October 31, 2023
Israel claims it is no longer occupying the Gaza Strip. What does international law say?
On October 15, US President Joe Biden cautioned Israel not to “reoccupy” Gaza. This choice of words touched on a core debate: is Israel occupying the Gaza Strip—such that it owes protections to the population there—or is it not?
Israel believes it “disengaged” from Gaza in 2005 when it completely withdrew its military and civilians from the area. With this withdrawal, Israel and the United States—as well as many international legal, military, and foreign policy experts—argue that Israel ceded the effective control needed under the legal definition of occupation, therefore ending the occupation. Still, Israeli Defense Minister Yoav Gallant recently stated that after the conflict, Israel would “no longer have ‘responsibility for life in the Gaza Strip,’” seemingly confirming a level of ongoing engagement.
In contrast, many prominent international institutions, organizations and bodies—including the International Committee of the Red Cross (ICRC), the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory, UN General Assembly (UNGA), European Union (EU), African Union, International Criminal Court (ICC) (both Pre-Trial Chamber I and the Office of the Prosecutor), Amnesty International, and Human Rights Watch—as well as international legal experts and other organizations, argue that Israel has occupied Palestinian territories including Gaza since 1967.1Other organizations that have acknowledged over fifty years of Israeli occupation in Gaza include: the International Federation for Human Rights; the Geneva Academy’s Rule of Law in Armed Conflict Project; Médecins sans Frontières; Minority Rights Group International; Al-Haq; B’tselem; and the Center for Constitutional Rights. While they acknowledge that Israel no longer had the traditional marker of effective control after the disengagement—a military presence—they hold that with the help of technology, it has maintained the requisite control in other ways.
The status of Israel’s occupation is legally significant, as it determines the legal obligations Israel owes to Gaza. Occupying states have heightened responsibilities to protect local populations and have the basic health and safety supplies they need to survive. Given concerns about Israel’s actions in Gaza—such as possible war crimes, including starvation and the denial of humanitarian aid—Israel would likely be in breach of these obligations.
What is an occupation?
Occupation is defined in Article 42 of the Fourth Hague Convention:
“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
While Israel is not a party to the Fourth Hague Convention, this convention is considered customary international law and, therefore, still binds Israel. Whether a territory is occupied is a question of fact, meaning that it is solely governed by the facts on the ground, not whether the relevant governments perceive themselves as occupying or occupied.
Under this factual inquiry, a territory is considered occupied when it falls under “effective control of hostile foreign armed forces.” Traditionally, effective control requires three main components: the physical presence of a foreign military without consent; the inability of a local sovereign to exercise control because of foreign forces’ presence; and the imposition of occupying forces’ authority. However, some components of effective control are still debated, particularly whether military presence is an essential condition, whether it requires the ability to exert authority or the actual exertion of authority, and whether the occupying power must have exclusive authority. An occupation generally ends when the occupying power withdraws, retreats, or hands over authority to a local government.
Israel’s High Court of Justice found in 2008 that Israel’s effective control ceased in 2005. Specifically, it found that the “[m]ilitary rule that applied in the past in this territory came to an end by a decision of the government, and Israeli soldiers are no longer stationed in the territory permanently, nor are they in charge of what happens there.” It, therefore, determined that the occupation ended in 2005.
Other experts have similarly found that Israel no longer met the traditional effective control requirements in Gaza after 2005, ending the occupation. First, they note that no other occupation has been recognized without a physical military presence or a puppet regime, neither of which they view as present in Gaza. While they acknowledge that Israel has a level of control over Gaza, they find both that local authorities can exercise control and that Israel is not imposing sufficient authority. For example, they view a “concurrent control” rather than a “hierarchical relationship” between Israel and Hamas and find that Israel would need a “major ground offensive” that would be impossible to conduct “within a reasonable time” to “recapture” control of the area. They, likewise, argue that Israel does not have the required “degree of power over daily governance,” as evidenced by “Hamas often govern[ing] in a manner that is contrary to Israel’s interests and desires” and launching military operations against Israel. Finally, in response to arguments that Israel’s power over Gaza’s borders is evidence of effective control, they hold that while Israel retains control over the Israeli-Gaza border, Egypt controls Gaza’s border with Sinai. Based on these considerations, some experts have found that “siege” better describes the situation.
