A/HRC/44/60 fundamental rule of humanitarian law prohibiting the targeting of civilians and, as such, they would constitute a war crime.87 56. However, in seeking to contain Hamas, Israel has chosen to target the population of Gaza through harsh economic and social measures as its available target to weaken support for Hamas’ rule. Among other things, this strategic calculus is reflected in an internal Israeli government report released through court litigation in 2012 which detailed how many calories Palestinians in Gaza would need to eat to avoid malnutrition.88 The UN Fact-Finding Mission into the 2008-9 Gaza conflict concluded that: “the declared policies of the Government [of Israel] with regard to the Gaza Strip before, during and after the military operation cumulatively indicate the intention to inflict collective punishment on the people of the Gaza Strip.”89 57. An important additional purpose behind Israel’s closure of Gaza is to accelerate the separation of Gaza from the West Bank, just as Israel actively separates the West Bank from East Jerusalem. Creating and entrenching the fragmentation of these territories – beyond sinking the chances for creating a viable Palestinian economy as well as blocking Palestinians from building the larger collective and political bonds with each other that nourish a functioning society – is designed to prevent the independence of the state of Palestine.90 As Prime Minister Netanyahu stated in 2019, in response to criticisms about his decision to allow Qatar to fund construction and utility projects in Gaza: “’[W]hoever is against a Palestinian state should be for’ transferring the funds to Gaza, because maintaining a separation between the PA in the West Bank and Hamas in Gaza helps prevent the establishment of a Palestinian state.”91 58. In 2005, Israel evacuated its military and settlers from Gaza. In the process, it declared that it would no longer owe any obligations to the Palestinians of Gaza. 92 The Special Rapporteur agrees with the overwhelming consensus in the international community that Gaza remains occupied, the Fourth Geneva Convention applies, and Israel retains its obligations towards Gaza as the occupying power commensurate with its degree of control.93 Israel exercises comprehensive control over Gaza’s land crossings (except for the Rafah crossing with Egypt) and its waters and airspace, it controls the Palestinian population registry (which allows it to determine who is a resident of Gaza), it controls taxes and customs duties, it supplies much of Gaza’s electricity and fuel, its military re-enters at will, it has created substantial no-go zones on the Gaza side of the frontier, and it controls who and what enters and leaves Gaza. In the Special Rapporteur’s view, this meets the ‘effective control’ test under international humanitarian law, establishing that Israel remains the occupying power.94 59. In 2009, the UN Security Council emphasized: “the need to ensure sustained and regular flow of goods and people through the Gaza crossings.”95 In 2010, the ICRC stated that Israel’s closure of Gaza constituted a collective punishment imposed in clear violation of its obligations under international humanitarian law. It called for the immediate lifting of 87 88 89 90 91 92 93 94 95 14 https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=73D05A98B6 CEB566C12563CD0051E1A0, Article 85. https://www.gisha.org/UserFiles/File/HiddenMessages/DefenseMinistryDocuments RevealedFOIAPetition.pdf. https://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf, para. 1934. https://gisha.org/publication/11312. https://www.jpost.com/arab-israeli-conflict/netanyahu-money-to-hamas-part-of-strategy-to-keeppalestinians-divided-583082. https://mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revised%20 disengagement%20plan%206-june-2004.aspx. UN Security Council Resolution 1860 (8 January 2009); UN General Assembly Resolution A/74/L.15 (25 November 2019); https://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/AHRC-12-48.pdf, paras. 273-9. https://ihl-databases.icrc.org/ihl/WebART/195-200052?OpenDocument. UN Security Council Resolution 1860 (8 January 2009).