What is legal significance of declaring Gaza “hostile territory”?

By Ted Belman

Ever hear the term “hostile territory”? Nope? Neither did I, until Israel announced that its Cabinet had declared Gaza an “hostile territory”. Evidently, according to YNET,

On Tuesday Defense Minister Barak convened the IDF chief of staff and other senior military officials, including representatives from the Military Advocate General specializing in international law, to discuss possible punitive measures Israel could take against Gaza as the rockets continue to fall.

Following the meeting Barak conclude that Gaza and the Hamas government must first be declared a hostile entity.

Barak’s office said that in accordance with international law – in dealing with a hostile entity, Israel would be able to respond without imposing a collective punishment against the civilian Palestinian population.

Til then Israel was simply going to cut off electricity and fuel supplies.

I decided to google the term to see its legal definition and could find nothing. In contrast, the net has much to offer regarding international law and occupation. What is suggested here is that by so declaring Gaza hostile territory, “Israel would be able to respond without imposing collective punishment”. This is nonsense. While the law of occupation prohibits collective punishment, declaring Gaza a hostile territory doesn’t change the laws of occupation. Furthermore, it is suggested, to cut off supplies surplus to humanitarian needs requires such a declaration. This is nonsense until proven otherwise.

When Rice was asked about it, she changed the subject “Hamas is indeed a hostile entity.” But the declaration referred to Gaza not Hamas.

It didn’t take long before the whole world, as if on cue, complained that the declaration was an act of war or that to cut off supplies would be a violation of the laws of occupation. Israel for its part was scrupulous to advise that it won’t violate such laws.


In 2004, I asked What will disengagement accomplish?

The PLO Negotiations Affairs Department makes the case for Israel still being considered by international law, the occupying power. This Report makes fascinating reading.

    The term “occupation” describes a regime of control over territory and population by a foreign sovereign’s military.[4] When a foreign sovereign occupies land, international law obligates that sovereign to uphold basic standards to protect both the population under its control and the land on which that population lives.[5]

    The Hague Regulations of 1907 set forth the basic legal standard: “Territory is occupied when it has actually been placed under the authority of the hostile army. The occupation only extends to the territory where such authority has been established and can be exercised.

Just before the expulsion, I warned Disengagement will bring war

The strongest argument in favour of disengagement is that it will end the occupation of Gaza. But will it?

“Occupation” is more then just a derogatory label. It imposes on the occupier onerous responsibilities in international law to maintain law and order and to protect the inhabitants and the land. For this and other reasons, Sharon wants desperately to end the occupation. Easier said then done.

At that time Israel had not yet agreed to abandon the Philidelphi Corridor or to the other terms of the Rafah Agreement. Israel agreed to these terms to end the occupation.

Yet today when clearly Israel is not in control of the territory or the population, it perpetuates the notion that the occupation continues and that Israel is bound by the humanitarian laws that follow.

No objective observer would ever say Israel is occupying Gaza.

After writing this article, I came upon a similar one in JPOST

Background: ‘Hostile territory’ – what is the legal meaning of the term?

The government on Wednesday coined a new term that may, but will likely not, take root in international jurisprudence. For the time being, there is no such concept as “hostile territory” in that body of law.

That being the case, the fact that Israel declared the Gaza Strip “hostile territory” does not give it the legal right to take any action that it did not already have, or to take any action that until now was forbidden by international law.

In short, the government’s decision on Wednesday was a unilateral act, spoken in terminology that no one else in the world uses. [..]

Unfortunately Isenberg does not raise the question of the alleged occupation.

Then there is the question of Collective punishment


    By collective punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World Wars I and II. In the First World War, Germans executed Belgian villagers in mass retribution for resistance activity. In World War II, Nazis carried out a form of collective punishment to suppress resistance. Entire villages or towns or districts were held responsible for any resistance activity that took place there. The conventions, to counter this, reiterated the principle of individual responsibility. The International Committee of the Red Cross (ICRC) Commentary to the conventions states that parties to a conflict often would resort to “intimidatory measures to terrorize the population” in hopes of preventing hostile acts, but such practices “strike at guilty and innocent alike.

There is a major difference between punishment for acts committed and preventive action or defense. Many things nations do in times of conflict are to prevent attacks or to defend themselves. To attribute to such acts the desire to punish rather than to defend is malicious.

Israel should have the right to apply sanctions, just as the UN is doing against Iran, without the charge of effecting collective punishment. Furthermore, what is the problem with imposing a blockade on a country or a siege on a city as opposed to reducing it to rubble. Since when does one country at war with another country limit themselves to fighting the enemy army as opposed to the country itself. The rules of war are far too restrictive and unrealistic.

September 20, 2007 | 8 Comments »

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