Israel, Gaza, and the End of “Effective Control”

[Elizabeth Samson, Esq. is a Visiting Fellow at the Hudson Institute]

This is our sixth 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 pleased to contribute to this symposium and to offer an analysis of international occupation law that may bring a new understanding to the discussion of this most challenging issue.

In determining the legitimacy of Israel’s actions with respect to Gaza since Israeli disengagement from the territory in 2005, two questions must be addressed:

• Do Israel’s actions after disengagement rise to the level of occupation under international law with respect to the legal requirements for “effective control”?; and
• Are the Israeli actions that do not rise to the level of occupation permissible, are they relevant to maintaining Israeli security, and are, therefore, justifiable?

Brief Conclusion:

In analyzing the requirements for the international law of occupation, as well as international legal precedent, and testing the various instances that allege Israeli “effective control” over Gaza after disengagement against the standards for “effective control,” the conclusion that I have reached is that pursuant to occupation law and legal precedent, Israeli action does not constitute “effective control” and does not rise to the level required for international occupation law to apply.

While there is no question that Israel is, indeed, involved in certain aspects of life in Gaza, those actions do not rise to the level of occupation, and are necessary to maintain Israeli security in the face of the rocket attacks and general security threats emanating from Gaza.  Furthermore, while certain Israeli actions may frustrate life in Gaza (i.e. restrictions on movement, control of borders) those actions in no way are an exercise of occupation and are permissible acts that any state may undertake in relation to the territories near it.

International Occupation Law and “Effective Control”

(For a complete and thorough analysis click here for my American University International Law Review article – “Is Gaza Occupied?”)

International occupation law determines the exercise of authority in a territory by combining three requirements for “effective control” (a term of art with no definite source in international law):

• the territory is “actually placed under the authority of the hostile army[,]” and “authority has been established and can be exercised” (Hague Regulations, Art. 42);
• the state in power “exercises the functions of government in such territory” (Fourth Geneva Convention, Art. 6); and
• the occupier’s authority is “to the exclusion of the established government” (U.S. v. List).

After the 2005 disengagement, it was claimed that Israel still effectively controlled Gaza’s territorial waters and air space; border and crossings; electricity, fuel, telecommunications, water, and sanitation; and population registry and taxes.  Moreover, there were continuous allegations of “effective control” because Israel continues to exercise its security considerations; reserved the right to re-enter Gaza for self-defense; and is able to exercise power over Gaza.  Before disengagement and beginning with the Oslo Accords, Israel entered into several bilateral agreements (Oslo I, Oslo II, Gaza-Jericho Agreement, Wye River Memo, Sharm el-Sheikh Memo) with the PLO (“Agreements”), with the purpose of facilitating a transfer of power to the Palestinian Authority (“PA”) and enabling the Palestinians to control their own territory, while still recognizing Israel’s security interests.  Those Agreements will be referenced herein.

Dismantling the “Effective Control” Arguments

Territorial Waters and Air Space

Israel’s authority in the sea and air is not an exercise of “effective control” because first, control over adjacent waters and air space does not necessarily constitute “effective control” over land, and second, control is not complete because Israel has allowed Gaza access to several nautical miles for fishing and other ecological purposes.  The Agreements granted Israel exclusive right of “defense … from the sea and from the air,” but they also gave the PA some control over Gaza’s territorial waters and allowed the PA to operate some air traffic out of Gaza’s airport.  Although Israel was allowed to override PA control for “external security” threats, nonetheless, restriction on access to territorial waters and air space does not constitute “effective control” because Israel’s command of Gaza’s air and coastal waters is not sufficiently comprehensive and does not exclude the established government of the PA.

The Border and Crossings

The primary crossings from Gaza are Karni (north-east) – a cargo terminal closed for security after Hamas’s 2007 takeover, Erez (north) – the only pedestrian crossing, and Rafah (south) – the sole major crossing point into Egypt, currently controlled by Egypt and Hamas.

After disengagement, Israel and the PA signed the Agreement on Movement and Access (“AMA”) – giving the Palestinians and Egypt control over Rafah and allowing increased traffic through the Erez and Karni crossings – and the Agreed Principles for Rafah Crossing (“APRC”), which elaborates on the AMA.  The APRC required a third party to monitor Rafah, a role undertaken in 2005 by the European Union Border Assistance Mission at Rafah (“EUBAM”).  Concerned about security since 2007, Egypt closed Rafah fearing a “spillover of Hamas-style militancy,” and EUBAM temporarily ceased operations because the EU, like Israel and the United States, prohibits contact with Hamas until it renounces terror and acknowledges Israel’s sovereignty.

