Al-Haq Briefing Note Special Series:

Legal Analysis of Israel’s attacks against the Occupied Gaza Strip

Briefing Note III: Forcible transfer and Evacuation of Palestinians

INTRODUCTION

Over the past three weeks Israel has been engaging in hostilities in the occupied Gaza Strip. ‘Operation Protective Edge’ has been characterized by Israel’s indiscriminate and disproportionate attacks against Palestinian civilians and civilian objects. As of 2 August 2014, Al-Haq has documented the killing of1707 Palestinians, including 403 children, of which the large majority are civilians. Furthermore, the UN Office for the Coordination of Humanitarian Assistance estimates that 485,000 Palestinians have been displaced, of whom 270,000 Palestinians are hosted in UNRWA shelters.[1]

The Al-Haq Briefing Note Special Series related to the occupied Gaza Strip will address select aspects of Israel’s conduct of ongoing hostilities in the Gaza Strip. In particular, this Special Series will apply the framework of international humanitarian law to Israeli acts or omissions. As an Occupying Power engaged in hostilities, Israel must abide by its obligations under international humanitarian law (IHL), which are set out primarily in the Regulations Annexed to the 1907 Hague Convention respecting the Laws and Customs of War on Land (Hague Regulations) and the Fourth Geneva Convention of 1949; both are largely reflective of customary international law.

Since the start of ‘Operation Protective Edge’ Israel has evacuated large portions of the Palestinian population residing in the occupied Gaza Strip. Most notably, Palestinians inthe northernGaza Strip - in Shujaiyya, Zaitoun, Jabaliya, Beit Hanoun, and Beit Lahiya[2] - have received notices to evacuate to areas east of the newly expanded three-kilometer buffer zone.[3] The districts of Shujaiyya and Zaitoun alone have a combined population of 100,000 residents,[4]whilst Beit Hanoun has a population of 32,597.[5] Furthermore,Jabaliaya has a population of 106,0000,[6] and Beit Lahiya has a population of 59,540.[7] Therefore, United Nations Secretary-General has warned that the evacuationof northern Gaza will have a “devastating humanitarian impact on the beleaguered citizens of those areas”.[8]

To the south of the Gaza Strip, residents in East Khan Younis were advised to evacuate to the city center, and to Rafah in the South.[9]In total, the extended buffer zone covers an area of 162 square kilometers,amounting to approximately 44 per cent of the territory, where approximately 250,000 people reside.[10]

This briefing note addresses the illegal nature of theexpansion of the buffer zone and the forcible transfer and evacuation of Palestinian civilians.

FORCED DISPLACEMENT

i. Expansion of the Buffer Zone

For the past seven years, Israel has imposed a closure on the occupied Gaza Strip. The ongoing closure has made it virtually impossible for the Palestinian population to fully escape the hostilities. The perimeter to the north, south and east of the territory is demarcated by an Israeli constructed wall, double wire fence monitored by watchtowers,and a naval blockaderestricting access to the Gaza Strip’s territorial waters to a three nautical mile limit, in stark contravention of the 20 nautical miles agreedon under the Oslo Accords. The Israeli Security Agency governs who can enter and exit the Gaza Strip via a permit system, which is granted only on the basis of the most urgent medical cases, leaving 1.8 million people no option but to seek shelter within the Gaza Strip.[11]Moreover the Rafah Crossing to Egypt remains closed and the Karem Shalom and Erez crossings are only partially open.[12]

In the midst of the escalating hostilities, Israel has expanded the buffer zone, a military no-go area that runs along and inside theGaza borders, by a three-mile radius, further restricting civilian access to 44 per cent of the Gaza Strip.[13] The forced Israeli expansion of the buffer zone from 300 meters to 3 kilometers has come at great civilian cost.

Since the launch of ‘Operation Protective Edge’, an estimated 485,000 Palestinians have fled their homes following, inter alia, warnings by the Israeli occupying forces, sometimes directed to entire neighbourhoods, or Israel’s targeting of civilian homes.[14] The warnings issued by Israel have come in the form ofso called ‘knock-on-the-roof missiles’ or ‘fake’ warnings. The former relates to a procedure in which Israel fires a small missile at the roof of a building to warn its occupants that a fully armed larger missile attack is imminent. The latter relates to instances where Israel informs families that their homes will be bombarded without actually carrying out the attack. Residents of Shujaiyya, Zaitoun, Jabaliya, Beit Hanoun, and Beit Lahiya neighbourhoods were issued with evacuation warnings via text message and telephone by the Israeli occupying force.[15]Meanwhile, Israeli tanks have fired shells at civilians attempting to return to their homes.[16]

ii. Destruction of Civilian Homes

Israel has targeted civilian objects throughout the ongoing round of hostilities. As of 2 August 2014, Al-Haq has documented the destruction of or damage to approximately 11,000 Palestinian houses. Furthermore, UN facilities, such as UNRWA shelters presently hosting 270,000 Palestinians, have also been attacked by Israel. On 3 August, Israel attacked an UNRWA Boys’ Prep School in Rafah, killing nine persons and injuring an additional 27 persons.[17] On 24 July, Israel shelled a UNRWA shelter in Beit Hanoun, killing at least 13 people and injuring an additional 200. Meanwhile, the al-Maghazi refugee camp, a United Nations designated shelter, has been shelled on two occasions.[18] Israel has also damaged at least eighteen health facilities in the Gaza Strip, including Shifa Hospital and Beit Hanoun Governmental Hospital.[19]

The wide scale destruction of and damage to civilian objectsdemonstrates Israel’s non-compliance with the principle of distinction. As a result, the indiscriminate destruction of and damage to civilian objects has significantly contributed to the displacementof hundreds of thousands of Palestinian civilians.

