Jerusalem Issue Brief
Institute for Contemporary Affairs
founded jointly at the Jerusalem Center for Public Affairs
with the Wechsler Family Foundation

Vol. 5, No. 3 - 26 August 2005

Legal Acrobatics: The Palestinian Claim that Gaza is Still "Occupied" Even
After Israel Withdraws

Dore Gold

* Remarkably, even as Israel completes its withdrawal from 21
settlements in the Gaza Strip, official Palestinian spokesmen are already
making the argument that Gaza remains "occupied" territory. PA Chairman
Mahmoud Abbas stated that "the legal status of the areas slated for
evacuation has not changed."

* Palestinian spokesmen have used the grievance of being under Israeli
occupation as their cutting- edge argument against the policies of Israel in
the West Bank and Gaza Strip, which have effectively been territories under
dispute since 1967 when they were captured by the Israel Defense Forces from
Jordan and Egypt in the Six-Day War.

* The foremost document in defining the existence of an occupation has
been the 1949 Fourth Geneva Convention "Relative to the Protection of
Civilian Persons in Time of War." Article 6 of the Fourth Geneva Convention
explicitly states that "the Occupying Power shall be bound for the duration
of the occupation to the extent that such Power exercises the functions of
government in such territory...." If no Israeli military government is
exercising its authority or any of "the functions of government" in the Gaza
Strip, then there is no occupation.

* What Israel essentially did with the Oslo implementation agreements
was to withdraw its military government over the Palestinians and replace it
with a Palestinian Authority under Yasser Arafat. Oslo didn't create a
Palestinian state, but it would be hard to argue that by the mid-1990s, with
Arafat ruling the Palestinians, that the Palestinians were under Israeli
military occupation.

* The fact that a wide variety of Palestinian spokesmen will charge
that the Gaza Strip is still "occupied" even though the Palestinians
exercise self-government and the Israeli civilian and military presence in
this territory have been removed is revealing. It means that the charge of
"occupation" is less a rigorous legal definition and more a blunt political
instrument to serve the PLO's diplomatic and military agenda against Israel.

Remarkably, even as Israel completes its withdrawal from 21 settlements in
the Gaza Strip, official Palestinian spokesmen are already making the
argument that Gaza disengagement changes very little and, as far as they are
concerned, Gaza remains "occupied" territory. According to the Palestinian
Authority's Ministry of Foreign Affairs website, PA Chairman Mahmoud Abbas
already stated on July 7, 2005, that "the legal status of the areas slated
for evacuation has not changed."

Three basic arguments are being used by various Palestinian factions to
claim that the Gaza Strip will still be "occupied" even after Israel has
completely left. First, as long as the Palestinians are unable to exercise
full sovereignty in Gaza, the Palestinian foreign minister, Nasser al-Kidwa,
maintains that the territory is still "occupied," particularly because of
Israel's continuing control of Gaza's territorial waters and its airspace.1
For Saeb Erekat, who heads the PLO's Negotiations Affairs Department, since
the Gaza Strip and the West Bank were designated as "one territorial unit"
in the Oslo Accords, Gaza disengagement affects only a portion of the total
territory under discussion and, therefore, its legal status remains
unchanged.2

From the standpoint of Hamas, the designation of territory as "occupied" is
directly tied to its self-proclaimed mission "to expel the occupation." If
Hamas refuses to recognize any change in the situation coming about because
of Israel's pullout, it is because it argues, in the words of the head of
Hamas in Gaza, Mahmoud al-Zahar, "All of Palestine is our land."3 He added,
"neither the liberation of the Gaza Strip, nor the liberation of the West
Bank or even Jerusalem will suffice for us. Hamas will pursue the armed
struggle until the liberation of all our lands. We don't recognize the State
of Israel or its right to hold onto one inch of Palestine."4

What Legally Causes a Territory to be Under Occupation?

