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Who Occupies Gaza?

This is a guest post by Pembury

“According to the international community, the Gaza Strip is still considered to be occupied by Israel”.

Is Gaza considered to be occupied by Israel according to the international community? This post explores international law and the position of various international bodies.

We are not talking about the situation today (with the IDF in Gaza). Parts of Gaza have clearly been occupied in the last few weeks.  The allegation relates to the normal situation where Israel departed from Gaza (removing every civilian and soldier in 2005), and where Gaza is ruled day-to-day by the authority which seized power there, presently Hamas.

1. Article 42 of the Hague Convention 1907 provides:

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.

That is the only International Law definition of “occupation”.

The Geneva Conventions refer to occupation, and what is required from an occupying power, but do not define it. (See below in reference to the Red Cross.)  On any sensible definition of those words in Art 42, Israel is not occupying Gaza. It is not under the authority of the Israeli army, and there is normally no territory in Gaza in which its authority has been established and can be exercised. It could not extend to the people of Gaza any of the rights which are demanded under the various Geneva and other international conventions, such as freedom of worship, rights of women, or anything else.

2. International organisations

Amnesty International, in attempting to deal with the role of powers such as the US and the UK in Iraq after the establishment of an independent Iraqi government (elected in fact) has expanded on the meaning of Art 42, taking a stance which goes somewhat beyond what the US and UK authorities take for themselves in the Military manuals. Amnesty refers to the UK and US Manuals, and then sets out its own interpretation:

The US manual FM 27-10 (para 351) simply refers to that definition [Art 42]. The UK manual (para 503) follows the same line by underscoring that invading forces must have taken the place of the national authorities in the exercise of actual control over a territory.

The sole criterion for deciding the applicability of the law on belligerent occupation is drawn from facts: the de facto effective control of territory by foreign armed forces coupled with the possibility to enforce their decisions, and the de facto absence of a national governmental authority in effective control. If these conditions are met for a given area, the law on belligerent occupation applies. Even though the objective of the military campaign may not be to control territory, the sole presence of such forces in a controlling position renders applicable the law protecting the inhabitants. The occupying power cannot avoid its responsibilities as long as a national government is not in a position to carry out its normal tasks.

The international legal regime on belligerent occupation takes effect as soon as the armed forces of a foreign power have secured effective control over a territory that is not its own. It ends when the occupying forces have relinquished their control over that territory

So the test, even on the Amnesty interpretation, is physical presence coupled with de facto control in the sense of being able to enforce its decisions, and with the absence of a national effective de facto government in place.

The International Committee of the Red Cross (IRCS) recognises that there is a debate about the interpretation of “occupation” under article 42, and points out that some countries take one view and others another. As you will see from the link above, they go on to set out the duties of the “occupying power” as follows:

2. When does the law of occupation start to apply?

The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.

The question of ” control ” calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC’s Commentary to the Fourth Geneva Convention (1958).

An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.

Israel cannot be said to occupy Gaza on either the strict or more relaxed view of Article 42. It is not in a position to exercise sufficient authority over Gaza to enable it to discharge all of the duties imposed by the law of occupation.

3. What are the obligations of the occupying power?

The ICRC link above summarises the rules applicable in case of occupation state which include the following duties of the occupying power:

The occupying power must respect the laws in force in the occupied territory, unless they constitute a threat to its security or an obstacle to the application of the international law of occupation.

The occupying power must take measures to restore and ensure, as far as possible, public order and safety.

To the fullest extent of the means available to it, the occupying power must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.

Cultural property must be respected.

People accused of criminal offences shall be provided with proceedings respecting internationally recognized judicial guarantees (for example, they must be informed of the reason for their arrest, charg ed with a specific offence and given a fair trial as quickly as possible).

Personnel of the International Red Cross/Red Crescent Movement must be allowed to carry out their humanitarian activities. The ICRC, in particular, must be given access to all protected persons, wherever they are, whether or not they are deprived of their liberty.

Israel could not secure a single one of these objectives if it had a duty to do so. It shows conclusively that it cannot have such duty.

