.

Friday, January 25, 2008

Is Gaza occupied?

Yesterday, the ever-reliable UN "Human Rights" Commission did what it literally always does - it condemned Israel and no one else. As Israellycool points out, the resolution used the terminology "occupied Gaza Strip" no less than four times.

Is Gaza legally occupied?

It is hard to find a good definition of "occupied territory" in international law. The best one is perhaps from the Hague Convention of 1907, which the Geneva Conventions seems to rely on:
Art. 42. 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.
From the specifics of both the Hague and Geneva Conventions, it is clear that "occupation" means control over the day to day lives of the citizens of the territory. For example:
Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.
Other provisions talk about maintaining public order and the like.

From these many provisions in the Hague and Geneva, as well as in normal use of the word in English, it is clear that "occupation" means physical presence as well as the effective takeover of functioning governmental institutions and tasks, like collecting taxes.

From Israel's perspective, its (legally ambiguous) declaration of Gaza as a "hostile territory" is far more accurate, as is clear from this article by two legal experts at The American Thinker last year:
If Gaza is territory under the control of the enemy -- as it manifestly is under Hamas -- then the Israeli government is both within its rights and arguably obliged by its responsibilities to its citizens to treat the strip as "hostile territory." Siege and blockade of a hostile territory is a legitimate tactic of war, used in declared and undeclared (e.g., Cuban) conflicts and explicitly recognized by the 1949 Geneva Conventions. The Conventions' sole limitation is that there be "free passage of all consignments of food-stuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases" (Fourth Convention, art. 23) -- and even this exception was conditioned on there being "no reasons for fearing... [t]hat a definite advantage may accrue to the military efforts or economy of the enemy" (for example, if resources destined for humanitarian aid will be commandeered by the enemy). Israel has carefully respected this requirement.

In fact, if anyone is occupying Gaza, it would appear to be Hamas.

Hamas never legally seceded Gaza from the PA and both Hamas and the PA keep declaring that both Gaza and the West Bank are a single legal entity. In fact, Hamas and the PA keep negotiating over where the PA might be able to take over some functions in Gaza, as well as their ultimate rapprochement, thus fulfilling another essential portion of the definition of occupation - that it be temporary.

In addition, Hamas clearly acted against the wishes of the PA and against PA laws in its takeover. Beyond that, Hamas is fully acting like an occupier, taking over the governmental institutions in Gaza like the police and the courts and collecting taxes.

Obviously Hamas has never accepted any international legal conventions. And Hamas is not a country, which complicates the definition further. Even so, as the effective occupier, it clearly violates many of Geneva's laws, including forcibly taking hospital supplies from the civilian population for its own purposes (Geneva IV, Art. 56)

Hamas' status under international law needs to be clarified, and its obligations spelled out. The current situation where a terrorist occupying force (or quasi- government) has no legal obligations is absurd, and it directly leads to travesties like this UNHRC resolution.