HILLEL C. NEUER
GENEVA – The UN continues to label the Gaza Strip “occupied” by Israel, despite a Hamas leader stating this week that that’s no longer a tenable position.
Hamas co-founder Mahmoud Zahar confirmed Tuesday there is no Israeli occupation of Gaza, according to a report published by Ma’an, a Bethlehem- based Palestinian news agency.
Zahar was casting doubt on whether Hamas would organize anti-Israel marches in Gaza in conjunction with similar protests that the Fatah-controlled Palestinian Authority would organize in the West Bank.
“Against whom could we demonstrate in the Gaza Strip? When Gaza was occupied, that model was applicable,” Zahar said. The radical Islamist organization has merely recognized the obvious: that after Israel in 2005 dismantled its military administration in Gaza, forcibly evicted all Israeli residents and withdrew every last soldier, Israel no longer occupies the territory by any legal definition or other sense of the term.
Whatever external control Israel – and Egypt - may exercise, everyone in Gaza knows that Hamas rules the territory with an iron fist.
THE HAMAS statement follows growing recognition among international lawyers that the UN’s resistance to holding Palestinians responsible for territory they control is outdated.
Four-and-a-half years after seizing power in Gaza, Hamas runs its own police, courts, jails, schools, media and social services, noted Abraham Bell and Dov Shefi, two international legal experts, in a 2010 research paper for the University of San Diego law school.
Hamas regulates business activities, banks and land registries. It levies taxes, controls its own borders and even imposes a dress code. In sum, wrote Bell and Shefi, Hamas operates “a functioning and fully independent local civil government, buttressed by armed forces.”
Similarly, in an article published in the American University International Law Review, Elizabeth Samson concluded that under the Geneva Conventions and international judicial precedents, Gaza can no longer be considered occupied because Israel, despite its ability to exercise certain powers over the area, no longer exercises “effective control,” the litmus test for what qualifies as occupation.
Under Israel’s own law, the country’s Supreme Court ruled in 2008 that the Jewish state had disengaged from Gaza and no longer exercised “effective control over what occurred there.”
Now that Hamas itself has publicly recognized this reality, the UN’s refusal to do the same is less defensible than ever. The organization’s official policy has not changed since Secretary General Ban Ki-moon’s spokesman, Farhan Haq, declared in 2008 that “the UN defines Gaza, the West Bank and east Jerusalem as occupied Palestinian territory.”
In 2009, the UN’s Goldstone Report claimed that “the international community continues to regard [Israel] as the occupying Power” in Gaza, and cited to the UN Human Rights Council resolution that created their inquiry, which referred to “the Occupied Palestinian Territory, particularly in the occupied Gaza Strip.”
This terminology continues to appear:
• A September 22 report in the name of the secretary- general speaks of a UN mission’s visit to the “occupied Palestinian territory, specifically the Gaza Strip.”
• In May, Richard Falk, the UN Human Rights Council’s permanent investigator on alleged Israeli violations, referred to the “occupied Gaza Strip.”
• A UN fact sheet on “the Occupied Palestinian Territory” includes Gaza.
THERE IS a certain paradox in all of this. Even as a key UN agency, UNESCO, recently recognized “Palestine” – which includes Gaza – as a full and independent member of its organization, the UN continues to use the “occupied” terminology.
The inconsistency isn’t new. For decades, the UN’s policy toward the Palestinians has been marked by a fundamental contradiction: giving them maximum privileges within the organization, while demanding minimum responsibilities.
But absolving Palestinians of basic responsibility hasn’t helped them one iota. On the contrary, Palestinian citizens are the main losers when those that directly govern and police them are never seriously held accountable for their actions.
It’s time for the UN to drop its intransigent insistence on a legal position that has the effect, if not intent, of justifying Palestinian terrorism as “resistance to occupation,” undermining Israel’s ability to invoke its inherent right of self-defense against deadly rockets fired from Gaza, and, not least, dehumanizing Israelis as the demonic and faceless “occupier.”
And if the UN really wants to advance Palestinian self-rule and help Palestinians achieve sustainable independence, it must help, rather than hinder, the Palestinians develop a healthy culture of self-rule. The world body must stop patronizing them with a legal fiction designed to sustain a permanent state of grievance and absolve them of any responsibility.
Hillel C. Neuer, an international lawyer, is executive director of the Geneva-based UN Watch.
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