In addition, there are now various international obligations having nothing to do with war, which Israel as an occupying power would have to enforce: for example, protecting the rights of equality of women.

4. Does controlling movement of people and goods constitute occupation?

The claim is sometimes made that Israel “occupies” Gaza because it has placed a land, air and sea embargo on it. When Spain occasionally closes the border with Gibraltar, it would according to this, also be “occupying” Gibraltar. Controlling movement of goods and people into and out of adjoining territories is what all countries do, and there are no provisions of law which say that, if, for example, country A requires all goods going in or out of country B to be searched, or which bans certain goods from going in or out of an adjoining country, it is occupying Country B.

Egypt has exactly the same controls on movement of goods and people in or out of Gaza, and literally no-one argues that Egypt “occupies” Gaza because of it.

5.       Why does the UN regard Israel as “occupying” Gaza?

The UN’s definition of occupation in the case of Israel is a one-off definition that applies nowhere else. This is how the UN explains their use of the word in the case of Israel and Gaza:

Spokesperson:  Under resolutions adopted by both the Security Council and the General Assembly on the Middle East peace process, the Gaza Strip continues to be regarded as part of the Occupied Palestinian Territory.  The United Nations will accordingly continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until such time as either the General Assembly or the Security Council take a different view.

Question:  Can I follow up on that?  It is the legal definition of occupation and why is Gaza considered occupied?

Spokesperson:  Well, as I have just said, there are Security Council and General Assembly resolutions that cover this.  For example, there was a Security Council resolution adopted on 8 January 2009 — 1860 — and that stressed that the Gaza Strip constitutes an integral part of the territory occupied in 1967.  And as you know, Security Council resolutions do have force in international law.

Furthermore, there is a resolution from the General Assembly from 20 December 2010, and while it noted the Israeli withdrawal from the Gaza Strip and parts of the northern West Bank, it also stressed, in quotes, “the need for respect and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem”.  So just to repeat that the United Nations will continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until either the General Assembly or the Security Council take a different view on the matter.

In other words, Gaza is “occupied” because the UN regards it as part of the West Bank and the West Bank is “occupied”. Not because it controls its airspace or ports. The UN Enquiry into the Mavi Marmara incident found that the territorial control of Gaza by a sea and air embargo was wholly lawful.

If this special logic applicable to Israel were applied elsewhere, the Greek part of Cyprus would be “occupied” by Turkey because the UN does not recognize the division of Cyprus, and regards Northern Cyprus as occupied by Turkey.

This shows why this particular UN “definition” of occupation is political sophistry specially applied to Israel only: it would not help anyone in Greek Cyprus to refer to it as “occupied” territory. For anyone to do so repeatedly and in defiance of common sense, law and logic, would reveal the accuser to be of unsound reasoning or mind, or worse. Everyone recognizes that, and no-one bothers with making such a ridiculous accusation.

Likewise, no-one in Gaza is actually helped or advantaged by asserting that Israel “occupies” Gaza, because no resident in Gaza could ask Israel to provide them with basic services or protection or safety or hygiene. If any Israeli entered Gaza intending to provide such basic services, perhaps in answer to a request from a Gazan, he would be killed.

6. Concluding Thoughts

So why is this allegation repeated over and over again? It helps no-one, has no practical effect or meaning, and distorts international law principles and protections which are needed in real cases of occupation.

The answer is that it is the way in which Israel’s many enemies, denied any real chance of harming or prejudicing Israel, choose to wage their campaigns against Israel. The aim is de-legitimisation. The aim is to create a generalized air of criticism, which, repeated often enough by otherwise sensible sounding people, makes people feel that Israel is very bad. In the case of Gaza in particular, it is also used to excuse the awful conditions in which people live  by blaming the “occupying power” which has failed to introduce prosperity, full employment and wealth, rather than attributing conditions there to the actual occupying authority, i.e. Hamas.

As is clear, it is not the international community which regards Gaza as occupied by Israel. Britain doesn’t so regard it. Neither does the EU, or the US. No proper country regards it so. It is a function of the propaganda I’ve mentioned, and in the case of the UN has a special political meaning which, like many things done at the UN, is created specially to harm and de-legitimise Israel.