Under international law, states have the right to close their borders to non-citizens.  Though exceptions exist for asylum-seekers and refugees, Palestinians in Gaza generally do not qualify.  Israel’s actions on the Gaza border, though arguably influential, do not constitute “effective control.”  The Agreements grant Israel absolute authority over “external security” which includes the Israel-Gaza border, and though border control is a function of government, Israel exercises its rights with respect to its own borders and is not displacing Gaza’s government.

Gaza’s Infrastructure – electricity, fuel, telecommunications, water and sanitation

Israeli authority over electricity, fuel and telecommunications does not qualify as “effective control.”  The Agreements stipulate that the fuel supply consider Israeli safety and security standards, the Palestine Electric Company produce part of Gaza’s electricity, and the Israeli Electric Company supply the remainder based on “a commercial agreement.”  The Agreements also provide for supply of telecommunications services based on a contract between the PA and an Israeli company.  Supplying electricity is not an Israeli attempt to exercise a function of government in Gaza, but rather the stipulations regarding contractual agreements indicate that there is no imposition of authority, the PA has not been excluded from power, and the PA has actually been empowered to act on behalf of the people of Gaza by contracting for the supply of resources.

Gaza’s water comes from some of its own wells, and some water is bought from Israel’s water authority, Mekoroth – a relationship which, under the Agreements, must be dealt with in a commercial transaction.  The Agreements also require all of Gaza’s “water and sewage … be operated, managed and developed … by the PA” giving them total control of sewage removal with no Israeli involvement, with the exception of Israel’s having managed water and sewage in Gaza’s Israeli settlements and military installations which ended completely in 2005.  Israel’s 2005 disengagement eliminated any control Israel had to Gaza with respect to water supply and sewage removal, indicating a lack of “effective control” of those functions.

Taxation and Population Registry in Gaza

Israel’s collection of some taxes does not demonstrate the level of “effective control” required for occupation.  Israel and the PA determine, regulate, levy and collect their own income taxes, property taxes, municipal taxes and fees.  Israel transfers to the PA nearly all income taxes collected from Palestinians working inside Israel and transfers all income taxes from Palestinians employed in the settlements.

The Agreements gave authority over “population registry and documentation … in the Gaza Strip … to the Palestinian side …” so the PA exercises those functions for its own population, though Israel is allowed some involvement in monitoring the registry and identification cards due to Israel’s security concerns over who enters its territory.  However, Israel does not displace the PA’s authority or exclude its control over the registry and does not supplant the PA’s power to collect its own taxes – an indication that “effective control” is absent.

Security Considerations and Right to Re-enter Gaza

The United Nations Charter (Art. 51) guarantees states the right to self-defense against armed attacks by state and non-state actors, and the Security Council affirmed that right after the attacks of September 11, 2001, encouraging states to combat terrorist acts which threaten international peace and security.  Israel’s actions in self-defense reflect U.N. standards, and are reflected in the Agreements which grant Israel authority over its external security.

The right to re-enter for security reasons is a common reservation made by withdrawing occupying powers and does not indicate “effective control.”  Indeed, when the Allied forces left West Germany in 1955, the treaty ending the occupation reserved emergency rights to the Allies in case of public disorder.  Israel did not reserve a right of re-entry in order to retain control of Gaza as that contradicts the disengagement plan’s intent that there be “no basis for claiming that …Gaza … is occupied territory.”  Furthermore, contentions regarding security and re-entry do not exclude the PA from exercising its own authority.

Israel’s “Ability” to Exercise Power over Gaza

The simple ability to exercise power over a territory cannot be the sole basis for a claim of “effective control” and occupation.  The case of The Prosecutor v. Naletilic and Martinovic (2001) before the International Criminal Tribunal for the Former Yugoslavia held, in accordance with Hague Regulations Art. 42, that “[th]e law of occupation only applies to those areas actually controlled by the occupying power and ceases to apply where the occupying power no longer exercises an actual authority over the occupied area.”  The ICJ affirmed that position in Democratic Republic of Congo v. Uganda (2005) by stressing the necessity of actual authority over potential authority.  Proving failure of the requirements for “effective control” in the context of occupation, the Court stated:

“… to reach a conclusion as to whether a State … is an ‘occupying Power’ … the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. … armed forces [must] not only be stationed in particular locations but also substitute[] their own authority… .”