However, the Geneva Academy of International Humanitarian Law and Human Rights has said “the majority of international opinion” holds that Israel maintains effective control, even without armed forces present. While legal experts acknowledge that the lack of a military presence does not follow the “traditional approach” to analyzing effective control, they find that military presence is an “evidentiary test only.” They point to authorities such as the Israeli High Court, which have held that occupation status hinges on the exercise of effective control. They, therefore, find that technology has made it possible for Israel to use ongoing force to exercise effective control—imposing authority and preventing local authorities from exercising control—without a military presence.
Specifically, experts from the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory found “noting” positions held by the UN Security Council, UNGA, a 2014 declaration adopted by the Conference of High Contracting Parties to the Fourth Geneva Convention, the ICRC, and “positions of previous commissions of inquiry,” that Israel has “control exercised over, inter alia, [Gaza’s] airspace and territorial waters, land crossings at the borders, supply of civilian infrastructure, including water and electricity, and key governmental functions such as the management of the Palestinian population registry.” They also point to “other forms of force, such as military incursions and firing missiles.”
For the Gaza-Egypt border, they hold that while the Palestinian Authority operates the crossing under the supervision of EU monitors, Israel ultimately has control. Israeli security forces supervise the passenger lists—deciding who can cross—and monitor the operations and can withhold the “consent and cooperation” required to keep the crossing open. In that vein, experts note that Israel’s “coercive measures” have further “impeded efforts to build proper democratic institutions,” and that Israel still has not transferred sovereign powers and instead maintains control over “the [Palestinian Authority]’s ability to function effectively.” Based on the actual exercise of effective control, they, therefore, find that Israel has occupied Gaza since the broader occupation of Palestine began in 1967.
What international laws govern an occupation?
The Fourth Hague Convention and the Fourth Geneva Convention, along with customary international law and Additional Protocol I (to which the State of Palestine is a party, and most of the provisions of which are considered customary), govern the occupation itself.
Additionally, both jus ad bellum (the conditions under which states can initiate the use of force) and jus in bello (the law regulating conduct during an armed conflict) apply to situations of occupation.
For jus ad bellum, Chapter VII of the UN Charter lists acceptable uses of force, including authorization by the UN Security Council and self-defense. UN General Assembly Resolution 3314 (XXIX) then provides a definition of aggression that would form a violation of the UN Charter and the Friendly Relations Declaration. This includes “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.”
For the current conflict, the status of the occupation affects whether and how Israel can justify its use of force in Gaza under the UN Charter in response to Hamas’s attacks. The US Ambassador to the UN, Linda Thomas-Greenfield, invoked Article 51 of the UN Charter on October 18 to argue that Israel has an inherent right to self-defense. However, the International Court of Justice (ICJ) ruled in its 2004 advisory opinion that Israel could not invoke Article 51 against a threat coming from an occupied territory over which it has control but that it has the right to respond with actions in conformity with applicable international law.
Even without occupation status, while some think Article 51 justification could apply, many experts and states do not think such a justification applies to defense against non-state armed groups or applies in limited situations. Relying on Article 51 in such a context raises concerns such as violations of a state’s territorial integrity to which the armed group’s actions may not be attributable. As acknowledged by President Biden and Israeli Prime Minister Benjamin Netanyahu, the attack on Israel was carried out by Hamas—a militant group that, as a political party, currently leads the government in Gaza but is not itself the Palestinian government. The attack is, therefore, distinct from an attack perpetrated by a state or territory. However, if Palestine were considered a state and Hamas’s actions were attributable to it, or if Palestine were found to be unable or unwilling to address the threat, some could view an Article 51 justification as applicable—though several states appear poised to oppose regardless.
