The disengagement spells “the end of Israeli control over and responsibility for the Gaza Strip”, Israeli Prime Minister Ariel Sharon said in his speech to the UN on 15 September.
His UN speech echoed the text of the plan that he devised two years earlier which stated that there will be “no basis to the claim that the Gaza Strip is occupied land”.
Although Israel has formally withdrawn its settlements and military bases from Gaza, the legal status of the area is now in question.
Palestinians are categorical in their claim – while Israel‘s colonisation of Gaza may have ended, its occupation has not.
In the end, they argue, Israel will retain effective overall control over Gaza – a litmus test by standards of international law.
As Saeb Erikat, chief Palestinian negotiator put it: “Israel will continue to control every good, person, and drop of water to enter or leave Gaza.”
That Israeli forces will no longer be physically present in Gaza is irrelevant, say several human-rights experts. An occupying power can exercise effective control without being present in all parts of the territory it occupies.
“Whether the bag checkers at the [Rafah] border crossing are Palestinians, Israelis, or Martians, does not by itself settle the question of whether Gaza is occupied,” Darryl Li, human-rights expert and doctoral candidate at Harvard University’s school of law, tells Aljazeera.net.
Mahmud Abbas inaugurating a
Under international law, a territory is considered occupied if it is under the “effective control” of a belligerent foreign power, he explains.
“This principle is even more relevant with a territory as small as Gaza,” Li says.
Israel’s relationship to Gaza in the wake of the withdrawal last month has sparked often fierce debate in Israeli intellectual circles over the question of semantics and the country’s founding ideologies.
Gidi Grinstein, director of the Re’ut Institute, a Tel Aviv-based self-described non-partisan Zionist thinktank, believes Sharon is transforming Israeli politics at their foundations.
“The end of occupation is the national project in Israel. Ending control over Palestinian population is [an] existential Israeli interest. And on [the] Israeli side we get the feeling that Palestinians aren’t enthusiastic about an end to occupation.”
But the issue is slightly more complicated that that, says Li. It’s about the underlying Israeli motives behind the disengagement and the call for an end to occupation, and the responsibilities it is trying to evade under international law vis-a-vis the civilian population it is occupying.
“Whether the bag checkers at the [Rafah] border crossing are Palestinians, Israelis, or Martians, does not by itself settle the question of whether Gaza is occupied”
“The basic problem comes down to this: Is Israel handing over or delegating their powers? Power and responsibility go hand in hand according to the international community. Israel cannot run Gaza and yet claim that they are not responsible for it,” explains Li.
From a political standpoint, Israeli policymakers have stated that there is interest for the international community to recognise the occupation as officially over.
A “clean bill of health” vis-a-vis Gaza could mean improved relations with many countries that formerly boycotted or shunned Tel Aviv, and, more importantly, leverage to obtain a permanent seat on the UN Security Council, as Israel‘s Deputy Prime Minister Silvan Shalom called for in his speech to UN on 20 September.
From a legal standpoint, an occupier, under the Fourth Geneva Convention, is responsible for the welfare of the citizens it is occupying – for providing them basic services such as water, education, and health, giving aid agencies free access, and not settling its own citizens there.
All this has left the Israeli government in a sort of paradox, says Li.
“Israel‘s ongoing ‘dilemma’ is how to maximise control over Gaza while minimising responsibility in the eyes of the world. The upshot seems to be a situation in which Israel exercises less direct control than before, while preventing anyone else from fully taking over.
Some say Israel is maximising
“In this respect, the question of Gaza‘s legal status becomes crucial: Is it occupied – and thus under Israeli responsibility – or is it not?”
Along these lines, many legal experts in Israel and beyond, including Harvard University law professor Alan Dershowitz, author of The Case for Israel, have argued that the issue is not black and white; rather the cessation of Israeli control should be considered along a “spectrum”.
“It’s a mistake to talk about an all-or-nothing approach. This occupation has many unique elements to it and it’s important to apply a functional approach to it,” Dershowitz told Aljazeera.net.
“I think international law properly interpreted permits for this kind of nuanced approach. It’s an argument that turns both ways. If one was to argue that occupation has ended – it would help and hurt both sides. It would give Israel powers we all agree it shouldn’t have now.”
Dershowitz argues that the question of whether the occupation is ending may be misplaced. Every occupation is different, he says.
“It’s better to ask the question in a more continuum kind of way. We should be asking: What aspects of the occupation are ending? Which aspects of responsibilities end and which aspects continue?”
Some Israelis say ending control
But Diana Butto, legal adviser to the Palestinian committee on evacuation, says that line of argument is “totally invalid”. There is no room for nuance when it comes to declaring an end to occupation, and the beginning of sovereignty, she says.
“There’s no such thing as being half-pregnant in the case of Gaza. You either are or you aren’t. You cannot claim that Palestine is two areas physically, but legally is one. You can’t be in a state of partial pregnancy. And this definitely is,” says Butto.
“They are trying to claim that Gaza is not occupied and therefore sovereign and yet still retain the very elements of statehood and sovereignty – control over air space and waters, borders, and right to defend itself.”
Butto also says that in the case of Gaza, territorial contiguity is a must, both in legal and political practical terms; a functioning, viable state cannot exist otherwise.
“We’ve had situations where there’s been a partial occupation and that’s only when we have the ability for a state to function.
“Gaza can’t operate without the West Bank. It’s not a Palestinian state – part of it is occupied and part of it is not, That’s also why UN documents refer to it in singular Occupied Palestinian Territory.”
Butto adds: “[T]he only thing that makes [this occupation] unique is the length of time it’s been occupied.”