GENEVA — The UN’s continued labelling of the Gaza Strip as an “occupied” territory — even after a Hamas leader stated that it’s not — is no longer tenable.
Mahmoud Zahhar, the co-founder of Hamas, confirmed that Gaza is not under Israeli occupation, in comments reported Tuesday by the Palestinian news agency Ma’an.
Zahhar was casting doubt on whether Hamas would organize anti-Israel marches in Gaza, in conjunction with similar protests that the Fatah-controlled Palestinian Authority are organizing in the West Bank.
“Against whom could we demonstrate in the Gaza Strip? When Gaza was occupied, that model was applicable,” Zahhar said in an interview with Ma’an.
The radical Islamist organization has merely recognized the obvious: After Israel dismantled its military administration in Gaza, forcibly removed all Israeli residents and withdrew every last soldier in 2005, it no longer occupies the territory by any legal definition or other sense of the term.
Whatever external control Israel — and Egypt — may exercise, everyone in Gaza knows that Hamas rules the territory with an iron fist.
The statement by Hamas follows growing recognition among international lawyers that the UN’s resistance to holding Palestinians responsible for territory they control is outdated.
As international law experts Abraham Bell and Dov Shefi noted in a 2010 research paper for the University of San Diego law school, the truth is that Hamas administers its own police force, courts system, jails, schools, media and social services. It also regulates business activities, banks and land registries; it levies taxes, controls its own borders and even imposes a dress code. In sum, wrote Bell and Shefi, Hamas operates “a functioning and fully independent local civil government, buttressed by armed forces.”
Similarly, in an article published in the American University International Law Review, Elizabeth Samson concludes that under the Geneva Conventions and international judicial precedents, Gaza can no longer be considered occupied because Israel, despite its ability to exercise certain powers over the area, no longer exercises “effective control,” the litmus test for what qualifies as occupation.
Even Israel’s Supreme Court ruled in 2008 that the Jewish state had disengaged from Gaza and no longer exercised “effective control over what occurred there.”
Now that Hamas itself has publicly recognized this reality, the UN’s refusal to do the same is less defensible than ever.
The organization’s official policy has not changed since Secretary General Ban Ki-moon’s spokesman, Farhan Haq, declared in 2008 that “the U.N. defines Gaza, the West Bank, and East Jerusalem as occupied Palestinian territory.”
In 2009, the UN’s Goldstone Report claimed that, “the international community continues to regard [Israel] as the occupying Power” in Gaza, and cited to the UN Human Rights Council resolution that created the inquiry, which referred to “the Occupied Palestinian Territory, particularly in the occupied Gaza Strip.” Similar terminology appears in other UN documents and public statements.
There is a certain paradox in all of this. Even as a key UN agency, UNESCO, recently recognized “Palestine” — which includes Gaza — as a full and independent member of its organization, the UN continues to use the term “occupied.”
This type of inconsistency isn’t new. For decades, the UN’s policy toward the Palestinians has been marked by a fundamental contradiction: Elevating their powers and privileges, while minimizing their responsibilities.
But giving endless free passes to Palestinian rulers hasn’t helped their people one bit. On the contrary, Palestinian citizens are the main losers when those that directly govern and police them are never held accountable for their actions.
It’s time for the UN to drop its intransigent insistence on a legal fiction that has the effect, if not intent, of justifying Palestinian terrorism as “resistance to occupation,” undermining Israel’s ability to invoke its inherent right of self-defence against deadly rockets fired from Gaza, and, not least, dehumanizing Israelis as the demonic and faceless “Occupier.”
If the world body truly wants to advance Palestinian self-rule, it should stop patronizing them with a legal fiction designed to sustain a permanent state of grievance and absolve them of any responsibility.
Hillel C. Neuer, a Montreal-born international lawyer, is executive director of UN Watch in Geneva.
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