A/HRC/15/21
61.
The Mission considers that the enforcement of an illegal blockade does not only
constitute a violation of the laws of war, but also a violation of the laws of neutrality giving
rise to State responsibility.
2.
International humanitarian law
62.
The relevant international humanitarian law standards binding on Israel as the
occupying power in the occupied Palestinian territory are set out in the Fourth Geneva
Convention of 1949 relative to the Protection of Civilian Persons in Time of War. In
addition, Israel is bound by customary rules of international humanitarian law.
63.
As the occupying power, Israel has certain obligations imposed on it by international
law. The International Court of Justice has concluded that the Fourth Geneva Convention is
applicable in the occupied Palestinian territories which before the 1967 conflict lay to the
east of the Green Line and which during the conflict were occupied by Israel.51 This is also
the case for the Gaza strip, despite the unilateral withdrawal by Israel of the forces from the
Gaza Strip in 2005, as the occupation has been confirmed repeatedly since then by the
General Assembly and the Security Council.52 In this context, the Mission notes that
occupation continues to the extent to which the occupying power retains effective control.
64.
The Mission agrees with the assessment presented in the Goldstone Report as
follows:
Given the specific geopolitical configuration of the Gaza Strip, the powers that Israel
exercises from the borders enable it to determine the conditions of life within the
Gaza Strip. Israel controls the border crossings (including to a significant degree the
Rafah crossing to Egypt, under the terms of the Agreement on Movement and
Access) and decides what and who gets in or out of the Gaza Strip. It also controls
the territorial sea adjacent to the Gaza Strip and has declared a virtual blockade and
limits to the fishing zone, thereby regulating economic activity in that zone. It also
keeps complete control of the airspace of the Gaza Strip, inter alia, through
continuous surveillance by aircraft and unmanned aviation vehicles (UAVs) or
drones. It makes military incursions and from time to time hit[s] targets within the
Gaza Strip. No-go areas are declared within the Gaza Strip near the border where
Israeli settlements used to be and enforced by the Israeli armed forces. Furthermore,
Israel regulates the local monetary market based on the Israeli currency (the new
sheqel) and controls taxes and custom duties.53
The Mission is satisfied that these circumstances continued to prevail at the time of the
incident under investigation.
65.
Under the Fourth Geneva Convention, individuals may not be killed, tortured, illtreated or suffer humiliating and degrading treatment and there may not be destruction of
property unless absolutely necessary for the military operation. Article 147 of the Fourth
Geneva Convention spells out a list of “grave breaches” of international humanitarian law.
66.
Flotilla passengers were civilians and in the context of the interception of the vessels
must be considered protected persons. Under article 4 of the Fourth Geneva Convention,
protected persons “are those who, at a given moment and in any manner whatsoever, find
themselves … in the hands of a Party to the conflict or Occupying Power of which they are
51
52
53
Legal Consequences of the construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion of 9 July 2004, ICJ Reports 2004, para. 101.
Security Council resolution 1860 (2009); General Assembly resolutions 64/92 and 64/94.
Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations FactFinding Mission on the Gaza Conflict, A/HRC/12/48 (25 September 2009), para. 278.
15
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