The Fictions of the 'Illegal' Occupation in the West Bank and Gaza
16 Oregon Review of International Law 79 (2014)
50 Pages Posted: 13 Apr 2015 Last revised: 28 May 2016
Date Written: September 1, 2013
The article surveys governance practices in the West Bank and Gaza Strip (WBGS) since the outbreak of the second Intifada (September 2000). This survey sets aside the question of legality of the occupation and of the specific practices of the occupying power and focuses instead on exploring how the WBGS are actually governed. This way of approaching the subject is distinct from existing scholarship. Scholars, who studied the international legal status of the WBGS, did so from the perspective of international humanitarian law particularly the law of belligerent occupation, and of international human rights law. A great deal of attention is given to the question of whether the practices of the Israeli government are consistent with its international legal obligations as an occupying power, or whether the tactics of Palestinian resistance are in violation of the laws of war. Setting aside debates about legality has revealed many curious features of the regime governing the WBGS. First, governing the WBGS implicates many legal regimes, national and international, and many levels of governance. International human rights and humanitarian law have in fact a minor role in determining how the WBGS are governed. Second, this approach brings to foreground the important role of external actors (humanitarian relief agencies, multilateral and bilateral donors). Third, there are striking continuities between policies implemented in WBGS, and ones in Israel since 1948 as part of a state-building project. Fourth, the separation between effective military control, and the legal responsibility over civilians, a characteristic aspect of governance in WBGS at least since September 2000, is sui generis in international law.
Keywords: West Bank, Gaza, belligerent occupation, Foucault, law and critique, Oslo peace process, Palestine, Israel, ethnocracy
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