By Ted Belman
The Washington Post has an article today For Gaza, a Question of Responsibility which informs that
The Israeli government is arguing in domestic courts that it no longer occupies the Gaza Strip, a designation that under international law holds the Jewish state responsible for the welfare of Gaza’s 1.4 million Palestinians.
[..] But the government is making the case now in order to defend its restrictions on the ability of Gazans to trade and travel. If successful, the legal claim could also make it more difficult for the Israeli military to enter the 140-square-mile region, where Palestinian rocket attacks and arms smuggling have increased sharply since the army’s departure.
In Oct ’04, I wrote Disengagement won’t end the occupation
The PLO Negotiations Affairs Department issued a paper entitled The Israeli â€œDisengagementâ€ Plan: Gaza Still Occupied And now we read in Israel National News of a new official document Disengagement Won’t Help
“Israel will not be exempt from international responsibility for the Gaza Strip even after the disengagement.” So states a classified document written by jurists in the Justice Ministry, the IDF and the National Security Council. The report, which has been submitted to the government, explains that according to international law, Israel will continue to be held responsible for Gaza for three reasons: Even after the scheduled withdrawal, no other authoritative body will be given control; Israel will still control Gaza’s airspace and coast line; and the IDF will still remain along the southern border’s Philadelphi Route.
The report recommends that Israel consider bringing an international force into Gaza â€“ though at the same time acknowledges that this could be a “dangerous precedent” regarding Judea and Samaria. The authors similarly warn that Israel’s unilateral withdrawal could lead the Palestinian Authority to unilaterally declare a Palestinian state â€“ one that is liable to make hostile treaties with Arab nations and international terror organizations. MK Aryeh Eldad (National Union) said this morning, “Here we see another one of the Prime Minister’s lies being uncovered.” He predicted the approaching end of Sharon’s “hide-your-face-in-the-sand policies.”
So let me see now. Disengagement –won’t end the responsibility of occupation –won’t save money –won’t make Israel more secure but more insecure –won’t get the world off Israel’s back but will intensify demands for more withdrawal –won’t decrease terror –won’t make Israel stronger –won’t further the Zionist cause. None of this is doubted or debatable. But what it will do, which is also not doubted, is to divide the country’s populace and sap its strength to resist further retreats.
According to the ICRC in its document Occupation and international humanitarian law
Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” [..]
The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.
The question of “control” calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC’s Commentary to the Fourth Geneva Convention (1958).
An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.