Is the Gaza Strip Still Occupied by Israel?

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General’s Office]

This is the fifth post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

I am very thankful for the opportunity to participate in this symposium in one of the leading blogs on international law.

The question I will refer to is whether Israel is under the duty to provide for the wellbeing of the residents of the Gaza Strip? This is the practical question. The legal answer stems from the determination of whether the Gaza Strip is still occupied by Israel.

A quick analysis of the law leads to a sound conclusion that the Gaza Strip does not fall into the definition of being occupied by Israel, as will be shown below.

There are no existing rules in international law imposing post-occupation obligations, nor human rights’ obligations regarding areas and persons outside a state’s control. These are at best de lege ferenda.

This does not necessarily mean that Israel has no legal obligations towards the population of the Gaza Strip, but that to the extent that there are any such legal obligations, they are limited in nature and do not include the duty to actively ensure normal life for the civilian population, as would be required by the law of belligerent occupation (article 43 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land of 1907).

The basic formulation for when a territory is considered to be subject to belligerent occupation is found in Article 42 of the Hague Regulations, which states that:

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.

It is commonly agreed that, at its core, territory will be considered occupied when it is under the “effective control” of the foreign army. By necessary implication, therefore, occupation does not extend to territory where such authority is no longer established and cannot any longer be exercised.

The International Court of Justice, in its judgment of Congo v. Uganda determined that in order for a belligerent occupation to exist, the occupying army must actually exercise its authority in the territory, and thereby supplant the authority of the sovereign government of that area.

Some scholars have viewed the Court’s formulation as too narrow and offer a more flexible approach to the test of “effective control”. This test focuses, first, on the potential ability of the occupying army to maintain its authority over the area, and second, on the inability of the sovereign government to exercise its authority. Focusing on the “potential ability” to maintain authority over the area does not mean, however, that any military presence in or near the territory is enough to constitute occupation. In order for effective control to exist, the foreign army must be able to impose its will on the local population whenever it so chooses while the sovereign government is unable to exercise its authority in the territory due to the effective control of the foreign army. Even according to this more flexible approach, fulfilling “effective control” usually requires the occupier to have forces present on the ground or at least to have the ability to send, within a reasonable time, forces into the area to exercise the authority therein.

If one applies the ICJ’s formulation of the law to the situation in the Gaza Strip, it is extremely difficult, if not impossible, to see how Israel could still be considered an occupier. As is known, Israel terminated its military government in the Gaza Strip and fully withdrew all its military forces and civilians from the area in 2005, and thus no longer asserts, nor has the practical ability to assert, governmental authority vis-à-vis the civilian population therein.

Indeed, even if we apply the more flexible approach (i.e. potential ability to exercise authority and inability of the local power to do so), the result seems to be the same.  Israel has not retained forces on the ground in the Gaza Strip, nor otherwise deployed its forces in such a way as to enable them to reenter the area in order to make its governmental authority felt therein as and when it chooses. Israel has sent ground forces back into the Gaza Strip since 2005 on a few limited missions, aimed to stop attacks against Israeli localities carried out from within the Strip, but these were all complex and dangerous military operations in which there was no attempt nor any ability to exercise effective governmental authority vis-à-vis the civilian population. The fact that notwithstanding these incursions Israel continues to be under recurring attacks from within the Gaza Strip is a further indication of the lack of any practical effective control.

Moreover, it is clear that there is an already existing government in control of the Gaza Strip which is both capable and does in fact exercise exclusive governmental powers vis-à-vis the local population – the Hamas government. The fact that the Hamas is recognized as a terrorist organization and that this government is not formally accepted does not change this reality. Therefore, even under the more flexible approach, another essential component for determining the existence of foreign occupation, namely that there is no other domestic functioning government in the area, does not subsist.

The legal conclusion that the Gaza Strip is not under Israeli occupation, therefore, seems to be well founded on the existing factual situation, when analyzed in accordance with the prevailing law on belligerent occupation.

This conclusion has not been accepted by some commentators, who claim that Israel remains de-facto in effective control of the area even after its complete withdrawal.

The main factor raised in this regard is that Israel continues to control the external perimeter of the Gaza Strip, since it imposes a naval blockade in the maritime area around the Gaza Strip, physically controls the airspace, and continues to control the external borders of the Gaza Strip. Accordingly, it is claimed, Israel continues to control the movement of people and goods in and out of this area. However, this contention is not well founded.

