Celeste Kmiotek<\/p>\n\n\n\n
<\/p>\n\n\n\n
On October 15, US President Joe Biden cautioned Israel not to \u201creoccupy\u201d Gaza. This choice of words touched on a core debate: is Israel occupying the Gaza Strip\u2014such that it owes protections to the population there\u2014or is it not?<\/p>\n\n\n\n
Israel believes it \u201cdisengaged\u201d from Gaza in 2005 when it completely withdrew its military and civilians from the area. With this withdrawal, Israel and the United States\u2014as well as many international legal, military, and foreign policy experts\u2014argue 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 \u201cno longer have \u2018responsibility for life in the Gaza Strip,\u2019\u201d seemingly confirming a level of ongoing engagement.<\/p>\n\n\n\n
In contrast, many prominent international institutions, organizations and bodies\u2014including 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\u2014as well as international legal experts and other organizations, argue that Israel has occupied Palestinian territories including Gaza since 1967.1 While they acknowledge that Israel no longer had the traditional marker of effective control after the disengagement\u2014a military presence\u2014they hold that with the help of technology, it has maintained the requisite control in other ways.<\/p>\n\n\n\n
The status of Israel\u2019s 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\u2019s actions in Gaza\u2014such as possible war crimes, including starvation and the denial of humanitarian aid\u2014Israel would likely be in breach of these obligations.<\/p>\n\n\n\n
What is an occupation? \u201cTerritory 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.\u201d<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Under this factual inquiry, a territory is considered occupied when it falls under \u201ceffective control of hostile foreign armed forces.\u201d 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\u2019 presence; and the imposition of occupying forces\u2019 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.<\/p>\n\n\n\n Israel\u2019s High Court of Justice found in 2008 that Israel\u2019s effective control ceased in 2005. Specifically, it found that the \u201c[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.\u201d It, therefore, determined that the occupation ended in 2005.<\/p>\n\n\n\n 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 \u201cconcurrent control\u201d rather than a \u201chierarchical relationship\u201d between Israel and Hamas and find that Israel would need a \u201cmajor ground offensive\u201d that would be impossible to conduct \u201cwithin a reasonable time\u201d to \u201crecapture\u201d control of the area. They, likewise, argue that Israel does not have the required \u201cdegree of power over daily governance,\u201d as evidenced by \u201cHamas often govern[ing] in a manner that is contrary to Israel\u2019s interests and desires\u201d and launching military operations against Israel. Finally, in response to arguments that Israel\u2019s power over Gaza\u2019s borders is evidence of effective control, they hold that while Israel retains control over the Israeli-Gaza border, Egypt controls Gaza\u2019s border with Sinai. Based on these considerations, some experts have found that \u201csiege\u201d better describes the situation.<\/p>\n\n\n\n However, the Geneva Academy of International Humanitarian Law and Human Rights has said \u201cthe majority of international opinion\u201d 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 \u201ctraditional approach\u201d to analyzing effective control, they find that military presence is an \u201cevidentiary test only.\u201d 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\u2014imposing authority and preventing local authorities from exercising control\u2014without a military presence.<\/p>\n\n\n\n Specifically, experts from the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory found \u201cnoting\u201d 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 \u201cpositions of previous commissions of inquiry,\u201d that Israel has \u201ccontrol exercised over, inter alia, [Gaza\u2019s] 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.\u201d They also point to \u201cother forms of force, such as military incursions and firing missiles.\u201d<\/p>\n\n\n\n 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\u2014deciding who can cross\u2014and monitor the operations and can withhold the \u201cconsent and cooperation\u201d required to keep the crossing open. In that vein, experts note that Israel\u2019s \u201ccoercive measures\u201d have further \u201cimpeded efforts to build proper democratic institutions,\u201d and that Israel still has not transferred sovereign powers and instead maintains control over \u201cthe [Palestinian Authority]\u2019s ability to function effectively.\u201d 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.<\/p>\n\n\n\n What international laws govern an occupation? 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.<\/p>\n\n\n\n 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 \u201cthe 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.\u201d<\/p>\n\n\n\n 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\u2019s 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.