March 2015), para 7, http://elyon1.Court.gov.il/files/15/800/017/w02/15017800.w02.pdf.
163 See CrimC (BS) 35009-01-15 The State of Israel v Abdelhakim Shber (unpublished, 6 September 2015), para 14.
164 ibid para 16.
165 CrimC (BS) 37117-02-15 The State of Israel v Rihad Mashrahawi (unpublished, 28 January 2016). This case was combined with Shber at the appellate level. For an additional conviction see CrimC (BS) 27227-02-15 The State of Israel v Ahmad Tzaidi (unpublished, 1 February 2016). For an additional acquittal see CrimC (BS) 27274-02-15 The State of Israel v Awad Tzaidi (unpublished, 27 May 2015).
166 CrimA 6434/16, 838/16 The State of Israel v Abdelhakim Shber and Others (unpublished, 4 July 2017), http://elyon1.court.gov.il/files/15/340/064/a23/15064340.a23.pdf (Shber); Protocol of the Hearing (unpublished, 6 July 2016).
167 Israel, State's Attorney Directive No 2.30, ‘Prosecution Policy of Gaza Residents for Providing Services or Supplying Needs to the Terror Organization Hamas’, 5 February 2017, http://www.justice.gov.il/Units/StateAttorney/Guidelines/02.30.pdf.
168 Shber (n 166) para 48.
169 ibid para 68.
170 ibid para 70.
171 ibid para 67.
172 ibid paras 94–95, 99.
173 A good example is Azat (n 53) paras 3–4 (Justice Naor), paras 2–4 (Justice Zilbertal).
174 Abu-Daka (n 120) para 18; PHR 5429/07 (n 18) para 6(5)(b).
175 Studies in the West Bank are still prohibited: see text to n 91.
176 See text to n 87.
177 See text to n 89; COGAT, ‘Procedure for the Exit of Palestinians Residents of the Gaza Strip to Prayers in Al-Aqsa Mosque on Fridays’, February 2015, https://goo.gl/gFUwn2 (in Hebrew).
178 See COGAT, Permission Status (n 64).
179 These cases included movement of Gaza residents who were workers with Israeli NGOs and undergraduate students: see AdminC (BS) 19657-08-13 B'tselem – The Israeli Information Center and Others v Minister of Defense and Others (unpublished, 28 January 2014), http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/verdict_complete.pdf. For a critical analysis of this practice see Bashi (n 53) 161.
180 Taia (n 58) 5, 28, 31, 41–43; B'tselem, ibid, Complementing Response by the State (unpublished, 17 September 2013), paras 10–11, 16–19, 31–32, http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/state_answer_17.9.13.pdf; HCJ 5711/17 Tzafia Raduan and Others v Minister of Defense, Preliminary Response by the State (unpublished, 25 July 2017), paras 24, 28, 32–35, 38–39, http://gisha.org/UserFiles/File/LegalDocuments/5911-17/state.response.pdf.
181 Azat (n 53) para 13 (Justice Rubinstein).
182 ibid para 18.
183 During the discussion in B'tselem (n 179), Justice Netzer of the Beer Sheva District Court issued a decision stating: ‘It is unreasonable in my view, that the same administrative authority that, on the one hand, claims that the entrance to Israel from the Gaza Strip can be approved only on humanitarian grounds, will approve requests which are undoubtedly not of humanitarian nature’: see Protocol of the Hearing (unpublished, 15 August 2013) 4, http://www.gisha.org/UserFiles/File/LegalDocuments/19657-08-13/protocol.pdf. However, Justice Netzer later decided to dismiss the case.
184 Azat (n 53) Justices Naor and Zilbertal.
185 Benvenisti (n 28) 1; Orna Ben-Naftali and Yuval Shany, International Law between War and Peace (Ramot Publications, Tel Aviv University 2006) 115–20; PHR Cast Lead (n 25); HCJ 3451/02 Mohammed Almadani and Others v Minister of Defense and Others 2002 PD 56(3) 30, http://elyon1.Court.gov.il/files_eng/02/510/034/a06/02034510.a06.pdf (in English).