Israel’s imposition of control measures around the maritime area and airspace of Gaza are typical of situations involving armed conflict, and clearly do not enable Israel to exercise governmental powers on the ground vis-à-vis the local population, as would be required for the purposes of the law of belligerent occupation. The imposition of similar measures by the US and its allies in Iraq during the 1990s, in the FRY in 1999 or most recently in Libya, for example, was not considered as imposing upon those powers the status of belligerent occupier.

Furthermore, the fact that Israel controls its land border with the Gaza Strip cannot serve as an indication of control over the area itself. Israeli control over the Israeli side of the crossing points between Israel and the Gaza Strip is a natural reflection of Israel’s sovereignty within its own territory, which includes the prerogative to set policy for movement of people and goods from and to its own territory, and therefore cannot be regarded as proof of control over the Gaza Strip. This is similar to the right of control that any sovereign state has over its borders and border crossings.

As for the border between the Gaza Strip and Egypt and the Rafah crossing point located therein, these are clearly not under Israeli control, but rather are under Palestinian and Egyptian control. Following the dramatic developments in Egypt, the new Egyptian authorities have reopened the Rafah Crossing. This was coordinated directly between Egypt and the Hamas without any Israeli involvement. In addition, there are also dozens of underground tunnels between Egypt and Gaza through which goods and people move from side to side, regardless of the operation of the Rafah Crossing.

Clearly, Israel does not possess hermetic control over the external borders of the Gaza Strip, nor the flow of people and goods to and from this area.

Another contention that is sometimes made is that Gaza’s economic dependence on Israel is significant and entails Israel’s effective control over the Strip.  However, on the basis of its own internal economy, the flourishing trade through the tunnels and with the reopening of the Rafah Crossing between Gaza and Egypt mentioned above, the Gaza Strip is in fact much less dependent on Israel than in the past. This notwithstanding, it is clearly the case that many states and other entities are strongly affected by the economic policies of their neighbors and yet are not considered to be occupied by them.

As for the contention that since Israel still controls the West Bank, the Gaza Strip is also still occupied, this has no legal basis whatsoever. Firstly, these are separate geographical units which are in fact administered by separate governments. More importantly, even if both areas are regarded as forming one political entity, it is important to note that occupation law clearly recognizes that an occupation can extend to a part of a state or territory only while other parts remain unoccupied. Thus, there is no reason not to accept that part of the Palestinian entity could be considered to be occupied while another part is not.

As for assertions relying on concepts of post occupation to establish legal obligations towards the residents of the previously occupied area, it is not clear what, if any, basis these have in existing law. Similarly, attempts to create duties towards people who are outside the territorial control of a state which rely on human rights norms represent, at best, de lege ferenda, and certainly are not part of the lex lata.

While the conclusion under the existing law of occupation must be that the Gaza Strip is not under Israeli occupation, the practical question remains – what, if any, obligations does Israel have towards the residents of the Gaza Strip following its withdrawal in 2005?

The question of the scope of such obligations has practical ramifications because Israel and those governing the Gaza Strip are in a situation of an ongoing armed conflict. Rockets have been fired towards Israeli localities from the Gaza Strip almost on a daily basis (with limited periods of calm). Under these circumstances, Israel has a clear interest and right to take firm measures aimed at weakening the Hamas government that is actively involved in such acts of armed hostility towards Israel and its civilians. This was the rationale for imposing limitations on the transfer of goods between Israel and the Gaza Strip in 2006. (In this regard it should be noted that in June 2010, Israel lifted the majority of these restrictions, allowing the flow of all goods except those whose passage represents a concrete security threat to Israel.)

Israel does not claim to have no obligations towards the residents of the Gaza Strip. In the Al-Bassiouni Case, the Israeli High Court of Justice concluded that Israel has certain obligations arising from the laws of armed conflict, such as the obligation to allow for the passage of goods of a humanitarian nature. The court also stated that there are also responsibilities stemming from the unique circumstances and particular history of the situation. However, in the absence of effective control on the ground, these obligations do not extend to those positive obligations and responsibilities on occupier owes towards the civilian population in the areas under its control, and most notably do not require Israel to ensure the wellbeing of the residents of the Gaza Strip.