A/HRC/15/21
24.
In assessing the evidence and information available to it, the Mission paid particular
attention to the content of the evidence and demeanour of the persons appearing before it in
deciding whether, and if so, what part of the information provided should be accepted.
More weight of necessity was accorded to such evidence if believed than to information
from other sources. In addition, with respect to information in the nature of hearsay
evidence, due regard was paid, giving to it such weight as the circumstances merited.
Matters were decided on the basis of the preponderance and quality of the evidence so as to
satisfy all the members of the Mission in order that they felt sure of their conclusions.
25.
In the preparation of the report, the Mission first of all reviewed the factual
contextual background to the incident and came to its conclusions on the facts, which are
set out in this report. The Mission expressed its opinion on the relevant principles of
international law, including international humanitarian and human rights law on the basis of
the facts it found. A segmented approach is taken to the analysis.
II.
Background
A.
Context
1.
The blockade of the Gaza Strip
Pre-existing restrictions of maritime access to the Gaza Strip
26.
Israel implemented a complete military occupation of the Gaza Strip from June 1967
until its first disengagement from parts of the Gaza Strip starting from May 1994 as part of
the peace process. A series of peace agreements between 1993 and 1995 concluded
between the State of Israel and the Palestinian Liberation Organization with international
backing were intended, within a transitional period of five years, to regulate Israel’s
disengagement from the West Bank and Gaza Strip leading up to the conclusion of a
permanent status agreement which would establish an independent Palestinian state
alongside Israel. These agreements, often collectively referred to as the Oslo Accords,
provided the basis for, amongst other matters, the establishment of the Palestinian
Authority and Council and put in place interim arrangements for security cooperation
between the Israeli and Palestinian police, including the policing of borders, maritime
waters and airspace.
27.
Under the Oslo Accords, it was agreed that the territorial waters off Gaza would be
included in the territorial jurisdiction of the Palestinian Authority (PA).8 However, the
external security of the Gaza Strip was specifically excluded from the PA’s functional
jurisdiction;9 responsibility for external security was retained by Israel until the final status
agreement.10 Article VIII of the Gaza-Jericho Agreement specifically states that “Israel
shall continue to carry the responsibility … for defense against external threats from the sea
and from the air … and will have all the powers to take the steps necessary to meet this
responsibility.” The agreed security arrangements and coordination mechanisms establish
three maritime activity zones: a central zone extending twenty nautical miles out to sea,
bounded by two one-nautical mile-wide strips of water at the Egyptian end and Israeli end
of the Gaza Strip, both of which are closed military areas under Israeli control. The central
zone, under joint Palestinian-Israeli control, was designated as open for fishing up to the
twenty nautical miles limit and for recreational boats up to three nautical miles. Foreign
8
9
10
6
Article 5, para. 1(a), Gaza-Jericho Agreement.
Article 5, para. 1(b), Gaza-Jericho Agreement.
Article 5, para. 3, Gaza-Jericho Agreement.
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