b i t t e r l e m o n s. o r g
    August 22, 2005 Edition 30                       Palestinian-Israeli crossfire
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  The legal status of Gaza
  . An evolving issue        by Yossi Alpher
The principle of international participation in the decision-making process regarding these issues has been established.
. No change        by Ghassan Khatib
Only the final outcome of a negotiations process can lead to a change in the legal status of the occupied Palestinian territories.
  . Unity does not require uniformity        by Ruth Lapidoth
There is no reason why the partial customs union should be abolished unless both parties wish it.
. Gaza remains occupied        by Saeb Erekat
The Israeli disengagement plan should not be rewarded by an illegal determination of end of occupation.

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An evolving issue
by Yossi Alpher

The emerging international status of the Gaza Strip is a tale of unsustainable Israeli objectives and growing international influence. Nothing has been determined with finality yet, but the direction is clear.

When Prime Minister Ariel Sharon finalized the Gaza disengagement plan in early 2004 he almost certainly intended to cut Gaza off not only from Israel but from the West Bank. This corresponded with the strategy he had adopted for the territories in the course of several decades: fragment the Palestinian presence geographically, demographically, and politically to ensure Israeli control. The disengagement plan called for Israeli economic interaction with the Gaza Strip to end within a few years, and to be replaced by international investment; Sharon at the time rejected Egypt's demand that he ensure safe passage between Gaza and the West Bank as a condition for its assistance and participation. In the course of the ensuing months it emerged that Israel also sought to remove Gaza from the customs envelope that has prevailed between Israel and the Palestinian Authority since the Paris Agreement in 1995.

In parallel, Sharon was trying to construct the West Bank security fence deep inside Palestinian territory; he even fantasized about an "eastern fence" that would cut the West Bank mountain heartland off from the Jordan Valley. At the time, beyond Sharon's commitment to leave Gaza and the northern West Bank, which many Israelis were understandably skeptical about, it looked like business as usual for the man who had done more than any other Israeli to create a demographic and geographic interlock between Israel and Palestine that appeared to doom the prospect of a two-state solution.

That image began to change radically in the course of the past year or so, as Sharon's thinking gradually adapted to the political ramifications of the unilateral concepts of disengagement and a security fence, and to the growing international participation and approval required to make the plan work. The fence today embraces less than 10 percent of the West Bank, including in and around Jerusalem. Sharon talks about holding on to the settlement blocs that abut the green line--even going so far as to claim that disengagement enabled him to extract a guarantee to that effect from President Bush--but he increasingly appears to understand that Israel will have to get out of the mountain heartland and the Jordan Valley, meaning everything beyond the fence. Gaza is part of this concept: yielding to pressure from the Quartet's envoy, James Wolfensohn, and the Bush administration, Sharon has agreed to institute safe passage, thereby ensuring an ongoing economic and political link between Gaza and the West Bank.

The issue of Gaza's economic status--with or without an Israeli customs envelope--has not yet been resolved, and there are ongoing security concerns regarding Gaza's borders. But the principle of international participation, including by Egypt, in the decision-making process regarding these issues has been established. Hence it is not likely that the coming weeks and months will witness the emergence of a status for Gaza that somehow detaches it from the West Bank.

Unless Hamas takes over Gaza. If, in the aftermath of disengagement, the PA/PLO under Mahmoud Abbas proves unable to assert its authority in the Strip and Hamas emerges as the de facto ruler there, the Israeli approach, conceivably with Egypt's tacit acceptance, could conceivably revert to an attempt to isolate and detach Gaza. This could happen the moment the IDF leaves the scene, if the scramble to reclaim the territory of the Gaza settlements degenerates into chaos. Or it could happen after elections to the Palestinian Legislative Council in late January, if Hamas scores an overwhelming victory in the Strip.

The unity of Gaza and the West Bank was established by the Oslo agreements. Israel needs for these territories to be unified economically and politically if there is to be any chance of creating a viable Palestinian state. And a viable Palestinian state is needed in order for Israel to remain Jewish and democratic.

Accordingly, the future status of Gaza is a test both of Sharon's political wisdom and of Abbas' leadership skills.- Published 22/8/2005 (c) bitterlemons-international.org

Yossi Alpher is coeditor of the bitterlemons family of internet publications. He is former director of the Jaffee Center for Strategic Studies at Tel Aviv University, and a former senior adviser to PM Ehud Barak.

No change
by Ghassan Khatib

The starting point when looking at the legal status of any part of the Palestinian territories, including the Gaza Strip, is that the occupied Palestinian territories are, legally speaking, one integral unit. This is how the Oslo agreements, which were endorsed by the United Nations and recognized officially by all countries, defined the Palestinian territories.

This means it is not possible to deal with the legal status of any part of this integral territory except in relation to the rest. There is a clear definition of independence, or end of occupation in our case, that requires an end to foreign control over the area under consideration, including over the borders and sea- and airspace. In the case of the Gaza Strip, which constitutes four to five percent of the Palestinian territories, and according to the only legal document Israel has issued regarding the disengagement plan, the borders of Gaza will remain under Israeli control, as will its air space.

