Following a spate of recent media inaccuracies concerning the legal status of the Arab territories occupied by Israel since 1967, and to coincide with the 40th anniversary of their capture, that of the Gaza Strip is clarified by Arab Media Watch chairman Sharif Hikmat Nashashibi.
5 June 2007
Much of the media describes the occupation of the Gaza Strip as having ended when Israel withdrew its troops and settlers from the territory in 2005. This is a factual error, as under international law Gaza remains occupied because of its continued control by Israel.
The respected, independent organisation Human Rights Watch has undertaken a considerable amount of work on this issue. It states:
"...Israel will continue to be an Occupying Power under international law and bound by the provisions of the Fourth Geneva Convention because it will retain effective control over the territory and over crucial aspects of civilian life. Israel will not be withdrawing and handing power over to a sovereign authority - indeed, the word 'withdrawal' does not appear in the document at all…The IDF will retain control over Gaza's borders, coastline, and airspace, and will reserve the right to enter Gaza at will."
"Under international law, the test for determining if an occupation exists is effective control by a hostile army, not formal declarations or organizational implementation. How the occupying power organizes itself in order to exercise its attributes is irrelevant to the fact of the occupation itself. The Israeli military has made clear that, even after 'disengagement,' it will retain overall security authority over Gaza and enter the territory when it wishes. According to the Hague Regulations, 'A territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised'. International jurisprudence has clarified that the mere repositioning of troops is not sufficient to relieve an occupier of its responsibilities if it retains its overall authority and the ability to reassert direct control at will. The U.S. Military Tribunal at Nürnberg, Germany dealt with this question in the 'Hostages' case:
'While it is true that the partisans [armed opposition groups in Yugoslavia and Greece] were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and not such as would deprive the German Armed Forces of its status of an occupant'."
http://hrw.org/reports/2004/rafah1004/rafah1004text.pdf
In another report, HRW states:
"In August and September 2005, Israel unilaterally withdrew approximately eight thousand settlers, along with military personnel and installations, from the Gaza Strip and four small settlements in the northern West Bank near Jenin. While Israel has since declared the Gaza Strip a 'foreign territory' and the crossings between Gaza and Israel 'international borders,' under international humanitarian law (IHL), Gaza remains occupied, and Israel retains its responsibilities for the welfare of Gaza residents. Israel maintains effective control over Gaza by regulating movement in and out of the Strip as well as the airspace, sea space, public utilities and population registry. In addition, Israel declared the right to reenter Gaza militarily at any time in its 'Disengagement Plan'."
http://hrw.org/wr2k6/pdf/israelopt.pdf
And in another report, HRW states:
"The Israeli government's plan to remove troops and Jewish settlements from the Gaza Strip would not end Israel's occupation of the territory…As an occupying power, Israel will retain responsibility for the welfare of Gaza's civilian population."
"Under the 'disengagement' plan endorsed…by the Knesset, Israeli forces will keep control over Gaza's borders, coastline and airspace, and will reserve the right to launch incursions at will. Israel will continue to wield overwhelming power over the territory's economy and its access to trade."
http://hrw.org/english/docs/2004/10/29/isrlpa9577.htm
HRW also states:
"The Israeli government's plan to remove troops and Jewish settlements from the Gaza Strip would not end Israel's occupation of the territory…As an occupying power, Israel will retain responsibility for the welfare of Gaza's civilian population…under international law, the test for determining whether an occupation exists is effective control by a hostile army, not the positioning of troops…Whether the Israeli army is inside Gaza or redeployed around its periphery and restricting entrance and exit, it remains in control."
http://www.arabmediawatch.com/amw/CountryBackgrounds/Palestine/PeaceProposals/DisengagementPlan/tabid/250/Default.aspx
Sarah Leah Whitson, executive director of HRW's Middle East and North Africa division, states:
"The removal of settlers and most military forces will not end Israel's control over Gaza. Israel plans to reconfigure its occupation of the territory, but it will remain an occupying power with responsibility for the welfare of the civilian population."
"Under international law, the test for determining whether an occupation exists is effective control by a hostile army, not the positioning of troops. Whether the Israeli army is inside Gaza or redeployed around its periphery and restricting entrance and exit, it remains in control."
http://hrw.org/english/docs/2004/10/29/isrlpa9577.htm
She also states:
"The disengagement plan provides that Israel is going to maintain the right to re-enter the territory at will, continue to control the borders, the air space, the sea, and all movement of people into and out of Gaza. These are all the characteristics of military control, and if Israel remains in effective military control in Gaza, then it remains an occupying power under law. The only thing that you can really call this is a plan to withdraw Jewish settlers."
http://news.bbc.co.uk/1/hi/world/middle_east/3948803.stm
The opinion of B'Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, is also important:
"The broad scope of Israeli control in the Gaza Strip, which exists despite the lack of a physical presence of IDF soldiers in the territory, creates a reasonable basis for the assumption that this control amounts to 'effective control,' such that the laws of occupation continue to apply."
http://www.btselem.org/English/Gaza_Strip/Israels_Obligations.asp
Furthermore, Amnesty International has continued to describe the Gaza Strip as occupied, despite Israel's withdrawal of troops and settlers. One such report is from December 2006:
"Six years since the outbreak of the latest intifada and the effective collapse of the Israeli-Palestinian peace negotiations, the human rights situation in the Occupied Territories – the Gaza Strip and West Bank, including East Jerusalem – has deteriorated to an unprecedented level. Prospects for a just and durable resolution of the conflict appear to be remote."
"The undercurrent of violence, abuses of fundamental human rights and disregard for international law, which have marked the 40-year Israeli military occupation of the West Bank and Gaza Strip, have become firmly entrenched and relentless."
http://web.amnesty.org/library/index/ENGMDE150932006