Israel continues to control Gaza’s airspace, territorial waters, the entry and exit of people and goods (with the exception of the Egypt crossing), its electromagnetic spectrum, a “buffer zone” in which unarmed Palestinians are routinely killed, and deploys into all parts of the territory and withdraws at will. As a consequence, no impartial observer can or does doubt that occupation continues.
It is fascinating: At no point does Ibish bring forth a definition of "occupation." And no wonder. Because the definition is clear - and it shows that Israel is not occupying Gaza by any sane criterion. (Saying the UN calls it "occupied" is not a sane criterion.) And none of the examples he brings has anything to do with the legal definition of occupation.
The Hague Conventions definition of 1907 is the only legal definition of occupation. That's it. The Fourth Geneva Conventions does not define it at all.
And here it is:
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.
Amnesty International expanded on this definition when the US invaded Iraq:
The sole criterion for deciding the applicability of the law on belligerent occupation is drawn from facts: the de facto effective control of territory by foreign armed forces coupled with the possibility to enforce their decisions, and the de facto absence of a national governmental authority in effective control. If these conditions are met for a given area, the law on belligerent occupation applies. Even though the objective of the military campaign may not be to control territory, the sole presence of such forces in a controlling position renders applicable the law protecting the inhabitants. The occupying power cannot avoid its responsibilities as long as a national government is not in a position to carry out its normal tasks.Now, Ibish would argue, Amnesty themselves says that ISrael still occupies Gaza. But that proves that Amnesty is hypocritical, not that Israel is the occupier.
The international legal regime on belligerent occupation takes effect as soon as the armed forces of a foreign power have secured effective control over a territory that is not its own. It ends when the occupying forces have relinquished their control over that territory.
The question may arise whether the law on occupation still applies if new civilian authorities set up by the occupying power from among nationals of the occupied territories are running the occupied territory’s daily affairs. The answer is affirmative, as long as the occupying forces are still present in that territory and exercise final control over the acts of the local authorities.
Legal scholar Abraham Bell adds:
[T]here is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another "High Contracting Party" (i.e., a state party to the convention) and the occupier "exercises the functions of government" in the occupied territory. The Gaza Strip is not territory of another state party to the convention and Israel does not exercise the functions of government-or, indeed, any significant functions-in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or from any other state.
Some have argued that states can be considered occupiers even of areas where they do not declare themselves in control so long as the putative occupiers have effective control. For instance, in 2005, the International Court of Justice opined that Uganda could be considered the occupier of Congolese territory over which it had "substituted [its] own authority for that of the Congolese Government" even in the absence of a formal military administration. Some have argued that this shows that occupation may occur even in the absence of a full-scale military presence and claimed that this renders Israel an occupier under the Fourth Geneva Convention. However, these claims are clearly without merit. First, Israel does not otherwise fulfill the conditions of being an occupier; in particular, Israel does not exercise the functions of government in Gaza, and it has not substituted its authority for the de facto Hamas government. Second, Israel cannot project effective control in Gaza. Indeed, Israelis and Palestinians well know that projecting such control would require an extensive military operation amounting to the armed conquest of Gaza. Military superiority over a neighbor, and the ability to conquer a neighbor in an extensive military operation, does not itself constitute occupation. If it did, the United States would have to be considered the occupier of Mexico, Egypt the occupier of Libya and Gaza, and China the occupier of North Korea.
Moreover, it is difficult to avoid the conclusion that foes of Israel claiming that Israel has legal duties as the "occupier" of Gaza are insincere in their legal analysis. If Israel were indeed properly considered an occupier, under Article 43 of the regulations attached to the Fourth Hague Convention of 1907, it would be required to take "all the measures in [its] power to restore, and ensure, as far as possible, public order and safety." Thus, those who contend that Israel is in legal occupation of Gaza must also support and even demand Israeli military operations in order to disarm Palestinian terror groups and militias. Additionally, claims of occupation necessarily rely upon a belief that the occupying power is not the true sovereign of the occupied territory. For that reason, those who claim that Israel occupies Gaza must believe that the border between Israel and Gaza is an international border between separate sovereignties. Yet, many of those claiming that Gaza is occupied, like John Dugard, also simultaneously and inconsistently claim that Israel is legally obliged to open the borders between Israel and Gaza. No state is required to leave its international borders open.
What do Israel's critics answer to these legal arguments? They don't. They sputter about "blockades" and "airspace" and other irrelevant criteria that have zero legal basis. Like Ibish, they make up their minds first and try to find facts later. Ibish here shows that he is no better than groups like Free Gaza who simply make stuff up to support what they don't know but what they fervently believe.
Ibish shows his dishonesty also by claiming that only Israel's "right wing" says Israel is not occupying Gaza. He's lying, of course. Israel's Supreme Court says that Gaza isn't legally occupied. . As the Turkel Report quoted them:
In Al-Bassiouni v. Prime Minister, the Supreme Court of Israel held that since the disengagement in 2005, Israel does not have ‘effective control’ over the Gaza Strip. Because of the importance of this conclusion, the actual wording of the Supreme Court is cited below:
‘… since September 2005 Israel no longer has effective control over what happens in the Gaza Strip. Military rule that applied in the past in this territory came to an end by a decision of the government, and Israeli soldiers are no longer stationed in the territory on a permanent basis, nor are they in charge of what happens there. In these circumstances, the State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the laws of belligerent occupation in international law. Neither does Israel have any effective capability, in its present position, of enforcing order and managing civilian life in the Gaza Strip.’
Ibish cannot bring up the slightest legal argument that Gaza is occupied. Neither can anybody else. That's why he instead falls back on sarcasm and the argument that, for example, since the UN Security Council says it is occupied, it must be.
Yet that same UN Security Council stated (resolution 1973) that a blockade of Libya, enforcing a no-fly zone there, freezing its assets, restricting travel, and bombing the hell out of it, cannot be considered "occupation" ("while excluding a foreign occupation force of any form on any part of Libyan territory") - and the allies specifically insisted that they did not want to occupy Libya. Yet what is the difference between what the UN sanctioned in Libya and how Israel treated Gaza? Oh, yes - Gazans can move people and goods through Egypt.
But is there any merit in the Security Council declaring something to be occupied even if the law says otherwise? Not according to the International Committee of the Red Cross, who write in a legal analysis on their site about when occupation ended in Iraq:
From a political point of view, it is difficult to conclude otherwise in the face of a Security Council resolution that clearly states that occupation has ended. However, it is the reality and not the label that matters. As a matter of law, though, a formal proclamation of the end of occupation would be of limited importance if the facts on the ground indicate otherwise. [7 ] The test remains whether, despite any labelling in the Security Council resolution, a territory or part of it is " actually placed under the authority of the hostile army " as required by Article 42 Hague Regulations.If the Security Council's stating that occupation has ended has no legal consequence, its declaring that it hasn't ended is equally unimportant. The only thing that matters is whether the facts onthe ground support the definition, not the definition itself that may be politically motivated.
The simple fact is that nowhere in the world has there ever been a legal occupation when the occupiers were not physically present on the ground. The fact that Israel-bashers want to change the law and the English language to shoehorn their bizarre theories of what "occupation" means into one that damns Israel and Israel alone does not make it so.
Proof by assertion is still not considered proof, at least by anyone who is honest. If Ibish wants to try to prove that Gaza is occupied, he needs to actually find answers to the legal and definitional proofs that state otherwise. (He also needs to state whether he believes that Israel is legally obligated to provide, say, health care and nutrition education to Gazans, which are things that legal occupiers are obligated to do.) His failure to do so shows that he is not nearly as serious of a scholar as he pretends to be.