Issues Arising from Implementation of Disengagement and the End of Israeli Occupation in the Gaza Strip

by Geoffrey Aronson
January 15, 2005

(Paper and appendices also available in .pdf)

A paper prepared by Geoffrey Aronson for Canada's International Development Research Centre (IDRC)

Introduction

Israel intends to renounce its responsibilities as an Occupying Power in the Gaza Strip upon the implementation of its disengagement plan sometime during the latter part of 2005. It expects to receive some sort of international/US recognition/certification to this effect, and is currently considering options to this end.

Third parties will be faced with responding to the changed circumstances created by implementation of the disengagement plan. Clear benchmarks relating to an end of Israeli control over Gaza's ?security envelope? ? Gaza's border with Egypt, and sea and air ports ? must be established by the international community in order to hasten the end of occupation and the creation of conditions for the exercise of Palestinian sovereignty. Enunciation of such benchmarks will encourage Israel, if it is to achieve its strategic objective of winning recognition that its status and responsibilities as Occupying Power ? if only in the Gaza Strip ? have ended, to meet this test of truly ending its control over Gaza. The international community must also consider the ways in which acknowledging an end to occupation in Gaza will affect the continuing occupation of the West Bank, as well as how it will affect the range of international relationships with the Gaza Strip long conditioned by reference to it as Israeli-occupied territory.

This paper does not seek to analyze in detail how to determine the end of occupation from the standpoint of international law. Israel, in any case, is not interested in the question of a change in its legal mandate. 1 Its purpose is rather to focus on the political and operational options that require consideration in the event Israel effects such a change in Gaza's status (remember there is no such intent for the (still-undetermined) parts of the West Bank from which Israel intends to re-deploy) or claims to have done so.

Background

Israel, according to the evacuation plan adopted by the cabinet and Knesset in 2004, intends to complete the evacuation of the Gaza Strip, including all settlements and military installations with the prominent exception of the Gaza-Egypt border (Philadelphi corridor) and associated border crossings, by the end of 2005. According to the current Israeli plan, these latter installations may be evacuated, along with Gaza's sea and air facilities, when and if security conditions warrant.

One of the strategic objectives declared by the Sharon government when it announced its intention to unilaterally withdraw from the Gaza Strip in early 2004 is to end its role and responsibility as occupying power in the Gaza Strip and to be certified by the international community as having done so. (author's emphasis) This intention for Gaza is distinguished from the situation in the West Bank, for which Israel has declared no similar intention, notwithstanding the intended evacuation of four settlements in the Jenin region. This Israeli objective is also distinguished from the Oslo era, during which Israel continued to exercise (or delegate) its internationally recognized powers as occupying authority, notwithstanding the transfer of certain powers to the Palestinian Authority (PA) and the creation of Areas A in parts of the West Bank and the creation of a similar status for the PA in 75 percent of the Gaza Strip.

Israel's Policy Goals ? An End to Israeli Responsibility for Palestinians in Gaza

Israel's intentions are explicitly declared in the cabinet decision of 6 June 2004 approving the plan, subsequently endorsed by the Knesset in November 2004.

One of the ?key principles? of the initial draft of the disengagement plan, published 15 April 2004, was:

F. The disengagement move will obviate the claims about Israel with regard to its responsibility for the Palestinians in the Gaza Strip.

One of the plan's ?main? points (II A.2), noted that:

Upon completion of the move, no permanent Israeli civilian or military presence in the areas that are evacuated in the continental expanse of the Gaza Strip will remain.

As a result there will be no basis for the claim that the Gaza Strip is occupied territory.

This original draft was subsequently revised and approved by the cabinet on 6 June 2004.

One of the ?security implications? (7) noted that:

completion of the plan will serve to dispel the claims regarding Israel's responsibility for the Palestinians in the Gaza Strip.

Note that the initial draft declared in a specific reference an intention to end any basis for the claim that the Gaza Strip remains ?occupied territory? after disengagement. This formulation was described by one Israeli official as ?a bad legal description of a true political goal.? It was subsequently revised for two reasons: Israel has never formally acknowledged that it rules Gaza as an ?occupying power? and saw no reason to so explicitly establish such a context for the plan; and policymakers were made aware that Israel cannot claim to end occupation as long as it remains in the Philadelphi corridor (and arguably in control of ports and airports) after disengagement. Remaining in control of these areas is recognized as sufficient to invest Israel with de facto control over the territory in question, thus meeting the international standard for the continuing characterization of Israel's role as an occupying power.

There is some ambiguity attached to the use of the term ?completion of the plan? in the text of the cabinet endorsement. Perhaps it intends to suggest that there will be continuing grounds for investing Israel with responsibility to uphold the humanitarian provisions of international law for Palestinians in the Gaza Strip as long as the disengagement plan is not ?complete?? i.e. as long as Israel remains in control of the security envelope ? all entry and exit points from the Gaza Strip for both people and goods. More likely, however, it is just bad drafting.