186 Ben-Naftali (n 122) 538–39; Orna Ben-Naftali, Aeyal Gross and Keren Michaeli, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23 Berkeley Journal of International Law 551, 554, 606–08.
187 Hague Regulations (n 4) art 42; Benvenisti, Eyal, ‘Water Conflicts during the Occupation of Iraq’ (2003) 97 American Journal of International Law 860, 861.
188 nn 41–44.
189 nn 46–50.
190 HRC, General Comment 31 – Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004), UN Doc CCPR/C/21/Rev.1/Add.13; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion  ICJ Rep 136, ; ECtHR, Al-Skeini and Others v United Kingdom, App no 55721/07, Judgment, 7 July 2011.
191 Yuval Shany, ‘Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law’ (2013) 7(1) Law and Ethics of Human Rights 47; Noam Lubell, ‘Human Rights in Military Occupations’ (2012) 94 International Review of the Red Cross 317.
192 ECtHR, Cyprus v Turkey, App no 25781/94, Judgment, 10 May 2001, para 78 (in which it was stated that finding Turkey irresponsible for human rights violations in Northern Cyprus ‘would result in a regrettable vacuum in the system of human rights protection … by removing from individuals there the benefit of the Convention's fundamental safeguards’). See also Ben-Naftali and Shany (n 185) 24, 46, 80; Shany (n 28) 377; Israeli Experts’ Opinion (n 23) 6; Ben-Naftali, Gross and Michaeli (n 186) 612; Scobbie (n 38) 30.
193 Shany claims that despite the dichotomy that characterises IHL, this body of law still suffers from ambiguity and duality in its terms and provisions. Partly because many of its provisions were drafted a hundred years ago, it is contended there is a gap between the written legal reality and the factual reality. This gap may lead each belligerent party to choose the interpretation which best suits its interests, often at the expense of human rights: Shany (n 5) 73–75, 80–83; Ben-Naftali (n 122) 535, 537–42; Eitan Diamond, ‘Before the Abyss: Reshaping International Humanitarian Law to Suit the Ends of Power’ (2010) 43 Israel Law Review 414.
194 Oscar Uhler and Henri Coursier, Commentary on the Geneva Conventions of 12 August 1949, Vol IV (ICRC 1950) 51. The question of the existence of a third category of ‘illegal combatants’ has risen in the context of targeted killings of terrorist group forces as well as their arrest in Guantánamo, for instance: see Extra-Judicial Killings (n 16) para 28 (President Barak); Borelli, Silvia, ‘Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the “War on Terror”’ (2005) 87 International Review of the Red Cross 39, 48–49; Steyn, Johan, ‘Guantánamo Bay: The Legal Black Hole’ (2004) 53 International & Comparative Law Quarterly 1.
195 Gross (n 1); Maurer (2014) (n 38) 177.
196 Fourth Geneva Convention (n 44) art 23; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3, arts 54, 70.
197 Al-Bassiouni (n 2) 12.
198 Al-Bassiouni, Preliminary Response by the State (n 10) 37–57, 73, 79.
199 Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (Yale University Press 1919) 36–38.
200 nn 52 and 53.
201 Case of A, State Response (n 9) 79.
202 nn 25 and 26.
203 This idea was also raised by Bashi (n 53) 166–67.
204 The outcome is what the scholar James has described as ‘a host of faulty legal arguments in support of Israeli action, creating, along with previous Israeli policies and positions, a maze of manufactured misconceptions, contorted logic, and obscured legal relationship with Gaza’: James (n 14) 663.