LEGAL ANALYSIS

i. Evacuation of Protected Persons

During ‘Operation Protective Edge’, the buffer zone has been widened to three kilometers around the entirety of the Gaza Strip and Palestinians residing within this area have been told to leave their homes.

Whereas Article 49(1) of the Fourth Geneva Convention absolutely prohibits Israel from forcibly transferring and deporting Palestinians from the Occupied Palestinian Territory, Israel “may undertake total or partial evacuation of a given area”.[20] Such evacuation must however be of temporary nature and is only permitted “if the security of the population or imperative military reasons so demand”.[21]For example, the military commander may authorize an evacuation where the Palestinian population is in danger due to “military operations”[22] or where “intense bombing” is necessary.[23] One must, however, bear in mind that the evacuation of protected persons is considered an extreme measure.[24]

Israel has claimed that its ongoing military operation is aimed at destroying tunnels in the Gaza Strip.[25] Based on the narrow criteria set forth above, it is unlikely that the discovery and destruction of tunnels would reach the threshold of an ‘overriding imperative reason’ allowing Israel to evacuatehundreds of thousands of Palestinian civilians. Indeed, while the Israeli occupying forces have orchestrated a mass evacuation through warnings and military bombardment, only ten tunnel openings were reportedly found.[26] This must be considered grossly disproportionate in terms of the concrete and direct military advantage gained.[27]

In any case, Israel must ensure, as far as practicable, that the evacuation of Palestinians does not result in the separation of families. Moreover, Israel is obligated to ensure the accommodation, health, hygiene, safety and nutrition of the civilian population in case of evacuation.[28]These obligationsare in line with Article 27 of the Fourth Geneva Convention, in particular the obligation on Israel to respect family rights. In light of the current shortages of safe water and electricity, as well as the lack of a functioning sewage system, coupled with Israeli attacks on UN shelters for displaced persons and the closing of the borders, there is compelling evidence that Israel has failed to safeguard minimum humanitarian rights.

Whilst freedom of movement may be curtailed, including by restricting access to buffer zone areas, civilians and their homes must not be the object of an intentional attack.[29] Nor can civilian homes inside the three-kilometer buffer zone be the object of an overall attack, on the off chance that tunnel networks might be located beneath. The military advantage must be definite, not arbitrary.

The evacuation of Palestinians for the purpose of attacking civilian objects must further be viewed against the prohibition of destruction of real or personal property belonging individually or collectively to private persons or to the State or other public authorities. Such destruction is only permissible when rendered absolutely necessary by military operations whilst taking into consideration the welfare of the occupied population.[30] In this regard, while military necessity may in some instances justify intervention, the striking of this careful balance “should never result in total disregard for the interests and needs of the population.”[31] The targeting of schools, mosques, hospitals, cemeteries,industrial facilities, offices of welfare organisations, banks, and civilian infrastructure in the absence of military necessity constitutes a war crime and grave breach of the Fourth Geneva Convention.[32]

ii. Forcible Transfer

Forcible transfer exceeds the parameters of permitted evacuation by permanently removing protected persons to other locations against their will. This is characterized by a measure of ‘involuntariness’described in Krnojelacas the “absence of a genuine choice that makes the displacement unlawful”.[33]The main factors for establishing involuntariness are physical force, the threat of force or coercion causing forcible transfer.[34]At this stage, the disproportionate targeting of civilian homes in the Gaza Strip, combined with the targeting of civilians attempting to return to their homes, indicates that Israel has forcibly transferred Palestinians.[35]  Accordingly, the International Criminal Court has considered the acts of burning and destroying civilian houses and businesses, and killing, as acts triggering the forcible displacement of civilians.[36]

The crime of forcible transfer is underscored by the forced displacement of civilians from their legitimate place of residence to another location. Similar to theunlawful transfers of 1993 between municipalities in Mostar, Bosnia-Herzegovina, the transfers in Gaza have seen the forcible transfer of civilians tolocations beyond the buffer zone.[37] Article 49 of the Fourth Geneva Convention requires that “persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.”[38] However, the destruction of entire neighbourhoods in the Gaza Strip prevents the repatriation of persons to their homes thus lending the displacement a permanence indicative of forcible transfer. Moreover, the extensive destruction of civilian property, not justified by military necessity and carried out unlawfully and wantonly, constitutes a grave breach of the Fourth Geneva Convention

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