What is The Standard to Determine Whether an Occupation Exists, or is Terminated?

There is no ?road map? of internationally accepted instructions about how to end an occupation or to certify that such an occupation has ended.

The Hague Regulations of 1907 establish the basic legal standard, noting that ?Territory is occupied when it has actually been placed under the authority of the hostile army. The occupation only extends to the territory where such authority has been established and can be exercised.?

Israel's status in the Gaza Strip and West Bank currently meets this ?effective military control? test, notwithstanding the Oslo II agreement transferring limited responsibilities to the Palestinian Authority. There is also a ?Geneva? standard, based upon a practical test of government functionality. Israel as occupying power meets this test of being physically present and exercising control.

One international legal expert noted that the Geneva standard is easier for Israel to address in the context of a Gaza disengagement. Nevertheless, the retention by Israel of effective control over the area as a consequence of its continuing control of Gaza's ?security envelope? (Philadelphi and sea and air facilities) is generally recognized, even within Israel's legal establishment, as inconsistent with a claim to end occupation.

?Occupation? After Disengagement

There are nevertheless options that Israel could consider that would permit it to argue that its status as occupying power has ended, thus terminating its responsibilities to Gaza's Palestinian population, even as it remains in control of the security envelope.

Option 1: According to Shavit Matias, deputy to the attorney general for international law and a key Israeli official on this issue, "When we quit Philadelphi, even if the Palestinians don't yet have a port or airport, the responsibility will no longer be ours. The area will not be considered occupied territory. When the Palestinians have a crossing to Egypt and additional options for transferring merchandise, even if there is no port yet, we have no responsibility." 2

Option 2. Israeli military forces could remain in effective control of Gaza's border with Egypt and air and sea lanes as a consequence of an agreement with the PA. Israel, like the US in Iraq after the establishment of the interim Iraq government in mid-2004 (see below), could be ?invited? to remain in security control of the Philadelphi border area. Such a request, however unlikely it may be, would establish a consensual basis for Israel's continuing presence. The Oslo framework offers ample precedent of PLO acquiescence in a controlling Israeli military presence, albeit without recognition of the end of occupation.

Option 3. A more explicit agreement between Israel and the PLO could establish peaceful relations between the parties that could accommodate continuing effective Israeli control of Gaza's security envelope. A belligerent occupation is not possible in a time of peace.

Option 4. One Israeli official suggested that the characterization of the Israeli presence in the security envelope after disengagement could be defined as one of ?quarantine? rather than occupation. The official, thinking out loud, offered a comparison to the US quarantine of Cuba during the 1962 missile crisis.

Option 5. Soft Quarantine ? Israel could remain in Philadelphi, but in order to enable unfettered Palestinian access to the outside world it would permit the operation of a seaport, maintaining effective security monitoring in international waters (as it has done on occasion in a Lebanese context).

Quarantines have historically been short-term measures, dependent upon international support for their success. The international community cannot be expected to acknowledge an end to occupation only to accept the imposition of a quarantine in which Israel continues to maintain and exercise effective control over the Gaza Strip. 3

Option 6. Israel, suggested an Israeli official, could declare that its status as occupying power applies only to those areas in which it remains in effective control, i.e. the Philadelphi border area.

This same official however acknowledged that ?to the extent that Israel retains power and responsibilities, it must bear those responsibilities. There is no half-occupation.? This characterization would appear to apply to Options (3-5). A former Israeli official with intimate experience in the drafting of the Egyptian-Israeli treaty and the Oslo agreements also noted that an Israeli presence in Philadelphi is ?tantamount to occupying the Gaza Strip as a whole.?

Option 7. Israel might argue that its effective control of the Egypt-Gaza border after disengagement is not inconsistent with the terms of its peace treaty with Egypt. The treaty speaks of one border between Israel and Egypt, a term that necessarily includes the Egypt-Gaza border area. However, neither Egypt nor Israel can surrender rights over territory that is not theirs.

Without an explicit Palestinian request or the establishment of formal peaceful relations between the parties, a controlling Israeli presence anywhere but along the shared border (including the moribund safe passage route) signifies continuing occupation.

Are There Degrees of Occupation?

Can Israel end its occupation of Gaza while remaining the Occupying Power on the West Bank?

The short answer is yes. There is nothing to prevent the liberation of parts of the occupied territory from the grip of occupation. Within Israel, the system of military rule in Gaza is functionally, administratively, and in some respects legally separate from that in force in the West Bank. The Palestinian National Authority, it should be acknowledged, also maintains certain legal distinctions between these two areas, based in part on the distinction noted above as well as the differing Egyptian and Jordanian legal codes operative in the Gaza Strip and West Bank respectively.

Much has been made of the fact that the Oslo II agreement notes that the West Bank and Gaza Strip are considered as one territorial unit and that nothing will be done to change their status during the interim period outlined in the agreement.

