While the recent conflict between Israel and Hamas was still ongoing, I was wary of commenting on what is a very contentious legal issue – whether Gaza is still to be considered as occupied as a matter of international humanitarian law, even after Israel’s unilateral disengagement from Gaza in 2005. I was wary of doing so primarily because the issue is a complex one, because these complexities can often get lost in the passion of the moment, and, well, because at the time I hadn’t yet done my homework. Even now I’d just like to offer some tentative thoughts, and point the readers to excellent new scholarship on the issue. The first work I’d like to strongly recommend is Yuval Shany’s article on Gaza, commenting on the Israeli Supreme Court’s Bassiouni decision, which is available on SSRN (h/t International Law Reporter). The second is Yoram Dinstein’s book The International Law of Belligerent Occupation, which has just been published by CUP, and which promises to be one of the definitive works on the whole subject.
If you have been following the debates on Gaza closely, you will know that there are two reflexive answers to the question whether Gaza is occupied, on both ends of the spectrum. The first one is that of course Gaza still continues to be occupied by Israel. Israel controls all of the border crossings, the air, the sea, its soldiers can enter Gaza at will, so on and so forth. The second is that of course Israel no longer occupies Gaza. It has no actual, effective control of the place, which is the factual predicate for any occupation. It does not have troops on the ground and it is not running an administration of the territory. It is Hamas that has such control. Gaza is not under Israeli occupation, but under a siege and a blockade, and rightly so.
Now, before I get into the specific arguments on either side, it is important to explain why the issue matters, and why many in the human rights community in particular tend to (again, somewhat reflexively) adopt the first position. The answer is simple. Under IHL, a belligerent occupant has positive obligations to ensure the well-being of the civilian population, including the provision of food and other supplies. In a state of siege without occupation, however, the party to the conflict only has negative obligations not to interfere with relief consignments etc., and even these can be subject to military necessity. It does not have to provide food and supplies to the civilian population of its adversary (cf. Arts. 69 & 70 of Additional Protocol I). Indeed, to impose such a requirement would be manifestly absurd. The problem is of course precisely that the civilian population of Gaza is heavily dependent on Israel and need Israel not just to let humanitarian aid through, but also to provide electricity and other supplies of its own.
This is why the gentler souls among us international lawyers need to argue that Israel is the belligerent occupier of Gaza. It is the only legally certain way of assigning some positive obligations on Israel to provide for the civilians of Gaza – something that by the way I agree with entirely as a matter of policy. But the certainty is unfortunately only deceptive. Let me now turn to the specific argument and counterarguments.