Vol. 5, No. 3 26 August 2005
Legal Acrobatics: The Palestinian Claim that Gaza is Still "Occupied" Even After Israel WithdrawsDore Gold
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.1 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.2
From the standpoint of Hamas, the designation of territory as "occupied" is directly tied to its self-proclaimed mission "to expel the occupation." If Hamas refuses to recognize any change in the situation coming about because of Israel′s pullout, it is because it argues, in the words of the head of Hamas in Gaza, Mahmoud al-Zahar, "All of Palestine is our land."3 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 Israel or its right to hold onto one inch of Palestine."4
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." More recently, this political power was used to bring these politicized definitions to other UN organs, including the International Court of Justice in The Hague.
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...."5 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 territory where such authority has been established and can be exercised."6 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?
It is fascinating to consider these definitions with respect to the situation in the West Bank and the Gaza Strip during the period in which the Oslo Agreements were implemented. The original Oslo Declaration of Principles was signed in 1993. It was first implemented with the 1994 Gaza-Jericho Agreement. In 1995, the Interim Agreement extended this implementation to Palestinian population centers in the rest of the West Bank. 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 military 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.
Indeed, back in 1994, the legal advisor to the International Red Cross, Dr. Hans-Peter Gasser, proposed that his organization had no reason to monitor Israeli compliance with the Fourth Geneva Convention in the Gaza Strip and Jericho area, since the convention no longer applied with the advent of Palestinian administration in those areas.7 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
If there are serious legal questions about applying the term "occupation" to the post-Oslo West Bank and Gaza Strip of the 1990s, then why did the Palestinians persist in doing so? And why is it so essential for them to make this case even after Gaza disengagement? First, hammering 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. As noted earlier, there has not been a legally recognized sovereign in the West Bank and Gaza Strip since 1922. The 1947 UN Partition Plan did not create a new Palestinian Arab state, but rather was followed by an illegal occupation of the West Bank and Gaza by the Arab states that invaded in 1948. Rather than leave these territories as a "black hole" of sovereignty with several claimants, the Palestinian Authority 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, constant reference to an ongoing Israeli "occupation" is also a powerful argument in the electronic media that Palestinians might not want to concede so quickly. 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, presenting it instead as an aggressor. But there is a further important utility of the charge of occupation for the Palestinian Authority and its spokesmen: it provides a context for explaining how Palestinian groups resort to terrorism.
The roots of this contextualization of violence come from UN General Assembly resolutions that were adopted during the period of de-colonization. For example, Resolution 2708 that was passed on December 14, 1970, "reaffirms its recognition of the legitimacy of the struggle of the colonial peoples and peoples under alien domination to exercise their right to self-determination and independence by all the necessary means at their disposal." In the early 1970s, Yasser Arafat repeatedly made reference to such UN resolutions when he was pressed to justify acts of terrorism, like airplane hijacking. More recently, many Arab states have refused to agree to a blanket renunciation of all violence against civilians as part of an agreed definition of terrorism at the UN, because a special right of "resistance to occupation" is not protected. Consequently, once a territory can no longer be defined as "occupied," a huge fig leaf for political violence is lifted.
For the current Palestinian Authority, that sort of change would pose many problems. 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 fact that a wide variety of Palestinian spokesmen will charge that the Gaza Strip is still "occupied" even though the Palestinians exercise self-government and the Israeli civilian and military presence in this territory have been removed is revealing. It means that the charge of "occupation" is less a rigorous legal definition and more a blunt political instrument to serve the PLO′s diplomatic and military agenda against Israel.
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 their 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. Still, the Israeli government has demonstrated that it will not abuse the authority it still exercises outside of the borders of the Gaza Strip, as attested to by its readiness to withdraw from the Philadelphi route between Gaza and Egypt and its willingness to let the Palestinians dig a port for Gaza. 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 Article 51 of the UN Charter.
Beyond the propaganda war between the two sides, there are serious issues that Israel will have to resolve regarding the Gaza Strip. Israel may not have formal humanitarian responsibilities toward the civilian population of Gaza any longer, but it might nonetheless seek to exercise some of them, if requested by the Palestinians themselves. But Israel′s role will be that of a neighboring state, similar to Turkey when a humanitarian emergency arose in Iraqi Kurdistan or Chad with respect to the Darfur area of Sudan. Israel will not host Palestinian refugees, but it can provide backing to international humanitarian efforts of other states and international agencies, despite the withdrawal of its remaining authority in the Gaza Strip after disengagement is completed.
1. "Palestinian FM: Pullout Will Not End Gaza Occupation, Agence France Presse, August 9, 2005; http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=2&article_id=17458
Dr. Dore Gold is President of the Jerusalem Center for Public Affairs. He was the eleventh Permanent Representative of Israel to the United Nations (1997-1999). Dr. Gold was a member of the Israeli delegation at the 1998 Wye River negotiations between Israel and the PLO and negotiated the Note for the Record, which supplemented the 1997 Hebron Protocol. In 1991, he served as an advisor to the Israeli delegation to the Madrid Peace Conference.
Dore Gold, Publisher; Yaakov Amidror, ICA Program Director; Mark Ami-El, Managing Editor. Jerusalem Center for Public Affairs (Registered Amuta), 13 Tel-Hai St., Jerusalem, Israel; Tel. 972-2-5619281, Fax. 972-2-5619112, Email: email@example.com. In U.S.A.: Center for Jewish Community Studies, 5800 Park Heights Avenue, Baltimore, MD 21215 USA, Tel. (410) 664-5222; Fax. (410) 664-1228. Website: www.jcpa.org. © Copyright. The opinions expressed herein do not necessarily reflect those of the Board of Fellows of the Jerusalem Center for Public Affairs.
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