This clause was inserted to prevent Israel's annexation of territory rather than to prevent its liberation. It seems unlikely that Palestinians will seriously entertain raising the need to retain fidelity to these Oslo provisions in order to prevent the end of occupation in Gaza. Instead a new, more ambiguous rationale is being established, if not as an argument to maintain Gaza's status as occupied territory then as a means of asserting the shared destiny of all the occupied territories.

The [Fateh] National Action Program presented by Mahmoud Abbas in January 2005 notes that:

We affirm here that the readiness of the Palestinian National Authority (PNA) to exercise its authority on any Palestinian land that the Israeli military occupation forces withdraws from is dependent upon the preservation of the geographical and legal unity of the two branches of the Palestinian homeland in the West Bank and Gaza Strip, and that the withdrawal should form an original part of a plan to end the Israeli military occupation of all the Palestinian territories occupied in 1967. And we affirm our rejection of any interim or transitional accords. 4 4. Any step taken towards liberation is a step towards the realization of the Liberation Organization's strategy of establishing the democratic Palestinian State specified in the resolutions http://www.mideastweb.org/plo1974.htm

In a similar vein, an ?Open Letter to Palestinian Public Opinion,? published by 500 prominent Palestinians in late December 2004, demands ?a firm rejection of the so-called interim state solution or any other interim solutions that are aimed at slamming the door in the face of a comprehensive peace settlement.? 5

These formulations offer little guidance to third parties compelled to respond to a change in Gaza's status as occupied territory. They do not suggest that the PA/PLO will refuse to accept that Gaza's status as Israeli-occupied territory may be ended, but rather signify a demand that the end to Gaza's occupation be linked to a plan to end the occupation in its entirety. More instructive are second hand reports of the views of imprisoned Fateh leader Marwan Barghouti, who was reported by the Jerusalem Post on December 28, 2004 to have told Mohamad Dahalan that Palestinians should turn the ? ?liberated areas' into a model of political success.?

The options available to the international community in such circumstances are limited:

Option 1: If disengagement is implemented as planned, Israel, by virtue of its continuing control over Gaza's security envelope, will remain the Occupying Power and Palestinian governing institutions will continue to be subject to effective Israeli control; that is, the status quo will continue to prevail.

Option 2: If disengagement includes an Israeli surrender of effective control over part/all of the security envelope ? i.e. Philadelphi/air and sea ports ? then a change in the approach of third parties/the international community towards the Gaza Strip, perhaps including formal acknowledgment of an end to Gaza's occupation, is indicated. In such an environment, and whatever form of administration is established in Gaza, it will be impossible to continue to relate to the Gaza Strip as occupied territory and to Israel as the responsible power.

The international community and other third parties will have to acknowledge changes resulting from implementation of the disengagement plan. At the very least, these changes will encompass the permanent removal of all Israeli civilians residing in the Gaza Strip and the withdrawal of permanently deployed Israeli troops to Israeli territory (Philadelphi excepted).

It needs to be understood that the disengagement plan, imposed and effected in the vacuum created by the still-born Road Map, requires an adept international response if its potential for the exercise of Palestinian sovereignty is to be realized.

A response based upon the contention that the occupation is indivisible, that is, unless effective Israeli control ceases everywhere in the West Bank and Gaza Strip, at the same time, Israel remains an occupying power, does not meet the test of practical or political relevance.

An international assessment of whether or not the occupation of the Gaza Strip has indeed ended, however, should rest fundamentally on the extent to which Israel surrenders effective security control of the Gaza envelope.

The key issue in assessing the degree to which the status quo is transformed by disengagement and thus the key element in the consideration of the international community and other third parties is the degree to which Israel will change its conduct in the aftermath of disengagement.

Will Disengagement, Even An Incomplete One That Leaves Israel in Philadelphi, Signify A Reduction of Israeli (Humanitarian/ Security) Responsibilities as Occupying Power?

Israel has yet to clarify the relationship that it will have towards Gaza and its residents in the aftermath of disengagement. In principle, it remains averse to codifying this relationship in formally recognized international protocols with third parties, an attitude similar to its preferences during its role as occupying power. In practice, it is interested in retaining the maximum flexibility in both humanitarian and security dimensions as circumstances and a dynamic political environment permit.

As an Occupying Power, Israel has three principal responsibilities:

1. Maintaining the security of the territories

2. Insuring public order and safety

3. Acting for the welfare of the local population

As a rule, Israel, which cannot be said to fulfill, in practice, any of the above responsibilities towards the Palestinian population, intends that disengagement will result in a recognized end to its humanitarian responsibilities associated with the occupation as well as those responsibilities related to the Gaza Strip's internal security . Whatever residual obligations, if any ? in either the humanitarian or security dimension ? Israel intends to assume in the aftermath of disengagement will be exercised in a context other than one defined by its (former) responsibilities/rights as an Occupying Power.

