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Who is responsible for rebuilding Gaza?

Fundamental Questions

Who is responsible for rebuilding Gaza?

Why is responsibility important?

Supporters of Palestinian rights are correct to call Israel to account for violations committed during the 2014 attack on Gaza, but the maze of obligations is actually more complex. Duty bearers – those with legal duties and obligations defined by international law –may be evading their obligations as a result of political considerations, making it even harder to achieve justice.

Ascertaining who is responsible for rebuilding Gaza is vital to any discussion about the legal, political, economic and moral role of the relevant parties, and will enable targeted constructive pressure, which is the essence of accountability.

Gaza’s status

The United Nations Security Council and General Assembly regard the Gaza Strip as part of the occupied Palestinian Territory (oPt).  The Gaza Strip is considered occupied by Israel because Israel can exert “effective control,”  for example, over Gaza’s airspace, population registry, supply of essential services, and entry and exit through Gaza’s territorial waters.

Israel argues that Gaza is not occupied because Israel withdrew its military bases and Jewish-only settlements in 2005, but Israel maintains “effective control” and is, therefore, an occupier. As an occupier, Israel has obligations in relation to the occupied population, which is entitled to specific rights under international humanitarian law.

The legal status of Gaza is also relevant because a state cannot fight a defensive war against a population it occupies. Therefore, assuming that the 2014 Israeli aggression in Gaza, and those of 2012 and 2008-9, were illegal, on that basis, isn't Israel responsible for providing compensation and reparations for the damage it caused?

Is Israel solely responsible for Gaza?

No. As an occupying power, Israel is required under international law to provide for the wellbeing of the protected population, but if it fails to do so, third states are required to step in. The responsibility of the international community is foremost to ensure that Israel respects international law and its obligations towards Palestinians and to enforce Israeli compliance through accountability measures.

In practice, the international community, particularly the USA and EU member states, rarely challenge Israeli violations of international law. Even worse, aid, trade and cultural relations with Israel provide economic support and political legitimacy to Israel by “normalizing” the occupation; Israel’s acceptance as a global player signals that the international community acquiesces to the status quo.

What responsibilities does the international community have towards Gaza?

The international community is  obligated to uphold international law relating to an occupied population and protect Palestinian rights should Israel fail to fulfill its obligations--if needed through sanctions. One component of the international response to Israel's refusal to fulfil its obligations is international aid to Palestinians. However, this should be a short-term solution pending effective pressure being exerted on Israel to fulfill its obligations. In the Palestinian case, international aid supplied over decades has actually relieved Israel of its obligations as an occupying power.

Following the Oslo Accords and the creation of the Palestinian Authority (PA), the international community has channeled aid to Palestinians primarily in the form of support to the PA, which took over some of the responsibilities primarily assigned to Israel. In turn, Israel claims that the PA is responsible for addressing Palestinian needs while limiting the PA's capacity to do so. In addition, some major donors use the PA's dependency on aid to impose political conditions, something they don't dare do to Israel. This promotes impunity.

The United Nations (UN), the major actor coordinating aid, has obligations under the UN Charter and the many UN resolutions related to the Israeli-Palestinian conflict. It works through humanitarian and development agencies such as the UN Relief and Works Agency (UNRWA), UN Development Programme (UNDP), World Food Programme (WFP), World Health Organization (WHO) and others. These agencies – like international non-governmental organizations – receive donor funding to provide aid to Palestinians. In this way, donor governments "contract out" their duties to agencies.

The vast sums of money and power held by aid agencies create interests that supersede those of the beneficiaries: the Palestinians. Goals become to attract more funding, hire more staff, and win recognition; theoretically, there could be self-interest in maintaining the suffering that they are mandated to alleviate. Moreover, international aid actors are supposed to hold Israel accountable for violations, but they also need Israel to allow them to work unimpeded. This places “humanitarian relief” at direct odds with human rights advocacy.

Are Palestinians responsible for Gaza?

The Palestine Liberation Organization (PLO), designated by the UN as the “sole representative of the Palestinian people,” bears some responsibility under its illusive statehood agenda. The PLO signed the Oslo Accords and created the PA, which agreed to Israel’s demands that it accept responsibility for aspects of the Palestinian population. Hamas also assumed this level of responsibility when it decided to run for legislative elections in 2006, and de facto in Gaza after it took control in 2007.

However this responsibility is qualitatively different from the responsibility placed on Israel and the international community under international law. This is because the legal basis of the PA’s existence is the Oslo Accords, which do not have the status of international law and even conflict with it in many aspects. Likewise, the de facto presence of Hamas in Gaza does not invalidate the applicability of international law. In other words, the legal responsibilities assigned to Israel and third states are not undermined by Palestinian participation in the Oslo framework. Moreover, the Palestinian Authority only has obligations to the extent that it is able to exercise control. This control is almost dependent on Israel. However, there are some obligations that it can uphold, such as respect for international human rights law.

What is Egypt’s responsibility towards Gaza?

Egypt controls one passage to Gaza through the Rafah crossing, closed almost continuously since October 2014. Israel argues that this makes Egypt also a party to the blockade on Gaza. While this is partly true, their obligations differ. Egypt is not an occupying power and therefore does not have the same legal and practical responsibilities towards the Gaza Strip as Israel.

Egypt has virtually no control over affairs inside Gaza such as the provision of essential services. The small quantity of electricity it supplies to Gaza has been uninterrupted for the most part. Egypt shares an internationally recognized border with Gaza. In contrast, Israel has no recognized border and routinely breaches the “Green Line” (the 1949 Armistice line).

Most importantly, Israel cannot relinquish its obligations to Gaza under international law; Egypt is simply not legally obligated in the same way.

There are also political and practical differences between the impact of Israel’s blockade and separation policy and Egypt’s unconscionable refusal to keep Rafah border crossing open . Gaza’s political, social, economic and cultural existence depends on reunification with the rest of Palestine. Palestinians in Gaza look towards the rest of the occupied Palestinian territory, for its national affiliation, not towards Egypt. So while it is unclear if Egypt has impeded humanitarian aid as a customary obligation of international humanitarian law, it is Israel that is the party preventing the realization of the Palestinian collective right to self-determination.

So what do you think? Who do we hold accountable?

Clearly, there are many parties with different levels of responsibility for the continuing violations of Palestinian rights in Gaza and the lack of rebuilding. How do we understand these various, overlapping and sometimes contradictory duties? Who should be held accountable for what? And how?

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