If Israel Goes Fully Into Gaza, Could Democracy Follow?

The Israel Defense Forces (IDF) is mobilizing to clear the last Hamas strongholds in Gaza to free the remaining Israeli hostages and disarm Hamas. Some pundits criticize the mission as a “reoccupation” of Gaza. However, they misconstrue the way “occupation” is legally defined. Israel may choose to govern Gaza temporarily or longer without it being an actual occupation as understood by critics.

If the IDF does eventually control Gaza as part of the war effort, Israel may exercise its San Remo Treaty-based authority by replacing its martial law over Gaza with civil law, just as it exercised civil rule over eastern Jerusalem during the 1967 Six-Day War, freeing the area from Jordanian occupation. The measure would be an activation of civil jurisdiction over sovereign land, not an annexation of foreign land. Short of that step, Israel may simply administer Gaza without occupation law concerns.

Treating Gaza as a district of Israel would fulfill the intent of San Remo. By contrast, forcing occupation law on Gaza would violate San Remo by pretending the territory was assigned to someone else. Israel’s enemies only muddy the legal waters by trying to foist their political agendas on Israel through contrived interpretations of occupation law.

To the extent Israel controls Gaza, it could democratize the enclave by supplanting Hamas’ tyranny with the rule of law. For example, Gazans could have the right to vote, something unthinkable under Hamas. Government spending could expand human development instead of terror tunnels. Just as Israeli law prohibits incitement to violence by teachers and journalists in Jerusalem, the same standard could apply in Gaza. Individuals of any race or religion could live in Jerusalem or Gaza. Under the Islamist oppression of Hamas, a Jew could be murdered for entering Gaza.

Cultivating democracy in Gaza would be vastly preferable to an occupation, which would require Israel to preserve the laws of Hamas as the “ousted sovereign.” Any post-war attempt to maintain Hamas’ Sharia law dictates would perpetuate a morass of human rights abuses.

If Gaza is legally equalized with the rest of Israel, Gazan Palestinians could be classified as “permanent residents,” just like the Palestinians of Jerusalem. In Jerusalem, permanent residents hold Israeli identity cards and vote in municipal elections. They do not vote in Israeli national elections because they are not Israeli citizens. The arrangement resembles America’s dominion over Puerto Rico and other US territories.

Like the permanent residents of Jerusalem, the permanent residents of Gaza could apply for Israeli citizenship. Israel’s naturalization process already contains standard background checks to block applicants who support terrorism.

Many debates in the Israeli-Palestinian conflict remain deadlocked. But the fate of Gaza could be unilaterally and lawfully resolved.

Joel M. Margolis is the Legal Commentator, American Association of Jewish Lawyers and Jurists, US Affiliate of the International Association of Jewish Lawyers and Jurists. His 2021 book, The Israeli-Palestinian Legal War, analyzed the major legal issues in the Israeli-Palestinian conflict. Previously he worked as a telecommunications lawyer in both the public and private sectors.