Both Israelis and Palestinians argue that there are degrees of occupation, particularly according to the ?Geneva? standard. The PLO's Negotiations Affairs Department notes that ?the absence of a permanent Israeli military presence and illegal settlers will mark a significant change in Gaza's 37-year history of belligerent Israeli occupation. The Fourth Geneva Convention does indeed contemplate changes in the degree of occupation (italics in original). Article 6 proclaims than an Occupying Power will only be held to the provisions of the Convention ?to the extent that such Power exercises the functions of government.' Accordingly, Israel will continue to ?occupy' the Gaza Strip, but will only be bound to those aspects of the Geneva Convention within the ambit of its exercise of authority.? 6

Israeli officials recognize that ?to the extent that Israel retains powers and responsibilities it must bear responsibility.? One official argued that it is dangerous in terms of domestic Israeli politics for the international community not to recognize a material change in Israel's status and responsibilities resulting from implementation of the disengagement plan. ?Even if an academic analysis suggests [continuing] occupation,? explained the official, ?the legal environment should be sensitive and practical and not counterproductive.? Another noted an Israeli desire that the international community recognize a diminution of residual Israeli responsibilities towards Palestinians.

It was suggested by some Israeli officials that after disengagement and an end to its role as Occupying Power, Gaza will become a ?foreign country,? like Albania, where Israel has no particular obligations beyond those defined by maintaining proper relations with neighbors. Specifically Israel would be freed from the obligation noted in Article 43 of The Hague Convention to insure public order and safety. As a consequence, it would have no particular obligation to intervene, for example, in the event of a breakdown in internal security. Similarly, it would not intervene nor feel responsible for preventing or ameliorating a breakdown in the educational system. Other officials, however, suggested that Israel would maintain ?residual responsibility? in undefined humanitarian-related areas. So for example, while one official suggested that Israel would not facilitate the travel of a Gaza student via Israel to a West Bank university, another official believed that Israel would.

The international community would be advised to clarify and define with Israel an agreed view of its residual responsibilities in the humanitarian dimension after implementation of the disengagement plan.

One Israeli official at the center of interagency debate argued that Israel would retain unspecified residual rights ? particularly in the security realm ? ?by necessity.? There are two points to be made here. Permitting Israel to redefine its occupation as a basket of residual responsibilities ? an ?occupation lite? from which it can pick and choose according to circumstances ? establishes a weak and ambiguous foundation for the conduct of international and third party policy (the very reason the prospect is so attractive to some Israelis). Israel's sense of residual yet undefined ?special responsibility? for Gaza in the aftermath of disengagement is a laudable sentiment insofar as it relates to the provision and facilitation of humanitarian assistance. Israel's provision of electricity and water, according to commercial agreement, cannot be said to be included in this category. Yet the acceptance of an Israeli formula that establishes for Israel ?a significantly diminished responsibility for anything that goes on in Gaza? may well establish a rationale for Israel to exercise invasive and disruptive internal security functions that will undermine the exercise of Palestinian self-rule.

Clear adoption by the international community of the The Hague standard ? effective military control ? is the most appropriate international benchmark for characterizing Israel's relationship to Gaza after disengagement, and the one most likely to result in an Israeli decision to surrender its effective military control.

Israelis are themselves unclear about the nature of their residual obligations/rights after disengagement. The end of occupation relieves Israel of certain responsibilities and denies it rights (particularly in security matters) once available as an occupying power. Prominent among the latter are the justification of the use of force to maintain security, the right to deploy within occupied territory to ensure security, and the standing to facilitate or obstruct international intervention of whatever kind.

Yet disengagement also establishes a new, and from Israel's perspective, often more comfortable foundation for its conduct, particularly in the security realm. If Gaza becomes a foreign country, Israel's military actions against could either be defended as consistent with the internationally recognized right to self-defense (Article 51 of the UN Charter) and governed by the law of proportionality and international humanitarian law, or condemned as armed aggression One prominent Israeli politician believes that after disengagement Israel will enjoy greater freedom of military action, based upon the former rationale, against attacks originating in the Gaza Strip. And just as the context for defining Israeli military actions changes as a consequence of disengagement, so too will Palestinian armed actions from Gaza against Israel. These acts may no longer be viewed in the international community as part of the fight against occupation but rather as aggression or legitimate acts of self-defense across a border.

To the extent that the international community recognizes an end to Israeli occupation in the Gaza Strip, it implicitly acknowledges a change in the ?rules of the game? defining both Israeli and Palestinian armed actions.

International Organizations and An End to Occupation

The last point made above leads to an interesting and in some respects, operationally critical issue, for it confronts third parties and the international community with the need to define their relationship to the Gaza Strip after the end of occupation.

For the occupation to end, does a sovereign successor regime have to be established in its wake?

There does not have to be a successor regime in place for an occupation to end. In March 2004, I addressed this issue to a senior member of Israel's national security establishment. I noted that in the aftermath of the end of occupation in Gaza, there appeared to be three options to fill the role surrendered by Israel:

Option 1. Palestinian sovereignty

Option 2. Egyptian rule

Option 3. Third party administration

I was told that there was a fourth option ? none of the above ? that is, a continuation of the control and authority, now expanded de facto by an end to occupation, by Palestinian institutions created by Israel and the PLO in the Oslo accords.

