Monday, December 28 2009

Who 'Occupies' Gaza?

An "expert" in international law, BBC bureau chief Jeremy Bowen, has concluded that Israel is still the legal occupier of Gaza, despite the 2005 disengagement. This statement is his own words:

But Israel, legally speaking, still has the responsibilities of an occupying power, even though it no longer has a permanent military presence in Gaza. These responsibilities include ensuring the welfare of the population, allowing the functioning of medical services, and maintaining respect for private property.

But international law isn't as clear cut as Bowen asserts. Last year, David Rivkin Jr. and Lee Casey laid out a powerful argument against the occupied status, writing in the Washington Post:

Israel, however, is not an occupying power, judging by traditional international legal tests. Although such tests have been articulated in various ways over time, they all boil down to this question: Does a state exercise effective governmental authority -- if only on a de facto basis -- over the territory? As early as 1899, the Hague Convention on the Laws and Customs of War on Land stated that "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself." . . . .

It is because an occupying power exercises effective control over a territory that international law substantially restricts the measures, military or economic, it can bring to bear upon this territory, well beyond the limits that would be applicable before occupation, whether in wartime or peacetime.

The Israeli military does not control Gaza; nor does Israel exercise any government functions there. Claims that Israel continues to occupy Gaza suggest that a power having once occupied a territory must continue to behave toward the local population as an occupying power until all outstanding issues are resolved. This "principle" can be described only as an ingenious invention; it has no basis in traditional international law.

Rivkin and Casey also touch on the implications of Gaza's "occupied" status for the wars in Iraq and Afghanistan, so read the whole commentary.

International law doesn't adequately address the problem of fighting non-state actors (like Al-Qaida), criminal quasi-state actors (i.e., Hamas and Hezbollah electoral successes give them a veneer of legitimacy), and asymmetric warfare, which is partly why the Israeli government declared Gaza a "hostile territory" in 2007.

Strictly speaking, that statement's purposes were limited -- this designation has no legal standing. But it put Hamas and its supporters in the legal community -- which now includes Bowen -- on notice that Israel intends to make its way through unchartered areas of international law.

Posted at 12:56 PM

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