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Palestinians Reject Israel Claim of Change in Gaza Legal Status (Text)

Posted on: Tuesday, 9 August 2005, 09:00 CDT

Text of report by Palestinian news agency Wafa website

Gaza, 8 August: The Ministry of Foreign Affairs today stated that the upcoming Israeli pullout from the Gaza Strip, in the event it takes place, does not change the legal status of the territories from which troops will be pulled out and Israel will continue to be an occupying power with legal and humanitarian responsibilities to which it is bound by the Fourth Geneva Convention of 1949 and the 1907 Hague Regulations. This includes obligations towards the territory and its population in a manner that does not infringe Palestinian rights, especially the right to self-determination and the establishment of an independent and sovereign state in the West Bank and Gaza Strip.

The Ministry issued a position paper on the legal status of the Palestinian territories from which troops will be pulled out under the Israeli disengagement plan.

The paper, prepared by a ministry team tasked with following up the pullout file and endorsed by Foreign Minister Dr Nasir Al- Qudwah, discusses several main points pertaining to the legal status of the territories to be vacated by Israel under the international law. It uses the principles and stipulations of the international law, including international humanitarian law and Israel's political and legal obligations under the Oslo Agreements, as well as the international will embodied in the road map.

According to the paper, the disengagement plan from the Gaza Strip and some northern areas of the West Bank, which the Israeli Government intends to carry out, stipulates that as soon as the plan is fully implemented, there will be no basis for claims that the Gaza Strip is an occupied territory. Israel did not hide its strong desire to declare the end of its occupation of the Gaza Strip, thus ignoring the concept of the geographic unity of the Gaza Strip and the West Bank, including Jerusalem. Israel is attempting to have the Gaza Strip, after it withdraws, viewed as a geographic unit separate from the West Bank, thus avoiding its legal obligations under the international humanitarian law.

The paper said the Israeli claim over ending the occupation and changing the legal status of the Gaza Strip after the pullout is in complete violation with the principles and rules of the international law, including international humanitarian law and Israel's political and legal regulations under the Oslo agreements.

It is also a violation of the international will embodied in the road map.

I. Principles and rules of international law, including international humanitarian law:

In this regard, the paper states that Israel will continue to be an occupying power according to international law, since Israel will effectively maintain control of the territory's airspace and sea borders as well as partial control over the crossings, which limits the mobility of the civilian population. Moreover, Israel gives its forces the right to enter the Gaza Strip whenever they see a need to do so. Evacuating the colonialists and removing the colonies ends the colonizing aspect of the territories as a violation of international humanitarian law. It does not end Israel's legal status as an occupying power in the Gaza Strip.

The paper adds that the international law and the 1907 Hague Regulations stipulates that the situation of ending the occupation is not done by the occupying power's announcement of the end of its effective control of the territories if this power is capable of exercising this control.

The Nuremberg Trial found Germany responsible as the occupying power for some areas in Greece and Yugoslavia even though it had ceded effective control over certain territories to non-German forces and did not have any control over these territories.

The trial at the time found that Germany continued to be the occupying authority in Greece and Yugoslavia in general and in the territories it ceded control over because it had the ability to enter these territories once again and control them whenever it pleased. Therefore, international law nullifies the possibility that an occupying power can declare the end of its occupation of territories if it has the ability to enter them. This includes Israel, which not only has the ability but has also declared its intention to interfere.

Considering that the Gaza disengagement plan is unilateral, the departure of Israeli forces does not mean ending the occupation because international law does not give the occupying power the right to announce the end of its occupation as long as this does not entail giving the occupied population the right to exercise its right to self determination. This violates the principle of the right to self-determination stipulated by the UN Charter and many international conventions.

II. The Israeli government's political and legal obligations under the Oslo Agreements:

The paper states that the interim Oslo Agreements stipulated that the Palestinian territories in particular will remain under Israeli occupation until a final peace agreement is signed and fully implemented.

Article 4 of the 1993 Agreement on the Declaration of Principles states: "The two parties consider the West Bank and Gaza Strip as a single geographic unit whose unity and integrity must be maintained during the interim period."

Article 10 of the 1999 Sharm al-Shaykh Memorandum states that the two parties "acknowledge the need to create a positive negotiations climate and will refrain from taking measures that would change the status of the West Bank and Gaza Strip according to the interim agreement."

The paper adds: "Considering that the Israeli plan is unilateral and was not negotiated nor agreed upon by the Palestinian side, this plan - in text and in practice - violates the agreed upon concept of geographic unity between the Gaza Strip and West Bank. The plan makes no reference to territorial contiguity between the two and is thus considered a violation of pledges and obligations stipulated in the agreements signed with the government of Israel."

III. International will embodied in the Road Map:

According to the Foreign Ministry's paper, the unilateral Israeli plan is a circumvention of the international will and efforts seeking to reach a just, comprehensive, and final resolution to the Israeli-Palestinian conflict.

The paper affirmed that there is international unanimity and affirmation that any resolution to the Israeli-Palestinian conflict must result in two states, a just solution to the refugee issue, and a settlement over Jerusalem, the borders, and water.

US President Bush had expressed this international desire in the vision he proposed in 2001 and in which he said that he aspires for a viable and contiguous Palestinian state.

Moreover, the international community reaffirmed this vision in the Road Map, whose preamble states that "a settlement, negotiated between the parties, will result in the emergence of an independent, democratic, and viable Palestinian state living side by side in peace and security with Israel and its other neighbours."

In another part of the Road Map, it is stated that such a solution must lead to the end of the occupation that started in 1967 and must achieve the two-state solution: The state of Israel, and a state that enjoys sovereignty, independence, democracy, and viability - namely Palestine - living side by side in peace and security.

The paper adds that the unilateral Israeli disengagement plan complicates the achievement of the international desire for a Palestinian state and makes such a matter difficult to achieve due to considerations that were explained earlier and which primarily pertain to the concept of geographic unity, territorial contiguity, and respect for Palestinian jurisdiction over Palestinian territories.

Based on the above, the intended Israeli withdrawal from the Gaza Strip, in the event it is carried out, does not change the legal status of the territories to be vacated. Israel will continue to be the occupying power and will have legal and humanitarian responsibilities under the 1949 Fourth Geneva Convention and the 1907 Hague Regulations, including obligations towards the land and population in a manner that does not infringe upon Palestinian rights, especially the rights to self-determination and the establishment of an independent and sovereign Palestinian state in the West Bank and Gaza Strip.

Source: BBC Monitoring Middle East

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