[News] Debunking Israel's 'self-defense' argument - Operation in Gaza is aimed at maintaining its illegal occupation

[Anti-Imperialist News]

  Debunking Israel's 'self-defense' argument

*Operation in Gaza is aimed at maintaining its illegal occupation *

July 31, 2014 6:00AM ET
by John Dugard <http://america.aljazeera.com/profiles/d/john-dugard.html>
*http://america.aljazeera.com/opinions/2014/7/gaza-israel-internationalpoliticsunicc.html*

Israel claims that it is acting in self-defense in Gaza, thereby 
portraying itself as the victim in the present conflict. President 
Barack Obama and both houses of the U.S. Congress have endorsed this 
justification for the use of force. But is it an accurate assessment?

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.


    An illegal occupation

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.

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

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.


    Lack of accountability

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.

John Dugard is emeritus professor of international law at the University 
of Leiden in the Netherlands and former U.N. special rapporteur on human 
rights in the occupied Palestinian territory.

-- 
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