Saeb Erekat, Gaza Remains Occupied

August 22, 2005

Saeb Erekat,

Israel's "disengagement" plan states that, upon the completion of the withdrawal from Gaza, "there will be no basis to the claim that the Gaza Strip is occupied land." This is simply incorrect. After "disengagement," Israel's colonization of Gaza will have ended, but because it will still control Gaza, Israel's occupation will remain.

Occupation is primarily about control: Does a military effectively control foreign territory? The Hague Regulations of 1907 set the legal definition for occupation: "Territory is occupied when it has actually been placed under the authority of the hostile army [and when] the occupation extends to the territory where such authority has been established and can be exercised." An occupying power can exercise effective control without being physically present in all parts of the territory it occupies. It suffices that it can project military power over the whole of the occupied territory by keeping forces in only parts of the territory.

Since Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip in 1967, the international community has repeatedly affirmed that Israel is an occupying power. In July 2004, the International Court of Justice reaffirmed Israel's obligations when it held Israel's wall and all of its settlements illegal.

After "disengagement," Israel's settlements will disappear, but Israel will continue to control every good, person, and drop of water to enter or leave Gaza. The analysis below will examine how Israel plans to maintain its control and domination over Palestinian life in Gaza. Starting with territory, Israel will have exclusive use of, and control over, all of Gaza's airspace, and full control over its territorial waters, both of which form part of Gaza's territory. This means that Palestinians will not be "allowed" to have an airport, independent satellite communications, and possibly not even a seaport--essentially cutting Gaza off from the rest of the world. The fact that Israel insists on giving its "permission" for such basic public services demonstrates who really is in control of Gaza.

Moving on to borders, Gaza will be cut off from the rest of the occupied Palestinian territory (the West Bank, including East Jerusalem), as Israel will control all border crossings. Neither people nor goods will be able to move in or out of Gaza without Israel's permission, even though the international community (as well as Israel itself in the Oslo Accords) has recognized that Gaza and the West Bank form one territorial unit. Israel's plan is to undermine the territorial unity of the occupied Palestinian territory by cutting Gaza off from Palestinian political and administrative centers in the West Bank, including East Jerusalem.

So, for the average Gazan, a mere visit to family or friends in another part of the occupied Palestinian territory, or movement of merchandise to the important Jerusalem marketplace, will require Israeli permission. These are just two examples that show who will really control Gaza. The Palestinian Authority will also not be allowed to freely move personnel and goods (including essential supplies) between Gaza and the rest of the occupied Palestinian territory.

The same applies for international crossing points, including Israeli control over Gaza's border with Egypt. Total Israeli control over borders will essentially turn Gaza into the world's largest prison, with Israel acting as the warden.

Israel has also reserved the "right" for itself to re-enter Gaza at will, and has said that it will "continue its military activity along the Gaza Strip's coastline". There is strong legal precedent that this alone puts Israel in a position of "effective control" over Gaza.

In the Hostages Case, the Nuremberg Tribunal held that a territory remains occupied as long as the foreign state retains the ability to exercise control over it. Israel has gone beyond the threshold of ability to exercise effective control by arrogating to itself the right to enter Gaza at will.

Finally, Israel plans to enclave Gaza, thereby maintaining its dependence on Israel for various administrative needs. For example, pursuant to the disengagement plan, Palestinians will be dependent on Israel for, among other things, electricity, parts of its water supplies, economic and financial transactions, and currency and fiscal policies. Palestinians can't be said to be in effective control under such conditions.

Together, these facts paint a clear and disturbing picture: An Israel that seeks to maintain the maximum degree of control over Palestinian life, albeit without its soldiers physically harassing and terrorizing the population "on the ground".

The Israeli disengagement plan should not be rewarded by an illegal determination of end of occupation. Instead, Israel should be urged to immediately carry out its obligations under international law and truly bring the occupation to an end in all of the occupied Palestinian territory, including East Jerusalem.

Saeb Erekat is head of the PLO's Negotiations Affairs Department.

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