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The legal definition of occupied territory according to a 1907 Hague treaty that defines occupied territory as one “actually placed under the authority of the hostile army”; and the 1949 Fourth Geneva Convention, which holds that occupation ends when the controlling power no longer “exercises the functions of government” over the territory in question.

So by any rational judge, Gaza has not been occupied territory since Israel threw her people out two August’s ago. But the United Nations still considers Gaza occupied. The question that arise are “if Israel has been out of Gaza for over two years does mean Gaza is somehow unoccupied, occupied territory? or is it just that the UN can never be a rational Judge?

The O Word: Is Gaza Occupied Territory? Turtle Bay BY BENNY AVNI Gaza is a major headache for Middle Eastern leaders from Jerusalem to Cairo, and its future should deeply worry this and the next American administration. But two and a half years after the last Israeli settler moved out, is Gaza an occupied territory? Funny word, occupation. Critics of Israel have used it for so long that they don’t even stop to look up its meaning. Israeli legal scholars make Talmudic arguments. State Department spokesmen come up empty. Last week, I asked Secretary-General Ban whether he considers Gaza to be occupied, and he wisely sidestepped the question, highlighting instead the dire humanitarian conditions inside the strip. “I am not in a position to say on these legal matters,” Mr. Ban said, after I pressed him about the U.N. position on the status of Gaza. The denizens of Turtle Bay were aghast at the mere question, let alone Mr. Ban’s non-answer. “Yes, the U.N. defines Gaza, the West Bank, and East Jerusalem as occupied Palestinian territory. No, that definition hasn’t changed,” a spokesman for Mr. Ban, Farhan Haq, reassured them at the next daily press briefing. The Egyptian press, meanwhile, has raised some questions about that dire humanitarian situation. After Hamas blew up Gaza’s southern border, news reports detailing the considerable sums spent in stores on the Egyptian side of Rafah led many to wonder why the pockets of Gaza residents seemed so much deeper than those of the average Egyptian in Cairo or Alexandria. Voicing his fellow citizens’ feelings toward their Palestinian Arab neighbors, the Egyptian foreign minister, Ahmed Aboul Gheit, threatened that anyone caught crossing the Gaza border after it was resealed would have “their legs broken.” Gaza represents a great danger for the aging President Mubarak, whose successor is far from clear. Hamas, an offshoot of the Muslim Brotherhood, provides a safe house in Gaza for those who want to turn Egypt, the most influential Arab country, into a radical Islamist state, part of the worldwide caliphate envisioned by the Brotherhood veteran and current Al Qaeda no. 2, Ayman al-Zawahri. If the prospect of Gaza swallowing Egypt, rather than the other way around, does not keep Washington officials awake at night, it should. Israel, meanwhile, has yet to find a way to convince Gazans that the good life, which they clearly were seeking in Rafah, will not become a reality as long as the children of southern Israel spend every night of their formative years in bomb shelters. (Somehow, incidentally, U.N. officials do not consider such suffering a “humanitarian” crisis.) Hoping, but not betting, that Palestinian Arabs would lay the foundations for a state in Gaza, the Israeli government uprooted all the Jewish residents from the area, and the last Israeli soldier left in the summer of 2005. While Israel declined to cede control of Gaza’s airspace and seaports until the area proved itself to be peacefully inclined, its “separation” gave Palestinian Arabs two options: Start building a normal state in Gaza, and the West Bank will follow, or launch a war. Gazans chose Hamas, which since then has been perfecting its most effective new instrument of terror, rockets fired daily at a civilian population, which as sure as day is coming to a town near you, in Europe and even America, and on a much larger scale. Wary of a return to full control of Gaza, Israel has not yet found a viable military answer. No diplomacy is available. With this fast-changing, increasingly ominous state of affairs, the word “occupation” is meaningless, a State Department official told me recently. Definitions in various, at times conflicting, sets of international treaties and agreements known as “international law” are also inconclusive. In the read of some legal scholars, the fact that the Israelis control Gaza’s air, sea, and telecommunications indicates that their occupation there is not over. Opponents cite a 1907 Hague treaty that defines occupied territory as one “actually placed under the authority of the hostile army”; and the 1949 Fourth Geneva Convention, which holds that occupation ends when the controlling power no longer “exercises the functions of government” over the territory in question. Like religious scriptures, so-called international law requires much wise interpretation, and, unlike in the case of the American Constitution, there is no credible world Supreme Court to determine a correct reading. Its meaning deeply rooted in times before such powers as Al Qaeda, Hamas, and Hezbollah became major international players, all that is left of the “O Word” today is an empty political tool, used mostly to demonize Israel.

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