JULY 8, 2016
Six years after Israel and Turkey had a severe falling out following the Gaza flotilla raid, the two countries have finally reconciled. The deal will allow Israel to maintain its blockade, which Israel established after its withdrawal from Gaza in 2005.
A few days later, the Middle East Quartet released its long-awaited report on the Israeli-Palestinian conflict. Part of it dealt with the humanitarian situation in Gaza, the delay in rehabilitating it, and the absence of any Palestinian Authority presence, which, the report warned, “are liable to lead to a new war.”
It is time for the international community to acknowledge that, according to international law, Gaza can no longer be considered an occupied territory, even with this blockade in place. Here’s why.
Article 42 of the 1907 Hague Regulations outlines legal requirements for occupation, which include the physical existence of hostile troops in an area, so that the legitimate government is incapable of exercising effective powers of government. Conversely, military withdrawal is a prerequisite for clearly demarcating the end of occupation. As such, never since the enactment of the Hague Regulations has an occupation been recognized without a foreign army present. Although Israel fully evacuated Gaza eleven years ago and a 2015 U.N. Human Rights Council Report cited Hamas as the authority that controls Gaza and exercises “governmental-like functions,” the international community still erroneously perceives the Strip as a territory under Israel’s responsibility. The international community has drawn this legal conclusion without consideration of the fact that Israel does not meet the basic criteria of an “occupier” under international law and that, since 2005, Israel has had neither the intention nor the physical or legal capability to exercise governmental authority there. It thus fosters the incorrect, dubious argument that Israel is still legally responsible for Gaza as an occupier.
For example, the European Court of Human Rights recently ruled in two cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan. It held that the physical presence of foreign troops is a sine qua non requirement of occupation and that military occupation is inconceivable without “boots on the ground.”
This ruling also applies to Gaza. Accordingly, exercising naval or air control through a blockade does not constitute belligerent occupation. As measures of war are concerned, they do not require military presence nor the same effective control in the form of possession and exercising governmental authority required for occupation. More importantly, a blockade refers to a legal framework different from an occupation, focusing on the prohibition against threatening and using force under Article 2(4) of the U.N. Charter.
Nevertheless, in November 2014, the Office of the Prosecutor of the International Criminal Court (ICC) ruled: “…Israel remains an occupying power in Gaza despite the 2005 disengagement. In general, this view is based on the scope and degree of control that Israel has retained over the territory of Gaza.” The ICC also contended that “the geographic proximity of the Gaza Strip to Israel potentially facilitates the ability of Israel to exercise effective control over the territory, despite the lack of a continuous military presence.”
Regrettably, these fallacious statements further nurtured the de-legitimization campaign against Israel, in particular regarding Gaza, and muddied the differentiation between Israel’s clearly incomparable status in the West Bank versus Gaza.
Despite the fact that it is no longer responsible for the local population in Gaza, Israel continues to provide essential services to Gaza as a humanitarian necessity, while Hamas has never formally assumed its obligations to provide public utilities to its civilian population. Israel, through the Coordination of Government Activities in the Territories (COGAT), maintains a daily steady humanitarian flow into the Strip via Erez and Kerem Shalom Crossings. This involves hundreds of trucks carrying dozens of thousands tons of goods into Gaza and access to emergency medical care in Israeli hospitals by Gazans.
Furthermore, in response to Hamas’s terrorism, rocket barrages against Israeli civilians, ongoing digging of attack tunnels, and the declared intention to continue the armed conflict – all supported by other terrorist groups, Israel imposed further security measures on Gaza, including restrictions on the passage of goods, the supply of oil and electricity, and the movement of persons to and from Gaza. While these were incorrectly attributed to a perpetuation of the occupation, they should, instead, be perceived as the continuation of attrition and armed conflict.
Attaining a long-term lull and the careful, controlled reconstruction of the Gaza Strip, including – under security reservations — a seaport, are desirable goals not only for Gaza, but also for Israel. According to Israeli analysts, such steps will greatly reduce Hamas’s motivation for igniting another round of violence.
This is why the international community should intervene and amend the legal distortion that has been perpetuated since Israel’s disengagement from Gaza. It should explicitly declare that Israel’s occupation of Gaza has ended according to international law and that the Palestinian Authority is the formal power responsible for the local population in Gaza.
In exchange for such a formal declaration, Israel should suggest that it join the international effort to rehabilitate Gaza under careful security measures, international coordination, and supervision. Israel could further propose that if, as a result of successful rehabilitation, Hamas’s attacks on Israel would subside for an extended period, it would seriously consider the alleviation of the closure of the Strip in coordination with Egypt, and the construction of the Gaza seaport. Everyone benefits except the terrorist groups in Gaza.
Gilead Sher, an attorney and former Israeli senior peace negotiator and Chief of Staff to Prime Minister Ehud Barak, heads the Center for Applied Negotiations at the Institute for National Security Studies (INSS) in Tel Aviv and is a co-founder of the Israeli non-partisan organization Blue White Future that advocates for a two-state solution. Dr. Dana Wolf is a lecturer at The Interdisciplinary Center, School of Government (IDC) in Herzliya, Israel and specializes in the fields of public international law, conflict resolution and negotiation.
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