Eugene Kontorovich: Why Gaza is not remotely occupied (I)
The Prosecutor of the International Criminal Court last week found no jurisdiction over Israel’s naval interdiction of vessels seeking to break the Gaza blockade. But she did issue a long obiter pronouncement – albeit non-binding, tentative, and discounted with multiple disclaimers – that it would be “reasonable” to conclude Israel occupies Gaza.Gaza is not remotely occupied (II)
Normally such a tentative statement would not warrant further examination. But even with all the qualifications, the prosecutor’s argument is not reasonable. It is absurd and unprecedented. It embodies principles that have never and can never be applied to other situations. This post will discuss the doctrinal and judicial flaws with the OTP’s analysis. A subsequent post will examine state practice, the insignificance of the alleged powers the OTP claims Israel exercises.
An occupation is traditionally defined as a power exercising “effective control” over the territory in a way that displaces the prior government. The occupying power is expected to provide law and order, essential services, and all the basic functions of government – and is thus required to have the kind of control that allows for that. As the ICJ has put it, occupation requires a territory to be “actually placed under the authority of the hostile army.” There has never been a finding of a such “remote” occupation, lasting nine years after the end of physical occupation and in the presence of a distinct and hostile local government. Indeed, even puppet governments are not considered occupation by the puppet master.
Ironically, the ICC decision comes shortly after Sweden’s much-trumpeted decision to recognize a Palestinian state. The Swedes are sticklers for international law, and do not believe in short cuts around the objective Montivedeo criteria for recognizing new states. Thus in explaining their decision, Stockholm said that the Palestinians do have a government, a power exercising control. It likened it to Kosovo and Croatia, where recognition occurred when the government only controlled some of its claimed territory. The Swedes did not specify which territory the Palestinian government controls (or which government), but presumably it would include Gaza and Area A.Israel bans co-author of Lancet letter from Gaza
Even aside from the issue of whether Palestine qualifies as a state, most of the world recognizes a Palestinian “government” that includes Gaza as well. A government governs, and thus has effective control. So it the Prosector is truly guided by the opinion of the international community, she has a problem, as these views are contradictory. That is the danger in departing from legal tests to political ones.
A Norwegian doctor who has been critical of Israel has been banned from entering the Gaza Strip for life, with Israeli officials citing security reasons, Norway’s Verdens Gang newspaper reported Friday.
Dr. Mads Gilbert has been treating patients at Gaza’s Shifa Hospital for 30 years, VG reported, but on his most recent trip in October, Israeli soldiers at the Erez Crossing told him he could not enter.
Gilbert has called the decision “provocative, unreasonable and totally unacceptable.” The Norwegian Embassy in Tel Aviv said it was told the doctor was being prohibited from entering the Palestinian territory for “security reasons,” with no further justification given.
Gilbert was one of the authors of a letter published in the prominent medical journal Lancet during the recent Gaza conflict, which accused Israel of massacring Palestinians and overwhelmingly targeting women and children. The British journal’s editor Prof. Richard Horton later said — following a trip to Israel — that he regretted the letter and that it “did not convey the level of complexity that is the reality in Israel.”In a 2001 interview with the Norwegian newspaper Dagbladet, Gilbert stated that 9/11 occurred because of Western foreign policy and that he supported terror attacks within the framework of that “context,” claiming that “the suppressed have a moral right to attack the United States.”
























