By David B. Rivkin Jr. and Lee A. Casey

(originally published in The Washington Post on Saturday, May 10, 2008)

Hamas claims that former president Jimmy Carter’s recent meeting with its leader, Khaled Meshal, marks its recognition as a “national liberation movement” — even though Hamas rockets fired from the Gaza Strip, which Hamas rules as an elected “government,” continue to rain down on Israel’s civilian population. While Hamas is clearly trying to bolster its legitimacy, the conflict along Israel’s southern border has a broader legal dimension — the question of whether, as a matter of international law, Israel “occupies” Gaza. The answer is pivotal: It governs the legal rights of Israel and Gaza’s population and may well set a legal precedent for wars between sovereign states and non-state entities, including terrorist groups such as al-Qaeda.

Israel’s critics argue that Gaza remains “occupied” territory, even though Israeli forces were unilaterally withdrawn from the area in August 2005. (Hamas won a majority in the Gazan assembly in 2006 and seized control militarily in 2007.) If this is so, Jerusalem is responsible for the health and welfare of Gazans and is arguably limited in any type of military force it uses in response to continuing Hamas attacks. Moreover, even Israel’s nonmilitary responses to Hamas-led terrorist activities — severely limiting the flow of food, fuel and other commodities into Gaza — would violate its obligations as an occupying power.

Israel, however, is not an occupying power, judging by traditional international legal tests. Although such tests have been articulated in various ways over time, they all boil down to this question: Does a state exercise effective governmental authority — if only on a de facto basis — over the territory? As early as 1899, the Hague Convention on the Laws and Customs of War on Land stated that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.”

The Hague Convention is a founding document of the modern law of armed conflict, and its definition of occupied territory was woven into the 1949 Geneva Conventions. There, the relevant provision provides that “[i]n the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations,” although certain protections for the populations continue “to the extent that such Power exercises the functions of government in such territory.” That is the key — exercising the functions of government. This proposition was recognized in a seminal Nuremberg prosecution, the Trial of William List and Others.

It is because an occupying power exercises effective control over a territory that international law substantially restricts the measures, military or economic, it can bring to bear upon this territory, well beyond the limits that would be applicable before occupation, whether in wartime or peacetime.

The Israeli military does not control Gaza; nor does Israel exercise any government functions there. Claims that Israel continues to occupy Gaza suggest that a power having once occupied a territory must continue to behave toward the local population as an occupying power until all outstanding issues are resolved. This “principle” can be described only as an ingenious invention; it has no basis in traditional international law.

The adoption of any such rule (designed to limit Israel’s freedom of action and give Hamas a legal leg up in its continuing conflict) should be actively opposed by the United States. Its adoption would suggest that no occupying power can withdraw of its own volition without incurring continuing, and perhaps permanent, legal obligations to a territory. This issue is particularly acute regarding territory not otherwise controlled by a functioning state — failed states or failed areas of states where the “legitimate” government cannot or will not exercise effective control. Such places — call them badlands — were once rare. Over the past 15 years, though, there has been an explosion in the number of such areas, notably parts of Afghanistan, Somalia and portions of Pakistan.

Gaza is exceptional only in that its international legal status is indeterminate. Its last true sovereign was the Ottoman Porte. It was part of the British Palestine Mandate and has since been administered by both Egypt and Israel. Today, no state claims sovereign authority, though it is expected that Gaza will become part of a future Palestinian state. For its part, Hamas acknowledges no higher authority and functions as a de facto government in Gaza. It is a classic example of a terrorist-controlled badland.

Unduly handicapping states that intervene in such badlands — whether to protect their own interests, those of the local population or both — is unrealistic and irresponsible. Requiring agreement by the “international community” (whatever that may be) as a precondition for extinguishing such a designation is equally unproductive if the goal is saving lives. Consider the example of Darfur.

Even worse is pretending that groups such as Hamas are merely criminal gangs that must be dealt with as a local policing problem — just one of the potential side effects of imposing an “occupied” status on a territory. This implicates U.S. interests directly, since America’s ability to use robust armed force against al-Qaeda and similar non-state actors remains critical to defending our civilian population from attack. Efforts to limit states’ rights to use military force against such groups simply benefit the globe’s worst rogue elements and endanger the civilian populations among which they operate. Here, as in so many other areas, the traditional international law that imposes the obligations of an occupier only on states that physically occupy a territory makes perfect sense.

The writers are Washington lawyers who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. They were members of the U.N. Subcommission on the Promotion and Protection of Human Rights from 2004 to 2007.

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