Israel’s Occupation and the abuse of international law

10 June 2007

Dear Sir/Madam

Please find attached “Australians for Palestine” Briefing Paper No. 26.

This is the twenty-sixth in a series of weekly briefing papers that is being issued to all Members of Parliament.

We trust you will find the information useful and if you require any further information please do not hesitate to contact the undersigned.

Yours truly,
Australians for Palestine

Moammar Mashni
AUSTRALIANS FOR PALESTINE
Melbourne – Australia
PO Box 2099
Hawthorn VIC 3122
P: 03 9818 5080
F: 03 9818 5009
M:0419 999 773


Israel’s Occupation and the abuse of international law
Introduction
The purpose of Israel’s occupation of the last 22 per cent of historic Palestine in 1967 is, and was always, to control and ultimately
appropriate every inch of Palestinian land. This is illegal and contrary to the longstanding international legal principle that no
country can expand its territory by military means. The excuse Israel gives for doing so, and one that is bizarrely accepted, is
that Israel must defend itself from a terrorist population threatening Israel’s very existence. Ignored is the fact that this is not a
foreign population, but an indigenous one that has lived in all of the land before the UN divided it unequally in 1947 between foreign
Zionist groups and indigenous Palestinians. Israel then illegally acquired more land by force during the 1948 war and induced the
flight of hundreds of thousands of Palestinians from their homes and homeland through a campaign of terror. Those who remained
and became citizens of Israel have increasingly been subjected to the illegal policies and practices of state-administered apartheid.
The Palestinians who ended up in the refugee camps or in the Diaspora have never been compensated for their loss of homes and
possessions, or more importantly, been allowed their right to return home. These violations of international law and conventions
and breaches of UN resolutions already occurred before the 1967 war. After Israel’s 6-day victory, the Palestinians who did not
flee, but remained - many of whom had already sought refuge in the West Bank, Gaza Strip and East Jerusalem from the 1948 war -
came directly under Israel’s military control. Since then, that control has been exercised belligerently, and also by stealth in various
forms, and the Palestinian people living in those areas have been forcibly deprived of their liberty for 40 years. Israel should by
rights have been regulated by the UN Charter and the law known as jus ad bellum (justice of war) which arises out of humanitarian
considerations for the occupied population. However, Israel has been able to violate Palestinian human rights because there is no
universally enforced system of international law and because Israel, against world opinion, refuses to recognize the territories as
occupied. Now, Israel’s violations of international law are becoming more blatant as their end goal to permanently control all of
Palestine and create an exclusively Jewish state lies within reach. The obstacles in Israel’s way are some 5 million Palestinians in
Israel and the Occupied Palestinian Territories. Unless the international community demands that Israel respect the rule of law and
human rights, Israel will arrogate to itself the authority to ethnically cleanse the Palestinians from their land (as it has already been
doing) in any way it chooses. The question that the international community needs to ask itself is to what extent will Israel be
allowed to continue these violations before there is an outcry about its history of crimes against humanity? The reasonable person
would know that a just outcome for a violated people illegally dispossessed, illegally discriminated against and illegally occupied is
only possible through universal respect for international law and a universal agreement for a system to enforce it.
Disengagement from Gaza but controls remain
Since Israel pulled the settlers out of Gaza in what was called “disengagement”, it no longer regards itself as occupying Gaza, and
therefore, not subject to the obligations of an occupying power. However, according to article 42 of the Hague Regulations,
occupation is defined as “effective control” and while there are some commentators who insist that a military presence on the
ground is a sine qua non of occupation, others believe that control is the key issue. The latter position is strongly supported by
case law and commentary on the subject. In fact, technical advances in modern armaments have made it possible for control to be
exercised from the outside as Israel has done with Gaza. The Palestinian population has been absolutely imprisoned in this narrow
strip of land while Israel’s tanks, naval ships and air force have Gaza under 24-hour surveillance. There is no passage out of or into
Gaza without permission from the Israeli authorities and all the while Israel continues to attack the civilian population with aerial
bombardments, sound bombs, artillery fire and tank invasions. These measures have had a devastating effect on the proper
functioning of civilian life inside Gaza thereby violating international law, international human rights law, international humanitarian
law, and Israeli constitutional and administrative law.
Israel’s plan for permanent control
Israel’s Prime Minister Ehud Olmert’s Convergence or Realignment Plan seeks to impose unilaterally Israeli control over a
“sovereign” Palestinian pseudo-state. Under this Plan, a viable Palestinian state would be impossible. Olmert has said that “Israel
will maintain control over the security zones, the Jewish settlement blocs, and those places which have supreme national
importance to the Jewish people, first and foremost a united Jerusalem under Israeli sovereignty. We will not allow the entry of
Palestinian refugees into the State of Israel.” With regard to Jerusalem, not only did Israel illegally annex it in 1967, it declared all
of Jerusalem “complete and united” as Israel’s capital in 1980 deliberately ignoring Jerusalem’s internationally recognised status as
a corpus separatum or separate body.
Israel’s breaches and obligations
Israel’s duties are spelled out in the 1907 Hague Regulations (arts 42-56) and the Fourth Geneva Convention (GC, art 27-34 and 47-78), as
well as in certain provisions of Additional Protocol 1 and customary international humanitarian law.
 Israel has breached all the legal obligations of an occupying power, most particularly by confiscating private property, pillaging resources,
transferring its civilian population into the occupied territory and collectively punishing the Palestinians under occupation and legalising an
apartheid system of discrimination.
 Although “ethnic cleansing” has not been codified into international law, there is clear evidence that Israel has planned and formulated
official policy to “transfer” the Palestinians out of their homeland which correlates with the modern definition of “ethnic cleansing”. In terms
of international law, article 49 of the Geneva Conventions regards the deportation of “protected persons” a “grave breach” of international
law.
Australian action
• DEMAND THAT ISRAEL ABIDE BY INTERNATIONAL LAW AND CONVENTIONS AND UN RESOLUTIONS THAT REQUIRE IT TO FULFIL ITS LEGAL OBLIGATIONS AS AN OCCUPYING POWER AND DEMAND AN END TO THE ILLEGAL OCCUPATION.

References:
Gisha: Legal Center for Freedom of Movement - “Disengaged Occupiers: the Legal Status of Gaza”, January 2007
Israel Law Resource Centre, “Is Israel Guilty of Violating International Law?” and other questions, February 2007