LEGAL ACROBATICS: THE PALESTINIAN CLAIM THAT GAZA IS STILL “OCCUPIED” EVEN AFTER ISRAEL WITHDRAWS
Dore Gold
Jerusalem Issue Brief, August 26, 2005 (note, first post date)
…Remarkably, even as Israel completes its withdrawal from 21 settlements in the Gaza Strip, official Palestinian spokesmen are already making the argument that Gaza disengagement changes very little and, as far as they are concerned, Gaza remains “occupied” territory. According to the Palestinian Authority’s Ministry of Foreign Affairs website, PA Chairman Mahmoud Abbas already stated on July 7, 2005, that “the legal status of the areas slated for evacuation has not changed.”
Three basic arguments are being used by various Palestinian factions to claim that the Gaza Strip will still be “occupied” even after Israel has completely left. First, as long as the Palestinians are unable to exercise full sovereignty in Gaza, the Palestinian foreign minister, Nasser al-Kidwa, maintains that the territory is still “occupied,” particularly because of Israel’s continuing control of Gaza’s territorial waters and its airspace. For Saeb Erekat, who heads the PLO’s Negotiations Affairs Department, since the Gaza Strip and the West Bank were designated as “one territorial unit” in the Oslo! Accords, Gaza disengagement affects only a portion of the total territory under discussion and, therefore, its legal status remains unchanged.
From the standpoint of Hamas, the designation of territory as “occupied” is directly tied to its self-proclaimed mission “to expel the occupation.” [I]n the words of the head of Hamas in Gaza, Mahmoud al-Zahar, “All of Palestine is our land.” He added, “neither the liberation of the Gaza Strip, nor the liberation of the West Bank or even Jerusalem will suffice for us. Hamas will pursue the armed struggle until the liberation of all our lands. We don’t recognize the State of Israe! l or its right to hold onto one inch of Palestine.”
What Legally Causes a Territory to be Under Occupation?
Palestinian spokesmen have used the grievance of being under Israeli occupation as their cutting-edge argument against the policies of Israel in the West Bank and Gaza Strip, while in fact the legal status of these territories has been under dispute since 1967 when they were captured by the Israel Defense Forces from Jordan and Egypt in the Six-Day War. The only previously recognized sovereign in these territories was the Ottoman Empire ! from 1517 through 1917; in 1923, the Turks renounced their territorial claims when the Ottoman Empire was dismantled. The British Mandate for Palestine envisioned the territories in question becoming part of a Jewish national home; the UN General Assembly recommended in 1947 that the areas that became the West Bank and Gaza Strip become part of a future Arab state, but this proposal was opposed by the Arab states at the time. Therefore, the exact legal status of these territories remained unresolved.
Using its political power in the United Nations, the PLO nonetheless has received the support of the Arab bloc and the Non-Aligned Movement to obtain the adoption of dozens of non-binding UN General Assembly resolutions defining these areas as “occupied Palestinian territories.”…
But “occupation” is not just a rhetorical or political term. It is first and foremost a legal term in international law. The legal termination of occupation clearly does not require that all the political demands of one party in a territorial conflict be met in full. That would make the end of occupation highly subjective. Instead, it must be based on certain legal criteria being met.
The main source of international law is international agreements and conventions signed by states, not declaratory resolutions of the UN General Assembly. The foremost document in defining the existence of an occupation has been the 1949 Fourth Geneva Convention “Relative to the Protection of Civilian Persons in Time of War.”
Israel argued back in 1967 that formally the Fourth Geneva Convention did not legally apply to the case of the Gaza Strip or the West Bank, since their previous occupants, Egypt and Jordan, illegally invaded those territories in 1948 and did not exercise internationally recognized sovereignty on the ground. The convention becomes relevant with the occupation of the territory of a signatory—but the Gaza Strip and the West Bank were not recognized as Egyptian and Jordanian territories. Nonetheless, successive Israeli governments agreed to de-facto application of the terms of the Fourth Geneva Convention over the last thirty-eight years. More importantly, the Fourth Geneva Convention became an internationally-recognized standard for determining the rights and responsibilities of state parties in cases of military occupation.