Palestinian spokesmen have used the grievance of being under Israeli
occupation as their cutting-edge argument against the policies of Israel in
the West Bank and Gaza Strip, while in fact the legal status of these
territories has been under dispute since 1967 when they were captured by the
Israel Defense Forces from Jordan and Egypt in the Six-Day War. The only
previously recognized sovereign in these territories was the Ottoman Empire
from 1517 through 1917; in 1923, the Turks renounced their territorial
claims when the Ottoman Empire was dismantled. The British Mandate for
Palestine envisioned the territories in question becoming part of a Jewish
national home; the UN General Assembly recommended in 1947 that the areas
that became the West Bank and Gaza Strip become part of a future Arab state,
but this proposal was opposed by the Arab states at the time. Therefore, the
exact legal status of these territories remained unresolved.

Using its political power in the United Nations, the PLO nonetheless has
received the support of the Arab bloc and the Non-Aligned Movement to obtain
the adoption of dozens of non-binding UN General Assembly resolutions
defining these areas as "occupied Palestinian territories." More recently,
this political power was used to bring these politicized definitions to
other UN organs, including the International Court of Justice in The Hague.

But "occupation" is not just a rhetorical or political term. It is first and
foremost a legal term in international law. The legal termination of
occupation clearly does not require that all the political demands of one
party in a territorial conflict be met in full. That would make the end of
occupation highly subjective. Instead, it must be based on certain legal
criteria being met.

The main source of international law is international agreements and
conventions signed by states, not declaratory resolutions of the UN General
Assembly. The foremost document in defining the existence of an occupation
has been the 1949 Fourth Geneva Convention "Relative to the Protection of
Civilian Persons in Time of War."

Israel argued back in 1967 that formally the Fourth Geneva Convention did
not legally apply to the case of the Gaza Strip or the West Bank, since
their previous occupants, Egypt and Jordan, illegally invaded those
territories in 1948 and did not exercise internationally recognized
sovereignty on the ground. The convention becomes relevant with the
occupation of the territory of a signatory - but the Gaza Strip and the West
Bank were not recognized as Egyptian and Jordanian territories.

Nonetheless, successive Israeli governments agreed to de-facto application
of the terms of the Fourth Geneva Convention over the last thirty-eight
years. More importantly, the Fourth Geneva Convention became an
internationally-recognized standard for determining the rights and
responsibilities of state parties in cases of military occupation.

Article 6 of the Fourth Geneva Convention explicitly states that "the
Occupying Power shall be bound for the duration of the occupation to the
extent that such Power exercises the functions of government in such
territory...."5 In other words, what creates an "occupation" is the
existence of a military government which "exercises the functions of
government." This is a confirmation of the older 1907 Hague Regulations
Respecting the Laws and Customs of War on Land, which state, "Territory is
considered occupied when it is actually placed under the authority of the
hostile army." The Hague Regulations also stipulate: "The occupation extends
only to the territory where such authority has been established and can be
exercised."6 What follows is that if no Israeli military government is
exercising its authority or any of "the functions of government" in the Gaza
Strip, then there is no occupation.

Did the Occupation End After Oslo?

It is fascinating to consider these definitions with respect to the
situation in the West Bank and the Gaza Strip during the period in which the
Oslo Agreements were implemented. The original Oslo Declaration of
Principles was signed in 1993. It was first implemented with the 1994
Gaza-Jericho Agreement. In 1995, the Interim Agreement extended this
implementation to Palestinian population centers in the rest of the West
Bank. What Israel essentially did with the Oslo implementation agreements
was to withdraw its military government over the Palestinians and replace it
with a Palestinian Authority under Yasser Arafat. Israeli officers would no
longer serve as mayors in Palestinian cities; there would be no need for an
Israeli civil administration to give out drivers' licenses or building
permits. Essentially, Israel transferred specific powers from its previous
military government to the Palestinian Authority, with the exception of
foreign affairs and external security. Oslo didn't create a Palestinian
state, but it would be hard to argue that by the mid-1990s, with Arafat
ruling the Palestinians, that the Palestinians were under Israeli military
occupation.

Indeed, back in 1994, the legal advisor to the International Red Cross, Dr.
Hans-Peter Gasser, proposed that his organization had no reason to monitor
Israeli compliance with the Fourth Geneva Convention in the Gaza Strip and
Jericho area, since the convention no longer applied with the advent of
Palestinian administration in those areas.7 At best, the Palestinians could
argue that Oslo placed them in an ambiguous legal position, since they
themselves exercised most of the functions of government, while Israel only
maintained a few residual powers.