If Article 51 applies, the action taken must still be necessary and proportional. Conversely, as noted by the ICJ, if it does not apply, Israel may still respond to Hamas’s attack according to the applicable international law.
Jus in bello applies to all parties of an armed conflict. For occupations, the Geneva Conventions—which form the “core of international humanitarian law” (IHL)—apply even when the occupation is not met with armed resistance and so is not considered an armed conflict. Additional Protocol I also “extends the definition of international armed conflicts” to situations where “people are fighting against… alien occupation… in the exercise of their right of self-determination.”
The ICJ also held that other bodies of law, such as international human rights law (IHRL), can apply to occupied territory. The ICJ ruled that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child apply to Israel’s exercise of jurisdiction outside its territory and that Israel cannot raise obstacles to Palestinian authorities’ exercise of rights under the ICESCR where they have competence. However, there is still debate over the exact relationship of IHL, IHRL, and other legal schemes in the context of an occupation.
What are the occupying state’s obligations?
First, the occupation must be temporary and cannot serve as a “de facto annexation.” While there is debate about the concept of a “prolonged occupation,” “permanen[t]” occupations are generally considered unlawful. The Secretary-General of the UN, António Guterres, requested an Advisory Opinion from the ICJ on January 17 to weigh in on the issue of “the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967.”
In keeping with IHL, the obligations around occupation understand that civilians may be affected but are generally designed to protect civilians to the extent possible. Occupying powers have an obligation to “maintain law and order and public life in the occupied territory.” While occupying states are not required to treat the population of the occupied state the same way they would their own population, they do have an obligation to promote the welfare of those in the occupied territory. This is meant to balance the occupying power’s security needs with the local population’s needs, with a presumption that the “status quo ante” will be preserved.
There are additional provisions requiring and prohibiting certain actions. Under the Geneva Conventions, “protected persons” include “civilian persons who because of a conflict or occupation are in the power of a Party whose nationality they do not possess.” They are protected under the Fourth Geneva Convention, which requires, inter alia:
- “To the fullest extent of the means available… ensuring the food and medical supplies of the population,” including bringing in “necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.”
- “To the fullest extent of the means available… ensuring and maintaining, with the co-operation of national and local authorities, the medical and hospital establishments and services, public health and hygiene.”
- In the case of inadequate supplies, even for part of the population, agreement to and facilitation of relief schemes.
Additional Protocol I further mandates ensuring “the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship,” again “to the fullest extent of the means available.”
Some obligations overlap with basic principles of IHL, such as the prohibitions on hostage-taking and collective punishment. Others tailor IHL principles, such as prohibiting the deportation or forcible transfer of civilians of an occupied territory, barring concerns for civilians’ security or an “imperative military reason,” and respecting private property except in cases of “imperative military necessity.”
While Israel has agreed to some relief measures, they have been heavily criticized as inadequate. For example, the reestablishment of water supplies was extremely limited, with only 14 percent of the Gaza Strip benefiting from the three-hour opening of the water line as of October 17. While fifty-four aid trucks have reportedly been delivered as of October 22, UN officials estimated that at least a hundred were needed daily to cover “urgent needs,” and an average of 450 were delivered daily before the outbreak. The UN Relief and Works Agency for Palestine Refugees in the Near East (UNWRA) has reported dire conditions related to “fuel, food, water and medicines” and has counted around one million internally displaced people in the Gaza Strip. If Israel delivers on its plan to cease “responsibility for life in the Gaza Strip” without ceasing control over Gaza, this would be a further violation of obligations.
What liability could occupying states and their officials face for breaching these obligations?