According to this view, an end to Israeli occupation would not result in the establishment of a recognized sovereign, independent state/entity. In that sense, the Gaza Strip would belong to no state ( terra nulus ) ? an extraordinary proposition but one which at the time of this writing, Palestinians ? by refraining from explicitly creating state institutions ? or the international community ? by deciding against establishing a sovereign address for Gaza ? do not seem prepared to counter.

What Operational and Policy Issues for International Parties Are Raised As A Consequence of The End of Occupation?

First and foremost, an end to Israel's occupation of the Gaza Strip removes a basic reference point for the conduct of third party and international affairs with Israel as Occupying Power and with the Gaza Strip itself, and not only because Israel intends to sever itself from responsibility for the area and its population. For some organizations ? the ICRC for example ? and end to Gaza's status as occupied territory would remove the basic condition necessary for the exercise, at least in part, of its mandate. The ICRC is reportedly assessing its post-disengagement options, addressing for example, an ICRC role monitoring Gazans who remain in Israeli custody after disengagement. (A draft analysis is said to conclude that disengagement without and end to control over the security envelope will not change Israel's status as Occupying Power.) The same may hold true for UN organizations like the rapporteur on human rights and the special committee on the OPT, and the committee on rights of the child. For some of these operations to continue, a new legal/institutional basis will have to be found for some organizations and others will have to reconfirm/establish operational protocols with Israel, the PA, and perhaps Egypt as well.

Israel is now obliged to facilitate the work/access of international organizations. This presumption is inherent in its status as Occupying Power even though there are manifest problems with Israel's performance in practice. With an end to occupation, Israel, according to internationally recognized norms relating to interstate relations, will be under no obligation to permit free passage of goods or personnel through its territory to the Gaza Strip.

There may even be changes required in the operational Israeli address after disengagement. For example, the understandings beached between the ICRC and Israel as Occupying Power have been bilateral understandings between the organization and Israel's ministry of defense.

Consistent with past practice, Israel can be expected to focus in its discussions on these issues on practical operational matters rather than negotiating issues of principle.

?Israel needs to be really practical concerning international organizations regarding humanitarian aid and assistance in Palestinian state-building,? explained one ministry official. ?The question of a legal mandate is not important to Israel.? Another noted that the question international organizations need to ask is what they require in order to function, not what is the legal situation on the ground.

A foreign ministry official observed that Israel has not yet addressed the question of a need for the revision of protocols governing post-occupation relations with UNRWA, OCHA, and others, although he suggested that understandings regarding immunity and customs should continue.

Certifying An End To Occupation ? Some Options

It is clear that the disengagement plan as it is currently contemplated does not meet an objective international legal test for ending occupation. Both the NSU and Israel's foreign ministry have come to this conclusion. This critical shortcoming however, may not prove decisive in a political environment favoring some kind of recognition of Israel's fait accompli , particularly in the absence of a clear, articulate presentation by a united international community of specific benchmarks that must be met by Israel ? most notably its surrender of effective control over the Gaza ?envelope? ? air and sea access and the land route to Egypt.

Israel will remain an occupying power in the Gaza Strip as long as it maintains control of Gaza's land border with Egypt, its air traffic, and seaport. Israel's status becomes less clear in the event that seaborne access is granted (subject to the kind of monitoring that Israel could undertake from international waters) while restrictions are maintained on land and air access, or if Israel cedes effective control over the Gaza-Egypt border area (Philadelphi) but retains effective control over sea and air routes. From both the conceptual and security standpoints, however, it is probable that these elements will either remain under effective Israeli control as a group or be surrendered, if not simultaneously, than as an integrated package.

Even if Israel remains in Philadelphi, Israel will attempt to secure some international/third party recognition of the changes wrought by disengagement. In the (probable) case of a broader disengagement along the lines noted above, Israel will feel greater confidence in arguing for some recognition, not merely of ?diminished responsibility? for Gaza but for recognition that Israel's responsibilities towards Gaza's population have ended.

?I really would like to have the technical, legal international declaration that Israel is no longer responsible [in Gaza],? explained Israel's acting minister of justice Tzipi Livni. ?There is a tremendous difference between if Israel stays there and a situation in which Israel does everything in order to get out of there.? 7

According to a Ha'aretz report on 22 November 2004, Israel is considering a number of options for its intended action, including:

Option 1. A ?step towards ending the occupation?

Option 2. A more explicit understanding of the meaning of ?effective control of the area?

Option 3. Implementation of disengagement as an interim phase outlined in the Oslo accords.

A top Israeli national security official acknowledged that discussions with the U.S. about this issue have taken place (most probably with the White House NSC).

?We expect U.S. acknowledgment,? the official confirmed.

