Will Israel’s withdrawal from Gaza free it from the burden of the occupation? The answer is yes and no.
Aluf Benn, Haaretz, Aug 09, 2005
After it is all over – when the Jewish settlers from Gush Katif are luxuriating in their caravillas, when the Hamasniks have finished their victory parades and the Israel Defense Forces have left the Philadelphi route – will Israel enjoy freedom from its oppressive responsibility for the Gaza Strip and international recognition of “an the end to the occupation?” Yes and no, say senior jurists. It depends on what Israel says and how things look to outside observers. There is no judge who is qualified to determine whether and when the occupation has ended.
Prime Minister Ariel Sharon has depicted the shedding of Israel’s responsibility for the Gaza Strip as a major goal of the disengagement plan. But Sharon is not going to ask the United Nations to declare the end of the occupation in Gaza, as former prime minister Ehud Barak did after his withdrawal from Lebanon. The main reason for this is the fear of a precedent that would affect Israel’s control of the West Bank.
It is impossible to request acknowledgment of the southern Green Line (pre-Six Day War border) as a recognized international border and argue that the Green Line to the east is something different. Anyone who wants to hold on to Ariel and Beit El in the West Bank cannot go to the UN for help.
In the absence of a recognized UN ruling after the withdrawal, the parties will present themselves to the judgment of governments and public opinion in the West. Israel will try to make a distinction between the Gaza Strip and the West Bank, find reasons to justify the difference in their status and try to blur the precedent of its withdrawal to the last millimeter.
The Palestinians will no doubt argue that the occupation has not ended in Gaza as long as Israel controls the sea and the air and is supervising the border crossing points. They are already saying that the disengagement will turn the Gaza Strip into a big prison. They will try to lever the principle of total withdrawal to demand much the same in the West Bank.
A number of teams are now examining these questions. At the Ministry of Foreign Affairs they are planning the PR campaign. Deputy Attorney General Mike Blass is coordinating the amendments to legislation and administrative procedures that will be needed after the disengagement. The National Security Council is looking into the legal status of the Gaza Strip under Palestinian control.
Under international law, the test for the existence of an occupation is “effective control” on the ground. In the Oslo Accords, Israel handed some of its responsibilities over to the Palestinian Authority, but maintained its hold on the entrances and exits to the Gaza Strip, and of course on the Jewish settlements and on the roads leading to them. Just evacuating the settlers will not be considered an end of “effective control” if the doors remain locked and Israel keeps the key.
The planned withdrawal from the Philadelphi route and reaching an arrangement for supervision of the crossing points would be a significant step in the divestiture of responsibility. But even then, say the legal experts, it would be hard to put a finger on the exact moment when Israel’s “effective control” would disappear. The occupation, then, looks like something unpleasant that has stuck to a shoe. It is hard to get rid of it and the stink remains even after the sole is cleaned.
Israel will announce that its control ends at the demarcation line of the Gaza Strip, which was determined in the Gaza and Jericho agreement of 1994. The extensive legislation that regularized the legal and municipal status of the settlements in the Gaza Strip will be revoked or allowed to lapse. The border facility will be relocated from Rafah to crossing points between Gaza and Israel, and employees of the Coordination and Liaison Administration, which will be dismantled, will be transferred to the Interior Ministry.
Israel’s continued control of the crossings between Egypt and the Gaza Strip and in the air and sea will be represented as a means of self-defense and not as occupation. The Gaza Strip will not be defined as a state; relations with it will be conducted in accordance with the interim agreement of 1995.
There are those who think that all these efforts are meaningless legal hairsplitting. This is not a real problem, they say in the Prime Minister’s Bureau. Even today, the world does not hold Israel responsible for the poverty and other problems in the Gaza Strip, and after the disengagement the attribution of this responsibility will be even less.