In a stunning about-face, and after decades of violence justified by excuses of being under occupation, this week Hamas has admitted that Gaza is not occupied by Israel. And yet, the United Nations, which has long been reluctant to acknowledge Gaza's change in status, is still silent on the issue.
In response to a statement by Hamas Politburo Chief Khaled Mashaal that Hamas will hold mass demonstrations against Israel inside Gaza to parallel those organized by the Fatah-controlled Palestinian Authority in the West Bank, Hamas Foreign Minister Mahmoud al-Zahar declared such a protest to be irrelevant. Al-Zahar stated that while the West Bank is "still under occupation" and that all forms of resistance, including armed resistance, should be used in that territory, "popular resistance is inappropriate for the Gaza Strip." "Against whom could we demonstrate in the Gaza Strip?,” al-Zahar asked. “When Gaza was occupied, that model was applicable.”
The international law of occupation requires that a hostile army have “effective control” over a territory in an area where its authority can be exercised, and to the exclusion of the territory’s established government. As foreign minister speaking on behalf of the Hamas government, al-Zahar is giving public credence to what has been a fact since September 2005 – that Israel is no longer in Gaza and that the Israeli government does not displace Hamas’s authority. The assertion that Gaza is no longer occupied is strongly supported by international law derived from the Geneva Conventions and legal precedent. For Hamas to state otherwise would undermine its own power and would be a profound display of the weakness of its government.
For decades, the notion that Israel is an occupier has been the rallying cry of the Palestinian people, seemingly an almost a greater raison d’etre for them than an actual pursuit of self-determination, as evidenced by the consistent rejection of every peace offer presented to the Palestinians and the unyielding rocket attacks from Gaza into Israel. While renouncing the language of occupation with respect to Gaza may be perceived as a concession to Israel, al-Zahar is actually demonstrating the strength of his government and boldness in the face of detractors in Gaza who are desperate for an excuse to continue to fight Israel.
There has been no official Israeli military or civilian presence in Gaza since September 12, 2005, when the last Israeli soldier left the territory and the government declared its specific intent to no longer occupy Gaza and withdrew all of its military and civilian installations. However, UN Watch, an NGO that monitors the actions of the United Nations, has brought further attention to the fact that U.N. Secretary-General Ban Ki-Moon has refused to declare Gaza to be anything other than occupied. As recently as September 22, roughly six years since the Israeli disengagement, the U.N. authorized a mission to visit the “occupied Palestinian territory, specifically the Gaza Strip.” In addition, an official U.N. fact sheet on the “Occupied Palestinian Territories” includes the map of Gaza.
While it is not legally necessary for the U.N. to acknowledge the absence of occupation in Gaza – application of the Geneva Conventions and legal precedent have satisfied those requirements - it is politically important for there to be a recognized change in status so that Israel will no longer be held to the more stringent legal requirements of an occupier and to lend greater legitimacy to Israel’s acts of self-defense. Gaza should have the intermediate status of a “sui generis” territory – unique, of its own kind or class - under the control of its own governing authority for the period between the end of occupation and until the finalization of permanent status negotiations. And, considering that the law, the facts, and the leadership of Hamas all indicate that Gaza is not occupied, there is no legitimate reason to continue to deem Gaza to be under occupation, a legally and factually inaccurate status.
The purpose of the United Nations is “to bring about by peaceful means ... adjustment or settlement of … situations which might lead to a breach of the peace.” However, continually declaring that Gaza is still occupied territory and not allowing for an intermediate status may only encourage violence because the Palestinian people in Gaza will feel that their voices are not being heard. Furthermore, by denying a change of status the U.N. is doing the people of Gaza their autonomy as they struggle to prove their worthiness as a nation among nations.
In light of the groundbreaking proclamation by Hamas Foreign Minister Mahmoud al-Zahar, Secretary Ban should abandon the outdated and inaccurate rhetoric of occupation employed by the U.N. for so long. The United Nations should now seize the opportunity to have the words and actions of the organization reflect its stated determination “to promote social progress” and extend “better standards of life in larger freedom” to the Palestinian people of Gaza.
Elizabeth Samson is a Visiting Fellow at the Hudson Institute. She is an attorney specializing in international law.