The Importance of the Occupation Claim for the Palestinian Armed Struggle

If there are serious legal questions about applying the term "occupation" to
the post-Oslo West Bank and Gaza Strip of the 1990s, then why did the
Palestinians persist in doing so? And why is it so essential for them to
make this case even after Gaza disengagement? First, hammering at the term
"occupation" is part of the way the Palestinians stake a strong claim to
territory where sovereignty is, in fact, very much contested. As noted
earlier, there has not been a legally recognized sovereign in the West Bank
and Gaza Strip since 1922. The 1947 UN Partition Plan did not create a new
Palestinian Arab state, but rather was followed by an illegal occupation of
the West Bank and Gaza by the Arab states that invaded in 1948. Rather than
leave these territories as a "black hole" of sovereignty with several
claimants, the Palestinian Authority reminds the world that these are
"occupied Palestinian territories" in order to assert exclusive rights in
these territories, as though they were once under Palestinian sovereignty in
the past.

Second, constant reference to an ongoing Israeli "occupation" is also a
powerful argument in the electronic media that Palestinians might not want
to concede so quickly. It highlights the position of the Palestinians as
victims in the Arab-Israeli conflict and presents Israel unfavorably, as an
oppressor. It helps obfuscate the fact that Israel entered these territories
in a war of self-defense back in 1967, presenting it instead as an
aggressor. But there is a further important utility of the charge of
occupation for the Palestinian Authority and its spokesmen: it provides a
context for explaining how Palestinian groups resort to terrorism.

The roots of this contextualization of violence come from UN General
Assembly resolutions that were adopted during the period of de-colonization.
For example, Resolution 2708 that was passed on December 14, 1970,
"reaffirms its recognition of the legitimacy of the struggle of the colonial
peoples and peoples under alien domination to exercise their right to
self-determination and independence by all the necessary means at their
disposal." In the early 1970s, Yasser Arafat repeatedly made reference to
such UN resolutions when he was pressed to justify acts of terrorism, like
airplane hijacking. More recently, many Arab states have refused to agree to
a blanket renunciation of all violence against civilians as part of an
agreed definition of terrorism at the UN, because a special right of
"resistance to occupation" is not protected. Consequently, once a territory
can no longer be defined as "occupied," a huge fig leaf for political
violence is lifted.

For the current Palestinian Authority, that sort of change would pose many
problems. True, Mahmoud Abbas has repeatedly stated that violence does not
serve the interests of the Palestinians; he believes that the second
intifada was a strategic error. But many militiamen in Abbas' Fatah
movement, including the al-Aqsa Martyrs' Brigades, still believe in the use
of political violence. Moreover, rather than challenge Hamas, Abbas has
decided to co-opt the militant movement into the Palestinian Authority with
the January 2006 elections. Then, the Palestinian Authority will not need
the occupation argument for its own strategy against Israel, but rather to
provide political cover for its future political partners, who have made
clear that they will not forgo what they still call the armed struggle
against Israel. Like Arafat thirty years ago, even Hamas wraps its
justification for violence in the language of "occupation."

How Israel Should Respond to the Occupation Charge

The fact that a wide variety of Palestinian spokesmen will charge that the
Gaza Strip is still "occupied" even though the Palestinians exercise
self-government and the Israeli civilian and military presence in this
territory have been removed is revealing. It means that the charge of
"occupation" is less a rigorous legal definition and more a blunt political
instrument to serve the PLO's diplomatic and military agenda against Israel.

The best way for Israel to counter Palestinian efforts to use the occupation
charge to provide political cover for violence is to base its arguments on
the growing international consensus against terrorism - regardless of the
justification provided - for no political cause can legitimately explain why
innocent civilians must be intentionally murdered in terrorist bombing
attacks conducted on its behalf.

The Palestinians may not like the limitations that have been maintained on
Gaza airspace or territorial waters. But even Egypt has limitations on its
sovereignty in Sinai that are the result of security arrangements created by
the 1979 Treaty of Peace. No one would argue that limitations on Egyptian
authority constitute a form of "occupation." In the tight airspace of
Europe, many mini-states cannot fully control their airspace alone, but must
coordinate their air traffic with larger neighbors to prevent air
collisions. Their sovereignty is hardly compromised by this cooperation.

