Panelists Disagree Over Gaza's Occupation Status
Even after the recent pullout of Israeli settlers, Israelis and Palestinians are disputing whether the region of Gaza should be considered legally occupied. Panelists from both sides debated the issue at an event sponsored by the Human Rights Program and the J.B. Moore Society of International law Nov. 14.
Israeli disengagement from the Gaza Strip earlier this year was seen by many as a potential breakthrough for the always vitriolic, sometimes-violent conflict between Israelis and Palestinians. And yet even after the withdrawal, whether the international community should consider Gaza occupied or unoccupied is a fundamental question that remains unanswered.
"This debate has been stirring for about a year," said Shelley Neese, the current managing editor of The Jerusalem Connection. "We get a mix of answers and reactions. The Israelis say yes, the Palestinians say no; the U.N. is basically silent, the Red Cross is undecided, the World Bank is basically neutral, and the U.S. and the E.U. have basically said they don't want to be involved in a legal debate."
Palestinian authorities stress that, with its airspace and seacoast still under Israeli control, Gaza remains an occupied territory. The Israeli government, on the other hand, asserts that the removal of all military and civilian forces from Gaza is a clear sign of an end to Israeli occupation of that territory.
"Both sides really have an interest in proving their positions for diplomatic reasons," said Neese. "They both need to obtain international recognition of their side.
"[This issue] is not important just for symbolic or rhetorical reasons," Neese said. "There are many serious issues that this question affects. There's the question about Gaza's refugees, there's the question about Israel's humanitarian responsibilities and legal responsibilities, there's the question about Israel's military operations in the Gaza Strip, should there be consulates in Gaza now, should there be embassies in Gaza now?"
Capt. Osnat Davidson, head of the infrastructure section of the international law department in the Israeli Defense Forces Military Advocate General Corps, focused on the implications behind the recent Disengagement Plan, the main consideration of which "was to end the Israeli control over Gaza, meaning Israel did not want to be an occupier anymore." The words of the plan itself stated that the completion of the plan "will serve to dispel the claims regarding Israel's responsibilities towards the Palestinians."
To illustrate the idea of Gaza as a presently unoccupied territory, Davidson pointed to the lack of an Israeli civilian or military presence in the area. "Israel has relocated more than 8,000 Israeli citizens from more than 20 settlements," she said. "The Philadelphia Route, which is the border between Gaza and Egypt, is evacuated of all Israeli forces and is no longer under Israeli control. There is a complete dissolution of the Israeli military government and civil administration in the Gaza Strip."
Gaza, under current Palestinian control, is considered autonomous, or a territorial entity short of being declared a state under international law. Although she did not discuss the future status of Gaza (whether as a state or a territory), Davidson stressed that Gaza should be considered unoccupied.
She pointed to Article II of the Geneva Convention, which defines occupation as "a legal regime applicable to a territory captured by armed forces, usually during armed conflict." Under international law, an occupying power is in control when the government is displaced and its functions are provided for by the occupier. As to when an occupation ends, Davidson said that "we don't have any written law there."
The factual occupation of Gaza ended with the completion of the Disengagement Plan, according to Davidson. "I don't think we have to resort to the legal fiction of occupation to entail responsibilities on Israel," she said.
Gregory Khalil, a Palestinian-American legal adviser for Palestinian negotiations, said Gaza's legal status after disengagement "affect[s] millions of peoples' lives. It's not occurring in a theoretical vacuum. This is a very practical matter, even though there are all sorts of interesting theoretical permutations."
Despite disengagement, Gaza should still be considered an occupied territory, Khalil said. The territory's two borders with Israel, the Philadelphia Route in the south and the West Bank, are still under Israeli control, he charged. "Israel still controls every person, every good, literally every drop of water to enter or leave the Gaza Strip," he said. "Its troops may not be there, but it still restricts the ability for the Palestinian authority to exercise control."
Two terms constantly conflated in discussions of occupation are "colonization" and "occupation." International law considers colonization illegal but occupation can be considered legal in certain circumstances. In terms of the conflict in the Middle East, occupation is being used as an excuse for colonization, Khalil alleged.
The distinction is crucial when considering the security wall that Israel is constructing as an effort to stave off frequent terrorist attacks, he said. The International Court of Justice held overwhelmingly that the security wall and all Israeli settlements are considered illegal. Expansion continues on the West Bank, another territory Khalil sees as involved in the issue of Gaza's occupation.
"So here, right in this moment, we're talking about these larger issues," he said. "We're using as a point of departure the end of occupation, but it brings into play a number of larger political and strategic issues as well as a number of factual issues. If we lose this moment and we don't take advantage of this moment to actually move forward and build a new discourse, [then we risk not] giving both people the ability to take control of their lives and move forward in a more productive direction."
Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.