John Dugard accidentally proves that Gaza isn't occupied

I received some tweets lately that indicated that Israel does not have the right to self defense under international law.

Yes, really.

One of the source-texts is by John Dugard, former U.N. special rapporteur on human rights in the Palestinian Arab territories, writing in Al Jazeera America. His main argument is that since (he claims) Israel is occupying Gaza, therefore the normal laws of self-defense in international law do not apply. Moreover, he says that Hamas rockets aimed at Israeli civilians are perfectly legal, calling them "acts of resistance of an occupied people."

That last fact should be enough to prove that Dugard has no interest in either international law but only in finding bizarre justifications for terror attacks. However, even within the narrower framework of international law, Dugard reveals himself to be a fraud.

He states:

But the status of Gaza is clear. It is an occupied territory — part of the occupied Palestinian territory. In 2005 Israel withdrew its settlers and the Israel Defense Forces from Gaza, but it continues to retain control of it, not only through intermittent incursions into and regular shelling of the territory but also by effectively controlling the land crossings into Gaza, its airspace and territorial waters and its population registry, which determines who may leave and enter.

Effective control is the test for occupation. The International Court of Justice recently confirmed this in a dispute between the Democratic Republic of the Congo and Uganda. The physical presence of Israel in Gaza is not necessary provided it retains effective control and authority over the territory by other means. Modern technology now permits effective control from outside the occupied territory, and this is what Israel has established.

The ICJ, in defining "effective control" in the Congo vs. Uganda case, says the exact opposite of what Dugard is claiming!

The ruling stated:

[T]o reach a conclusion as to whether a State … is an ‘occupying Power’ … the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. … armed forces [must] not only be stationed in particular locations but also substitute[] their own authority… .”

The test is very simple. If Israel cannot substitute its authority for Hamas, it is not an occupying power. If it cannot change Gaza's government, or court system, or police force, then it is not an occupying power. Occupation only extends to areas where they can exert authority, and in Gaza, authority is exclusive to Hamas.

(For further proof, the Hague Conventions that define occupation give the occupant the obligation to "take all the measures in his power to restore, and ensure, as far as possible, public order and safety." It is obvious that the occupier must have that ability in order to be able to have that obligation.)

This is not the first time this lie has been spread. The UN Human Rights Council tried to push the exact same lie - using the same bogus source - in a 2008 document, as I demonstrated at the time.  They rely on the fact practically no one will actually look up the citation and find that they are lying. Chances are, Dugard was behind that citation as well.

Dugard is not only an immoral supporter of terror, but a proven liar in the very subject that he claims expertise in. His own proof-text of Gaza being occupied proves that Gaza is not occupied.

Since Dugard is now an emeritus professor of international law at the University of Leiden in the Netherlands, perhaps people might want to ask the school if they know that one of their faculty fabricates source material?

By the way, it is interesting to see how the ICRC defined "occupation" before Israel withdrew from Gaza.

The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.

The question of "control" calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC's Commentary to the Fourth Geneva Convention (1958).

An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.

...The normal way for an occupation to end is for the occupying power to withdraw from the occupied territory or be driven out of it. However, the continued presence of foreign troops does not necessarily mean that occupation continues.

A transfer of authority to a local government re-establishing the full and free exercise of sovereignty will normally end the state of occupation, if the government agrees to the continued presence of foreign troops on its territory. However, the law of occupation may become applicable again if the situation on the ground changes, that is to say, if the territory again becomes "actually placed under the authority of the hostile army" (H R, art. 42) – in other words, under the control of foreign troops without the consent of the local authorities.

Compare how it has changed that definition since then to shoe-horn Israel into a definition as an occupier - something they wouldn't have done for any other country.

The mention of military manuals is important, because much of international law is sometimes derived from a consensus in such manuals. As far as I know, no military manual defines anything close to Israel's relationship to Gaza as being an occupation.

The only actual legal ruling that has ever occurred regarding whether Gaza is occupied comes from Israel's quite liberal Supreme Court, which stated:

[S]ince September 2005, Israel no longer has effective control over the events in the Gaza strip. The military government that had applied to that area was annulled in a government decision, and Israeli soldiers are not in the area on a permanent basis, nor are they managing affairs there. In such circumstances, the State of Israel does not have a general duty to look after the welfare of the residents of the strip or to maintain public order within the Gaza Strip pursuant to the entirety of the Law of Belligerent Occupation in International Law. Nor does Israel have effective capability, in its present status, to enforce order and manage civilian life in the Gaza Strip.

No wonder Israel-haters have to resort to sui generis arguments and fake citations to pretend that Gaza is occupied. They have no legal leg to stand on.