<\/p>\n\n\n\n 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\u2019s territorial integrity to which the armed group\u2019s 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\u2014a 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\u2019s 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\u2014though several states appear poised to oppose regardless.<\/p>\n\n\n\n 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\u2019s attack according to the applicable international law.<\/p>\n\n\n\n Jus in bello applies to all parties of an armed conflict. For occupations, the Geneva Conventions\u2014which form the \u201ccore of international humanitarian law\u201d (IHL)\u2014apply even when the occupation is not met with armed resistance and so is not considered an armed conflict. Additional Protocol I also \u201cextends the definition of international armed conflicts\u201d to situations where \u201cpeople are fighting against\u2026 alien occupation\u2026 in the exercise of their right of self-determination.\u201d<\/p>\n\n\n\n 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\u2019s exercise of jurisdiction outside its territory and that Israel cannot raise obstacles to Palestinian authorities\u2019 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.<\/p>\n\n\n\n What are the occupying state\u2019s obligations?<\/strong><\/p>\n\n\n\n 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 \u201cmaintain law and order and public life in the occupied territory.\u201d 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\u2019s security needs with the local population\u2019s needs, with a presumption that the \u201cstatus quo ante\u201d will be preserved.<\/p>\n\n\n\n There are additional provisions<\/a> requiring and prohibiting certain actions. Under the Geneva Conventions, \u201cprotected persons<\/a>\u201d include \u201ccivilian persons who because of a conflict or occupation are in the power of a Party whose nationality they do not possess.\u201d They are protected under the Fourth Geneva Convention<\/a>, which requires, inter alia<\/em>:<\/p>\n\n\n\n Additional Protocol I<\/a>\u00a0further mandates ensuring \u201cthe 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,\u201d again \u201cto the fullest extent of the means available.\u201d<\/p>\n\n\n\n Some obligations overlap with basic principles of IHL, such as the prohibitions on hostage-taking<\/a> and collective punishment<\/a>. Others tailor IHL principles<\/a>, such as prohibiting the deportation or forcible transfer of civilians<\/a> of an occupied territory, barring concerns for civilians\u2019 security or an \u201cimperative military reason,\u201d and respecting private property<\/a> except in cases of \u201cimperative military necessity.\u201d<\/p>\n\n\n\n While Israel has agreed to some relief measures, they have been heavily criticized as inadequate. For example, the reestablishment of water supplies was\u00a0extremely limited<\/a>, with only 14 percent of the Gaza Strip benefiting from the three-hour opening of the water line as of October 17. While\u00a0fifty-four aid trucks<\/a>\u00a0have reportedly been delivered as of October 22,\u00a0UN officials<\/a>\u00a0estimated that at least a hundred were needed daily to cover \u201curgent needs,\u201d 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\u00a0reported<\/a>\u00a0dire conditions related to \u201cfuel, food, water and medicines\u201d and has counted around one million internally displaced people in the Gaza Strip. If Israel delivers on its plan to cease \u201cresponsibility for life in the Gaza Strip<\/a>\u201d without ceasing control over Gaza, this would be a further violation of obligations.<\/p>\n\n\n\n The Occupied Palestinian Territories are an ICC member state<\/a>; ICC Pre-Trial Chamber I<\/a> (PTC-I) and the ICC Office of the Prosecutor<\/a> (OTP) have clarified that they use \u201cstate\u201d exclusively as it relates to the ICC and the Rome Statute\u2019s procedures. Palestine acceded<\/a> to the Rome Statute on January 2, 2015, but it lodged<\/a> a declaration with the ICC on January 1, 2015, accepting the court\u2019s jurisdiction since June 13, 2014. While not stated in the declaration, this date corresponds to the onset of the 2014 Gaza Conflict<\/a>.<\/p>\n\n\n\n Palestine\u00a0referred<\/a>\u00a0the situation to the ICC on May 22, 2018 to request an investigation, and on March 3, 2021, the OTP\u00a0opened<\/a>\u00a0an investigation into the Situation in Palestine for crimes committed since June 13, 2014. PTC-I\u00a0confirmed<\/a>\u00a0that the ICC has jurisdiction extending to Gaza. In doing so, PTC-I \u201crecalled that the ICC is not constitutionally\u00a0competent<\/a>\u00a0to determine matters of statehood that would bind the international community.\u201d It said the sole purpose of its ruling was to define the ICC\u2019s territorial jurisdiction, and it is \u201cneither adjudicat[ing] a border dispute under international law nor prejudg[ing] the question of any future borders.\u201d<\/p>\n\n\n\n Article 8(2)(b)(viii) of the Rome Statute<\/a> considers a war crime \u201c[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\u201d when committed during an international armed conflict. Under international case law<\/a>, including that of the ICC<\/a>, deportation can be carried out by coercion<\/a> such as \u201cthat caused by fear of violence, duress, detention, psychological oppression, or abuse of power,\u201d and situations that prevent \u201cgenuine choice.