The Legal Consequences of the End of the Israel-Gaza War

[Noam Kozlov is a research fellow and lecturer in the Faculty of Law and Criminology at the Hebrew University of Jerusalem. He previously received a Bachelor’s Degree in Economics and Philosophy and an LLB from the Hebrew University.]

After six months of intensive fighting, the Israel-Gaza war is no more. While political forces – both in Israel and abroad – continue to stress otherwise, the on-the-ground reality has become unambiguous. For a month now the IDF has kept only one operational brigade in the Gaza Strip, stationed in primarily defensive positions that the IDF has erected along the center of the Strip. In comparison, the initial invasion of Gaza included three armored divisions, around ten times the size of the current force. Intensive fighting in the major population areas in Gaza has now completely ceased, and the IDF is concentrated on task-specific and temporary intrusions into limited sections of the Strip. At the same time, hundreds of thousands of civilians began their long-awaited return to the northern parts of the Strip, the renowned markets in Khan Unis and Gaza City are now back in business, and food prices dramatically dropped – partially due to eased restrictions over the import of humanitarian aid into Gaza, and partially because the IDF’s abandonment of the majority of the Strip prevents Israel from the ability to control and monitor the internal flow of food and necessities inside Gaza. This does not mean that the suffering of the citizens in Gaza is over – in many respects, it has only begun. The Israeli retreat leaves Gaza in a state of complete destruction, with entire neighborhoods reduced to rubble. International organizations and the IDF’s own estimates both stipulate that the rebuilding of Gaza will take years or even decades. Nonetheless, the end of intensive fighting, as well as the IDF’s failure to eliminate Hamas’ control over Gaza, all call for a reassessment of the legal situation in the region.

Return of Civilian Population

One of the major concerns raised by the IDF’s initial invasion of Gaza has been the forced displacement of around 1.8 million civilians, who were ordered by the IDF to leave their homes in the north of Gaza and relocate to the south of the region. At the time, the IDF argued that this displacement was necessary to protect the safety and security of civilians due to the intensive fighting that took place in the northern parts of the Strip. Nonetheless, the conditions in the Southern region of the Strip were uninhabitable, with reports of lack of food and necessities, coupled with the inability of the medical facilities in the region to provide adequate services to the overflowing population. At the same time, Egypt closed its borders to the Gazan refugees in violation of its commitment to the 1951 Refugee Convention.

Even if the initial displacement of the Gazan civilians was lawful, Rule 132 of the Fourth Geneva Convention stipulates that displaced persons should be granted the right to return to their homes as soon as the reasons for their displacement cease to exist. As specified above, the IDF initially justified the displacement of the Gazan citizens by citing the intensive fighting held in the northern regions of the Strip. However, the withdrawal of forces from the Strip, which took place over a month ago, combined with the IDF’s own assertions that the fighting in Gaza has now transformed into a stage of specific and limited engagements, all lead to the conclusion that the conditions are ripe for the return of the Gazan citizens to their homes, or what is left of them, in the north. Another reason cited by Israeli authorities for the prevention of civilian return to the north of Gaza is the fact that this prospective return can be used as a bargaining chip in the negotiations with Hamas. However, if Israel has concluded the intensive stage of its war in Gaza, and if international humanitarian law necessitates the return of civilians to their homes, Israel’s decision to allow for the return of the civilian population cannot be based on its prospected negotiation over a hostage deal.

Israel’s Responsibility for the Future of Gaza

Another critical aspect in the postbellum discussion over the situation in Gaza is the question of responsibility for the safety and health of the Gazan citizens. While the war was ongoing, Israel militarily held significant parts of the Gaza Strip and has consequently exercised effective control of these areas for prolonged periods of time, making it responsible for the safety and health of the citizens under its control. After the Israeli forces withdrew from Gaza, the Hamas-run civilian authorities returned to administer order in most areas of the Gaza Strip. Consequently, the withdrawal of Israeli forces from Gaza, combined with the relinquishment of control over areas previously occupied by Israel, may all bring to the conclusion that Israel is no longer responsible for the security of the Gazan citizens.

