UN-Truth

Israel is one of the few countries on earth where most people still believe that Gaza is not occupied. We disengaged in 2005, Israelis say. What’s wrong with these people in Gaza?

OK, let’s just put aside Israel’s control of Gaza’s air and maritime space — generally regarded as sufficient proof in international law of occupation. Let’s even leave aside the more recently-developed critera of “effective control” — which does not require a constant military presence, or “boots on the ground”, but simply that a military can act at will within a territory — to establish that it is occupied.

Let’s look at just a few other facts: Why has Israel insisted (until now, and this is not clear at the moment…) that it must have some control including live real-time supervision of the crossing of all persons and personal goods through Rafah (shipments or large-scale movements of goods are not allowed to transit Rafah)? Why have Israeli military analyists insisted that allowing an additional 750 Egyptian “border police” at the Gaza border as part of their 2005 disengagement was such a big deal (Egyptian military forces are not allowed in the demilitarized Sinai Peninsula under the terms of the 1979 peace treaty between Israel and Egypt– and that it means for the first time Israel allowed third-party monitoring of any of Israel’s borders??? [Since the Rafah border was breached on 23 January with Hamas acquiescence, at least, there are reportedly now 20,000 Egyptian "security personnel" in the northern Sinai...]

The Oslo Accords, signed between Israel and the PLO, state without any ambiguity that the West Bank and Gaza form a single territorial unit whose status cannot be unilaterally changed by either Israel or the PLO.
So, Israel has also insisted on maintaining the Oslo structures, including the 1994 Paris agreement on customs etc, with regard to Gaza — and its control of these structures have allowed Israel to impose economic sanctions against Gaza (1) along with the West Bank, after the Hamas electoral victory in 2006 and its joining a PA government; (2) even more so, on Gaza alone, after the Hamas rout of Fatah security forces in May 2007; and now (3) again even additionally more so after the 19 September declaration by the Israeli Cabinet that Gaza is a “hostile territory” or “enemy entity”, because of continued firing of “projectiles” from Gaza to Israeli territory.

As a result, Israel’s Ministry of Defense ordered cuts starting 28 October in fuel supplies delivered exclusively by a private Israeli company, Dor Alon, under a commercial contract with the Palestinian Authority (one type of fuel, the industrial diesel used only to run Gaza’s main power plant, is paid for by the European Union, while the other fuels are paid by the PA — and Israel’s Ministry of Finance takes the payments out of Palestinian tax and customs revenue collected and still partly withheld by Israel).

And starting on 7 February, the Israeli Ministry of Defense has informed the Israeli Supreme Court, they will go ahead with phased cuts of directly-supplied electricity from the Israel Electric Company, and again paid for by the PA, with the money being deducted “at the source” by Israel’s Ministry of Finance from PA accounts held by the Israeli Ministry of Finance.

Now, we have a slightly different new argument emanating from an Israeli “think tank”/advocacy organization, the Jerusalem Center for Public Affairs. This argument, written by Dr. Avi Bell, a member of the Faculty of Law at Bar-Ilan University, and also a visiting professor at Fordham University, says it doesn’t matter whether or not Gaza is occupied (although the professor argues that it is not occupied), Israel’s actions in Gaza are fine, legal, and are even required under certain legal analyses — including the counter-terrorism conventions blithely passed by the UN after 9/11.

Professor Bell writes that “International law authorizes Israel to initiate military countermeasures in Gaza. If Gaza is seen as having independent sovereignty, Israel’s use of force is permissible on the grounds of self-defense. If Gaza is seen as lacking any independent sovereignty, Israel’s use of military force is permissible as in other non-international conflicts … Israel’s imposition of economic sanctions on the Gaza Strip is a perfectly legal means of responding to Palestinian attacks. Since Israel is under no legal obligation to engage in trade of fuel or anything else with Gaza , or to maintain open borders, it may withhold commercial items and seal its borders at its discretion.
The bar on collective punishment forbids the imposition of criminal-type penalties to individuals or groups on the basis of another’s guilt. None of Israel’s actions involve the imposition of criminal-type penalties…”

The war crimes, he argues, are being committed by Palestinians in Gaza: “The fighting in Gaza has been characterized by the extensive commission of war crimes, acts of terrorism and acts of genocide by Palestinians”.

Israel, he argues, is required to act against Gaza: “International law requires states to take measures to bring Palestinian war criminals and terrorists to justice, to prevent and punish Palestinian genocidal efforts, and to block the funding of Palestinian terrorist groups and those complicit with them”.

And, Professor Bell writes, “Israeli countermeasures have conformed with the requirements of international law” AND “Israeli attacks to date have abided by the rules of distinction and proportionality”.

He explains that “The rule of ‘distinction’ includes elements of intent and expected result: so long as one aims at legitimate targets, the rule of distinction permits the attack, even if there will be collateral damage to civilians. The rule of ‘proportionality’ also relies upon intent. If Israel plans a strike without expecting excessive collateral damage, the rule of proportionality permits it”.

Though it does not matter in his argument, Professor Bell explains, just for good measure, why he thinks Gaza is not occupied: “There is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of a state party to the convention and the occupier ‘exercises the functions of government’ in the territory. Gaza is not territory of another state party to the convention and Israel does not exercise the functions of government in the territory“.

This report was received by email. However, it will be available soon, if it is not already, on the website here.

Filed under: Gaza, Israel, Middle East Peace Process, Palestine & Palestinians