Gaza Keeps The International Community 'Occupied'

The following is by 2 Washington lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush and in the U.N. Subcommission on the Promotion and Protection of Human Rights from 2004 to 2007.

So you can be sure their opinion will be ignored:

...Israel, however, is not an occupying power, judging by traditional international legal tests. Although such tests have been articulated in various ways over time, they all boil down to this question: Does a state exercise effective governmental authority -- if only on a de facto basis -- over the territory? As early as 1899, the Hague Convention on the Laws and Customs of War on Land stated that "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself."

The Hague Convention is a founding document of the modern law of armed conflict, and its definition of occupied territory was woven into the 1949 Geneva Conventions. There, the relevant provision provides that "[i]n the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations," although certain protections for the populations continue "to the extent that such Power exercises the functions of government in such territory." That is the key -- exercising the functions of government. This proposition was recognized in a seminal Nuremberg prosecution, the Trial of William List and Others.

It is because an occupying power exercises effective control over a territory that international law substantially restricts the measures, military or economic, it can bring to bear upon this territory, well beyond the limits that would be applicable before occupation, whether in wartime or peacetime.

The Israeli military does not control Gaza; nor does Israel exercise any government functions there. Claims that Israel continues to occupy Gaza suggest that a power having once occupied a territory must continue to behave toward the local population as an occupying power until all outstanding issues are resolved. This "principle" can be described only as an ingenious invention; it has no basis in traditional international law.

The adoption of any such rule (designed to limit Israel's freedom of action and give Hamas a legal leg up in its continuing conflict) should be actively opposed by the United States. Its adoption would suggest that no occupying power can withdraw of its own volition without incurring continuing, and perhaps permanent, legal obligations to a territory. This issue is particularly acute regarding territory not otherwise controlled by a functioning state -- failed states or failed areas of states where the "legitimate" government cannot or will not exercise effective control. Such places -- call them badlands -- were once rare. Over the past 15 years, though, there has been an explosion in the number of such areas, notably parts of Afghanistan, Somalia and portions of Pakistan.

Gaza is exceptional only in that its international legal status is indeterminate. Its last true sovereign was the Ottoman Porte. It was part of the British Palestine Mandate and has since been administered by both Egypt and Israel. Today, no state claims sovereign authority, though it is expected that Gaza will become part of a future Palestinian state. For its part, Hamas acknowledges no higher authority and functions as a de facto government in Gaza. It is a classic example of a terrorist-controlled badland.

Unduly handicapping states that intervene in such badlands -- whether to protect their own interests, those of the local population or both -- is unrealistic and irresponsible. Requiring agreement by the "international community" (whatever that may be) as a precondition for extinguishing such a designation is equally unproductive if the goal is saving lives.

The international community instead insists of putting in their 2 cents--frantically pouring kerosene on the fire.

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