Debunking Israel’s self-defense argument

Gaza is not an independent state like Lebanon or Jordan. Israel accepts this but instead sees Gaza as a “hostile entity,” a concept unknown to international law and one that Israel has not sought to explain.

But the status of Gaza is clear. It is an occupied territory — part of the occupied Palestinian territory. In 2005 Israel withdrew its settlers and the Israel Defense Forces from Gaza, but it continues to retain control of it, not only through intermittent incursions into and regular shelling of the territory but also by effectively controlling the land crossings into Gaza, its airspace and territorial waters and its population registry, which determines who may leave and enter.

Effective control is the test for occupation. The International Court of Justice recently confirmed this in a dispute between the Democratic Republic of the Congo and Uganda. The physical presence of Israel in Gaza is not necessary provided it retains effective control and authority over the territory by other means. Modern technology now permits effective control from outside the occupied territory, and this is what Israel has established.

That Gaza remains occupied is accepted by the United Nations and all states except, possibly, Israel.

Military or belligerent occupation is a status recognized by international law. According to the terms of the Fourth Geneva Convention of 1949 — to which Israel is a party — a state is allowed to occupy a territory acquired in armed conflict pending a peace settlement. But the occupation must be temporary, and the occupying power is obliged to balance its security needs with the welfare of the occupied people. Collective punishment is strictly prohibited.

The occupation of Gaza is now in its 47th year, and Israel is largely responsible for the failure to reach an agreement on a peaceful settlement. Moreover, Israel is in breach of many of the humanitarian provisions contained in the Fourth Geneva Convention as a result of the siege it has imposed on Gaza since 2007. In short, Gaza is not only an occupied territory; it is also an illegally occupied territory.

The present operation in Gaza — Operation Protective Edge — must therefore not be seen as an act of self-defense by a state subjected to acts of aggression by a foreign state or nonstate actor. Instead, it should be seen as the action of an occupying power aimed at maintaining its occupation — the illegal occupation of Gaza. Israel is not the victim. It is the occupying power that is using force to maintain its illegal occupation.

History is replete with examples of occupying powers using force to maintain their occupations. Apartheid South Africa used force against the people of Namibia; Germany used force against the people of France and the Netherlands during World War II.

The rockets fired by Palestinian factions from Gaza must thus be construed as acts of resistance of an occupied people and an assertion of its recognized right to self-determination.

Before Israel’s physical withdrawal from Gaza in 2005, Palestinian acts of violent resistance were directed at Israeli forces within the territory. This was during the second intifada. Since then, Palestinian militants have been obliged to take their resistance to the occupation and the illegal siege of Gaza to Israel itself. The alternative is to do nothing, a course no occupied people in history has ever taken.

It is unusual for an occupied people to take its resistance outside the occupied territory. But it is also unusual for an occupying power to maintain a brutal occupation from outside the territory. When the occupying power maintains its status through military force within the occupied territory because of these acts of resistance on its own territory, as Israel has done, it acts as the enforcer of an occupation — not as a state acting in self-defense.

A state seeking to enforce its occupation, like a state acting in self-defense, must comply with international humanitarian law. This includes respect for the principle of proportionality, respect for civilians and the drawing of a distinction between military and civilian targets, and the prohibition of collective punishment. Both Israel and Palestinian militants are obliged to act within the confines of these rules.

Sadly, Israel is in violation of all three of these basic tenets. Its action is a clear collective punishment of the people of Gaza. The numbers of the dead and wounded and the property damage inflicted on them are completely disproportionate to the few civilians killed and wounded and property damaged in Israel. It is also clear from its bombing of schools, hospitals and private homes that Israel makes little, if any, attempt to distinguish between civilian and military targets.

What is to be done? The United Nations is powerless to act in the face of the U.S. veto. This places a heavy burden on the European states to use their influence to stop the bloodshed.

It is also incumbent on the International Criminal Court to act. Palestine, recognized as a state by the U.N. General Assembly in 2012, has accepted the jurisdiction of the International Criminal Court. Under pressure from the U.S. and Europe, the prosecutor of the International Criminal Court refuses to hold Israel accountable for its crimes. History will surely judge unkindly both the prosecutor and the institution that she serves if nothing is done.