No free pass for Israel, Hamas in Gaza

There is no contradiction between the fact that Israel continues to occupy Gaza and the fact that Hamas performs many governmental functions there

As an expert in occupation law and the legal status of Gaza, I read with interest Hillel Neuer’s op-ed (“Hamas says Gaza ‘not occupied’; UN disagrees,” January 5) equating continued recognition of the occupation of Gaza with what he terms “Palestinian helplessness.” Neuer calls upon the United Nations to adopt a position reportedly articulated by a Hamas official, namely that Israel’s occupation of Gaza has ended.

Putting aside the question of whether the UN should look to Hamas as an authority on international law, there is a troubling error in Neuer’s assumption that acknowledging Israel’s continued occupation of Gaza absolves Palestinian officials of responsibility for their actions. There is no contradiction between saying Gaza is occupied and holding Hamas accountable for governmental functions there.

While Israel withdrew its permanent military presence and civilian settlers from Gaza in 2005, it continues to maintain many facets of control. These include control of movement into and out of Gaza, the Palestinian population registry (including who is a resident of Gaza and who may enter and leave), and most importantly, taxation.

A recent position paper by the Israeli human rights organization Gisha argues that while the significant reduction in Israeli control over Gaza reduces Israeli responsibility, the law of occupation still holds Israel accountable for the aspects of civilian life dependent on movement of people and goods. Conversely, the law of occupation authorizes Israel to impose security restrictions – for example, to ban air and maritime traffic and insist on inspecting all goods entering and leaving the Strip.

IT IS not only the UN that considers Gaza to be occupied. So does the United States, the EU, the International Committee of the Red Cross and prominent Israeli international law experts such as Professor Yoram Dinstein. Even those who believe that Israel’s occupation of Gaza has ended – including Israel’s Supreme Court – still TRUCKS LOADED with fruits and vegetables enter the Kerem Shalom crossing into Gaza in 2010. The law of occupation requires Israel to allow the free flow of goods into the Strip. impose on Israel obligations toward the civilian population in Gaza, as a result of its continued control over Gaza’s crossings and because of the dependence cultivated in Gaza on Israel for its economy, infrastructure, health system, and other civilian institutions.

The fact that Hamas performs many governmental functions in Gaza does not stand in contradiction to Israel’s occupation. For example, Hamas is responsible for the content of classroom instruction in Gaza, because it runs the Ministry of Education. But Israel controls whether new schools will be built – by virtue of its control over the entrance of construction materials – and it influences the quality of teaching, by controlling whether educators will be permitted to travel between Gaza and the West Bank for training.

Despite important changes in its policy toward Gaza, Israel continues to impose crippling restrictions on the entrance of construction materials, ban the exit of goods to their natural markets in Israel and the West Bank, and minimize travel of persons between Gaza and the West Bank – in the vast majority of cases, where no security risk is posed by the individual or item.

The ban on gravel and cement – treated as civilian items under Israeli and international legislation – cannot be explained by security concerns, given that the Hamas regime accesses construction materials freely via the tunnels. The refusal to allow a furniture maker in Gaza to sell desks to a school in the West Bank cannot be explained by security, because Israel clears small quantities of export for transit to Europe via Israeli ports, but refuses to allow the same goods to reach the West Bank.

Israel’s ban on Gaza residents accessing universities in the West Bank is similarly divorced from concrete security concerns, because the ban applies even if the students pass stringent Shin Bet (Israel Security Agency) background checks and agree to travel via Egypt and Jordan.

The law of occupation requires Israel to allow the free flow of people and goods into and out of Gaza, subject to individual security inspections. At the same time, the international law of human rights demands the accountability of Hamas, including for the protection of the rights of Gaza residents to freedom of movement. I am proud to work with Palestinian human rights organizations in Gaza courageously resisting Hamas-imposed restrictions, including blocking travel in the rare cases in which students and professionals do receive Israeli permits to travel to the West Bank.

Limiting travel restrictions to those narrowly necessary for security – by Israel and Hamas – would not only bring their policies into conformity with international law, it would also allow the kind of economic, educational and social development in Gaza that is the key to a better future in the region.

The author is executive director of GishaLegal Center for Freedom of Movement.