Does Israel occupy Gaza as a matter of law.

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 “Disengagement” 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 – 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 – 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.

March 21, 2007 | 3 Comments »

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4 Comments / 3 Comments

  1. The US and Europe have not been hiding their positions that they will consider Israel still responsible for the welfare of the PA Arabs even after complete withdrawals. It must be obvious to anyone looking with open eyes that disengagement and unilateral withdrawal are scams since Gaza and Judea / Samaria (aka the West Bank) are not economically viable on their own. Israel provides virtually all of the basic infrastructure for both Gaza and Judea / Samaria. For example, Gaza gets virtually all of it’s electricity and water supplied by Israel for free. Israel is currently investing huge sums (on the order of billions of shekels if I remember correctly) in building up water and sewage infrastructure to provide service to Arab occupied cities in Judea and Samaria. Doesn’t seem logical if we’re going to “disengage”.

    Just looking at this article from April 2006 that appeared in Haaretz makes it clear that even a retreat to the 67 boarders or close to them would not “end the occupation”.

    U.S.: Pullout line won’t be seen as final border
    By Shmuel Rosner

    WASHINGTON – The United States will not recognize a border created after a unilateral withdrawal from the West Bank as Israel’s permanent border, senior administration members said in unofficial conversations.

    The left is taking us down the road of creating the absurd situation of us setting up a terror state which while it is trying to destroy us we remain responsible for feeding clothing and providing basic infrastructure and services to it’s population.

    Wait a second, I forgot – that’s what the Oslo “Peace Process” has been doing all along.

  2. We have been trapped in the language of the enemy. Israel is at war with invaders from outside the region most of whom arrived in the last 100 years, often in response to the Jewish economy developed in the mandate period. Now we concede in almost all discourse that the land outside the 1949 armistice line is “occupied.” We use the Transjordanian term “West Bank” to describe our own lost territory, known to us in ancient times as Judea and Samaria. We talk of “returning” land for peace and recognition, and we take for granted that the Arabs must be given substantial portions of our patrimony because we cannot absorb them and we cannot expel them. We need to reexamine our own attitudes on the disputed land before we can expect the world to revise its views.

  3. David, you are absolutely right and in fact there is another valid legal argument that can be made and that is that the Geneva Convention only applies to “high contracting parties” which excludes the “palestinians”.

    The international community has chosen to overlook these requirements.

    In fact the GoI took the position before its Supreme Court in the decision on the fence, that Israel held the land in “belligerent occupation” and the Court endorsed this view.

  4. Since we seem to be adopting dangerous enemy terminology again, a review of the legal concept of occupation is in order.

    An occupation occurs, simply speaking, when one sovereign conquers and controls the territory of the rightful local sovereign.

    This definition is irrelevant to Judea and Samaria — and was irrelevant to Gaza — for two reasons. First, the land was Israel’s in the first place: the Arabs had no right to steal it in 1948; this theft was indeed an occupation, an illegal one at that, and did not serve to legally remove these areas from the territory of the mandate. Israel, being the successor to the mandatory power, thus retained the title to these areas until the 1967 liberation. Keep in mind that the U.N. General Assembly resolution embracing a three-state “solution” did not have legal force because it was a General Assembly, not a Security Council, resolution, and because the Arabs rejected it; besides, the land in which the Arabs could have had their second Palestinian Arab state do not coincide with those illegally occupied by the Arabs during the 1948 war.

    The second reason there is no occupation (albeit a much less important reason): Israel did not take the territory from a legitimate local sovereign. As has been noted, neither Jordan nor Egypt had any right to these areas. (Also, as we all know, there has never in history been a Palestinian Arab sovereign, so there is not even any case for “restoring” the land to this mythical original owner.)

    This is not an exercise in legalistics. The very idea of occupation is that the occupying power does not have an inherent claim to the land, which soundly undermines the rationale for staying there. By calling Samaria or Judea occupied, you thus deny Israel’s claim to them. Because Israel is the sole legitimate owner of all of the land between the Jordan River and the Mediterranean Sea, Israel has the right and the duty to stay.

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