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IV. Principles of
International Humanitarian Law Respecting Closure
The following
passage, by Professor Irwin Cotler, Professor of International Human
Rights law at McGill University, outlines the humanitarian legal framework
for an analysis of the closure:
Israel’s
actions in the West Bank and Gaza are subject to the 1907 Hague
Regulations and the Fourth Geneva Convention 1949, which seek to protect
civilians living under occupation. While the establishment of Palestinian
self-rule in parts of the West Bank and Gaza has dramatically altered the
juridical, political, and administrative structure in the territories, it
has not significantly altered the nature of Israel’s obligations as an
occupying power under international law.
In a word,
despite redeployment from parts of the occupied territories and
notwithstanding the fact that most Palestinian residents of the West Bank
and Gaza now live under total or partial self-rule Israel still retains
direct or residual control over significant parts of the West Bank and
Gaza. Indeed, even in self-rule areas where the PNA has responsibility for
internal security, the Israeli military still retains the "overriding
responsibility for security", as well as responsibility for external
security respecting the borders of self-rule areas with neighboring Jordan
and Egypt. As the senior Israeli government negotiator in the Israeli-PLO
talks put it, "notwithstanding the transfer of a large portion of the
powers and responsibilities currently exercised by Israel to Palestinian
hands, the status of the West Bank and Gaza Strip will not be changed
during the interim period. These areas will continue to be subject to
military government."
The governing
principles of international humanitarian law as they apply to this
juridical relationship are as follows:
· Both the
Hague Regulations and the Fourth Geneva Convention prohibit the imposition
of collective penalties on the occupied population.
· The Fourth
Geneva Convention also requires that the occupying power secure the food
and relief supplies of the occupied population, while ensuring and
maintaining medical and health services, and allowing medical personnel to
carry out their duties.
· It should be
noted that these specific obligations are anchored in a general duty, set
forth in the Hague Regulations, to ensure the welfare of the occupied
population. Indeed, even if it were argued that Israel is no longer an
occupying power because it has handed over the powers and functions of
governance to the PNA, the fact that - under international humanitarian
law - it retains residual sovereign and security powers that affect the
welfare of the population means that, at a minimum, an occupation still
exists juridically for the purposes of the Hague Regulations and the
Fourth Geneva Convention.
In sum, under
international humanitarian law, Israel remains, even following the Oslo
and Wye Accords, legally responsible for the general welfare and
conditions of the Palestinian residents of the West Bank and Gaza Strip.
Of particular
concern to our discussion of workers’ rights is article 39 of the Fourth
Geneva Convention which requires:
Where a party
to the conflict applies to a protected person methods of control which
result in his being unable to support himself, and especially if such a
person is prevented for reasons of security for finding paid employment on
reasonable conditions, the said Party shall ensure his support and that of
his dependents.
Since its
imposition of closure “for reasons of security,” Israel has indeed caused
the loss of livelihood and support tens of thousands of Palestinian.
Nevertheless, Israel, in contravention of the Fourth Geneva Convention has
refused to financially “ensure [the] support” of those “protected
persons,” by neglecting Palestinian workers and families economically
injured by the closure.
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