This article originally appeared on Jadalliyya on 14 July 2014. 

[In view of Israel's assertions that it has not occupied the Gaza Strip since 2005, Jadaliyya re-posts an analysis of this claim authored by Lisa Hajjar, initially published in 2012.]

Yes, the Gaza Strip is still occupied. Despite official Israeli remonstrations that the unilateral disengagement of 2005, which removed Israeli military bases and Jewish settlers, transformed Gaza into “no longer occupied territory,” neither those changes nor anything that has transpired since has ended the occupation.

“Occupation” is a legal designation of an international nature. Israel’s occupation of Gaza continues to the present day because (a) Israel continues to exercise “effective control” over this area, (b) the conflict that produced the occupation has not ended, and (c) an occupying state cannot unilaterally (and without international/diplomatic agreement) transform the international status of occupied territory except, perhaps, if that unilateral action terminates all manner of effective control.

Sui Generis Nonsense

The irony of Israel’s assertion that Gaza is no longer occupied can be best appreciated when one considers Israel’s earlier position that Gaza and the West Bank were not occupied in 1967. Israeli officials claimed that the status of these areas was sui generis because, at the time of conquest, they were controlled by but not sovereign to Egypt and Jordan, respectively. “Occupation,” according to Israel, only pertains to areas that were recognized sovereign territory of the displaced states. Hence the premise, never accepted by the international community, was: no sovereignty, therefore no occupation. Rather, Israel insisted that Gaza and the West Bank were “administered” territory. The other premise of the original “not occupied” position was that Israel could lay claim to all or parts of these lands because they compose the remainder of Eretz Israel to which the Jewish people have historic and/or biblical rights.

The motivation for projecting the notion that the status of the Palestinian territories was sui generis was political: If Israel were to accept the international consensus that it was an “occupant,” it would be constrained from permanently seizing or settling territory acquired by force. Instead, Israeli officials constructed an edifice of ornate legal reasoning to legitimize territorially expansive policies. Of course, Israel had no aspiration to assert permanent control over the Palestinian residents of these putatively sui generis territories, so the people were regarded as occupied.

The concept of sui generis territory may be fitting for some places (like Antarctica). However, it is irrelevant and erroneous in the case of territory that was militarily occupied as a result of armed conflict, as Gaza and the West Bank were. The claim that the occupation of Gaza ended in 2005, and that its status is now sui generis, should be assessed in light of Israel’s earlier attempts to legally license unilateral policies implemented in defiance of international law.

Those who assert the sui generis status of Gaza today willfully ignore the criteria for what an actual end to an occupation requires. Not only does it require an end to the conflict, but also the reestablishment—or in the Palestinian case the establishment—of sovereignty through which the “previously” occupied population can exercise and enjoy the right of self-determination. (The also-and-still-occupied Golan Heights was Syrian territory, so an end to that occupation would entail the restoration of Syrian sovereignty.)

Annexation of occupied territory, while contrary to the international proscription against the acquisition of land by armed force, could be an alternative if that outcome were an internationally recognized means to bring the conflict to an end. It would require that the occupied population be afforded their right of self-determination by becoming citizens of the annexing state.

Occupied Territory under International Humanitarian Law

Territory that was militarily conquered remains occupied until sovereignty supplants foreign control. As long as the Gaza Strip is non-sovereign, it is occupied, and as long as it is occupied its relationship to Israel continues to be governed by international humanitarian law (IHL), which forms part of the laws of war. In addition to the four Geneva Conventions of 1949, these laws include the Hague Regulations of 1907 and the Geneva Conventions Additional Protocols I and II of 1977. Under the Fourth Geneva Convention, which governs territories militarily conquered by a foreign government, the civilian population who resides there is legally designated “protected persons.”

The laws of war are lex specialis, that is, “special law.” What is “special” is conflict, and its opposite, the “not special,” is peace. (IHL pertains to the conduct of armed conflict, jus in bello, and is agnostic about the lawfulness of causes that initiate armed conflict, jus ad bellum.)

An occupation, even a prolonged one, is a continuation of conflict, and, therefore, IHL remains in effect until peace has been restored. This point of customary international humanitarian law is explained in unambiguous terms in the Prosecutor v. Tadic decision of the International Criminal Tribunal for the Former Yugoslavia:

International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached…Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.