\u201d<\/p>\n\n\n\n Additionally, Article 8(2)(a) covers grave breaches<\/a> 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<\/a> to the Rome Statute and has not ratified<\/a> the amendment adding aggression to the Rome Statute (though Palestine has). Because the ICC can only prosecute aggression<\/a> 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.<\/p>\n\n\n\n The ICJ has\u00a0not yet ruled<\/a>\u00a0on the UN\u2019s 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\u2019s status and obligations. While advisory opinions are\u00a0not binding<\/a>, they can help inform how other courts interpret Israel\u2019s responsibilities. In that vein,\u00a0some domestic jurisdictions<\/a>\u00a0contain 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.<\/p>\n\n\n\n If Israel were found not to be occupying Gaza, then the obligations owed to an occupied territory under the Fourth Hague Convention<\/a> and the Fourth Geneva Convention<\/a>, customary international law, and Additional Protocol I<\/a> would not apply.<\/p>\n\n\n\n However, Israel and Hamas are in at least a non-international armed conflict<\/a>. As such, Common Article 3 of the Geneva Conventions<\/a>, Additional Protocol II<\/a> (to which the State of Palestine is a party<\/a>, and most of the provisions of which are considered customary<\/a>), and customary international law apply. The conflict could also be considered<\/a> 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<\/a>, including the Fourth Geneva Convention as it relates to civilians, and customary international law apply.<\/p>\n\n\n\n For a non-international and an international armed conflict, Israel and Hamas are bound to respect IHL\u2019s\u00a0fundamental principles<\/a>\u00a0of humanity, distinction, proportionality, and military necessity. Likewise, they are both required to abide by\u00a0customary international law,<\/a>\u00a0including strict prohibitions of,\u00a0inter alia<\/em>, targeting civilians, violence primarily \u201caimed at spreading terror among the civilian population,\u201d forcible transfer or displacement, \u201cstarvation as a method of warfare,\u201d and targeting medical units.<\/p>\n\n\n\n To conclude, the laws of occupation codify a\u00a0basic principle of humanity<\/a>: 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\u2019s power can wield. Even if the obligations required under an occupation do not apply, Israel still must\u00a0respect<\/a>\u00a0the minimum duties required under IHL:\u00a0allowing<\/a>\u00a0access to humanitarian relief and\u00a0refraining<\/a>\u00a0from committing war crimes, including targeting, starving, and forcibly transferring civilians.<\/p>\n\n\n\n To conclude, the laws of occupation codify a\u00a0basic principle of humanity<\/a>: 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\u2019s power can wield. Even if the obligations required under an occupation do not apply, Israel still must\u00a0respect<\/a>\u00a0the minimum duties required under IHL:\u00a0allowing<\/a>\u00a0access to humanitarian relief and\u00a0refraining<\/a>\u00a0from committing war crimes, including targeting, starving, and forcibly transferring civilians.<\/p>\n\n\n\n (Source: Atlantic Council<\/em>)<\/p>\n","protected":false},"excerpt":{"rendered":" Celeste Kmiotek On October 15, US President Joe Biden cautioned Israel not to \u201creoccupy\u201d Gaza. This choice of words touched on a core debate: is Israel occupying the Gaza Strip\u2014such that it owes protections to the population there\u2014or is it not? Israel believes it \u201cdisengaged\u201d from Gaza in 2005 when it completely withdrew its military …<\/p>","protected":false},"author":11,"featured_media":7995,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[185,218,1],"tags":[],"class_list":["post-7994","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-palestinian-affairs","category-reports-and-articles","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/posts\/7994","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/comments?post=7994"}],"version-history":[{"count":1,"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/posts\/7994\/revisions"}],"predecessor-version":[{"id":7997,"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/posts\/7994\/revisions\/7997"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/media\/7995"}],"wp:attachment":[{"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/media?parent=7994"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/categories?post=7994"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ameforum.net\/en\/wp-json\/wp\/v2\/tags?post=7994"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
<\/strong>Occupation is defined in Article 42 of the Fourth Hague Convention:<\/p>\n\n\n\n
<\/strong>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.<\/p>\n\n\n\n
<\/strong>First, the occupation must be temporary and cannot serve as a \u201cde facto annexation.\u201d While there is debate about the concept of a \u201cprolonged occupation,\u201d \u201cpermanen[t]\u201d occupations are generally considered unlawful. The Secretary-General of the UN, Ant\u00f3nio Guterres, requested an Advisory Opinion from the ICJ on January 17 to weigh in on the issue of \u201cthe 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.\u201d<\/p>\n\n\n\n\n
What liability could occupying states and their officials face for breaching these obligations?<\/strong><\/h4>\n\n\n\n
If Israel is found not to be occupying Gaza, what are its obligations?<\/strong><\/h4>\n\n\n\n