Unravelling the Complexities
Navigating Legal and Ethical Dimensions regarding Israel, Gaza, and the Question of Occupation.
Foreword
I’ll be referring to a few different treaties and conventions and their interpretation in the context of International Humanitarian Law.
For context, here is a quick background on the concerned texts:
The 1907 Hague Convention:
A multinational treaty concerned with revising laws and customs of war that had been declared in prior treaties. The Hague convention is considered to embody rules of customary international law which is the principle that certain norms become binding on states through widespread practice.
The United Nations Charter:
A comprehensive document that establishes the framework for the rules and activities carried out by the United Nations. This consists of several components, including principles, procedures and articles that serve as a cornerstone of the international legal apparatus.
The Fourth Geneva Convention:
An international treaty concerned with the mitigation of civilian suffering during times of armed conflict. It also establishes standards for the humane treatment of persons under Enemy control, prohibiting torture and other forms of cruel treatment.
On October 7th, Hamas — a militant, Islamist, Palestinian nationalist organisation based in the Gaza strip — carried out an attack against Israel. 695 Israeli civilians were killed, as well as 373 security forces and 71 foreign nationals; a tragedy described as the darkest day for Jews since the Holocaust (France 24, 2023). The next day, Israel declared war on Hamas and began a relentless military campaign, bombarding the Gaza strip with countless air-strikes.
Hamas became another name on a list of antisemitic threats to the Jewish people, who after the atrocities of the Holocaust, asserted, and continue to assert, their right to defend themselves.
In order to justify its declaration of War to the United Nations, Israel cited article 51 of the UN charter.
Article 51 states:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
(Charter of the United Nations, 1945)
This essentially meaning if you’re a UN member, the UN won’t get in the way of you exercising your right to self-defence until the UN security council assesses whether they need to become involved. That being said, even if a country does defend itself, the Security Council has the final say on what action is needed to ensure peace and security internationally.
This has sparked debate about Israel’s obligations to Gaza, considering its history as an occupant of the Gaza strip. The UN doesn't see Israel's invocation as legitimate, but Israel and its allies, particularly the U.S., strongly support it.
This article will investigate occupation, war, and power in the context of Israel and Gaza through the lens of International Humanitarian Law and International Human Rights Law.
Occupation
Israel’s present legal arguments are best contextualised by a brief historical summary of its occupation of the Gaza strip. Gaza came under Israeli occupation as a result of the Six Day War in 1967 and remained under occupation until Israel claimed withdrawal in 2005.
Until this point, Israel was widely recognised as a belligerent occupant of Gaza across the international community including by Israel’s own supreme court (Mann and Bashi, 2007).
In 2004, Israel outlined a disengagement plan to withdraw Israeli settlements, army bases and ground troops from the Gaza strip with the stated goal of “improving the economic and social welfare of Gaza residents by giving them an opportunity to run their own affairs.” (Israeli Prime Minister's Office, 2004). By withdrawing occupation, Israel also effectively acquits itself of any responsibilities typically owed to an occupied population per the Hague convention.
According to the Hague convention (1907) and the fourth Geneva convention, when occupying a territory - as Israel did to Gaza for 38 years - the occupying entity owes the population of that territory certain obligations. The stated aim of occupation should be to improve the lives of the population of said territory.
These obligations include:
the obligation to provide for the basic needs of protected population;
the obligation to facilitate humanitarian aid by third actors;
the strict prohibition on transferring the own population into the occupied territory;
the strict prohibition on forcible transfer of the protected population, while allowing for temporary evacuation for military operations;
the obligation to respect private property;
the destruction of property is prohibited except where rendered absolutely necessary for military operations.
(Diakonia, n.d)
Israel withdrew its occupation, thus relinquishing itself of these duties; however, this withdrawal lacked widespread recognition in the broader international community. Consequently, this sparked discussions regarding the criteria for defining territory as occupied.
Effective Control
To qualify a state or territory as ‘occupied,’ one must first consider whether the alleged occupying force is exercising “effective control,” a term subject to indefinite interpretation.
Israel relies on a literal interpretation of the Hague convention; namely, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.
Of this convention, it is article 42 that states:
“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.”
Therefore, in theory, by removing settler and military presences, Gaza can no longer be considered as occupied territory according to this convention. Furthermore, since 2005 the Gazan public have held elections, demonstrated self-determination, and seized the “opportunity to run their own affairs.” This was the goal that Israel claimed during its disengagement plan (Israeli Prime Minister's Office, 2004).
Following the disengagement, legal scholars sympathetic to Israel’s position advocated for a reclassification of the Gaza strip. It’s not occupied, nor an independent state – rather a more ambiguous third thing.
That third thing is an independent legal classification known as “sui generis”, meaning “of its own kind.” Sui generis does not have a specific legal definition or precedent as a territorial classification, it is often invoked to describe situations that defy conventional legal classification and require unique approaches or solutions.
While this seems relatively harmless, the consequence of this reclassification is the provision of legitimacy to Israel’s invocation of self-defence against terror networks based in Gaza (Samson, 2010). As far as Israel is concerned, their “unique approaches or solutions” seem to be military bombardment.
