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<h1 class="articleOpinion-title">Debunking Israel's
'self-defense' argument</h1>
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<p class="articleOpinion-standfirst opinion-standfirst"><b><big>Operation
in Gaza is aimed at maintaining its illegal occupation </big></b></p>
<div class="articleOpinion-dateByline opinion-dateByline">
<div class="articleOpinion-dateTime opinion-dateTime"> <span
class="date">July 31, 2014</span> <span class="time">6:00AM
ET</span> </div>
<div class="articleOpinion-containerByline"> <span
class="articleOpinion-byline"> by <a
href="http://america.aljazeera.com/profiles/d/john-dugard.html"
title="John Dugard" class="articleOpinion-byline--link">John
Dugard</a><br>
<b><small><small><a class="moz-txt-link-freetext" href="http://america.aljazeera.com/opinions/2014/7/gaza-israel-internationalpoliticsunicc.html">http://america.aljazeera.com/opinions/2014/7/gaza-israel-internationalpoliticsunicc.html</a></small></small></b><br>
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<p>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?</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>That Gaza remains occupied is accepted by the United Nations
and all states except, possibly, Israel.</p>
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<h2 class="subHeading-title">An illegal occupation</h2>
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<p>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.</p>
<p>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.</p>
<p>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.</p>
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<div class="pullQuote-quote">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.</div>
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<p>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.</p>
<p>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.</p>
<p>Before Israel’s physical withdrawal from Gaza in 2005,
Palestinian acts of violent resistance were directed at
Israeli forces within the territory<i>.</i> 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.</p>
<p>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.</p>
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<h2 class="subHeading-title">Lack of accountability</h2>
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<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
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<div class="authorProfileBio">
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<p>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.</p>
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