205 Darcy and Reynolds (n 14) 242–43; Ben-Naftali (n 122) 537–42. See also the words of former head of the International Law Department of the IDF, Daniel Reisner: ‘What we are doing today is a revision of International Law, and if you do something long enough, then the world will accept it. The entirety of international law is based on the premise that an act which is forbidden today will become allowed, if enough states will carry out such an act … international law advances through violation’, in Uri Blau and Yotam Feldman, ‘“Cast Lead” Operation: This is how the Military Advocacy Enabled the IDF to Win’, Ha'aretz, 23 January 2009, https://www.haaretz.co.il/misc/1.1528798.
206 Ariella Azoulay and Adi Ophir, This Regime Which Is Not One – Occupation and Democracy between the Sea and the River (1967–) (Resling 2011) 299 (in Hebrew). See also Eyal Weizman, The Least of All Possible Evils: Humanitarian Violence from Arendt to Gaza (Verso 2012) 81 (who argues that Israel's conduct can be described as a process of transformation from physical ‘occupation’ to ‘humanitarian management’).
207 For example, in one of its procedures Israel demands that Gaza residents who need to enter Israel for a court hearing must prove not only the existence of the hearing but also that there are ‘exceptional humanitarian circumstances’ to justify entrance: COGAT, ‘Procedure for Examining Entry Requests of Palestinians Living in Gaza for the Purpose of Conducting Legal Procedures within Israel’, May 2013, https://goo.gl/qgt6X (in Hebrew). See also n 106 with regard to the settlement procedure (n 71); Abu-Daka (n 120); Gross and Feldman (n 77).
208 HCJ 4974/17 Jamila Masri v Coordinator of Government Activities in the Territories and Others, Preliminary Response by the State (unpublished, 27 June 2017), para 25, http://gisha.org/UserFiles/File/LegalDocuments/4974-17/StateResponse_27.6.17.pdf; Taia (n 58); Raduan (n 180) 5, 28 and 32.
209 See, eg, HCJ 3644/17 Mohammed Sharif v Coordinator of Government Activities in the Territories and Others Preliminary Response by the State (unpublished, 14 June 2017), para 3, http://gisha.org/UserFiles/File/LegalDocuments/petition3.5.17/StateResponse_14.6.17.pdf.
210 COGAT, ‘Call to Cancel the Ban on the Entrance of Timber Planks and Related Materials into the Gaza Strip’ (response to a letter by Gisha), 16 December 2015, art 3, http://gisha.org/UserFiles/File/LegalDocuments/wood/cogat_response_16.12.2015.pdf (in Hebrew).
211 Azat (n 53) para 4 (Justice Naor); Issam Hamdan (n 93).
212 For a similar critique of the (non) legal system in Guantánamo, see Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16(4) European Journal of International Law 613; Fleur Johns, Non-Legality in International Law: Unruly Law (Cambridge University Press 2013) 69–108.
213 Indeed, legal ambiguity contributes to the creation of anomalous legal statuses, which deplete the law of its substance and foil its purpose, as we have seen with regard to the concocted status of ‘special resident’.
214 Darcy and Reynolds (n 14) 242; James (n 14) 663; Roy (n 11).
215 Gross claims that this legal ambiguity constitutes in and of itself a means of control over Gaza residents: Gross (n 1), Gross (n 46) 204–06, 241. Shany, too, contends that in its policy towards Gaza Israel wishes to avoid, to the greatest extent possible, the duties of an occupying power on the one hand, while at the same time continuing to control important aspects of life in Gaza on the other: Shany (n 5) 82–83; Scobbie (n 38) 30.
216 James (n 14) 661; see also Darcy and Reynolds (n 14) 231.
217 As Darcy and Reynolds correctly note, this behaviour is ‘indicative of a legal culture of evasion and manipulation, rather than compliance’: Darcy and Reynolds (n 14) 243. See also Gross (n 46) 223 (‘The “sui generization” of Gaza is thus part of the “sui generization” of this occupation in general—its portrayal as simultaneously occupation and not occupation in order to enable the “pick and choose” regime’).