Article 6 of the Fourth Geneva Convention explicitly states that “the Occupying Power shall be bound for the duration of the occupation to the extent that such Power exercises the functions of government in such territory....” In other words, what creates an “occupation” is the existence of a military government which “exercises the functions of government.” This is a confirmation of the older 1907 Hague Regulations Respecting the Laws and Customs of War on Land, which state, “Territory is considered occupied when it is actually placed under the authority of the hostile army.” The Hague Regulations also stipulate: “The occupation extends only to the terri! tory where such authority has been established and can be exercised.” What follows is that if no Israeli military government is exercising its authority or any of “the functions of government” in the Gaza Strip, then there is no occupation.
Did the Occupation End After Oslo?
…The original Oslo Declaration of Principles was signed in 1993… What Israel essentially did with the Oslo implementation agreements was to withdraw its military government over the Palestinians and replace it with a Palestinian Authority under Yasser Arafat. Israeli officers would no longer serve as mayors in Palestinian cities; there would be no need for an Israeli civil administration to give out drivers’ licenses or building permits. Essentially, Israel transferred specific powers from its previous mi! litary government to the Palestinian Authority, with the exception of foreign affairs and external security. Oslo didn’t create a Palestinian state, but it would be hard to argue that by the mid-1990s, with Arafat ruling the Palestinians, that the Palestinians were under Israeli military occupation… At best, the Palestinians could argue that Oslo placed them in an ambiguous legal position, since they themselves exercised most of the functions of government, while Israel only maintained a few residual powers.
The Importance of the Occupation Claim for the Palestinian Armed Struggle
[H]ammering at the term “occupation” is part of the way the Palestinians stake a strong claim to territory where sovereignty is, in fact, very much contested… Rather than leave these territories as a “black hole” of sovereignty with several claimants, the [PA] reminds the world that these are “occupied Palestinian territories” in order to assert exclusive rights in these territories, as though they were once under Palestinian sovereignty in the past. Second, [it] highlights the position of the Palestinians as victims in the Arab-Israeli conflict and presents Israel unfavorably, as an oppressor. It helps obfuscate the fact that Israel entered these territories in a war of self-defense back in 1967… But there is a further important utility of the charge of occupation for the [PA]…it provides a context for explaining how Palestinian groups resort to terrorism.
…True, Mahmoud Abbas has repeatedly stated that violence does not serve the interests of the Palestinians; he believes that the second intifada was a strategic error. But many militiamen in Abbas’ Fatah movement, including the al-Aqsa Martyrs’ Brigades, still believe in the use of political violence. Moreover, rather than challenge Hamas, Abbas has decided to co-opt the militant movement into the Palestinian Authority with the January 2006 elections. Then, the Palestinian Authority will not need the occupation argument for its own strategy against Israel, but rather to provide political cover for its future political partners, who have made clear that they will not forgo what they still call the armed! struggle against Israel. Like Arafat thirty years ago, even Hamas wraps its justification for violence in the language of “occupation.”
How Israel Should Respond to the Occupation Charge
…The best way for Israel to counter Palestinian efforts to use the occupation charge to provide political cover for violence is to base its arguments on the growing international consensus against terrorism—regardless of the justification provided—for no political cause can legitimately explain why innocent civilians must be intentionally murdered in terrorist bombing attacks conducted on its behalf.
The Palestinians may not like the limitations that have been maintained on Gaza airspace or territorial waters. But even Egypt has limitations on its sovereignty in Sinai that are the result of security arrangements created by the 1979 Treaty of Peace. No one would argue that limitations on Egyptian authority constitute a form of "occupation." In the tight airspace of Europe, many mini-states cannot fully control their airspace alone, but must coordinate thei! r air traffic with larger neighbors to prevent air collisions. Their sovereignty is hardly compromised by this cooperation.
Additionally, Israel does have legitimate security concerns, given the history of Palestinian violations of the security provisions of the Oslo Agreements, including high-profile attempts by the Palestinian Authority to illegally import weaponry by sea on ships like the Santorini and the Karine A… And, should Israel nonetheless find it necessary to re-enter the Gaza Strip to quash a terrorist threat, it would not do so as a former occupying power but rather as a state defending itself from an immediate threat being posed by a neighbor under Arti! cle 51 of the UN Charter…
(Dore Gold, a former Israeli Ambassador to the UN, is President of the Jerusalem Center for Public Affairs.)
Comment: PR warriors, arm yourselves with the facts and then proactively challenge our enemies, on campuses, schools and the media. Stand up, be aggressive, know that the truth is your weapon-take the air out of our enemies' sails-go united in groups of 3 or 4. If not you then who?
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