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The Legality of the Land "Buffer Zone" in the Gaza Strip

The “buffer zone” between Israel and the Gaza Strip is a military no-go area that extends along the entire northern and eastern perimeter of the Gaza Strip adjacent to Israel, but inside Palestinian territory. Its enforcement has resulted in loss of Palestinian lives and land. Diakonia has examined the legality of the creation and enforcement of the "buffer zone", in a legal analysis report entitled "Within Range": An analysis of the legality of the land "buffer zone" in the Gaza Strip.

11/19/2013

Initially unilaterally enforced upto 150-metre, Israel extended the "buffer zone" to 300 metres in May 2009. The precise areas designated by Israel as the “buffer zone” are unknown and at times extend up to 1.5 kilometers inside the Gaza Strip, which is only 5-12 kilometers wide.

Israel restricts Palestinians’ access to the land located in the “buffer zone”, sometimes through the use of live fire. From January to May 2011, at least 19 civilians have been killed, including seven children and 252 others were injured, including 73 children.

A buffer zone and IHL

Under the Geneva Conventions, Israel has the duty to protect the civilians in the Gaza Strip on the one hand, and the duty to ensure the security of Israel and its citizens on the other. In order to fulfill the latter, it may for example prohibit access to certain areas. There have been attacks on Israel by Palestinian armed factions mainly from the border areas within the Gaza Strip. Infiltration tunnels are moreover an additional danger facing Israeli soldiers and citizens. Israel therefore has a legitimate military interest, yet such a buffer zone, must be implemented in accordance with the protections set out under IHL.

Enforcement mechanisms used in the "buffer zone"

In order to examine the legality of the “buffer zone”, it is crucial to analyze the means through which it is enforced.

1. The use of lethal force

A high number of civilians not taking direct part in hostilities, including children, are shot at by Israeli lookouts and wounded or killed. These constitute prima facie violations of the rules of IHL in relation to the protection of civilians. All feasible precautions must be taken to avoid, and in any event,  minimize incidental loss of civilian life. Moreover, the principle of proportionality prescribes that launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. In addition to the regular protections afforded to a civilian as outlined above, children have additional and special protections under IHL.

There are indications that demonstrate, prima facie , that on many occasions, the Israeli military is targeting civilians who bear no threat to the Israeli military or Israeli civilians. Moreover it is essential for the Israeli military to effectively distinguish between civilians and combatants and additional efforts must be deployed to make an accurate determination in this regard. Israel should consider adapting the means and methods of enforcement, including use of lethal force, in this process, to minimize the harm to civilians. Where there is doubt as to the characterization of the targeted person, the assumption should always be that the individual is a civilian. This is particularly important given the gravity of the violations of IHL resulting from the current practices.

2. Demolition of civilian property

With regard to demolition of property, since 2005, 305 water wells, 197 chicken farms, 6,377 sheep farms, 996 complete houses, 371 partial houses, three mosques, three schools, and six factories have been destroyed within the “buffer zone”. In addition, a total of 24.4 square kilometres of cultivated land has been leveled in the no-go and high risk zones, all representing civilian and/or cultural properties. Israel refuses to compensate Palestinians for the damages that it caused civilians as a result of its policy of destruction.

3. Restriction of access

The enforcement of the “buffer zone” results in Palestinians being unable to use property necessary for the production of food. It further results in a total or partial ban on access to a number of educational and religious institutions. Overall, the land restricted area is estimated at 17 percent of Gaza Strip’s total land mass, and 35 percent of its agricultural land.

Conclusion

The use of force based on military necessity must be engaged in good faith and consistent with other rules of IHL, in particular the principles of distinction and proportionality and precautions in and during attack. This does not appear to be the case in the “buffer zone” as the violations to IHL are flagrant, frequent and grave. Israel remains the Occupying Power in the Gaza Strip. In this capacity, it must protect the safety and well-being of the Palestinian population and take Palestinian needs into account. In addition, Israel must also protect Israeli civilians and soldiers, but it is not allowed to do so at disproportionate expense to Palestinian civilian lives and property.

While acknowledging Israel’s security concerns regarding attacks on Israel from the Gaza Strip, the facts and information available show that the unilateral expansion of the “buffer zone” and its enforcement regime result in violations of international humanitarian law and grave infringement of a number of rights of Palestinians.

Moreover, the unilateral expansion of the “buffer zone” in the Gaza Strip by Israel and the mechanisms through which the “buffer zone” is currently enforced cannot be justified based on military necessity as they violate the principles of distinction, proportionality and precautions in and during attack. They are further contrary to the prohibition against seizure and destruction of land except if rendered absolutely necessary by military operations, as well as the disproportional restriction on movement of civilians to their land and livelihoods. As such, the enforcement of the “buffer zone” under the current circumstances and scope is unlawful.