The seriousness of Israeli intentions to properly leave the Gaza Strip will be judged on what happens with borders and crossing points. So far the Palestinian side has two basic fears: the first is what the arrangements concerning movement between Gaza and the West Bank will be, and the second concerns movement between the Gaza Strip and the outside world and vice versa. These are the aspects that most decisively will shape the political, economic and legal scenarios after disengagement.

One nightmare scenario is if Israel opens the Egyptian-Palestinian border at Rafah but does not allow movement between the West Bank and Gaza. Such a situation will negatively affect aspirations for one state comprising both the West Bank and the Gaza Strip. It also contradicts with the vision of US President George W. Bush and the position of the international community for a two-state solution. Gaza and the West Bank are one economy and, according to Oslo, are thus subject to the same customs arrangements. Should Gaza be severed from the West Bank, two customs arrangements and two pricing systems will arise that will gradually create two different economies.

The international community seems to be aware of this possible danger and is working hard to convince Israel to maintain the integrity of the West Bank and Gaza as one economy and one political entity. The outcome of the current negotiations that Israel is holding with Egypt and many other parties including the US, the World Bank, the PA, and the EU, will be crucial in this regard. These negotiations have been concentrating on the issue of movement through the crossing points to Egypt and through Israel to the West Bank. Palestinians and Egyptians, who have been trying to ensure a complete end to the Israeli presence in Gaza including on the Egypt-Gaza borders, are suggesting maintaining the same customs arrangements that the Oslo Agreements stipulate and inviting a third party presence, e.g., the EU, to witness and ensure that due process is followed.

So far, and according to the document the Knesset voted on concerning the disengagement, Gaza will still be defined, after the implementation of the disengagement plan, as occupied territory. However, many people, including some Palestinians, are hoping that the disengagement, particularly the evacuation of settlements, can be a step toward a gradual end of the occupation of all territory. This is especially so if the international community can exert pressure for a resumption of peace negotiations on the basis of the roadmap, which requires not only an end to the violence by both sides but also an end to settlement expansion, a dismantling of settlement outposts, as well as the disarming of organizations involved in violence. Only the final outcome of such a negotiations process, if based on international legality and the roadmap that calls for ending the occupation that started in 1967, can lead to a change in the legal status of the occupied Palestinian territories.- Published 22/8/2005 (c) bitterlemons.org

Ghassan Khatib is coeditor of the bitterlemons family of internet publications. He is the Palestinian Authority minister of planning and has been a political analyst and media contact for many years.

Unity does not require uniformity

by Ruth Lapidoth

The legal and economic status of Gaza after withdrawal presents difficult questions with various possible answers. These require a short recapitulation of the recent legal history of this area.

Until the end of WWI the Gaza Strip, like most of the Middle East, was under Turkish rule. From 1919 until 1948 it was under British rule, first as an occupied territory, and later as part of the British Mandate for Palestine. During the 1948-49 Arab-Israel war, the Gaza Strip was occupied by Egypt. This situation was confirmed by the Egypt-Israel Armistice Agreement of 1949. Egypt never annexed the Gaza Strip, and in 1962 granted it limited autonomy. Since 1967, it has been under Israeli rule--according to most opinions, as an occupied territory. Israel has never annexed the area, nor applied its "law, jurisdiction, and administration" (the terms used for East Jerusalem and the Golan Heights) to the area.

In the Declaration of Principles on Interim Self-Government Arrangements of 1993 ("Oslo I Accord"), Israel and the PLO agreed on self-government for the West Bank and the Gaza Strip, to be established in stages and to be followed after several years by negotiations on the permanent status of the areas. Self-government was first established in 1994 in the Gaza Strip and the Jericho area. The 1994 agreement was superseded in 1995 by the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip ("Oslo II Accord"). Both the 1993 and the 1995 agreements foresaw a gradual transfer of powers from Israel's military administration to the Palestinian Authority. Israel retained mainly powers in the field of security and with regard to the Israeli settlements.

Both texts stipulated that "the two parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period" (1995 agreement, article 31, para. 8).

One may perhaps describe the status of the Gaza Strip until Israel's 2005 withdrawal as an occupied territory in dispute, enjoying a large measure of self-government (some international lawyers do not agree that it is occupied territory under international law).

How will this status be changed by the withdrawal of Israel? The answer depends to some extent on the question whether the Oslo accords are still in force. Some people think that the Oslo agreements "are dead" because of multiple violations and because of the expiration of five years originally set as a target date for terminating the negotiations on permanent status. This writer is of the opinion that the Oslo commitments are still valid, mutatis mutandis (i.e., with necessary changes): first of all, because none of the parties has so far formally repudiated them. Moreover, each of the parties from time to time refers to the accords. The 2003 roadmap established by the quartet and accepted by Israel and the Palestinian Authority also speaks of a "settlement . . . based on . . . agreements previously reached by the Parties" (preamble).