U.S. acknowledgment could take the form of a ?unilateral action? or be coordinated as part of an international response. In the ?worst? case of the former, a U.S. statement could be issued in the context of an Israeli disengagement that leaves it in effective control of the security envelope, and thus falls short of the consensus view concerning the standard to be met for recognizing an end to occupation. The U.S. may nevertheless decide to acknowledge an end to occupation even under these conditions.

?[In this context] We can come up with a legal justification that Gaza is unoccupied,? explained one U.S. official.

This U.S. position would be controversial to say the least and would force other third parties to respond, very probably with a contrary view. One Western diplomat suggested that a Bush-Sharon exchange of letters issued under these circumstances would be ?the kiss of death,? and be proof ?of a cynical deal.?

It would be most advisable if consultations were to begin now among third parties and the international organizations to chart a unified position on the issue. This cooperation is particularly important as it could exert a beneficial influence: by demonstrating international willingness to address the changes created by disengagement; by demonstrating to Israel that the international community is united on the steps required in order to win an acknowledgment of an end to occupation, and by establishing a clear quid pro quo if an Israeli surrender of effective control of the Gaza-Egypt border and a revisiting of Oslo-era protocols regarding air and sea lanes is implemented.

The International Position on Disengagement

Statements by the Quartet and EU in reference to the Gaza disengagement do not address with any specificity measures Israel must take to end the occupation of Gaza. Rather they concentrate on the relationship of the plan to policy objectives manifest in the moribund Road Map.

On 23 February 2004, EU ministers noted that the disengagement plan, ?should take place in the context of the road map; it should be a step towards a two-State solution; it should not involve a transfer of settlement activity to the West Bank; there should be an organized and negotiated handover of responsibility to the Palestinian Authority; and Israel should facilitate rehabilitation and reconstruction in Gaza.? 8

On 22 September 2004, the Quartet reaffirmed its ?encouragement for Prime Minister Sharon's intention to withdraw from all Gaza settlements and parts of the West Bank and reiterates that a withdrawal from Gaza should be full and complete and be undertaken in a manner consistent with the Roadmap, as a step toward an end to the Israeli occupation that began in 1967 through direct negotiations between the sides, leading to the goal of two states, Israel and a sovereign, independent, viable, democratic and territorially contiguous Palestine, living side by side in peace and security. The Quartet urges both Israel and the Palestinian Authority to coordinate closely preparation and implementation of the withdrawal.?

The international community would be advised to note that any acknowledgment of the end of Israel's status as Occupying Power in the Gaza Strip requires Israel to surrender effective control over Gaza's land border with Egypt as well as access by land and sea.

UN Certification of An End to Occupation in the Gaza Strip

Israel would ?accept immediately? a UNSC resolution acknowledging the end of occupation, explained a top Israeli national security official. However, he immediately acknowledged that there was no chance that such a statement from the UN (as opposed to Washington) will be forthcoming as long as Israel remains in control of the security envelope, and that furthermore it is unlikely that such a decision, tailored specifically and limited exclusively to Gaza disengagement, would be forthcoming in any case.

Israeli officials from across the institutional spectrum were similarly skeptical about the prospect or the value of UN recognition/certification, viewing the political advantage to be won as less valuable than the probable cost. Regarding a UNSC resolution, the legal advisor of one ministry noted that as a general matter, a UN certification on the end of occupation in Gaza would establish an (unwelcome) precedent for the West Bank by implying a need for withdrawal to the June 1967 border.

Israeli officials believe that Security Council participation should come, if at all, at the end of the process of disengagement, and not as a vehicle for establishing prescriptive guidance or for legitimizing the involvement of the UN. Other officials noted that a prescriptive UNSC resolution, i.e. one that established benchmarks against which to determine an end to occupation, is problematic on a number of fronts. In general, there is no Israeli confidence that such a resolution would be limited to a strict assessment of disengagement in Gaza, but that it would inevitably raise demands for similar Israeli actions ? i.e. an end to occupation ? in the West Bank and East Jerusalem.

One Western diplomat suggested, however, that a note from the president of the security council limited to acknowledging the disengagement was not ?a hopeless case.?

One top Israeli politician noted that ?to depend upon world reaction is hazardous because it is dependent upon political judgments.? He considered the UN certification of Israel's withdrawal from Lebanon to be ?a rare show of objectivity? unlikely to be repeated in the case of disengagement from the Gaza Strip.

The End of Occupation ? Two Recent Precedents: Israel's Withdrawal from Lebanon And The End of The U.S. Occupation of Iraq

Lebanon

In May 2000, the Israeli forces withdrew from Lebanon after 22 years of military occupation. The UNSC mandated the United Nations, in particular the UN Secretary General, to establish the requirements for this withdrawal and confirm its implementation. On 16 June 2000, in a report to the UNSC, the Secretary General concluded that Israel had withdrawn its forces from Lebanon in accordance with UN Security Council Resolution 425 (1978). Two days later, a statement from the council president endorsed the Secretary General's finding. On 27 July, the Security Council adopted a new resolution welcoming the conclusions of the Secretary General.

