Is Gaza Still Occupied by Israel?

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.

(1) Israel is still the occupant because it controls the border crossings to Gaza, its territorial sea and air space.

This argument is usually put forward first as the strongest in favor of occupation, (see, e.g., Dinstein, at 177-178) but to my mind it is actually the weakest. The test for occupation is effective control; a territory ‘is considered occupied when it is actually placed under the authority of the hostile army.’ (Art. 42 of the Hague Regulations). It is because the ‘authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.’ (Art. 43 of the Hague Regulations).

Control of the border crossings into a territory is not the occupation of that territory, but a siege. Nor is control over the sea and the airspace tantamount to the actual control of the territory itself. It is again Hamas that controls Gaza, not Israel. There hasn’t been a single instance of belligerent occupation that I am aware of where a state was considered to have been the occupant of a territory without having troops on the ground. That’s what occupation means, troops on the ground! To my mind at least, this argument simply flies in the face of reality. We would never consider the assumption of control over the borders or airspace as being sufficient for the imposition of a belligerent occupation of a territory (no-one, for instance, has argued that the various NATO states were actually occupying Serbia whilst they had total aerial control and were bombing the hell out of it in 1999). Why should then these suffice for the maintenance of occupation, when the troops themselves have been withdrawn?

(2) Israel could not have unilaterally terminated a legal condition such as occupation.

This argument is again heard very often, but it is quite simply manifestly wrong. Belligerent occupation is a legal condition, but it is precisely a legal condition which is created unilaterally through the imposition of a state of fact, of actual control of a territory by a hostile army during an international armed conflict. The legal condition cannot exist without its factual predicate. Of course a party to the conflict can unilaterally terminate an occupation, just as it had unilaterally created the occupation – but it can only do so by withdrawing its troops from the territory, thereby removing its control over it, something that Israel has arguably done. No agreement with the other party to the conflict (whatever it might be) is necessary for this to occur.

(3) Israel occupies the rest of the Palestinian Occupied Territories, i.e. the West Bank, and these territories form a single whole. Thus, while Israel continues its occupation of the West Bank, it still must be considered to be the occupant of Gaza as well.

Yoram Dinstein is for instance making this argument (at 277), but I again respectfully have to disagree. It is beyond dispute that Gaza and the West Bank are parts of a single territory of the former mandate of Palestine. But that does not mean that the occupation of these territories is an all or nothing proposition. An invading army can in fact occupy only a part of an adversary state – total occupation is exception rather than the rule. Indeed, Art. 42 of the Hague Regulations explicitly provides that ‘[t]he occupation extends only to the territory where such authority has been established and can be exercised.’ There is therefore nothing illogical in saying that the West Bank remains occupied, while Gaza does not.

(4) Israel might not have effective control over Gaza at any given time, but it has the potential for such control which it can exercise at will. Thus, Gaza is still to be considered under Israel’s control, and occupation.

Of all the arguments in favor of a continued occupation of Gaza, this one is in fact the strongest. It is not simply result-oriented, but is based on principle and precedent. Indeed, in my view it is on this particular criterion, and on it alone, that our assessment of the status of Gaza should depend. I’ve personally never found a laundry list type of argumentation to be particularly helpful. Three unpersuasive arguments don’t jointly make a single persuasive one. (see, e.g., the various justifications offered for the use of force against Iraq in 2003 – only one of which actually matters, the alleged implicit authorization by the Security Council). The previous arguments really don’t favor Israel’s continued occupation of Gaza, but this one might – so let me explain it in more detail.

Occupation does not necessarily mean the control of all of the territory, all of the time, at the same level of intensity. Many occupations meet with significant and active resistance while they are ongoing. Consider, for example, the US and UK-led occupation of Iraq. The strength of the insurgency there was such that at any given time these states lacked control over, say, some parts of the Sunni Triangle or some parts of Basra. That does not mean that their occupation of those parts of Iraq ceased, because the occupants were able to reestablish their control at will, as they did. The lapse in control was merely temporary, due to the fact that the level of resistance was such that the occupants could not control all of Iraq, every bit of it, all of the time.

Another well-known example is the German occupation of Yugoslavia during World War II. The partisans fighting against the Nazis were from time to time able to temporarily liberate a bit of territory here or there, but that did not mean that Germany’s occupation ceased. This was so because, as the military tribunal at Nuremberg ruled in United States v. List, ‘the Germans could at any time they desired assume physical control of any part’ of Yugoslavia. The ICTY in Naletilic likewise ruled that an occupation exists so long as the occupying army has the ‘capacity to send troops within a reasonable time to make the authority of the occupying power felt’ (a similar standard is set in the US Field Manual; see Shany’s article cited above, at 6, for the citations).

Dinstein argues, for instance, that the fact that Israel believes that it is entitled to launch military incursions into Gaza satisfies this looser standard of effective control (at 279). It could also be argued that the latest conflict only confirms this. But this is in my view still highly problematic – not because of the rule, but because of the facts. Unlike Germany in Yugoslavia, or the US and UK in Iraq, Isreal really can’t reestablish its control over Gaza with ease. Doing so would require a military operation on a much higher scale than the one that we have recently seen (during which Israel certainly was the occupant of limited parts of Gaza). It would in effect require the wholesale reoccupation of Gaza, not the removal of some temporary lapse in control – and I believe that we can all agree on this purely factual point. That Israel moreover believes itself entitled to launch incursions into Gaza is immaterial. That is a jus ad bellum, not a jus in bello question.

To sum up, though a reasonable case can be made that Israel retains effective control over Gaza in this potential sense – especially if we factor its control over Gazan sea and airspace etc into this analysis, as we can – I honestly don’t think that the pro-occupation argument in the end withstands scrutiny on the facts. This is not an occupation – this is a siege.

Such was also the conclusion of the Israeli Supreme Court in the Bassiouni case, which Shany discusses at length in his article. But what then about the positive obligations of Israel towards the people of Gaza? Do they disappear with the occupation?

The Court thought that they didn’t, at least not completely, because of the state of dependence of Gaza on Israel that was created due to the many years of Israeli military rule. I am personally inclined to agree – this is indeed the reason why people are in fact advocating for the existence of these positive obligations in the first place. Yet, the Court gave very little reasoning to explain its position, and did not elaborate on the exact basis in international law for this result. Shany provides an insightful critique on this point, which I commend to everyone.

Shany further proposes that a source of this obligation might be found in human rights law, rather than in IHL, because a flexible degree of power or influence might be taken as satisfying the threshold of state jurisdiction for the application of human rights treaties, even if it doesn’t satisfy the test of control for occupation. I am unfortunately skeptical on this point. This is not because some international case law would preclude this result – most of all Bankovic, a decision that I positively detest. Though this is a reasonable argument, it leads to complete uncertainty as to the threshold criterion of state jurisdiction in human rights treaties. I won’t belabor this point further (see more here), except by saying that human rights treaties are not a panacea for every situation that we consider to be unfair.

Yet I am at least at this point unable to offer an alternative solution, other than those that Shany himself proposes, the most important being Israel’s continuing obligation to provide reparation for its failure to maintain the infrastructure of Gaza while it was the occupant, and the creation of a state of dependency in the first place. This is in my view a more tangible theory than the human rights one, though of course not free of its problems.

At any rate, read Dinstein and Shany!