Chapter 4: ISRAEL’S OBLIGATIONS UNDER INTERNATIONAL LAW (pp. 70-84)

This chapter outlines the legal framework governing Israel’s conduct in the Occupied Palestinian Territory (OPT), including Gaza, particularly in the context of the armed conflict that began on 7 October 2023.

  • Overview (p. 70): The situation in Gaza and the West Bank is considered a military occupation under international law. Israel has obligations under both international humanitarian law (IHL) – including the law of occupation – and applicable international human rights law (IHRL). IHL binds all parties to an armed conflict, including non-state armed groups. IHRL applies in peacetime and during armed conflict, and is legally binding on states and their agents.

4.1 INTERNATIONAL HUMANITARIAN LAW (pp. 70-79)

IHL (law of armed conflict/laws of war) aims to limit human suffering in armed conflict by balancing military necessity with humanity. It primarily protects those not participating in hostilities (civilians) and combatants who are sick, wounded, or captured. The 1949 Geneva Conventions and their 1977 Additional Protocols are key instruments. While Israel is party to the Geneva Conventions, it is not to the Additional Protocols, but is bound by customary IHL rules (p. 71).

  • 4.1.1 Nature of Armed Conflict (p. 71): Military occupations are considered international armed conflicts. The occupation of Gaza is governed by IHL applicable to belligerent occupation (occupation law) and IHRL. In situations of intense fighting, like in Gaza post-7 October 2023, IHL rules on the conduct of hostilities apply alongside occupation law and IHRL. The fighting between Israel and Hamas (and other armed groups) is also subject to rules of non-international armed conflict.
  • 4.1.2 Law of Belligerent Occupation (pp. 72-75):
    • Definition & Effective Control (p. 72): Occupation occurs when territory is “actually placed under the authority of the hostile army.” The key is “effective control.” Despite its 2005 “disengagement,” Israel retained effective control over Gaza (borders, airspace, territorial waters, population registry, utilities), meaning it remained the occupying power, a stance reaffirmed by the ICJ. Its control increased further during the post-7 October 2023 offensive.
    • Obligations (pp. 73-75): The occupying power (Israel) is responsible for the welfare of the “protected persons” (Palestinians in Gaza). This includes:
      • Ensuring public order and safety, respecting existing laws unless absolutely prevented (p. 73).
      • Prohibiting destruction of property unless “rendered absolutely necessary by military operations” (p. 73). This includes a ban on wanton destruction, which is a grave breach.
      • Prohibiting deportation or forcible transfer of the civilian population unless for their security or imperative military reasons. If displaced, they must be received in satisfactory conditions (shelter, hygiene, health, safety, nutrition) (p. 74).
      • Ensuring food and medical supplies for the population, bringing them in if local resources are inadequate. This extends to clothing, bedding, shelter, and other essentials (p. 74). The obligation to agree to and facilitate humanitarian relief schemes is unconditional (p. 75).
      • Prohibiting collective punishment of protected persons (p. 75).
  • 4.1.3 Rules on Conduct of Hostilities (pp. 75-79):
    • Principle of Distinction (pp. 75-76): Parties must always distinguish between civilians and combatants, and between civilian objects and military objectives. Attacks may only be directed against combatants and military objectives. Civilian objects are all objects that are not military objectives; if there’s doubt, an object is presumed civilian.
    • Prohibition of Indiscriminate and Disproportionate Attacks (p. 76): Indiscriminate attacks (those not directed at a specific military objective or using means that cannot be so directed) are prohibited. Disproportionate attacks (those expected to cause incidental civilian harm excessive in relation to the concrete and direct military advantage anticipated) are also prohibited. Launching such attacks intentionally can be a war crime.
    • Precautions in Attack (p. 77): Constant care must be taken to spare civilians and civilian objects. All feasible precautions must be taken to avoid/minimize incidental harm, verify targets, and halt attacks if they become wrongly directed or disproportionate. Effective advance warning must be given unless circumstances do not permit. Means and methods of attack must be chosen to minimize civilian risk.
    • Precautions Against Effects of Attacks (p. 77): Parties must, to the maximum extent feasible, avoid locating military objectives near densely populated areas and remove civilians/objects from the vicinity of military objectives.
    • Specially Protected Persons and Objects (pp. 77-78): Medical personnel, hospitals, and medical transports are specially protected and must not be attacked, unless hospitals are used outside their humanitarian function to commit “acts harmful to the enemy” (after a warning and reasonable time limit). Humanitarian relief personnel and objects must also be respected and protected. Buildings for religion, education, art, science, charitable purposes, and historic monuments require special care and must not be military objectives.
    • Human Shields (p. 78): Using human shields is prohibited. However, if one side uses human shields, this does not release the other side from its IHL obligations towards civilians.
    • Survival of Civilian Population and Humanitarian Access (p. 79): Parties must refrain from depriving civilians of means of survival and must allow and facilitate rapid and unimpeded passage of impartial humanitarian relief for civilians in need. Consent to relief schemes cannot be arbitrarily refused. Humanitarian personnel and objects must be respected and protected. Intentionally directing attacks against humanitarian personnel/missions or using starvation of civilians as a method of warfare are war crimes.
    • Investigation (p. 80): States must investigate alleged war crimes and, if appropriate, prosecute suspects. This duty extends to all grave breaches of the Geneva Conventions.

4.2 INTERNATIONAL HUMAN RIGHTS LAW (pp. 80-84)

IHRL remains applicable during armed conflict and occupation, complementing IHL. Israel is bound by IHRL treaties it has ratified (ICESCR, ICCPR, ICERD, CEDAW, CAT, CRC, CRPD) and customary IHRL (p. 80-81).

  • Key Rights (pp. 81-84):
    • Right to Life (pp. 81-82): A foundational, non-derogable right. States must prevent arbitrary deprivation of life and ensure accountability. Deprivation of life is only justifiable if required to save life. Acts prohibiting or impeding humanitarian services violate this right.
    • Right to Food (p. 83): Everyone must have physical and economic access to adequate food. States have a core obligation to alleviate hunger, including through international cooperation.
    • Right to Housing and Prohibition of Forced Evictions (p. 83): Widespread destruction of homes can constitute forced evictions, a breach of the right to housing (ICESCR Art. 11).
    • Right to Health (pp. 83-84): States have core obligations, including ensuring non-discriminatory access to health facilities, minimum essential food, basic shelter, sanitation, safe water, and essential drugs. Limiting access to health services as a punitive measure violates this right.
    • Right to Remedy and Reparation (p. 84): Victims of human rights violations and crimes under international law have a right to an effective remedy, including justice, truth, and reparation (restitution, compensation, rehabilitation, satisfaction, guarantees of non-repetition). States responsible for IHL violations must make full reparations.

In essence, this chapter establishes that Israel, as the occupying power and a party to the armed conflict, has extensive and overlapping obligations under both IHL and IHRL to protect the Palestinian population in Gaza, ensure their basic needs are met, conduct hostilities lawfully, and provide accountability for violations.