In his 16 June 2000 report, the Secretary General established ?three principle requirements for confirming an Israeli withdrawal in compliance with resolution 425 (1978):

(a) the withdrawal of Israeli military and civilian personnel from Lebanese territory

(b) the dismantling of Israel's auxiliary force, known as the South Lebanon Army (SLA) (c) the freeing of all detainees from Al-Khiam prison.

I can today confirm that those requirements, endorsed by the Security Council, have been met.?

In the case of Israel's occupation in Lebanon, the UN relied on its mandate ? UNSCR 425 ? and its objective ? certifying an end to occupation, elements of which were explicitly defined by the Secretary General ? in order to establish its recognized standing to judge the issue and to clearly define the requirements for confirming an end to occupation, and finally, to establish a mechanism for a determination of Israel's compliance.

In the case of certifying an end to occupation in Gaza, UNSCRs 242, 338, 1397, and 1515 appear to offer the UN sufficient mandate and a standard ? an Israeli withdrawal from territories occupied in June 1967 and the creation of secure and recognized boundaries. Much less clear is the critical question of Palestinian sovereignty as called for in UNSCR 1397. It is not necessary for a sovereign Palestinian government to exist, however, in order to certify an end to Israel's occupation.

Unlike Israel's occupation of southern Lebanon, a clear definition of the requirements to be fulfilled in order to confirm an end to occupation has yet to be articulated. However, the standard of effective control, including a withdrawal of Israeli forces from the border with Egypt, and an end to Israeli prohibitions on use of an airport and construction of a sea port, could be adopted. Also unclear is the mechanism to be employed to determine whether Israel has met these conditions. A structure along the lines of the UN mission that fixed and certified the international border between Israel and Lebanon could be an appropriate model.

Iraq

In a carefully choreographed process, the US military presence as the occupying power in Iraq was transformed during June 2004 into a US-led international military force deployed as part of a ?security partnership? at the request of a newly sovereign interim Iraqi government appointed by the U.S. and endorsed by the UN.

UNSCR 1546 (8 June 2004) endorsed the formation of a ?sovereign, Interim Government of Iraq and the associated end of occupation by June 30, 2004.? Article 9 noted that ?the presence of the multinational force in Iraq is at the request of the incoming Interim Government of Iraq,? a request made in an exchange of letters between the incoming interim prime minister Ayad Allawi and the U.S. secretary of state Colin Powell.

In this case an end to occupation proceeded in tandem with the reestablishment of Iraqi sovereignty, albeit represented by an appointed, unelected interim government. In the case of Gaza, disengagement is proceeding without formal reference to an elected but not sovereign Palestinian government. It is arguable that Israel (unlike the U.S. in Iraq), has an interest in maintaining a military presence in or along the Philadelphi corridor after disengagement, or in basing its presence there upon Palestinian agreement.

Recommendations

The international community should recognize Israeli disengagement as a positive development in the history of Israel's occupation of the Gaza Strip. For occupation to end, however, Israel must meet the ?The Hague standard? by expanding the parameters of the disengagement plan to end its effective control over the Gaza Strip. Achievement of this goal requires at a minimum the end to Israel's effective security control over the Gaza-Egypt land border (Philadelphi), including the transit of goods and people. Otherwise Israel's responsibilities as Occupying Power to assure the security, safety, and welfare of those under occupation remain undiminished.

A clear and unified adoption of this standard by the international community will increase the chances of its implementation and thus serve the interests of all parties. Efforts by individual countries to adopt a standard at odds with the international consensus could undermine this objective, to the detriment of Israeli as well as Palestinian interests.

If Israel fails to meet this standard, the occupation continues, albeit in a marginally different form.

Israel's fulfillment of conditions necessary to end the occupation of the Gaza Strip, however, will create a new environment, redefining the international community's relationship to the Gaza Strip, the Palestinian Authority, and to Israel. At a minimum, such a change will require discussions to re-establish a workable basis for access of personnel, goods, and services to the Gaza Strip via Israel, and in some cases to redefine (if possible) the basis upon which such assistance/intervention/monitoring occurs.

The end of occupation in the Gaza Strip will also raise issues that may highlight and complicate the absence of Palestinian sovereignty in this area, most vividly if Palestinians themselves chose not to exercise effective sovereignty in Gaza. In this instance the international community would be advised to promote the creation of a Palestinian government exercising sovereignty in the areas where occupation has ended in a manner that would not compromise the Palestinian claim to liberate those territories remaining under Israeli occupation.

Formal international recognition of an end to Israel's status as Occupying Power in the Gaza Strip, though not a necessary condition for Israel's surrender of this status, may have political advantages for all interested parties. An end to its occupation of Gaza reduces, at the very least, the territorial dimensions of its conflict with the Palestinians for whom liberation of the occupied territories is the sine qua non of Palestinian national life. The end of occupation, even solely in the Gaza Strip, establishes a vital prerequisite for the exercise of Palestinian sovereignty. For the international community, any reduction in the scope of conflict between the parties that contains the ingredients of an end to occupation and the exercise of Palestinian sovereignty is to be encouraged. A formal acknowledgment of Gaza's changed status would enable the parties to focus more clearly on the considerable differences remaining between the protagonists.