The change in the situation of the Gaza Strip does not impair the integrity of the West Bank and Gaza--unity does not require uniformity. Moreover, even under the original Oslo arrangements, there was no uniformity among the various areas: A, B, C, and the Gaza Strip.

The drastic restriction of Israel's powers in the Gaza Strip will terminate the application of the rules on occupation. According to international law, "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised" (1907, Hague Regulations Respecting the Laws and Customs of War on Land, article 42). In view of this definition, Israel should not be considered as an occupier after the withdrawal.

As to the question of responsibility, Israel will be responsible only in those few areas in which it may retain control, while the Palestinian Authority will be responsible in all other areas.

As to the question whether the economic regime established by the 1994 and 1995 agreements can still be applied in the Gaza Strip, in particular the partial customs union, there is no reason why it should be abolished, unless both parties so wish. It will only be necessary to find appropriate means of control at the borders.- Published 22/8/2005 (c) bitterlemons.org Ruth Lapidoth is professor emeritus of the Hebrew University in Jerusalem and professor at the law school of the College of Management in Rishon LeZion.

Gaza remains occupied
by Saeb Erekat

Israel's "disengagement" plan states that, upon the completion of the withdrawal from Gaza, "there will be no basis to the claim that the Gaza Strip is occupied land." This is simply incorrect. After "disengagement," Israel's colonization of Gaza will have ended, but because it will still control Gaza, Israel's occupation will remain.

Occupation is primarily about control: Does a military effectively control foreign territory? The Hague Regulations of 1907 set the legal definition for occupation: "Territory is occupied when it has actually been placed under the authority of the hostile army [and when] the occupation extends to the territory where such authority has been established and can be exercised." An occupying power can exercise effective control without being physically present in all parts of the territory it occupies. It suffices that it can project military power over the whole of the occupied territory by keeping forces in only parts of the territory.

Since Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip in 1967, the international community has repeatedly affirmed that Israel is an occupying power. In July 2004, the International Court of Justice reaffirmed Israel's obligations when it held Israel's wall and all of its settlements illegal.

After "disengagement," Israel's settlements will disappear, but Israel will continue to control every good, person, and drop of water to enter or leave Gaza. The analysis below will examine how Israel plans to maintain its control and domination over Palestinian life in Gaza.

Starting with territory, Israel will have exclusive use of, and control over, all of Gaza's airspace, and full control over its territorial waters, both of which form part of Gaza's territory. This means that Palestinians will not be "allowed" to have an airport, independent satellite communications, and possibly not even a seaport--essentially cutting Gaza off from the rest of the world. The fact that Israel insists on giving its "permission" for such basic public services demonstrates who really is in control of Gaza.

Moving on to borders, Gaza will be cut off from the rest of the occupied Palestinian territory (the West Bank, including East Jerusalem), as Israel will control all border crossings. Neither people nor goods will be able to move in or out of Gaza without Israel's permission, even though the international community (as well as Israel itself in the Oslo Accords) has recognized that Gaza and the West Bank form one territorial unit. Israel's plan is to undermine the territorial unity of the occupied Palestinian territory by cutting Gaza off from Palestinian political and administrative centers in the West Bank, including East Jerusalem.

So, for the average Gazan, a mere visit to family or friends in another part of the occupied Palestinian territory, or movement of merchandise to the important Jerusalem marketplace, will require Israeli permission. These are just two examples that show who will really control Gaza. The Palestinian Authority will also not be allowed to freely move personnel and goods (including essential supplies) between Gaza and the rest of the occupied Palestinian territory.

The same applies for international crossing points, including Israeli control over Gaza's border with Egypt. Total Israeli control over borders will essentially turn Gaza into the world's largest prison, with Israel acting as the warden.

Israel has also reserved the "right" for itself to re-enter Gaza at will, and has said that it will "continue its military activity along the Gaza Strip's coastline". There is strong legal precedent that this alone puts Israel in a position of "effective control" over Gaza.

In the Hostages Case, the Nuremberg Tribunal held that a territory remains occupied as long as the foreign state retains the ability to exercise control over it. Israel has gone beyond the threshold of ability to exercise effective control by arrogating to itself the right to enter Gaza at will.

Finally, Israel plans to enclave Gaza, thereby maintaining its dependence on Israel for various administrative needs. For example, pursuant to the disengagement plan, Palestinians will be dependent on Israel for, among other things, electricity, parts of its water supplies, economic and financial transactions, and currency and fiscal policies. Palestinians can't be said to be in effective control under such conditions.

Together, these facts paint a clear and disturbing picture: An Israel that seeks to maintain the maximum degree of control over Palestinian life, albeit without its soldiers physically harassing and terrorizing the population "on the ground".

The Israeli disengagement plan should not be rewarded by an illegal determination of end of occupation. Instead, Israel should be urged to immediately carry out its obligations under international law and truly bring the occupation to an end in all of the occupied Palestinian territory, including East Jerusalem.- Published 22/8/2005 (c) bitterlemons.org

Saeb Erekat is head of the PLO's Negotiations Affairs Department.

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