Tuesday, September 15, 2009

273. The legal framework applicable to situations of occupation includes provisions contained
in the Hague Regulations (especially articles 42–56), the Fourth Geneva Convention (especially
articles 47–78) and Additional Protocol I, and customary international law. The successive steps
in the development of that legal framework represent attempts by the international community to
protect human beings better from the effects of war while giving due account to military

274. Article 42 of the Hague Regulations, regarded as customary international law,158
prescribes that “territory is considered occupied when it is actually placed under the authority of
the hostile army”. The occupying authority so established shall take all measures in its power “to
restore, and ensure, as far as possible, public order and safety” in the occupied area (art. 43).
These provisions call for an examination of whether there was exercise of authority by Israel in
the Gaza Strip during the period under investigation.

276. Israel has without doubt at all times relevant to the mandate of the Mission exercised
effective control over the Gaza Strip. The Mission is of the view that the circumstances of this
control establish that the Gaza Strip remains occupied by Israel. The provisions of the Fourth
Geneva Convention therefore apply at all relevant times with regard to the obligations of Israel
towards the population of the Gaza Strip.

277. Despite Israel’s declared intention to relinquish its position as an occupying Power by
evacuating troops and settlers from the Gaza Strip during its 2005 “disengagement”,162 the
international community continues to regard it as the occupying Power.163

278. Given the specific geopolitical configuration of the Gaza Strip, the powers that Israel
exercises from the borders enable it to determine the conditions of life within the Gaza Strip.
Israel controls the border crossings (including to a significant degree the Rafah crossing to
Egypt, under the terms of the Agreement on Movement and Access164) and decides what and
who gets in or out of the Gaza Strip....

279. The ultimate authority over the Occupied Palestinian Territory still lies with Israel. Under
the law and practice of occupation, the establishment by the occupying Power of a temporary
administration over an occupied territory is not an essential requirement for occupation, although
it could be one element among others that indicates the existence of such occupation.165 In fact,
as shown in the case of Denmark during the Second World War, the occupier can leave in place
an existing local administration or allow a new one to be installed for as long as it preserves for
itself the ultimate authority.

Goldstone spends a bit of time trying to justify Gaza's status as being legally occupied. The report doesn't address the many arguments that show otherwise, and uses an expansive definition of "occupation" that goes beyond any other. The Denmark precedent is a perfect example: during World War II, the Danish government cooperated with Germany and allowed Nazi troops in its territory, and while most citizens weren't thrilled with it, they accepted it, which made this occupation much easier. When the situation became untenable and the Danes more restless, Germany dissolved the Danish government - a move that proves that Germany did have effective authority of Denmark, far beyond what Israel has with Gaza.

As we have seen in the past, the UN's legal justification for calling Gaza "occupied" is a stretch at best, a lie at worst. Goldstone does not address the main legal issues that many respected law experts have as to whether Gaza is occupied, even though they are readily available. For example:
there 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.

The Goldstone Commission is making a flawed legal argument, and in fact extending the definition of "occupied" way beyond the Hague and Geneva definitions, in ways that are a mockery of law. It appears that Goldstone, along with the previous ICJ ruling it also relies on, has a "gut feeling" that Gaza is occupied and will find whatever flimsy legal justifications they can find to support it after the fact.

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