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Wed, Jan 04, 2012 | UN Watch | By Hillel C. Neuer

Hamas co-founder Mahmoud Zahar, seen here desecrating Israel's national flag, confirmed Tuesday there is no Israeli occupation of Gaza.

Hamas says Gaza ‘not occupied;’ UN disagrees

This UN Watch Op-Ed was originally published in the Jerusalem Post.

The UN continues to label the Gaza Strip “occupied” by Israel, despite a Hamas leader stating this week that that’s no longer a tenable position.

Hamas co-founder Mahmoud Zahar confirmed Tuesday there is no Israeli occupation of Gaza, according to a report published by Ma’an, a Bethlehem- based Palestinian news agency.

Zahar was casting doubt on whether Hamas would organize anti-Israel marches in Gaza in conjunction with similar protests that the Fatah-controlled Palestinian Authority would organize in the West Bank.

“Against whom could we demonstrate in the Gaza Strip? When Gaza was occupied, that model was applicable,” Zahar said.

The radical Islamist organization has merely recognized the obvious: that after Israel in 2005 dismantled its military administration in Gaza, forcibly evicted all Israeli residents and withdrew every last soldier, Israel no longer occupies the territory by any legal definition or other sense of the term.

Whatever external control Israel — and Egypt — may exercise, everyone in Gaza knows that Hamas rules the territory with an iron fist.

The Hamas statement follows growing recognition among international lawyers that the UN’s resistance to holding Palestinians responsible for territory they control is outdated.

Four-and-a-half years after seizing power in Gaza, Hamas runs its own police, courts, jails, schools, media and social services, noted Abraham Bell and Dov Shefi, two international legal experts, in a 2010 research paper for the University of San Diego law school.

Hamas regulates business activities, banks and land registries. It levies taxes, controls its own borders and even imposes a dress code. In sum, wrote Bell and Shefi, Hamas operates “a functioning and fully independent local civil government, buttressed by armed forces.”

Similarly, in an article published in the American University International Law Review, Elizabeth Samson concluded that under the Geneva Conventions and international judicial precedents, Gaza can no longer be considered occupied because Israel, despite its ability to exercise certain powers over the area, no longer exercises “effective control,” the litmus test for what qualifies as occupation.

Under Israel’s own law, the country’s Supreme Court ruled in 2008 that the Jewish state had disengaged from Gaza and no longer exercised “effective control over what occurred there.”

Now that Hamas itself has publicly recognized this reality, the UN’s refusal to do the same is less defensible than ever. The organization’s official policy has not changed since Secretary General Ban Ki-moon’s spokesman, Farhan Haq, declared in 2008 that “the UN defines Gaza, the West Bank and east Jerusalem as occupied Palestinian territory.”

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Hillel C. Neuer, an international lawyer, is executive director of the Geneva-based UN Watch.

UN Watch is a non-governmental organization based in Geneva whose mandate is to monitor the performance of the United Nations by the yardstick of its own Charter. UN Watch was established in 1993 under the Chairmanship of Ambassador Morris B. Abram, the former U.S. Permanent Representative to the United Nations in Geneva. UN Watch participates actively at the UN as an accredited NGO in Special Consultative Status to the UN Economic and Social Council (ECOSOC) and as an Associate NGO to the UN Department of Public Information (DPI). UN Watch is affiliated with the American Jewish Committee (AJC).