Is Gaza 'Occupied'? - Matthew Mainen

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by Matthew Mainen

The European Court held that "physical presence of foreign troops is a sine qua non requirement of occupation, i.e. occupation is not conceivable without 'boots on the ground.'

Originally published under the title "Omar Shakir's Lawfare."

In a landmark 2015 ruling on the Azeri-Armenian conflict, the European Court of Human Rights said the "physical presence of foreign troops is a sine qua non requirement of occupation."

June 16, 2015 was a watershed moment in international law. In Chiragov v. Armenia, the European Court of Human Rights (ECHR) presented a simple criteria for investigating whether a territory is under military occupation: For an area to be occupied, the occupying power must have a military presence there. While the case dealt with the Azeri-Armenian conflict, the implications for Israel's disputed territories were obvious.

The next day, in fact, international jurist Marko Milanovic penned a piece titled, "European Court Decides that Israel Is Not Occupying Gaza." Any honest observer would agree. Unfortunately, Human Rights Watch's Israel/Palestine director Omar Shakir did not get the memo, as he still insists Gaza is occupied.

As Shakir faces possible deportation from Israel for his BDS advocacy, his willingness to distort the law in a way unfavorable to Israel suggests an overarching goal of demonizing the Jewish state, not achieving justice.

Human Rights Watch Israel/Palestine director Omar Shakir insists Gaza is "occupied" by virtue of Israel's control over its airspace, sea access, and borders.

According to Shakir, Israel's occupation of Gaza is evidenced by its control over "Gaza's airspace, sea access, population registry, customs/VAT rates, a no-go zone inside Gaza, borders" and several related matters. According to case law stretching from the present back to the post-WWII tribunals, this is nonsense. These factors are largely irrelevant.

The European Court held that "physical presence of foreign troops is a sine qua non requirement of occupation, i.e. occupation is not conceivable without 'boots on the ground.' Therefore, forces exercising naval or air control through a naval or air blockade do not suffice." In other words, as there is not a single Israeli soldier in Gaza, the territory cannot be considered occupied.

The ECHR ruling is well grounded in long-standing customary international law.

There is nothing controversial about this decision. It's well grounded in long-standing customary international law that an occupying power must have a monopoly on governmental authority over a territory. This cannot be achieved without having people on the ground to actually administer the area.

In the 1948 Subsequent Nuremberg Tribunal's Hostages Case, the court held that "an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organised resistance and the establishment of an administration to preserve law and order."

The U.S. Military Tribunal at Nuremberg held in 1948 that occupation "indicates the exercise of governmental authority" and "presupposes the destruction of organised resistance."

The situation in Gaza is the opposite of an occupation. Hamas, rather than Israel, governs the territory to the exclusion of other actors. Organized resistance in the territory is also far from destroyed. Despite suffering heavy losses in a series of wars with Israel, the terrorist organization maintains armed forces that are ready to respond if Israeli troops make an advance.

The criteria for occupation affirmed at Nuremberg was also reflected in the 2005 International Court of Justice case Congo v. Uganda. The court held that an occupation exists when foreign troops are "not only stationed in particular locations but also that they had substituted their own authority for that of the" local government. By Uganda's own admission, it once had thousands of soldiers in Congo. However, the court considered as occupied only an area where a Ugandan general created a province and installed a governor. This is despite the fact that Uganda exhibited considerable control in some other areas through overseeing elections and administering an airport.

In 2005, the International Court of Justice held that an occupation exists when foreign troops have "substituted their own authority" for that of local government.

Ultimately, local actors allied to Uganda, rather than Uganda itself, were doing the governing. This is all the more true in Gaza, where Israel has far less authority over Hamas, sworn enemies of the Jewish state.
Aside from the longevity and abundance of the case law, numerous military field manuals, a gold standard for assessing customary international law, support the position that Israel does not occupy Gaza. These include the chapters on occupation in the American, Canadian, and British manuals.

In Shakir's defense, some might point to other important actors in international law who share his view. In 2014, the International Criminal Court's Office of the Prosecutor held that "there is a reasonable basis upon which to conclude that Israel continues to be an occupying power in Gaza despite the 2005 disengagement." This basis centered on much of the evidence Shakir utilized, which in turn has little foundation in international law as understood for the past 70 years.

One can morally object to Israel's handling of Gaza without mischaracterizing the law.

As law professor Eugene Kontorovich put it: "they really looked to be pulling this out of thin air." Less than a year later, this was made clear by the European Court in Chiragov. An echo chamber doesn't make fabrications any truer, only louder.

You can morally object to Israel's handling of Gaza without mischaracterizing the law. Instead, Shakir's concerning use of a thoroughly debunked legal framework serves only to label the Jewish state as a dreaded "occupier." This marginalizing language, whether he recognizes it or not, serves a greater purpose: to delegitimize Israel. Given his clear support of BDS and less than honest handling of the legal situation, Israel can do without him.

Matthew Mainen is a Washington-resident fellow at the Middle East Forum and graduate of Stanford Law School. Follow him on Twitter.

Source: https://www.meforum.org/59531/is-gaza-occupied

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