Court asked: Israel still 'occupying' Gaza?

US Secretary of State Condoleezza Rice last week held up improvements in Gaza's only commercial link to the outside world as evidence of progress in Israeli-Palestinian relations.

But Sunday the Karni crossing at the Israel-Gaza border became the focus of a dispute in Israel's Supreme Court between human rights groups and the government. At issue: Does Israel have a responsibility to alleviate delays – lasting up to three months – in imported goods?

The debate highlights Gaza's murky legal status and whether Israel's control over the impoverished strip's key access points still determines it as an occupying power, even though it withdrew troops a year and a half ago.

The Supreme Court has yet to rule on the petition, submitted when Israel had shut down most crossings amid a military offensive there.

Human rights groups say Israel exercises an "invisible hand" in Gazans' daily lives because it can regulate commercial goods coming or leaving the territory. "The only way Gaza residents can receive a crate of milk ... and a shipment of medicines is through Israeli-controlled crossings,' " says Sari Bashi, the director of Gisha, an Israeli human rights group that cosponsored the petition. "Only Israel can fulfill this obligation to the residents of Gaza."

According to a Palestinian commercial group, the Karni crossing was open an average of five hours a day in December, despite Israel's commitment under a US-brokered accord on borders and access to ensure "continuous" operationover the terminal. Some 182 trucks carrying goods have been allowed in each day in the last half of 2006, compared with nearly twice that number in February 2006.

Still, both sides agree that commercial traffic has recovered in recent weeks – prompting Ms. Rice to cite the flow of goods at Karni to counter an impression that the Israeli-Palestinian peace process was stuck.

In November 2005, Israelis and Palestinians agreed to expand operation at Karni and Gaza's civilian crossing with Egypt at Rafah. Although Israel recently pledged to expand the hours at Karni, inspectors lacked funds to work at the crossing for more than one shift.

The dispute over Gaza's crossings underscores the tradeoff between Israeli security needs and the Palestinian need for the passage of people and commercial goods. In an affidavit submitted to the court, the Palestinian water utility said Gaza's main north-south highway has been flooded by sewage because Israeli authorities haven't let through the needed pipes. An Israeli army official, said that the pipe infrastructure has been dug up by militants and used in Kassam rockets to fire into Israel.

Gisha argued in January that Israel's occupation in Gaza remains in force. It claims that Israel controls everything from land crossings to tax policy to the Gaza population registry.

According to the 1907 Hague Convention on war, the litmus test to determine foreign occupation is whether an outside power exercises "effective control" over another territory.

Israel argues that it no longer occupies the Gaza Strip, having pulled out its last soldiers in September 2005. It points out that it has even turned its civilian passage with Gaza, the Erez crossing, into an international border terminal.

Israel blames the Palestinians for their economic hardship, citing continued cross- border rocket fire and the Hamas-led Palestinian government, which refuses to meet international conditions for budgetary aid.

"The claim that Israel retains effective control today is to ignore reality," says Mark Regev, a spokesman for the Israeli Foreign Ministry.

The Israeli-Palestinian peace accords in the 1990s defined the Gaza Strip and the West Bank as a single political unit, challenging Israel's claim to have ended the occupation in one area.

"It was a partial evacuation,' " says Yoram Dinstein, an expert on international law at Tel Aviv University. "There are remnants of the occupation, and access is one of those remnants."