The Myth Of Occupied Gaza

http://www.washingtonpost.com/wp-dyn/content/article/2008/05/09/AR2008050902296.html

By David B. Rivkin Jr. and Lee A. Casey
Saturday, May 10, 2008; Page A15

Hamas claims that former president Jimmy Carter's recent meeting with its leader, Khaled Meshal, marks its recognition as a "national liberation movement" -- even though Hamas rockets fired from the Gaza Strip, which Hamas rules as an elected "government," continue to rain down on Israel's civilian population. While Hamas is clearly trying to bolster its legitimacy, the conflict along Israel's southern border has a broader legal dimension -- the question of whether, as a matter of international law, Israel "occupies" Gaza. The answer is pivotal: It governs the legal rights of Israel and Gaza's population and may well set a legal precedent for wars between sovereign states and non-state entities, including terrorist groups such as al-Qaeda.

Israel's critics argue that Gaza remains "occupied" territory, even though Israeli forces were unilaterally withdrawn from the area in August 2005. (Hamas won a majority in the Gazan assembly in 2006 and seized control militarily in 2007.) If this is so, Jerusalem is responsible for the health and welfare of Gazans and is arguably limited in any type of military force it uses in response to continuing Hamas attacks. Moreover, even Israel's nonmilitary responses to Hamas-led terrorist activities -- severely limiting the flow of food, fuel and other commodities into Gaza -- would violate its obligations as an occupying power.

Israel, however, is not an occupying power, judging by traditional international legal tests. Although such tests have been articulated in various ways over time, they all boil down to this question: Does a state exercise effective governmental authority -- if only on a de facto basis -- over the territory? As early as 1899, the Hague Convention on the Laws and Customs of War on Land stated that "erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself."

<snip>

It's worse than occupied.

But we have a word that's better suited for describing its present state: "under seige". It's still not quite right--when laying seige to a place, taking possession of it or destroying it is the usual goal; to this end, you don't usually let food and water or armaments in to support the opposing forces, and you don't usually have "just stop trying to kill us" as the requirement for ending the seige. But it's certainly better a term than "occupied".

It's how Zahar, the Hamas spokesman, referred to Gaza in the last day or two. He has to; Hamas' celebrating the driving out of the Israelis denies the applicability of the term "occupation", an occupier can't both be driven out and still occupying. But it's not quite the right term--surely he's not saying that Egypt was also laying seige to Gaza.

People say it's occupied, but don't want it to be re-occupied--look at the outrage when the IDF sends in troops, the fear of renewed occupation. Zahar is closer to the truth. Others try to use the term as a cudgel, wanting "occupation" to only confer benefits on the Palestinians with none of the utter lack of self-rule and local control that is the necessary condition for occupation to exist.

Only the benefits of occupation, but none of the control.

No wonder there is anarchy in Gaza.