Is Gaza still occupied?

The proposition that the Strip remains ‘occupied’ by Israel has recently been refuted by an unexpected source – a UN Security Council resolution on Libya.

This month, another flotilla is set to breach Israel’s lawful maritime blockade on Gaza. Organizers claim it will sail to the “occupied” Gaza Strip to deliver “much-needed supplies,” yet both premises are false. Earlier this year, the International Committee of the Red Cross declared there was no humanitarian crisis in Gaza. Moreover, the proposition that Gaza remains occupied by Israel has recently been refuted by an unexpected source – a UN Security Council resolution.

A staple claim of Palestinian supporters is that Israel’s occupation of Gaza did not end with the military withdrawal and the accompanying uprooting of nearly 10,000 Jewish residents. The Goldstone Report relied on this argument, and it is widely echoed by international lawyers and the press.

This view has never had much to recommend it. Article 42 of the 1907 Hague Regulations provides that a “territory is considered occupied when it is actually placed under the authority of the hostile army.”

Similarly, the Geneva Conventions, even in the broadest interpretation urged by the International Committee of the Red Cross, require that ground forces exercise “control within” the territory.

Moreover, an occupying power must be able to provide all governmental functions – to run things inside the occupied territory, not simply patrol the borders. Yet the de facto government of Hamas rules Gaza without Israeli intervention.

The argument for occupation has been that since Israel maintains “absolute authority over Gaza’s airspace and territorial sea [it is] manifestly exercising governmental authority in these areas,” in the words of Prof. Iain Scobbie. Others claim that border control amounts to “effective control” of the interior. But prior blockades, like that of Cuba by president John F. Kennedy, were never considered occupations. Moreover, border controls are typical along every international frontier, even among the friendliest of nations.

Nor does Israel control all of Gaza’s borders. While Egypt had chosen to keep its border with Gaza largely closed, this had nothing to do with Israel. And in the wake of Egyptian political changes, the Rafah border is now completely open, further hollowing the argument that it is Israel exercising control over entry to Gaza.

The recent UN Security Council resolution authorizing force against Libya provides an excellent experiment in whether the legal arguments widely made about Israel are also applied in parallel cases. In March, the UN Security Council passed Resolution 1973 in response to Col. Muammar Gaddafi’s violent crackdown on anti-government rebels. The resolution authorized military action, delineated a no-fly zone across all of Libya, froze Libyan assets, and authorized the extensive use of force against Libyan troops.

Yet Resolution 1793 specifically rules out any “occupation” of Libyan territory. This was not stray language. The prohibition of occupation has helped secure the support of several skeptical nations.

At the Council meeting, Lebanon’s delegate stressed that the resolution would not result in the occupation of “even an inch” of Libyan territory.

SO WE now have confirmation from the Council that a broad embargo, no-fly zone and months of constant aerial bombardment do not constitute an “occupation.” Certainly these activities have considerable effect on Libya, and “control” much of what happens there. Obviously Israel’s much less comprehensive and invasive measures against Gaza do not constitute an occupation by this standard.

Of course, the Libya resolution proves nothing new; the arguments that Gaza remained occupied after 2005 were always quite surprising.

The obviousness of the above principles when applied anywhere but to Israel should give pause to those who think that even a full withdrawal to pre-1967 lines will lead to Israel’s international legitimacy, or preclude the fabrication of new pretextual claims.

Eugene Kontorovich is a professor at Northwestern University School of Law, and Paula Kweskin is a legal researcher.