Gazan Tomato Export.
(photo credit: Ibraheem Abu Mustafa/Reuters)
As an expert in occupation law and the legal status of Gaza, I read with
interest Hillel Neuer’s op-ed (“Hamas says Gaza ‘not occupied’; UN disagrees,”
January 5) equating continued recognition of the occupation of Gaza with what he
terms “Palestinian helplessness.”
Neuer calls upon the United Nations to
adopt a position reportedly articulated by a Hamas official, namely that
Israel’s occupation of Gaza has ended.
Putting aside the question of
whether the UN should look to Hamas as an authority on international law, there
is a troubling error in Neuer’s assumption that acknowledging Israel’s continued
occupation of Gaza absolves Palestinian officials of responsibility for their
actions. There is no contradiction between saying Gaza is occupied and holding
Hamas accountable for governmental functions there.
While Israel withdrew
its permanent military presence and civilian settlers from Gaza in 2005, it
continues to maintain many facets of control. These include control of movement
into and out of Gaza, the Palestinian population registry (including who is a
resident of Gaza and who may enter and leave), and most importantly,
A recent position paper by the Israeli human rights
organization Gisha argues that while the significant reduction in Israeli
control over Gaza reduces Israeli responsibility, the law of occupation still
holds Israel accountable for the aspects of civilian life dependent on movement
of people and goods. Conversely, the law of occupation authorizes Israel to
impose security restrictions – for example, to ban air and maritime traffic and
insist on inspecting all goods entering and leaving the Strip.
IT IS not
only the UN that considers Gaza to be occupied. So does the United States, the
EU, the International Committee of the Red Cross and prominent Israeli
international law experts such as Professor Yoram Dinstein. Even those who
believe that Israel’s occupation of Gaza has ended – including Israel’s Supreme
Court – still impose on Israel obligations toward the civilian population in
Gaza, as a result of its continued control over Gaza’s crossings and because of
the dependence cultivated in Gaza on Israel for its economy, infrastructure,
health system, and other civilian institutions.
The fact that Hamas
performs many governmental functions in Gaza does not stand in contradiction to
For example, Hamas is responsible for the content of
classroom instruction in Gaza, because it runs the Ministry of
But Israel controls whether new schools will be built – by
virtue of its control over the entrance of construction materials – and it
influences the quality of teaching, by controlling whether educators will be
permitted to travel between Gaza and the West Bank for training.
important changes in its policy toward Gaza, Israel continues to impose
crippling restrictions on the entrance of construction materials, ban the exit
of goods to their natural markets in Israel and the West Bank, and minimize
travel of persons between Gaza and the West Bank – in the vast majority of
cases, where no security risk is posed by the individual or item.
on gravel and cement – treated as civilian items under Israeli and international
legislation – cannot be explained by security concerns, given that the Hamas
regime accesses construction materials freely via the tunnels. The refusal to
allow a furniture maker in Gaza to sell desks to a school in the West Bank
cannot be explained by security, because Israel clears small quantities of
export for transit to Europe via Israeli ports, but refuses to allow the same
goods to reach the West Bank.
Israel’s ban on Gaza residents accessing
universities in the West Bank is similarly divorced from concrete security
concerns, because the ban applies even if the students pass stringent Shin Bet
(Israel Security Agency) background checks and agree to travel via Egypt and
The law of occupation requires Israel to allow the free flow of
people and goods into and out of Gaza, subject to individual security
inspections. At the same time, the international law of human rights demands the
accountability of Hamas, including for the protection of the rights of Gaza
residents to freedom of movement.
I am proud to work with Palestinian
human rights organizations in Gaza courageously resisting Hamas-imposed
restrictions, including blocking travel in the rare cases in which students and
professionals do receive Israeli permits to travel to the West
Limiting travel restrictions to those narrowly necessary for
security – by Israel and Hamas – would not only bring their policies into
conformity with international law, it would also allow the kind of economic,
educational and social development in Gaza that is the key to a better future in
the region.The author is executive director of Gisha- Legal Center for
Freedom of Movement.
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