Any proposition that there is a sui generis third option—neither sovereign nor occupied but nevertheless in a continuing state of conflict—is a spurious interpretation of law. As Mark Levine and I have written elsewhere,

The designation sui generis literally places the West Bank and Gaza and their populations into a state of exception, outside the reach of IHL and thus open to any and all policies Israel may choose to impose, without fear of violating—at least according to Israel's interpretations—international human rights and humanitarian norms.

Proclamations that the occupation ended in Gaza in 2005 because Israel removed its fixed military presence and civilian settlements are political arguments. This is equally the case when government lawyers and legal scholars make them. Even if one was to bracket or ignore the legal in favor of the political, there has been no end to Israel’s capacity to exercise “effective control” over Gaza.

Effective Control Criteria

What constitutes measures of effective control in the context of Gaza? In 2007, John Dugard, then UN Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory, explained that the manifestations of Israel’s continuing effective control include: (a) substantial control of Gaza’s six land crossings; (b) control through military incursions, rocket attacks and sonic booms, and the declaration of areas inside the Strip as “no-go” zones where anyone who enters can be shot; (c) complete control of Gaza’s airspace and territorial waters; and (d) control of the Palestinian Population Registry, which has the power and authority to define who is a “Palestinian” and who is a resident of Gaza.

To these must be added Israel’s continuing capacity to invade Gaza, arrest residents, and transport them into Israel. In the wake of Israel’s unilateral disengagement, which included the dissolution of the military court at the Erez base on the edge of Gaza, the Knesset enacted the 2006 Criminal Procedure Law to allow for the prosecution of Gazans in Israeli civil courts, and their imprisonment inside Israel. Moreover, on the very day Israel implemented the completion of its unilateral disengagement plan (12 September 2005), the military issued detention orders for two Gazans under the 2002 Internment of Unlawful Combatants Law. That Israeli law (modeled on the military order issued by US President George W. Bush on 13 November 2001) was originally promulgated to provide legal cover for the imprisonment of kidnapped Lebanese nationals who were to be used as “bargaining chips” in exchange for Israeli prisoners of war and the remains of those who had been killed in Lebanon. Since 2005, that law has been used primarily to administratively detain (i.e., imprison without trial) Gazans.

According to Addameer, the Prisoner Support and Human Rights Association, as of 1 November 2012, 445 Gazans were imprisoned in Israel. The International Committee of the Red Cross reports a higher figure of 550.

Since 2007, when Dugard offered up his authoritative calculus, much has changed, but none of these changes support the contention that Israel does not exercise effective control over Gaza. Sara Roy, in a recent Boston Globe article, offers examples of how, despite the absence of a military administration, Israel continues to control what happens “on the ground” on a daily basis. She writes:

Israeli-imposed buffer zones—areas of restricted access—now absorb nearly 14 percent of Gaza’s total land and at least 48 percent of total arable land. Similarly, the sea buffer zone covers 85 percent of the maritime area promised to Palestinians in the Oslo Accords, reducing 20 nautical miles to three, where waters are fouled by sewage flows in excess of 23 million gallons daily.

Assaf Kfoury, who traveled into Gaza as part of an academic delegation in October, summarizes some of the well-documented elements of Israel’s ongoing effective control. He writes:

The Gaza Strip is hemmed in from all sides. The Israeli naval blockade prevents all transport of people and goods from the sea. The land border with Israel is tightly sealed. Rafah at the southern edge of the Strip…is the only and hard way in and out, via Egypt, for the vast majority of Palestinians. Israel controls the Erez crossing, strictly monitoring entry of international aid workers, journalists, and a trickle of Palestinians…Over past decades and years, Palestinian industry has been systematically sabotaged in favor of Israeli industry, including industry (or whatever is worthy of the name) in Gaza, whose economy is essentially controlled by Israel. Most alarming is a recent UN report, Gaza in 2020, which suggests that Gaza will no longer be a “livable place” in 2020.

Kfoury also offers some examples of Israel’s effective control that he witnessed firsthand.

