Karl Vick’s anti-Israel partisanship continues unabated on the pages and website of Time Magazine. Vick, Time’s bureau chief in Jerusalem, self-assuredly insisted in a May 29 blog post that Israel continues to occupy the Gaza Strip:
Cairo after all had control of the coastal enclave from 1948 to 1967, when Gaza was among the vast territory Israel conquered in the Six Day War. And though it remains technically under Israeli occupation, Israel Defense Forces pulled out in 2005…
Israel, of course, fully withdrew its soldiers and civilians from the Gaza Strip in 2005, representing a self-evident end to the occupation.
But the PLO argues that Gaza remains occupied territory, and there are some advocacy organizations and academics who have agreed. These academics, for example Nicholas Stephanopoulos, have argued that Gaza remained occupied because Israel retained “effective control” of the territory. (It’s worth noting that Stephanopoulos’s view, which was expressed long before Egypt formally re-opened its border crossing with Gaza, hinged in large part on the idea that Israel has “control of Gaza’s borders.” While the idea that Israel controled Gaza’s borders was not very realistic to begin with, it certainly is not sustainable after Egypt’s widely publicized demonstration of control over its border with Gaza in late May 2011.)
Regardless, other respected scholars of international law have long argued that Israel does not occupy the Gaza Strip. Eugene Kontorovich, for example, makes clear he disagrees with the view that Gaza is occupied:
This view has never had much to recommend it. Article 42 of the 1907 Hague Regulations provides that a “territory is considered occupied when it is actually placed under the authority of the hostile army.”
Similarly, the Geneva Conventions, even in the broadest interpretation urged by the International Committee of the Red Cross, require that ground forces exercise “control within” the territory.
Moreover, an occupying power must be able to provide all governmental functions – to run things inside the occupied territory, not simply patrol the borders. Yet the de facto government of Hamas rules Gaza without Israeli intervention.
The argument for occupation has been that since Israel maintains “absolute authority over Gaza’s airspace and territorial sea [it is] manifestly exercising governmental authority in these areas,” in the words of Prof. Iain Scobbie. Others claim that border control amounts to “effective control” of the interior. But prior blockades, like that of Cuba by president John F. Kennedy, were never considered occupations. Moreover, border controls are typical along every international frontier, even among the friendliest of nations.
Nor does Israel control all of Gaza’s borders.
After referring to an Israeli Supreme Court ruling that the country no longer has effective control over Gaza, Yuval Shany explains that he is “in fundamental agreement with the Court’s findings on the matter.”
In a comment about his own article discussing “The Law on the Unilateral Termination of Occupation,” Eyal Benvenisti asserts that the piece “explain[s] … why the occupation of Gaza has ended.”
Ruth Lapidoth expressed before the Gaza disengagement that she, too, believes “Israel should not be considered as an occupier after the withdrawal.”
In the American University International Law Review, Elizabeth Samson calls Gaza a “sui generis territory,” and adds:
By applying the Hague Regulations, the Fourth Geneva Convention, and the precedent of the Hostages Case to the situation in Gaza (after Israel’s disengagement), Gaza can no longer be considered occupied and under “effective control,” since “effective control,” as understood in the context of the laws of occupation, does not apply to the actions of Israel in relation to Gaza. >
Solon Solomon likewise argues in the winter 2011 issue of the Cardozo Journal of International and Comparative Law that although Gaza has a sui generis status which requires attention in any discussion about the territory’s designation, “post-disengagement Gaza should not be considered ‘occupied’ by Israel” and that “it is neither occupied nor under effective Israeli control.”
According to Benjamin Rubin, “regardless of the terms imposed by Israel after disengagement and other reservations that have been raised in this regard, occupation ended following the complete withdrawal of any Israeli presence in the Gaza Strip.”
Avi Bell and Justus Reid Weiner explain why “there is no legal basis for maintaining that Gaza is occupied territory” as follows:
First and foremost, Israel does not fulfill the conditions of being an occupier; in particular, Israel does not exercise the functions of government in Gaza, and it has not substituted its authority for the de facto Hamas government. Secondly, Israel cannot project effective control in Gaza. Indeed, Israelis and Palestinians well know that projecting such control would require an extensive military operation amounting to the armed conquest of Gaza.
Military superiority over a neighbor does not itself constitute occupation. If it did, the U.S. would have to be considered the occupier of Mexico and Canada, Egypt the occupier of Libya, Iran the occupier of Afghanistan, and Russia the occupier of Latvia. >
And in the words of Dore Gold, “if no Israeli military government is exercising its authority or any of ‘the functions of government’ in the Gaza Strip, then there is no occupation.”
In short, there is scholarly debate over the question of whether Israel exercises “effective control” over Gaza, and consequently whether the territory can still be described as “occupied.” From a journalistic perspective, then, the claim that Israel occupies the Gaza Strip is debatable, subjective and partisan. As such, the view should not be reported as fact on Time’s website or on any other news source.