No more Israeli civilians live in the Gaza Strip, and the last Israeli soldiers have pulled out as well. But the Palestinians say that Israel’s 38-year occupation of the Gaza Strip is not over, arguing that as long as Israel controls border crossings, airspace and territorial waters, it remains an occupying power.
The Jewish state is sidestepping the issue. Rather than get into a legal wrangle, Israel says the pullout means that its responsibility for Gaza — rather than the occupation in a strictly legal sense — is over.
In any event, Israelis note, Gaza’s future depends far more on political and economic developments than on abstract legal definitions.
The Israeli position on occupation was determined by the Foreign Ministry, which argued that it would be a mistake to get into a legal dispute with the Palestinians that could have adverse international repercussions. Instead, the ministry suggested shifting the focus from the issue of occupation to the question of responsibility for everyday life, including maintaining law and order.
Senior ministry officials argued that it would be much easier for Israel to convince the international community that the Palestinians are now responsible for what goes on in Gaza than to debate arcane points about whether the occupation is formally over. Moreover, Israel has little to gain from insisting that the occupation of Gaza has ended, given that the occupation of the West Bank clearly has not.
On the other hand, getting the international community to accept the notion of Palestinian responsibility for Gaza will enable Israel to develop a new security doctrine: holding the Palestinian Authority responsible for all terrorist attacks launched from Gaza and striking back at the P.A. in the event of such attacks, rather than at the particular terrorist organizations involved.
Prime Minister Ariel Sharon is expected to elaborate on this approach when he addresses the United Nations General Assembly in New York on Thursday. Sharon will declare that Israeli responsibility for Gaza has ended and that the Palestinian Authority is now in charge.
World leaders seem set to accept the Israeli position.
U.N. Secretary-General Kofi Annan has told Israel that he now considers the Palestinian Authority responsible for Gaza. The European Union doesn’t want to be dragged into a legal argument about occupation, but Israeli officials are confident that the Europeans will also accept the notion of Palestinian responsibility for Gaza, with all it implies. The same goes for the United States.
The Palestinians, however, continue to press for an end to any lingering Israeli presence in or around Gaza: With an Israeli presence at border-crossing points, they argue, the occupation is continuing by remote control.
In the Palestinian view, the fact that Gaza has no independent outlets to the world makes it a huge jail.
“Gaza is one large prison, and the Israeli army’s departure does not change that,” P.A. President Mahmoud Abbas declared on Monday as Israel Defense Forces troops left.
Other Palestinian leaders bluntly warn of a new round of violence. P.A. Minister Sufyan Abu Zaide says Israel is creating a pressure cooker that will eventually explode.
“You can’t choke a prisoner in jail and expect him to sit still,” he told the Yediot Achronot newspaper.
The immediate problem is the Rafah border-crossing point between Gaza and Egypt. The Palestinian Authority insists that it be controlled by Egyptian and Palestinian border personnel and that it be open to the movement of people in both directions. Israel wants all incoming traffic to Gaza to go through a new crossing point it controls at Kerem Shalom.
To break the deadlock, the Egyptians suggested a compromise under which the Rafah crossing would be closed for renovations for six months, during which time all traffic would go through Kerem Shalom. In the interim, sophisticated monitoring devices would be installed at Rafah, enabling Israel to keep an eye on individuals entering Gaza without maintaining any physical presence there.
Israel agreed but the Palestinians did not, and the issue has yet to be resolved.
As for outlets to the rest of the world, Israel has agreed to the construction of a seaport in Gaza to be exclusively under Palestinian control. That doesn’t solve immediate problems, however, since construction of the port is expected to take at least two years.
As for the airport at Dahaniya, which could be back up and running in a few months, Israel is still withholding its approval.
The perennial Israeli concern is security. Israel fears the Palestinians may use Dahaniya to fly in weapons, and they’ll insist on Israeli or reliable third-party monitoring of air cargo before allowing the airport to open.
In addition, Israel is beefing up the fence around Gaza to keep out suicide bombers and has installed sophisticated monitoring devices that can see into Gaza’s teeming refugee camps and other potential terrorist hot spots.
All this adds to the Palestinians’ sense of claustrophobia. But until there is a proven change in Palestinian attitudes toward terrorism — such as a commitment to fulfill P.A. promises to disarm terrorist groups — Israel is unlikely to relax its security precautions.
Despite the practical dispute, Israel can make a legal case that the occupation is over.
The international treaty defining occupation is the 1907 “Hague Regulations Respecting the Laws and Customs of War on Land,” which states that “Territory is considered occupied when it is actually placed under the authority of the hostile army.” On that basis, Israeli legal experts argue that Israel cannot be considered an occupier after the withdrawal.
Given Israel’s past experience in international juridical forums, however, the Foreign Ministry feels Israel would do better to avoid the dispute entirely. Moreover, they add, it would be more constructive for all parties to focus on Gaza’s economic needs and on future political negotiations between Israel and the Palestinian Authority.
Whether Gaza becomes a hotbed for terrorism or a model for a future peace agreement, they say, depends on the scale of international investment and the degree of progress in peace talks.
In the Israeli view, whether or not legal definitions of “occupation” apply to Gaza is secondary.
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