Additionally, Israel does have legitimate security concerns, given the
history of Palestinian violations of the security provisions of the Oslo
Agreements, including high-profile attempts by the Palestinian Authority to
illegally import weaponry by sea on ships like the Santorini and the Karine
A. Still, the Israeli government has demonstrated that it will not abuse the
authority it still exercises outside of the borders of the Gaza Strip, as
attested to by its readiness to withdraw from the Philadelphi route between
Gaza and Egypt and its willingness to let the Palestinians dig a port for
Gaza. And, should Israel nonetheless find it necessary to re-enter the Gaza
Strip to quash a terrorist threat, it would not do so as a former occupying
power but rather as a state defending itself from an immediate threat being
posed by a neighbor under Article 51 of the UN Charter.

Beyond the propaganda war between the two sides, there are serious issues
that Israel will have to resolve regarding the Gaza Strip. Israel may not
have formal humanitarian responsibilities toward the civilian population of
Gaza any longer, but it might nonetheless seek to exercise some of them, if
requested by the Palestinians themselves. But Israel's role will be that of
a neighboring state, similar to Turkey when a humanitarian emergency arose
in Iraqi Kurdistan or Chad with respect to the Darfur area of Sudan. Israel
will not host Palestinian refugees, but it can provide backing to
international humanitarian efforts of other states and international
agencies, despite the withdrawal of its remaining authority in the Gaza
Strip after disengagement is completed.
* * *
Notes

1. "Palestinian FM: Pullout Will Not End Gaza Occupation, Agence France
Presse, August 9, 2005;
http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=2&article_id=
17458

2. Saeb Erekat, "Gaza Remains Occupied," Bitterlemons.org, August 22, 2005;
http://www.bitterlemons.org/previous/bl220805ed30.html#pal2

3. "An Interview with Hamas Leader Dr. Mahmoud Al-Zahar," Asharq Al-Awsat
(London), August 18, 2005; MEMRI, Special Dispatch Series, No. 964, August
19, 2005; http://memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP96405

4. Khaled Abu Toameh, "Abbas: Gaza Withdrawal Only First Step," Jerusalem
Post, August 15, 2005;
http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid
=1124072335137&p=1119925650407

5. International Committee of the Red Cross, The Geneva Conventions of
August 12, 1949 (Geneva: ICRC, 1997), p. 156.

6. Ruth Lapidoth, "Unity Does Not Require Uniformity" Bitterlemons.org,
August 22, 2005.

7. Dore Gold, "From 'Occupied Territories' to 'Disputed Territories,'"
Jerusalem Viewpoints No. 470, January 16, 2002; http://jcpa.org/jl/vp470.htm

* * *

Dr. Dore Gold is President of the Jerusalem Center for Public Affairs. He
was the eleventh Permanent Representative of Israel to the United Nations
(1997-1999). Dr. Gold was a member of the Israeli delegation at the 1998 Wye
River negotiations between Israel and the PLO and negotiated the Note for
the Record, which supplemented the 1997 Hebron Protocol. In 1991, he served
as an advisor to the Israeli delegation to the Madrid Peace Conference.

This Jerusalem Issue Brief is available online at:

www.jcpa.org.brief/brief005-3.htm

Dore Gold, Publisher; Yaakov Amidror, ICA Program Director; Mark Ami-El,
Managing Editor. Jerusalem Center for Public Affairs (Registered Amuta), 13
Tel-Hai St., Jerusalem, Israel; Tel. 972-2-5619281, Fax. 972-2-5619112,
Email: jcpa@netvision.net.il. In U.S.A.: Center for Jewish Community
Studies, 5800 Park Heights Avenue, Baltimore, MD 21215; Tel. 410-664-5222;
Fax 410-664-1228. Website: www.jcpa.org. C Copyright. The opinions expressed
herein do not necessarily reflect those of the Board of Fellows of the
Jerusalem Center for Public Affairs.

The Institute for Contemporary Affairs (ICA) is dedicated
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