Turning one’s back to the misery inland, and looking out to the Mediterranean and its shimmering waters, should normally be a soothing escape, but not in Gaza. Our mornings over breakfast at the hotel were punctuated by gunfire from somewhere off shore. These were not dynamite sticks that kids or poor people detonated underwater to collect large quantities of stunned fish, as I initially thought, but gunfire from Israeli patrol boats warning fishermen to stay inside the three nautical-mile limit. On the morning we left the Strip, we were told that two fishermen who went beyond the limit were killed the day before.

These effective control measures and their adverse humanitarian consequences preceded the 2005 unilateral withdrawal and have continued since. Indeed, they were and remain the stock and trade of Israel’s occupation of Gaza.

Sui Generis Nonsense as a License To Kill

Israel did not formulate the “no longer occupied” position in 2005, or even in the immediately preceding years. Rather, the building blocks of this position began to pile up in the 1990s as a result of Israeli-Palestinian negotiations. Under the terms of the Oslo Accords, the Israeli military redeployed from Palestinian population centers, the Civil Administration was dissolved although the military courts continued to function on relocated bases in the territories, and a non-sovereign Palestinian Authority (PA) was established.

These political changes prompted Israel to modify its position that the legal status of the West Bank and Gaza was “administered” territory. Officials asserted that areas under the semi-autonomous control of the PA had become differently non-sovereign and, importantly, “foreign.” This became highly significant following the breakdown of negotiations in July 2000 and the start of a second intifada in September whose immediate trigger was Ariel Sharon’s provocative campaign stunt to go with 1,000 armed guards to the Haram al-Sharif.

In response to Palestinian protests, Israel loosened the military’s rules of engagement and quickly began using heavy weapons, including tanks and helicopter gunships. Under international consensus-based interpretations of IHL, massive use of military force by an occupying state against civilians in occupied territories (i.e., protected persons) would be categorically illegal.

Israeli officials justified the use of high-end military force by asserting that policing and riot control tactics were no longer an option because the military was “out” of Palestinian areas, and because Palestinians possessed (small) arms and thus constituted a foreign “armed adversary.” Officials described the second intifada was an “armed conflict short of war,” and asserted Israel’s right of self-defense to attack an “enemy entity,” while denying that those stateless enemies had any right to use force, even in self-defense. Noura Erakat elaborates on these issues here.

In November 2000, two months into the increasingly and reciprocally violent second intifada, Israel became the first state in the world to publicly proclaim a policy of “preemptive targeted killing.” (Israel had engaged in extra-judicial assassinations in the territories since the first intifada, but until then had denied the policy.) Officials formulated a position to assert the legality of preemptive targeted killing on the following bases: (1) Palestinians were to blame for the hostilities, which constituted a war of terror against Israel, (2) the laws of war permit states to kill their enemies, (3) targeted individuals were “ticking bombs” who had to be killed because they could not be arrested and were ostensibly poised to inflict imminent harm, and (4) killing terrorists by means of assassination is a legitimate form of national self-defense. The death of untargeted civilians was termed, in accordance with the discourse of war, “collateral damage.”

In 2001, two petitions were submitted to Israel’s High Court of Justice (HCJ) to challenge the legality of the targeted killing policy. The Court declined to accept these petitions, arguing that the “choice of means of warfare, used by the [state] to preempt murderous terrorist attacks, is not the kind of issue the Court would see fit to intervene in.” However, the following year the HCJ reconsidered its non-justiciability position and accepted the petition submitted by the Public Committee against Torture in Israel and LAW: The Palestinian Society for the Protection of Human Rights and the Environment.

The HCJ targeted killing ruling, rendered on 15 December 2006 and written by former Chief Justice Aharon Barak, begins with a section on the “factual background” which states: “A massive assault of terrorism was directed against the State of Israel, and against Israelis, merely because they are Israelis.”

Because targeted killings conducted in Gaza and the West Bank were part of the same policy, the litigation made no distinction between them. Neither did the HCJ judgment; rather these locales were referred to as “the area” and “outside the bounds of the state,” thereby evading the question of whether Palestinians are still “occupied” and thus “protected persons.” The “armed conflict” at issue is described as between Israel and “terrorist organizations,” and the decision claims that there has been “a continuous situation of armed conflict…since the first intifada.” The significance of this conflation of Gaza and the West Bank illustrates the flimsiness of the post-2005 proposition that Gaza differs from the West Bank in a purportedly no-longer-occupied sui generis way.

