Australia / Israel Review

The Post-Occupation Preoccupation in Gaza

By Erik Schechter

The IDF posts are gone. The settlements are gone. Hamas even declared Gaza liberated. Yet two-and-a-half years after the disengagement, at least one Israeli human rights group still considers the Strip occupied. And, surprisingly, Human Rights Watch and Amnesty International agree.

In a report entitled “Disengaged Occupiers,” Gisha Legal Centre for Freedom of Movement writes: “Israel’s withdrawal of settlements and its permanent military ground installations from the Gaza Strip did not end Israeli control of Gaza but rather changed the way in which such control is effectuated.”

It all sounds so fascinating, so subversive. But what about that little document called the 1907 Hague Regulations?
Article 42 clearly states that territory is occupied when “under the authority of the hostile army.” Now the lawyers may quibble over how far ahead of the invading troops the law of occupation extends. But, basically, it’s boots in – military occupation; boots out – no military occupation.

To get around this, Gisha displays an impressive level of creativity. First, it argues that technological advances like drones, gunships and laser-guided missiles have shattered the old paradigm. Second, the group notes that the IDF still occupies the West Bank, and the Oslo accords consider the territories one unit.

Besides, the issue is not troops but “effective control”, adds Gisha. Israel may only have closed-circuit cameras at the Rafah crossing, but still limits the entry of people and goods into Gaza. It also set the customs rates, verifies Palestinian IDs, and withholds tax money. If Israel wants to bottle up the Strip for 148 days, it can – and it has.

If Gisha is right, then Gaza becomes Israel’s little bedraggled ward. Israel must let the Palestinians import and export goods, if not through Rafah, then through Israel. It must supply the Hamas government with electricity. It has to do all this, and more.

Of course, the alternative is to open Gaza to the world and watch the rockets, guns and bombs flood the Strip.

Admittedly, no one likes being called the O-word. That’s why the UN and NATO frame their non-belligerent occupations as “peacekeeping missions.” Still, there are good reasons why we ought to reject Gisha’s notion of occupation: It is disconnected from reality, conceptually weak and only applied to Israel.

First, despite Gisha’s lavish praise of hi-tech weapons, they do not keep public order, pick up the trash, or perform any other government task. Nor is Israel’s well-stocked army in any position to quickly reassert Israeli rule in Gaza. That’s why, after 1,000 or so Palestinian rocket attacks, Israel has not reconquered the place.

And there is Rafah. Israel retains a voice over what goes on at the crossing, but its power is almost all on paper. It is the Egyptians who really control the border, and if they want to let Hamas smugglers into Gaza (as they did a few weeks ago), they can.

A second, equally crucial point raised by Gisha is the nature of the territories. True, the Oslo accords did hold them to be one political entity, but since the Hamas takeover of the Strip in June 2007, they are no longer so. Thus, the idea that Israel can control Gaza City via Ramallah is untenable.

Ultimately, the NGO report comes off vague and arbitrary. Israel is guilty, of course, but we are not sure why. The group offers no formula for how much “indirect control” makes an occupation. Nor it does explain how Israeli domination of Gazan airspace and waters differs from an ordinary blockade.

That others would adopt a similar approach to Gisha is all the more jarring, given how Human Rights Watch and Amnesty International usually address conflicts around the globe. Indeed, most other military occupations (i.e., foreign rule, troops and settlers) go unremarked upon by the human rights community.

Take the case of the Western Sahara. In October 1975, the International Court of Justice ruled that this Spanish colony had the right to self-determination. However, Spain had other plans. The outgoing colonial power cut a side deal with Morocco and Mauritania, and in April 1976, the two states annexed Western Sahara.

The hard-fighting Sahrawi rebels forced Mauritania to withdraw in 1979. But it was Morocco – not the local nationalist movement – that took control of the evacuated areas. Confronted with this new reality, the UN General Assembly issued two resolutions that recognised Western Sahara as under Moroccan occupation.

Curiously, none of this registers with Human Rights Watch and Amnesty International. Both groups insist on calling Western Sahara a “disputed territory” or “Moroccan-administered” – anything but “occupied”. This legal conservatism stands in stark contrast to the super-elastic category used for Gaza.

Explaining the contradiction, Human Rights Watch legal adviser James Ross tells me that his group uses terms “widely accepted” by the international community. True, interested parties often shape this discourse, but not to worry: The law, not the label, is what counts. And human rights law is applied to Western Sahara.

However, Ross admits that the laws of occupation are not applied. So while human rights groups count Israeli closed-circuit cameras at Rafah, they ignore 200,000 Moroccan settlers living in Western Sahara. Israel gets slapped for not feeding Hamas-run Gaza, but Morocco can happily deplete Sahrawi fish stocks and phosphate mines.

Obviously, this myopic obsession with Gaza cannot continue. First, it chains Israel to a make-believe occupation. Second, it confirms the Palestinian conceit that they are victims of forces beyond their control. Third, it overlooks very real occupations across the globe. Finally, it does violence to the very concept of equality before the law.

Now let me say a word about the human rights community. They are good people. But they are just people, and, like the rest of us, they too can make errors in judgment – sometimes very serious ones. We need to keep human rights groups on track, not tear them down.

Donors, sympathisers and dues-paying members ought to petition their organisations to be more forthright in outing occupiers. Academics can likewise be recruited to the cause. After all, few scholars deny that Pakistan conquered a part of Kashmir, or that China has swamped Tibet with settlers.

Once human rights groups commit themselves to using a reasonable and consistent definition of occupation in their reports, it will be harder for states to play politics in international fora. Then, who knows? We might just end up with something that resembles international law.

The writer is a former military correspondent of the Jerusalem Post. © Jerusalem Post, reprinted by permission, all rights reserved.