The UN's sleight of hand in considering Gaza "occupied"

Recently, UN Watch asked the UN to comment on why it still considers Gaza to be "occupied territory" when even Hamas has said that there is no occupation there. The UN promised to get back with a rationale.

The UN has now answered:

Spokesperson: Under resolutions adopted by both the Security Council and the General Assembly on the Middle East peace process, the Gaza Strip continues to be regarded as part of the Occupied Palestinian Territory. The United Nations will accordingly continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until such time as either the General Assembly or the Security Council take a different view.

Question: Can I follow up on that? It is the legal definition of occupation and why is Gaza considered occupied?

Spokesperson: Well, as I have just said, there are Security Council and General Assembly resolutions that cover this. For example, there was a Security Council resolution adopted on 8 January 2009 — 1860 — and that stressed that the Gaza Strip constitutes an integral part of the territory occupied in 1967. And as you know, Security Council resolutions do have force in international law.

Furthermore, there is a resolution from the General Assembly from 20 December 2010, and while it noted the Israeli withdrawal from the Gaza Strip and parts of the northern West Bank, it also stressed, in quotes, “the need for respect and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem”. So just to repeat that the United Nations will continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until either the General Assembly or the Security Council take a different view on the matter.

What the UN seems to be saying is that if part of the territory is occupied, then all of the territory is considered occupied, since there is are UN resolutions that declare the two territories are considered united.

This flies in the face of logic, and international law. The definition of "occupation" from the 1907 Hague Regulations - the only legal definition there is - says:

[T]erritory 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.

The wording shows that "occupation" exists only in areas where there is in fact a physical occupation. Obviously an army that occupies part of another nation cannot apply the laws of occupation on the portions of that nation that are not under physical occupation, and just as obviously the Hague allows occupation of a portion of territory, no matter whether that territory is contiguous or not with other territories not under occupation.

From the perspective of the Geneva Conventions, the laws of occupation are meant to protect the citizens actually under occupation. It is impossible for an "occupying army" to protect citizens when it is not physically there.

Amnesty International expands on this:

The sole criterion for deciding the applicability of the law on belligerent occupation is drawn from facts: the de factoeffective control of territory by foreign armed forces coupled with the possibility to enforce their decisions, and the de factoabsence 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.

For example, the US occupied part of Iraq - but not all of it.To say that all of Iraq was "Occupied Iraqi Territory" would be laughable.

What the UN is really saying here is that the name it has given to the territories is "Occupied Palestinian Territories." That name has nothing to do with the reality of whether they are legally occupied or not. (In fact, I would argue that the name has nothing to do with whether they are legally considered "Palestinian" or not.) It is a title, from which people may think that the territories are under occupation, but it is not a legal declaration that they are occupied.

After all, the ICRC says "A transfer of authority to a local government re-establishing the full and free exercise of sovereignty will normally end the state of occupation." Any way you look at it, Hamas is the government of Gaza, and not subjected to any Israeli restrictions on how it governs. The UN can declare the territories to be a single entity all it wants, but the definition of occupation is at odds with the title "Occupied Palestinian Territories."

Similarly, Area A in the West Bank is not by any definition "occupied;"  because Israel transferred authority over the administration of Area A to the PA, just as it did in Gaza. This is the textbook definition of how to end occupation of a territory.

The UN's answer is a contortion meant to obfuscate reality and international law.

(h/t CHA)