Is Limiting the Gaza Fishing Zone Collective Punishment?

Against the backdrop of the armed conflict between Israel and the Hamas - is limiting the space available for fishing near Gaza's shores collective punishment?

Gaza Port | Flash 90

Escalations in the armed conflict between Israel, Hamas and other armed groups in the Gaza Strip tend to follow a familiar pattern. Often, following the shooting of rockets or the launching of incendiary balloons from Gaza to Israel, the Israeli government will constrain the space available for fishing next to Gaza’s shores. When matters become calmer, the fishing zone is extended.

Nizar Ayyash, the chairperson of Gaza’s fishermen’s union, criticized this policy recently, saying, “[W]hat is the connection between people launching incendiary balloons and fishermen at sea? If someone makes you trouble you punish also those not connected to him? This is collective punishment.”

Is Ayyash correct? Is this measure taken by Israel a collective punishment and an illegal measure?

To answer this question, we must review three moments in time.

The first moment is 1993-1995, when the Interim Agreement (also known as the Oslo Accord) between Israel and the Palestinian Liberation Organization (PLO), representing the Palestinian people, was signed. The agreement established a Palestinian autonomous authority (PA) and regulated in detail the division of powers and the relationship between the PA and Israel. The agreement was expected to be in force for five years, until a permanent status agreement was to be finalized. As part of the security arrangements, the maritime zone adjacent to the Gaza Strip was divided into three areas, all extending 20 nautical miles into the sea. A 1.5-mile-wide zone in the north, adjacent to the border with Israel, and a one-mile-wide zone in the south, adjacent to the border with Egypt, are closed zones, restricted to the Israeli Navy. These are known as zones K and M. The main and central zone (L) was to be open for fishing, recreation and economic activities. The Israeli Navy retained freedom to sail in this zone as part of Israel’s responsibility for maritime security, as well as to take measures necessary against vessels suspected to be engaging in terror, smuggling or other illegal activities.

The parties failed to reach a permanent status agreement in the assigned time frame, and an armed conflict broke out between them in 2000. However, neither party has chosen to terminate the Interim Agreement. Although neither party performs all the obligations contained in the agreement, many other parts of the agreement are still “alive” as a matter of practice for both parties.

The second moment in time is 2005, when Israel decided to disengage from the Gaza Strip. Israeli settlements and civilians were evacuated and Israeli forces withdrawn. The military administration established after Israel occupied the strip from Egypt in 1967 was officially terminated. The Israeli Supreme Court, ruling in an appeal concerning Israel’s obligation to provide electricity and fuel to the Gaza Strip stipulated that Israel is no longer the “occupying power” under international humanitarian law in this area.

The third temporal point is 2007. Hamas, an extremist Islamist militant faction, took over the Gaza Strip in a military coup against the PA. While the situation in the West Bank became calmer, the armed conflict intensified in the Gaza Strip and southern Israel. Three major rounds of hostilities occurred in 2009, 2012 and 2014. In recent years, shorter outbursts of violence have often been followed by unofficial understandings brokered by Egyptian intelligence or other mediators. It was reported recently that Israel agreed to ease limitations on the fishing zone in return for Hamas keeping the calm.

With this background in mind, is diminishing the fishing zone as a response to rockets or incendiary balloons launched from Gaza to Israel a collective punishment?

Punishment is intrinsically a governmental activity, applying in the “vertical” relations between a government and individuals under its control. This type of a relationship exists in a belligerent occupation between the foreign military administration and the population in the occupied territory. Therefore, collective punishment is forbidden in occupied territory under Article 33 of the Fourth Geneva Convention of 1949.

However, in other contexts within international relations, pointing to collective punishment makes little sense. States are collective entities. When they take actions against each other, these actions will usually affect individuals in the other state. This is a “horizontal” not a “vertical” relationship. When the U.S. decides to raise tariffs on Chinese industrial goods, for example, China’s government may react with countermeasures against U.S. goods, but the chairperson of Chinese industrialists will not accuse the U.S. of collective punishment and will not argue that the industrialists should not pay the price if China “makes trouble” for the U.S. It is just not a relevant claim.

But between Israel and Hamas there is not a trade war, but an actual war. If Hamas is violating the understandings and launching incendiary balloons that set fires in Israel, why can’t Israel suspend its part of the understandings and limit the fishing zone as a countermeasure? This seems more like a “horizontal” relationship.

By contrast, some observers contend that, although Israeli forces have withdrawn from the Gaza Strip, Israel still has some residual obligations under the law of belligerent occupation, at least in matters in which it exercises “remote control” on the strip. This is a contested view, rejected by many as a matter of principle (see here and here). However, for the purpose of this piece, I will presume it is valid—and if it is, the question of collective punishment may be relevant. If the possibility of “occupation by remote control” is accepted in principle, the maritime zone adjacent to Gaza’s shores is a good example of an area where Israel still exerts a considerable degree of control (though the control can be argued to be based on the consent of Palestinians in the Interim Agreement, thus not meeting the definition of belligerent occupation).

But how should collective punishment be defined? In a policy research paper published by the Israel Democracy Institute (in Hebrew, with an abstract in English), I have defined it as any step that may directly harm the rights of an individual due to an act for which the individual cannot be held responsible and that is carried out solely because of the individual’s belonging to a particular group—such as a family, a village or an ethnic minority—of which another member is held to be responsible for the act in question.

In the case of the fishing zone, the fishermen are harmed directly from this measure. The harm is not unavoidable “collateral damage” as a result of measures to prevent a maritime terror attack. The livelihood of the fishermen seems to be the direct target of this measure, the hope being that the fishermen will exert pressure on the Hamas regime in Gaza to stop attacking Israel.

However, is fishing a right or a privilege? Only if fishing is a right may its limitation be a collective punishment, which is absolutely prohibited. International human rights law acknowledges the right to work, including the right of everyone to freely choose their work, under Article 6 of the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR). Limitations on this right are permissible only under certain conditions (Article 4, ICESCR). Limiting fishing in certain seasons to protect the fishery or requiring safety gear on fishing boats may meet these conditions. But limiting fishing as a means to use the fishermen to exert pressure on the Hamas regime—in a manner unrelated to the fishermen’s behavior or to concrete security, environmental or other legitimate needs—is probably an unacceptable limitation of this right.

Assuming that Gaza remains occupied by Israel, then, these restrictions on fishing should be considered a collective punishment and are therefore forbidden.

Of course, if the law of belligerent occupation does not apply to the maritime zone adjacent to Gaza’s shores, the prohibition on collective punishment will not apply, for the same reason that it does not apply to the trade war between the U.S. and China. Even in such a case, as a policy matter it is worth weighing the expected utility of this measure against its possible harm. Economic conditions in the Gaza Strip are bad. Further harm to the livelihood of Gaza residents will not contribute to stability and peace. And is it reasonable to expect that the plight of the fishermen will convince Hamas to stop attacking Israel? I doubt it. The harm caused by this measure is clear, while its benefits are dubious.

The article was published in Lawfare.