This analysis, however, is only partial. Israel still controls most of the border crossings with Gaza and enforces a partial naval blockade of its shores. Moreover, the Israeli forces who were left in Gaza are stationed in defensive outposts that cut Gaza in the middle. Accordingly, Israel still largely controls the passage of citizens and goods from and to the North of Gaza. This effective blockade entails that Israel, together with Egypt, is still responsible for the sufficient entrance of food, water, medications, and other necessities into the areas on which it imposes a blockade. While the question of whether indirect control over the Strip raises to the level of occupation has been debated by scholars, Israel’s humanitarian obligations that result from its naval and land siege are generally undisputed. Accordingly, this situation is not new to the Israeli-Gaza relations, as the effective blockade of Gaza has been ongoing for over a decade now, with the Israeli authorities creating mechanisms to ensure that the necessities of the civilian population of Gaza are met. Nonetheless, the return to this antebellum mechanism poses serious political challenges for Israel, as it will be forced to once again work – either directly or indirectly – with Hamas-run authorities. However, Israel’s withdrawal from Gaza without the elimination of Hamas, as well as its lack of intention to create the practical conditions for the establishment of a different civilian authority in Gaza, all bring to the conclusion that Israel will be forced to once again work alongside Hamas in order to ensure that its duties under international humanitarian law are met – in fact, Israel’s transfer of humanitarian aid into Hamas-controlled sections of Gaza showcase that Israel already works with Hamas in one way or another.

Release of the Detainees

During its invasion of Gaza, the IDF detained around 3,500 persons. Some of the detainees are Hamas operatives who surrendered to Israeli forces, but others are ordinary citizens who were suspected of participating in hostilities against Israel but, in effect, were caught in the crossfire. Israel has already begun releasing significant numbers of the detained persons. However, with the end of the intensive stage of the fighting, it is expected that Israel will decide to either prosecute the detainees, prolong their confinement under the Israeli Illegal Combatants Law, or otherwise release them. The indefinite detention of persons not accused of a crime cannot be sustained, especially following the end of intensive fighting between Israel and Hamas.

The Operation in Rafah

Arguably, the prospect of military invasion into Rafah – which Israeli authorities have been set on conducting for around two months now – puts into question the above analysis. An invasion and subsequent control of Rafah, a city that has become home to over a million Gazans following their displacement from the northern regions of the Strip, will inevitably lead to intensive fighting and casualties. Accordingly, it may be questioned whether the war in Gaza is really over while the Rafah operation is still looming over the corner.

I contend that a prospected Rafah operation should not affect the abovementioned analysis. A byproduct of asymmetric warfare is that hostilities do not always cease at a specific, agreed-upon point in time. Accordingly, fighting between the IDF and Hamas may continue at varying degrees of intensity for some time. Nonetheless, Israel’s withdrawal of the majority of its forces from the Strip, combined with its relinquishment of previously held zones of control and subsequent return of Hamas control to these areas, all bring to the conclusion that significant portions of the Strip will not experience the same intensity of fighting as we have seen in previous months. Therefore, Israel’s duties to allow for the safe passage of Gazan citizens back to their homes in Northern Gaza, its duties to allow for the transfer of food, medicine, and necessities to areas which it blockades, and the need to release uninvolved detainees, all should remain unaffected by the prospect of a Rafah operation.

Conclusion

The war in Gaza is over. While political agents both in Israel and abroad refuse to recognize this fact and utilize the perpetuity of the war for their political advantages, the legal responsibilities of Israel and other state actors in the region are not determined (solely) by political rhetoric but by the status on the ground. With the end of heavy fighting in the majority of regions in Gaza, and due to the withdrawal of almost all of Israel’s forces from Gaza, the time is ripe now to consider the postbellum situation of a destroyed and war-ridden Gaza Strip. This comment provided an account of some aspects that the international community and Israel must consider. However, for such a discussion to take place, both Israeli and foreign actors alike will need to recognize an uncomfortable truth – the war is over, it is time to rebuild.