218 Of course, the strategies are somewhat different since towards the West Bank Israel still wishes to retain an ‘occupation façade’: Kretzmer (2002) (n 122) 197; Ben-Naftali, Gross and Michaeli (n 186) 611.
219 Kreztmer (2002) (n 122) 33–41, 71, 197; Menachem Hofnung, Israel – Security of the State against the Rule of Law: 1948–1991 (Nevo 1991) 281, 285–87 (in Hebrew). See also Akevot – Institute for Israeli-Palestinian Conflict Research, ‘The Comay-Meron Cable Reveals Reasons for Israeli Position on Applicability of 4th Geneva Convention’, http://akevot.org.il/article/comay-meron-cable/#popup/826e55c55c24e5916d77268cbcf2f9f8 (in Hebrew). While formally rejecting the application of the Geneva Convention, Israel declared it would voluntarily apply its ‘humanitarian’ provisions: Blum, Yehuda Zvi, ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’ (1968) 3 Israel Law Review 279; Shamgar, Meir, ‘The Observance of International Law in the Administered Territories’ (1971) 1 Israel Yearbook on Human Rights 262. This legal ambiguity exists also with regard to the application of IHRL in the West Bank: Kretzmer (2012) (n 122) 211.
220 Israel argues that some provisions of the law of occupation should be given a ‘dynamic interpretation’ in light of the unique characteristics of the Israeli occupation – including the temporal element, the security situation, and the interdependency of the areas. The HCJ has accepted this interpretive approach and, in doing so, has legitimised some of the most harmful actions taken against the Palestinians. For a critical analysis of this practice, see Harpaz, Guy and Shany, Yuval, ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’ (2010) 43 Israel Law Review 514; Kretzmer (2012) (n 122) 216–26; Ben-Naftali, Orna, ‘PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and other Legal Pathologies’ in Ben-Naftali, Orna (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011) 130, 176–77. Kretzmer (2002) (n 122) 58–72, 91–93, 111, 135 and 197 (arguing that this ambiguity has provided Israel with a convenient means of control). See also Kretzmer, David, ‘The Laws of Belligerent Occupation as a Control System: Dressing the Dispossession in a Distinguished Cover’ in Bar-Tal, Daniel and Schnell, Izhak (eds), The Impact of Lasting Occupation: Lessons from Israeli Society (Oxford University Press 2013) 45, 46; Dinstein (n 23) 28–30.
221 Ben-Naftali (n 122) 538; Ben-Naftali, Gross and Michaeli (n 186) 551, 556.
222 See Scobbie (n 38) 26; Azoulay and Ophir (n 206) 308. See also Zemach (n 31) 89 (who acknowledges that ‘a situation where the local population is left in a ‘legal vacuum’ – in which it is impossible to point to a legal entity in International Law that is in charge of ensuring public order and safety, as well as the population's basic needs – is a catastrophe, and International Law aims to prevent this’).
223 Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press 1995) 166–80.
224 Azoulay and Ophir (n 206) 296–300, 308–09.
225 ibid 308.
226 Lesch, Ann M, ‘Gaza: Forgotten Corner of Palestine’ (1985) 15(1) Journal of Palestine Studies 43.
227 Kretzmer (2012) (n 122) 236; Cohen, Amichai, ‘The Influence of International Law on Israel in the Era of Global Jurisdiction’ (2010) Parliament – The Israel Democracy Institute 65; Harpaz, Guy, ‘The Israeli Supreme Court in Search of Universal Legitimacy’ (2006) 65 Cambridge Law Journal 7.
I am grateful for the comments of Professor Orna Ben-Naftali, Professor David Kretzmer, Professor Guy Harpaz and Advocate Shlomo Kaplan on previous versions of this article, as well as to the Israel Law Review editors and the anonymous referees for their comments. The views expressed in this article are solely my own and do not necessarily reflect the positions of Gisha.
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