Siege as War by Other Means

Following the 2006 Palestinian legislative elections that Hamas won, a conflict erupted between Hamas and Fatah that left Hamas in control of Gaza and the Fatah-dominated PA relegated to the West Bank. On 19 September 2007, Israel declared that Gaza had become a “hostile territory,” a term that does not appear in any of the treaties that compose IHL. In a statement issued that day by the Ministerial Committee on National Security Issues, Israel stated its intention to continue “military and counter-terrorist operations against the terrorist organizations.”

The same statement announced:

Additional sanctions will be placed on the Hamas regime in order to restrict the passage of various goods to the Gaza Strip and reduce the supply of fuel and electricity. Restrictions will also be placed on the movement of people to and from the Gaza Strip. The sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis.

Immediately following that announcement, a group of human rights organizations petitioned the HCJ. They charged that the restriction or limitation of the supply of fuel and electricity to Gaza was illegal behavior by an occupying state because it would constitute collective punishment. Moreover, it would have serious adverse humanitarian consequences including affecting essential services like the functioning of hospitals and the treatment of water and sewage.

The HCJ’s decision put sole onus on Hamas for posing a danger to Israeli security, and dodged the charge of illegal collective punishment by credulously accepting official statements about the fine-grained monitoring of humanitarian needs of “inhabitants” in the Strip. The Court endorsed the state’s decision to limit these resources as part of its fight against terrorism. In doing so, the HCJ relied on the spurious assertion that Gaza is no longer occupied. Like the earlier targeted killing decision, the HCJ concluded that the only relationship Israel now has with Gaza is a belligerent conflict with Hamas. In this decision, the HCJ averred that the state has none of “positive duties” of an occupying state, only “negative duties” of a belligerent not to inflict deliberate humanitarian harm on civilians.

Contrary to claims of humanitarian attentiveness, since 2007 Gaza has suffered a humanitarian crisis of staggering magnitude. Foodstuffs were restricted as a matter of policy, allowing in only so much (calculated in a ratio of gross calories to total population) to avoid massive malnourishment. The siege, enforced through a land-and-sea blockade and the aerial bombing of smuggling tunnels linking the Strip to the Sinai, deprived the population of access to medical supplies, building equipment, and all manner of essential goods.

The humanitarian impact of these deprivations intensified massively as a result of the wreckage and ruination of Operation Cast Lead, the full-scale military assault on Gaza in the winter of 2008-2009. By the summer of 2012, as the siege was entering its sixth year, the UN Office of Humanitarian Affairs reported that forty-four percent of Gazans are food insecure; a severe fuel and electricity shortage results in outages of up to twelve hours a day; and the economy has been so crippled that the GDP per capita is at least seventeen percent lower than in 2005 and the unemployment rate, especially for youth, is higher than ever.

UN human rights experts, the International Committee of the Red Cross, and other authoritative sources have condemned the siege as illegal. The crux of these condemnations is the fact that Gaza is still occupied.

Why Does It Matter That Gaza Is Still Occupied?

International law is not a panacea for the harms and ills of conflict. However, international law provides a standard against which empirical realities can be judged and an instrumental means through which consequences for violations can be pursued. For stateless peoples, including those living under occupation, international law is exceptionally important because they have no national law-based alternative to assert, let alone exercise, their right of self-determination. International law provides the point of reference for that and all the other rights they can claim by virtue of being humans.

Palestinians may achieve their rights (or not) through political, diplomatic or military means. But that does not alter the fact that as long as the occupation continues—which it will until there is peace and sovereignty and self-determination—what happens in Gaza and in the West Bank are matters of international law, and therefore of international concern.

If international law did not matter, Israel would not have gone to such lengths to concoct alternative interpretations in order to cover its intentions and policies in the territories from the time they were conquered in 1967 until today. Those concocted interpretations defy international consensus and authoritative interpretations of international law.

I believe that it is important for people to understand that gap between what international law demands or allows and what Israel does and asserts as its right vis-à-vis Palestinians and the territories occupied since 1967. Why? Because understanding international law is a means of showing respect for the humanitarian norms and human rights that were hard fought to establish. Understanding is a step to making international law into an effective standard and instrument for rights and for justice. Absorbing and spreading that understanding is more than some abstract “cause;” it is a project and an invitation to make the law matter to the lives of those who need it most, and to the lives of those who disregard and violate it.