The Myth Of Occupied Gaza

source:
http://www.wa****ngtonpost.com/wp-dyn/content/article/2008/05/09/AR2008050902296_pf.html

authors: David B. Rivkin Jr. and Lee A. Casey are Wa****ngton lawyers
who served in the Justice Department under Presidents Ronald Reagan
and George H.W. Bush. They were members of the U.N. Subcommission on
the Promotion and Protection of Human Rights from 2004 to 2007.


Hamas claims that former president Jimmy Carter's recent meeting with
its leader, Khaled Meshal, marks its recognition as a "national
liberation movement" -- even though Hamas rockets fired from the Gaza
Strip, which Hamas rules as an elected "government," continue to rain
down on Israel's civilian population. While Hamas is clearly trying to
bolster its legitimacy, the conflict along Israel's southern border
has a broader legal dimension -- the question of whether, as a matter
of international law, Israel "occupies" Gaza. The answer is pivotal:
It governs the legal rights of Israel and Gaza's population and may
well set a legal precedent for wars between sovereign states and non-
state entities, including terrorist groups such as al-Qaeda.

Israel's critics argue that Gaza remains "occupied" territory, even
though Israeli forces were unilaterally withdrawn from the area in
August 2005. (Hamas won a majority in the Gazan assembly in 2006 and
seized control militarily in 2007.) If this is so, Jerusalem is
responsible for the health and welfare of Gazans and is arguably
limited in any type of military force it uses in response to
continuing Hamas attacks. Moreover, even Israel's nonmilitary
responses to Hamas-led terrorist activities -- severely limiting the
flow of food, fuel and other commodities into Gaza -- would violate
its obligations as an occupying power.

Israel, however, is not an occupying power, judging by traditional
international legal tests. Although such tests have been articulated
in various ways over time, they all boil down to this question: Does a
state exercise effective governmental authority -- if only on a de
facto basis -- over the territory? As early as 1899, the Hague
Convention on the Laws and Customs of War on Land stated that
"[t]erritory is considered occupied when it is actually placed under
the authority of the hostile army. The occupation applies only to the
territory where such authority is established, and in a position to
assert itself."

The Hague Convention is a founding do***ent of the modern law of armed
conflict, and its definition of occupied territory was woven into the
1949 Geneva Conventions. There, the relevant provision provides that
"[i]n the case of occupied territory, the application of the present
Convention shall cease one year after the general close of military
operations," although certain protections for the populations continue
"to the extent that such Power exercises the functions of government
in such territory." That is the key -- exercising the functions of
government. This proposition was recognized in a seminal Nuremberg
prosecution, the Trial of William List and Others.

It is because an occupying power exercises effective control over a
territory that international law substantially restricts the measures,
military or economic, it can bring to bear upon this territory, well
beyond the limits that would be applicable before occupation, whether
in wartime or peacetime.

The Israeli military does not control Gaza; nor does Israel exercise
any government functions there. Claims that Israel continues to occupy
Gaza suggest that a power having once occupied a territory must
continue to behave toward the local population as an occupying power
until all outstanding issues are resolved. This "principle" can be
described only as an ingenious invention; it has no basis in
traditional international law.

The adoption of any such rule (designed to limit Israel's freedom of
action and give Hamas a legal leg up in its continuing conflict)
should be actively opposed by the United States. Its adoption would
suggest that no occupying power can withdraw of its own volition
without incurring continuing, and perhaps permanent, legal obligations
to a territory. This issue is particularly acute regarding territory
not otherwise controlled by a functioning state -- failed states or
failed areas of states where the "legitimate" government cannot or
will not exercise effective control. Such places -- call them badlands
-- were once rare. Over the past 15 years, though, there has been an
explosion in the number of such areas, notably parts of Afghanistan,
Somalia and ****tions of Pakistan.

Gaza is exceptional only in that its international legal status is
indeterminate. Its last true sovereign was the Ottoman ****te. It was
part of the British Palestine Mandate and has since been administered
by both Egypt and Israel. Today, no state claims sovereign authority,
though it is expected that Gaza will become part of a future
Palestinian state. For its part, Hamas acknowledges no higher
authority and functions as a de facto government in Gaza. It is a
classic example of a terrorist-controlled badland.

Unduly handicapping states that intervene in such badlands -- whether
to protect their own interests, those of the local population or both
-- is unrealistic and irresponsible. Requiring agreement by the
"international community" (whatever that may be) as a precondition for
extingui****ng such a designation is equally unproductive if the goal
is saving lives. Consider the example of Darfur.

Even worse is pretending that groups such as Hamas are merely criminal
gangs that must be dealt with as a local policing problem -- just one
of the potential side effects of imposing an "occupied" status on a
territory. This implicates U.S. interests directly, since America's
ability to use robust armed force against al-Qaeda and similar non-
state actors remains critical to defending our civilian population
from attack. Efforts to limit states' rights to use military force
against such groups simply benefit the globe's worst rogue elements
and endanger the civilian populations among which they operate. Here,
as in so many other areas, the traditional international law that
imposes the obligations of an occupier only on states that physically
occupy a territory makes perfect sense.