End of Occupation

The Fourth Geneva Convention describes an occupation as ending “one year after the general close of military operations” and when the “Occupying Power” no longer “exercises the functions of government in [the] territory.”  However, the Convention does not provide guidelines for how that determination is made.  There are four ways, in principle, that an occupation can end: loss of “effective control”; dissolution of the ousted sovereign (a practice no longer accepted as it is incongruent with the principle of self-determination); signing a peace agreement or armistice agreement with an ousted sovereign; or “transferring authority to an indigenous government endorsed by the occupied population through referendum and by international recognition.”

The signing of a treaty or some other international agreement could signify the end to the occupation of Gaza, but an official agreement between Israel and the Palestinian Authority in that regard would only come at the conclusion of permanent status negotiations.  Until that comes to pass, and in light of the absence of “effective control,” another status is needed for Gaza.  As the factual and legal arguments in this article have demonstrated, Gaza is no longer effectively controlled by Israel and there has been a transfer of governmental authority to the Palestinian Authority—which has been accepted as the indigenous government of the people.

In support of that conclusion, Al Jazeera online submitted that while Israel exercises some control over the Palestinian territories, “Hamas effectively controls the Gaza Strip and Fatah the West Bank.”  (“Palestinians and the ‘Jewish State’” September 21, 2010).  Other media outlets have also previously asserted that position due to Hamas’s own admission of authority.  CNN has quoted a senior Hamas advisor saying “Hamas effectively controls the Gaza side of the border [with Egypt] now and will continue to do so in the future.” (“Hamas helps Egypt tighten Gaza border” January 28, 2008)  This assertion was reinforced by the Guardian which stated that “[Since 2007] Hamas…has been in full control of Gaza.” (“Palestinians lose faith in two-state solution” September 4, 2008).  Perhaps most significantly, though, are the recent remarks by Hamas Foreign Minister Mahmoud al-Zahar who stated that while the West Bank is “still under occupation” and that all forms of resistance, including armed resistance, should be used in that territory, “popular resistance is inappropriate for the Gaza Strip.” “Against whom could we demonstrate in the Gaza Strip?,” al-Zahar asked. “When Gaza was occupied, that model was applicable.” (January 3, 2012)

Moving Forward

Today, almost seven years after the disengagement, Gaza is a no-man’s land.  The Israelis don’t want it anymore, and it seems, as evidenced by the Palestinians’ behavior, that they do not really want it either.  Disengagement was intended as a step forward for both Israel and the Palestinians of Gaza, but the Palestinians have squandered their opportunity to demonstrate that they could live peacefully beside Israel, and continue to do so with relentless rocket fire that targets and destroys Israeli territory.

However, those who criticize Israel’s actions after disengagement provide absolutely no solution for Israel in the face of security threats emanating from Gaza.  Restricting movement into Israeli territory is an absolute necessity for maintaining the security of Israel and safeguarding the lives of Israeli citizens who have fallen victim to consistent rocket fire since 2005.  But those restrictions seem easy for many to criticize, even though Israel’s critics are not privy to the intelligence that the Israeli government analyzes when it comes to making its determinations regarding Israeli security.  In order to make an intellectually honest assessment of Israel’s actions, we must look at them in the context of the threat it faces from Gaza and the security it seeks to achieve – the motivating factor for disengagement in 2005.

According to the standards established by international law and precedent, disengagement ended the occupation, in all its literal and legal characterizations.  While we may continue to discuss the difficulties experienced by the Palestinians in Gaza, none of the restrictions on them amounts to occupation under international law.  And, in discussing the situation in Gaza from a moral and humanitarian perspective, it is important to discuss the circumstances in the context of the experience of both peoples – not just by examining the difficulties that the Palestinians of Gaza face – if the conversation can in any way lead to the development of a constructive solution for both sides.

Although Israeli actions with respect to Gaza since the 2005 disengagement – while in the context of the attacks Israel faces – may present an element of difficulty for the people of Gaza, those actions do not rise to the level of occupation under international law.  Call it what you will, but occupation it is not.