Israel/Palestine thread

Classification following the 2005 Disengagement Plan

Following the implementation of the 2005 Disengagement Plan, Israeli armed forces were no longer present in the territory of the Gaza Strip. For this reason, some reject Israel’s classification as an occupying power.

However, international practice and the majority of scholarly opinions have long considered that, even after its withdrawal in 2005, Israel has continued to occupy the Gaza Strip by virtue of the control exercised over its airspace and territorial waters, land crossings at the borders, the supply of civilian infrastructure, and the exercise of key governmental functions such as the management of the Palestinian population registry. Indeed, as specified by the ICRC, “in some specific and exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) while retaining key elements of authority or other important governmental functions that are typical of those usually taken on by an Occupying Power – the law of occupation might continue to apply within the territorial and functional limits of those competences […] although the foreign forces are not physically present in the territory concerned, the authority they retain may still amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions.” Such a functional approach to occupation allows to determine “the extent to which obligations under the law of occupation remain incumbent on hostile foreign forces that are phasing out or suddenly withdrawing from an occupied territory while retaining a certain authority over it”.

This view has been supported in relation to the Gaza Strip by several reports and declarations by relevant international bodies, such as the UN, the ICC and the ICRC.

Classification following the 2023 Operations ‘Al-Aqsa Flood’ and ‘Swords of Iron’

The events that have unfolded since Hamas’ attack on 7th October 2023 do not warrant a change in the classification of the situation in the Gaza Strip as an instance of military occupation. While they can affect the range of applicable norms, they do not appear to have affected the elements on which that classification stood. Several considerations, which will be analysed in turn below, warrant this conclusion.

First, the occurrence of military operations and confrontations between the parties to the armed conflict is not, in and of itself, incompatible with occupation, to the extent that the occupier continues to retain effective control over territory. Neither the magnitude of Operation Al-Aqsa Flood in Israeli territory, nor the intensity of the fighting that Israel has encountered in its ground operation in northern Gaza, have affected the elements by which Israel used to exert its effective control over the Gaza Strip. The means and tools through which Israel has exercised its authority over the Gaza Strip since 2005, (and that have justified a classification as occupation throughout that period) – namely, airspace and sea control, border control, administrative issues – have not disappeared as a consequence of the October 2023 attack. Furthermore, it would be incorrect to consider the carrying out of a ground operation in Palestinian territory as evidence of a loss of control by Israel over Gaza – quite the contrary, such an operation could eventually result in the re-establishment of an Israeli military presence and authority in the Gaza Strip, and therefore in the re-enactment of an occupation stricto sensu (such as the one that had preceded the 2005 Disengagement Plan). In this regard, it should be noted that since this latest round of hostilities began, several UN organs and international NGOs have continued to classify the situation in the Gaza Strip as one meeting the definition of occupation.

Second, the classification as occupation is not ruled out by the recourse to specific means and methods of warfare in the context of the Israeli response to the 7 October 2023 attack. The IDF have referred to the ongoing operations as a ‘complete siege’ and Israeli Defence Minister Yoav Gallant told the Knesset that Israel would no longer have “responsibility for life in Gaza”. According the majority view, this would rule out the persistence of an occupation insofar as the two notions are mutually exclusive. From this point of view, sieges are designed “to control a defended locality and obtain surrender or otherwise defeat the enemy through isolation”; it is only “if the siege ends in surrender or defeat [that] the place under siege falls under belligerent occupation”. This seems to be confirmed by statements such as that of the United States of America, which warned Israel of the dangers arising from an occupation of Gaza saying that it would “be a big mistake”, implying that Israel is not yet occupying Gaza. In reality, military occupation is not precluded by the establishment of a siege. Sieges (which are not explicitly defined under IHL) might be conceived as an attack within the meaning of Article 49 (1) AP I and attacks can be conducted in a territory under the control of an adverse Party. We cannot rule out situations (such as the one under review here) where conducts that can be characterized as "sieges" on specific and well-defined localities take place in the broader context of a situation amounting to belligerent occupation. This, in our view, is the correct way of construing those statements by a number of actors in the international community who, since 7 October 2023 have continued to classify the situation in the Gaza Strip as meeting the definition of occupation while at the same time referring to the total siege or blockade of Gaza. In this respect, Israel declared on 5 November 2023 that it had “encircled” Gaza City and, on 21 November 2023, that it had “completed encirclement” of Jabaliya in Gaza. Moreover, the conducts in which siege(s) in Gaza would materialize (such as reducing and ultimately interrupting the supply of commodities to the Gaza Strip, retaining control over the admission of humanitarian assistance, ordering inhabitants to evacuate, and deploying troops thereon) demonstrate that Israel keeps exercising a continued, effective control over Gaza. Therefore, for the time being, the classification as occupation remains the most accurate depiction of the situation, while the precise contours and scope of the obligations incumbent on Israel as an occupying power will have to be assessed (as has been the case in the recent past) through the lenses of a functional approach to the notion. This being said, the situation remains volatile, and it cannot be ruled out that the classification will change depending on how events will unfold.