The Occupied Palestinian Territories are an ICC member state; ICC Pre-Trial Chamber I (PTC-I) and the ICC Office of the Prosecutor (OTP) have clarified that they use “state” exclusively as it relates to the ICC and the Rome Statute’s procedures. Palestine acceded to the Rome Statute on January 2, 2015, but it lodged a declaration with the ICC on January 1, 2015, accepting the court’s jurisdiction since June 13, 2014. While not stated in the declaration, this date corresponds to the onset of the 2014 Gaza Conflict.
Palestine referred the situation to the ICC on May 22, 2018 to request an investigation, and on March 3, 2021, the OTP opened an investigation into the Situation in Palestine for crimes committed since June 13, 2014. PTC-I confirmed that the ICC has jurisdiction extending to Gaza. In doing so, PTC-I “recalled that the ICC is not constitutionally competent to determine matters of statehood that would bind the international community.” It said the sole purpose of its ruling was to define the ICC’s territorial jurisdiction, and it is “neither adjudicat[ing] a border dispute under international law nor prejudg[ing] the question of any future borders.”
Article 8(2)(b)(viii) of the Rome Statute considers a war crime “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” when committed during an international armed conflict. Under international case law, including that of the ICC, deportation can be carried out by coercion such as “that caused by fear of violence, duress, detention, psychological oppression, or abuse of power,” and situations that prevent “genuine choice.”
Additionally, Article 8(2)(a) covers grave breaches of the Geneva Conventions against protected persons, which include civilians under occupation. While the crime of aggression also covers certain acts related to occupation, Israel is not a party to the Rome Statute and has not ratified the amendment adding aggression to the Rome Statute (though Palestine has). Because the ICC can only prosecute aggression when both the aggressor state and the victim state have ratified the amendment, the ICC does not have jurisdiction over that crime in this instance.
The ICJ has not yet ruled on the UN’s request for an advisory opinion on the rights of Palestinian people in the Occupied Palestinian Territories but is poised to offer concrete views on Israel’s status and obligations. While advisory opinions are not binding, they can help inform how other courts interpret Israel’s responsibilities. In that vein, some domestic jurisdictions contain provisions under war crimes legislation that criminalize certain violations related to occupation. Israeli officials could be tried in those jurisdictions, though that generally relies on them traveling to those countries.
If Israel is found not to be occupying Gaza, what are its obligations?
If Israel were found not to be occupying Gaza, then the obligations owed to an occupied territory under the Fourth Hague Convention and the Fourth Geneva Convention, customary international law, and Additional Protocol I would not apply.
However, Israel and Hamas are in at least a non-international armed conflict. As such, Common Article 3 of the Geneva Conventions, Additional Protocol II (to which the State of Palestine is a party, and most of the provisions of which are considered customary), and customary international law apply. The conflict could also be considered an international armed conflict for reasons other than an occupation, such as if a second state were to join. In such case, the Geneva Conventions, including the Fourth Geneva Convention as it relates to civilians, and customary international law apply.
For a non-international and an international armed conflict, Israel and Hamas are bound to respect IHL’s fundamental principles of humanity, distinction, proportionality, and military necessity. Likewise, they are both required to abide by customary international law, including strict prohibitions of, inter alia, targeting civilians, violence primarily “aimed at spreading terror among the civilian population,” forcible transfer or displacement, “starvation as a method of warfare,” and targeting medical units.
To conclude, the laws of occupation codify a basic principle of humanity: those with effective control over a population have obligations to protect it. Regardless of whether Israel is currently occupying Gaza, the control it has over its population shows how great of an impact on the civilian population Israel’s power can wield. Even if the obligations required under an occupation do not apply, Israel still must respect the minimum duties required under IHL: allowing access to humanitarian relief and refraining from committing war crimes, including targeting, starving, and forcibly transferring civilians.
Celeste Kmiotek is a staff lawyer for the Strategic Litigation Project at the Atlantic Council. The Strategic Litigation Project works on prevention and accountability efforts for atrocity crimes, human rights violations, and corruption offenses around the world.
EDITOR’S NOTE: This piece was updated on November 3, 2023.
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