Unfortunately, as one might expect from both B'Tselem and HaMoked, the report's accusations of Israeli violations of international law are groundless. The report grossly distorts both the facts and the law.
The legal theory propounded by the report is that Israel is required to permit travel between Gaza and the West Bank, and even permit Gazans to take up residence in the West Bank, on the basis of two legal documents: (1) the International Covenant on Civil and Political Rights, and (2) the Oslo Accords between Israel and the PLO.
In fact, neither document requires Israel to do what B'Tselem and HaMoked claim.
The Covenant on Civil and Political Rights grants limited rights of residence and travel to protected people within their country. Specifically, article 12 provides that those lawfully within the territory of a state enjoy freedom of movement and the right to choose their residence. This is not a blanket right of people to “choose where they live” as HaMoked and B’Tselem falsely assert. A Jordanian cannot claim a legal right to “choose to live” in Israel. And Palestinians outside Israel’s sovereign territory cannot “choose” to live in Israel or “choose” to transport themselves through Israel. HaMoked and B'Tselem repeatedly insinuate that they do not consider the West Bank or Gaza to be territory of Israel; consequently, both would have to concede that under their interpretation of the legal status of the West Bank or Gaza, no one in those territories enjoys these treaty rights.
Of course, a strong argument can be made—though B'Tselem and HaMoked vigorously deny it—that the West Bank is, in fact, sovereign Israeli territory. But even if both Gaza and the West Bank were both considered territory of Israel, Israel still has the right under article 12 to restrict movement and residence rights under law as necessary to protect national security and public order. Considering that in 2005, Israel relinquished all security control in Gaza and in 2006, the terrorist group Hamas seized power there, Israel has excellent security reasons for restricting movement through Israeli territory to and from Gaza. In other words, so long as Hamas controls Gaza, no one – not even Israelis – have the right to choose to travel there contrary to Israel’s security regulations.
How do B’Tselem and HaMoked deal with this security argument? This is the most remarkable thing about the B’Tselem/HaMoked report: they don’t. Nowhere in the entire report does the name “Hamas” ever appear. The word “terrorism” never appears. The term “terrorist organization” never appears. The term “security” appears only twice and it refers to Israeli security clearances; the report never acknowledges Israel’s rights under the Covenant to restrict travel for security reasons. In fact, the reports describe Israeli changes in policy regarding travel to and from Gaza in 2007 without ever acknowledging in any way that in 2006, the Hamas terrorist group seized control of Gaza in an armed rebellion!
The B’Tselem/HaMoked report is just as dishonest and sloppy in its claims regarding the Oslo Accords. First of all, it should be noted that Israel’s partner in the Oslo Accords was the PLO, not Hamas. The PLO is no longer in control of Gaza, and Hamas loudly proclaims that it is not bound by the Oslo Accords. Consequently, it is difficult to see how any Gazans can claim rights under the Accords. Second, the PLO itself has repeatedly violated all its most important duties under the Oslo Accords, including, most importantly, its commitment to end violence and terrorism and to combat them. For example, the PLO has repeatedly failed to live up to its obligation under Article XV of the Interim Agreement (better known as “Oslo 2”) to “take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against” Israel, Israelis and Israeli property. Thus, it is not clear that even the PLO could claim rights under the Oslo Accords. Third, even if the Oslo Accords still bound Israel, even in relation to Gaza, the Oslo Accords themselves placed time limits on many of Israel’s obligations by specifying that they belonged to an “interim period” lasting from 1994-1999. It is far from clear that the interim obligations remain relevant today.
But assuming that the Oslo Accords are still in effect in relevant part, Israel has no duty to allow free movement between the West Bank and Gaza. On the contrary, the Accords make it clear that Israel has full control over such movement. Article IX of Annex I to the Interim Agreement establishes that “entry of persons from the West Bank and the Gaza Strip to Israel shall be subject to Israeli laws and procedures …”
Indeed, the best argument HaMoked/B’Tselem can come up with is that the Oslo Accords granted the Palestinian Authority power to maintain a population registry. But this did not mean that Israel had to open up its borders to all Palestinians wishing to cross to and from Gaza. The Accords were quite specific in saying that Israel’s security needs take precedence. According to Article IX of Annex I to the Interim Agreement, “the provisions of this Agreement shall not prejudice Israel's right, for security and safety considerations, to close the crossing points to Israel and to prohibit or limit the entry into Israel of persons and of vehicles from the West Bank and the Gaza Strip.” As for control of the registry, this purely administrative responsibility did not grant the Palestinians any overall rights to force Israel to accept movement of Palestinians between Gaza and the West Bank. Section B of Appendix 5 of Annex 1 to the Interim Agreement states that “for the purpose of the Agreement and this Protocol, ‘residents of the Gaza Strip and West Bank’ means persons who, on the date of entry into force of the Gaza-Jericho Agreement, were registered as residents of these areas in the population registry maintained by [Israel], as well as persons who have subsequently obtained permanent residency in these areas with the approval of Israel ...”
Moreover, the Accords plainly specified that Israel has full authority to take steps necessary for security. Under Articles X and XII of the Interim Agreement, Israel retained responsibility for “external security … [and] overall security of Israelis.” Indeed, the agreement was quite clear in stating that Israel “will have all the powers to take the steps necessary to meet this responsibility.” Article XVII(1)(b) of the Interim Agreement made it clear that any Palestinian jurisdiction was limited by Israel’s security responsibility.
And this brings us once again to B’Tselem’s and HaMoked’s tactic for dealing with inconvenient facts and law: ignoring them. The report has no mention of Israel’s security rights and responsibilities under the Oslo Accords. And, of course, it has no mention of Hamas, terrorist control of Gaza or any other security exigencies.
It’s hard to imagine a more disingenuous “legal” report. For serious arguments about Israel’s legal duties, look elsewhere.