End of responsibility over Gaza

In wake of pullout, Israel must free itself of responsibility over Strip

Eran Shayshon, Ynet news, 8/21/05

In light of the implementation of Israel's Disengagement Plan, the question arises whether Israel's withdrawal from Gaza in fact terminates Israeli responsibility over the Gaza Strip. More specifically do Israel's actions meet the requirements for "end to the occupation," as it is defined under international law? That is to say, ceasing to exercise control over Gaza.

International recognition of an Israeli end of responsibility is important, as it would free Israel from having to ensure Gazans' welfare and would break the immediate demographic threat of Jewish minority. A successful disengagement may also allow similar unilateral moves in the West Bank in the future.

However, Israel's security needs will probably force it to maintain a certain degree of control over Gaza's external perimeter, i.e Gaza's entry and exit points, and aerial, electromagnetic and naval space. As a result, Israel is likely to face difficulties in promoting the concept of having ended its responsibility over the fate of Strip residents. Even if Israel withdraws from Gaza's external perimeter, it is likely to confront two additional arguments: The first is the recognition of Gaza and the West Bank as a single territorial unit. This principle was cemented in the Oslo Accords, signed between Israel and the PLO.

The second is a Palestinian and international argument that Gaza is not "viable". In other words, Israel has to ensure the economic and political viability of Gaza as a precondition for ending its responsibility. This is, in fact, an extension of the concept of responsibility beyond the formal rules of occupation under the Fourth Geneva Convention.

The Israeli position should include the Following arguments: First, in the aftermath of the disengagement, Israel ceases to be the de-facto "landlord," regardless of any contradictory judicial definition; second, the constraints over Gaza's sovereignty are a result of Palestinian violence – therefore, the Palestinians are to be blamed for these constraints; third, any Israeli constraints over Gaza emanate from Israel exercising its right to self-defense as acknowledged by international law. Apart from these arguments, Israel could also prepare the ground for the renunciation of its responsibility over Gaza. The upgrading of the sovereign and political status of the Palestinian Authority may create a political master that could effectively control the territories from which Israel disengages.

Second, issues like "safe passage" might serve as an Israeli bargaining chip to be used in exchange for a Palestinian recognition of Israel's end of responsibility over Gaza. Finally, Israel should also reconsider the relevance of the customs envelope, according to which Israel maintains economic relations with Gaza through control of the customs stations, collection of revenues and reimbursement of the Palestinians for their share. Before the disengagement plan, the political status of Gaza and the West Bank and Israel's responsibility over them were regulated by international law and the agreements signed between Israel and the Palestinians. Yet the pullout has created a judicial vacuum regarding Gaza's status. Indeed, Israel must take advantage of this vacuum and promote its position of ending its responsibility over the area.

Eran Shayshon is an analyst in the Re'ut Institute for Policy Planning