Israel's reliance on the 1907 Hague Convention's definition of occupation raises doubts. Despite assertions of withdrawal by removing military personnel and settlers from the strip, it's crucial to examine what control Israel retained:
Substantial control over land borders;
Ground control through sporadic military incursion;
Complete control of Gaza’s airspace;
Complete control of Gaza’s territorial waters;
Control of the Palestinian Population Registry;
Control of tax policy and the transfer of tax revenues;
Control of the ability of the Palestinian Authority to exercise governmental functions;
Control of the West Bank, which together with Gaza, constitute a single territorial Unit.
(Gisha, 2007)
As an occupying entity, Israel had full military and administrative control of the Gaza strip after the territory came under Israeli occupation as a result of the six-day war. The Oslo Accords, a series of Arab-Israeli peace talks in the early 90’s, aimed to initiate a Palestinian civil administration with international anticipation of an eventual two-state solution. Agreements made in the accord saw the transfer of some elements of governmental control from the Israeli Occupying Force to the Palestinian Authority (Office of The Historian, n.d.). Any remaining powers unspecified in the agreements prevailed under Israeli control (Mann and Bashi, 2007). This constitutes the basis of broader reluctance among legal scholars and the United Nations to recognise Israel's contested withdrawal.
It is difficult to overlook the contradiction of asserting withdrawal from occupation through military disengagement, while still retaining substantial control over Gaza using powers initially held as an occupying force. Moreover, engaging in sporadic military incursions suggests the very definition of occupation that Israel cited in its disengagement: a territory under the control of a hostile army. Not to mention, The Hague Convention, signed two years before the debut of military aircraft, conveniently overlooked the issue of airspace control, which cannot be ignored in a contemporary context.
Considering the above, Israel's purported disengagement from Gaza can be viewed as, in essence, a calculated manoeuvre designed to lay the groundwork for future military conflict and the subsequent annexation of the territory. When evaluating the substantial disparity in casualty figures between the two sides, Israeli claims of victimhood or self-defence come under scrutiny. Furthermore, the means and relative proportion of the Israeli response also ought to be scrutinised.
There are countless alternatives to declaration of war; diplomatic negotiation, sanctions, peacekeeping operations, humanitarian intervention, mediation, to name a few. It is worth considering how many of these options were genuinely attempted before war was declared.
When evaluating Israel's responsibilities regarding its ongoing control over Gaza as an occupying entity, it is incumbent upon Israel to ensure the safety and security of the Palestinian population in Gaza, as well as to uphold principles of law and order.
These obligations have been neglected and a thorough investigation should be carried out in accordance with International Humanitarian Law.
Next month’s article will assess the history of nationalist movements in Europe and view the rise of zionism through this lens. It will then assess some of the inconsistencies present within the zionist movement as a result of it’s conflation of itself with Judaism as well as a brief exploration of military justifiability regarding Israel’s operations within the Gaza strip.
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Reference list
Albanese, F. (2023). Francesca Albanese’s Address to the National Press Club of Australia. [online] www.youtube.com. Available at:
[Accessed 1 May 2024].
BBC (2024). Israel-Gaza violence: The conflict explained. BBC News. [online] 5 Apr. Available at: https://www.bbc.com/news/newsbeat-44124396.
Charter of the United Nations.52 [online] Available at: https://www.un.org/en/about-us/un-charter/chapter-8.
Diakonia (n.d.). Occupation and IHL. [online] Diakonia International Humanitarian Law Centre. Available at: https://www.diakonia.se/ihl/resources/international-humanitarian-law/ihl-law-occupation/.
Diakonia (n.d.). Occupation and IHL. [online] Diakonia International Humanitarian Law Centre. Available at: https://www.diakonia.se/ihl/resources/international-humanitarian-law/ihl-law-occupation/.
France 24 (2023). Israel Social Security Data Reveals True Picture of Oct 7 Deaths. [online] France 24. Available at: https://www.france24.com/en/live-news/20231215-israel-social-security-data-reveals-true-picture-of-oct-7-deaths.
Israeli Prime Minister's Office (2004). Addendum A – Revised Disengagement Plan – Main Principles. [online] United Nations. Available at: https://www.un.org/unispal/document/auto-insert-209909/.
Lobel, O. and Australia Israel & Jewish Affairs Council (2023). Article 51 and Israel’s inherent right to self-defence. [online] AIJAC. Available at: https://aijac.org.au/fresh-air/article-51-and-israels-inherent-right-to-self-defence/.
Mann, K. and Bashi, S. (2007). Disengaged Occupiers: The Legal Status of Gaza. Israel: Gisha: Legal Centre for Freedom of Movement, pp.8–97.
Office of The Historian (n.d.). The Oslo Accords and the Arab-Israeli Peace Process. [online] Office of the Historian of the United States. Available at: https://history.state.gov/milestones/1993-2000/oslo.
Samson, E. (2010). Is Gaza Occupied? Redefining the Legal Status of Gaza. Israel: Begin-Sadat Center for Strategic Studies.