Advantages attending international recognition, however, must be measured against the requirement, most keenly felt by Palestinians, to maintain the shared destiny of the West Bank and Gaza Strip. Concerns about the economic implications of severing the territorial linkages established by occupation, principally the customs envelope linking Israel and the occupied territories, should not be minimized. Nevertheless, maintenance of these linkages should not come at the expense of expanding the contours of effective Palestinian sovereignty.

The United Nations, and more specifically the UNSC, its president, or the Secretary General, are the most appropriate vehicles for formally acknowledging an end to the occupation of the Gaza Strip. The particular form that such a certification should take ? UNSC resolution, statement from the Security Council president or Secretary General ? needs to be addressed.

The standard to be employed for judging an end to occupation is clearer ? demarcation of the border separating the Gaza Strip from Israel and Egypt and an end to effective Israeli control in the Gaza Strip, including the withdrawal of all Israeli civilian and military personnel from the area, including the border between Gaza and Egypt.

Notes:

1 While Israel rejects the international consensus supporting the applicability of the Geneva Conventions to its rule in the West Bank, East Jerusalem, and the Gaza Strip, decisions of Israel's High Court have consistently recognized the situation in the territories as one of belligerent occupation. In recent months Israel is reported to be reconsidering its opposition to acknowledging the applicability of the Geneva Conventions in the territories. For a recent summary of these issues, see ?Legal Aspects of Israel's Disengagement Plan under International Humanitarian Law,? Policy Brief, Harvard Program on Humanitarian Policy and Conflict Research, n.d., http://www.emjournal.pwp.blueyonder.co.uk/logs/archives/00000010.htm

2 Ha'aretz , December 19,2004.

3 Unlike the wartime blockade, which prohibits ingress and egress of all economic and military goods, the quarantine is more limited in scope and effectiveness and requires careful

and select procedures to remain within the confines of limited belligerency. The modern quarantine is essentially a pacific blockade with a more diplomatic and politically desirable label connoting an acceptable level of belligerency short of war or limited hostility. Originating in its current form with the Cuban Missile Crisis, the quarantine seeks to impose limited coercive measures to interdict the unreasonable movement of certain types of offensive military weapons

and associated material by one or several nations into the territory of another. The quarantine may exempt non-prohibited goods such as medicines, food and other commerce not related to war making capability. Based upon pre-existing legal principals such as the rights of national and collective self-defense, the quarantine may be both unilateral or executed in concert with allies. ?Peacetime Employment of the Maritime Quarantine,? The National War College Strategic Studies Report, W. Dallas Bethea, Commander, USN, February 1986.

4 ?The National Action Program for Mahmoud Abbas (Abu Mazen), the Fatah Movement Candidate for the Elections for the Presidency of the Palestinian National Authority,? January 9th, 2005. http://www.abumazen.info/english/viewdoc.asp?aid=308

Note the less equivocal language appearing in the PLO's Political Program, adopted at the 12th Session of the Palestine National Council in Cairoon 8 June 1974:

2. The Palestine Liberation Organization will employ all means, and first and foremost armed struggle, to liberate Palestinian territory and to establish the independent combatant national authority for the people over every part of Palestinian territory that is liberated. This will require further changes being effected in the balance of power in favor of our people and their struggle.

5 Ha'aretz , December 31, 2004.

6 ?The Israeli ?Disengagement' Plan: Gaza Still Occupied,? PLO Negotiations Support Unit, October 2004.

7 Ma'ariv , October 23, 2004.

8 http://europa.eu.int/comm/external_relations/mepp/gac/#me230204

Appendices Table of Contents (click here for full text in .pdf):

1. U.N. Security Council Resolution 425 ( 19 March 1978 )
2. Report of the Secretary General on the Implementation of Security Council resolutions 425 and 426 ( 16 June 2000 )
3. Security Council Endorses Secretary-General's Conclusion on Israeli Withdrawal from Lebanon ( 18 June 2000 )
4. Israeli Prime Minister Sharon's Knesset Speech regarding the Disengagement Plan ( 15 March 2004 )
5. The Disengagement Plan of Prime Minister Ariel Sharon ( 15 April 2004 )
6. Security Council Endorses Formation of Sovereign Interim Government in Iraq; Welcomes End of Occupation by 30 June, Democratic Elections by January 2005 ( 6 August 2004 )
7. The [Israeli] Government Resolution Regarding the Disengagement Plan: Addendum A ? Revised Disengagement Plan ? Main Principles ( 6 June 2004 ) Addendum C ? Format of the Preparatory Work for the Revised Disengagement Plan ( 6 June 2004 )
8. PLO Negotiation Support Unit, The Israeli ?Disengagement? Plan: Gaza Sill Occupied (October 2004 )