Is the Gaza Strip really under Israeli occupation?
In the mainstream Australian press, pro-Israel advocates continue to claim that Gaza is no longer occupied by Israel. Below is a brief summary of the legal status of Gaza with references for further understanding.
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The Gaza Strip is a 360km2 piece of land by the south-eastern Mediterranean Sea. Mostly surrounded by an Israeli fence, Gaza also has a border with Egypt. It is home to around 2.3 million Palestinians, some 70 percent of whom are United Nations (UN)-registered refugees, ethnically cleansed from their homes by Israel in 1948. [1] More than half of Gaza’s population are children. [2]
The Gaza Strip is part of the Occupied Palestinian Territory (OPT), and has been under Israeli military control since 1967. For decades, Israel maintained a permanent armed presence in Gaza, expropriated land, and built colonies for a Jewish settler population that rose to more than 8,000. In 2005, Israel removed these settlers, and redeployed its armed forces to Gaza’s perimeter fence.
Contrary to what some have maintained, however, this so-called ‘disengagement’ process did not end Israel’s status as occupier. Under international law, a central element of the test for occupation is whether or not the state exercises “effective control” over the territory in question.
Since 2005, Israel has retained control over five of Gaza’s six land crossings, its airspace, territorial waters, and the Palestinian population registry. Israel enforces, with lethal violence, a unilaterally - expanded ‘no go’ area alongside the border fence inside Gaza, and, reserves the right for its forces to routinely re-enter the territory based on ‘military necessity’. [3]
Furthermore, an occupying state “cannot unilaterally (and without international/diplomatic agreement) transform the international status of occupied territory.” [4] Crucially, the Gaza Strip constitutes only part of the OPT, along with the West Bank (including East Jerusalem). In the words of Israeli legal rights centre Adalah:
“The Gaza Strip and the West Bank, including East Jerusalem, constitute a single territorial entity with political, legal, economic and territorial unity. These areas were occupied in 1967. Neither Israeli laws, the Oslo Agreements nor the Disengagement Plan changed the legal status of the single occupied Palestinian territory.” [5]
The UN has repeatedly affirmed in various fora that the Gaza Strip remains under Israeli occupation. For example, UN Security Council Resolution 1860, adopted 14–0 on January 8, 2009 — the U.S. abstained — stressed “that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state.” [6]
In 2011, meanwhile, UN General Assembly Resolution 65/179 emphasised “the need for respect and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory” — i.e. including Gaza. [7] In 2012, the UN Secretary-General’s spokesperson affirmed that the body would “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.” [8]
In November 2014, the Office of the Prosecutor at the International Criminal Court in The Hague expressed agreement with “the prevalent view within the international community” that “Israel remains an occupying power under international law, based on the scope and degree of control that it has retained over the territory of Gaza following the 2005 disengagement.” [9]
The reason this is important is because Israel and its supporters seek to contest or deny the Gaza Strip’s occupied status. They do so for propaganda purposes, but more disturbingly, in order to relieve Israel of its responsibilities as an occupying power, particularly in the context of the use of military force.
[1] The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), http://www.unrwa.org/where-we-work/gaza-strip (last accessed 1/6/15).
[2] UNICEF, http://www.unicef.org/oPt/overview.html (last accessed 1/6/15).
[3] B’Tselem, ‘The scope of Israeli control in the Gaza Strip’, http://www.btselem.org/gaza_strip/gaza_status (last accessed 5/1/16).
[4] Lisa Hajjar, ‘Is Gaza Still Occupied and Why Does It Matter?’, Jadaliyya, http://www.jadaliyya.com/…/is-gaza-still-occupied-and-why-d… (last accessed 5/1/16).
[5] Adalah, ‘The Truth About Gaza’, November 2012, http://www.adalah.org/…/Adalah-Truth-about-Gaza-November-20… (last accessed 5/1/16).
[6] UN press release, January 8, 2009, http://www.un.org/press/en/2009/sc9567.doc.htm (last accessed 3/6/15).
[7] Resolution text available here: https://unispal.un.org/…/…/3f8f382bf9874a50852578770064392b… (last accessed 5/1/16).
[8] Daily Press Briefing by the Office of the Spokesperson for the Secretary-General, http://www.un.org/press/en/2012/db120119.doc.htm (last accessed 3/6/15).
[9] Office of the Prosecutor — ICC — 6 November, 2014, http://opiniojuris.org/…/2014-11-03-Final-Report-on-Situati…(last accessed 3/6/15).
Source: https://benwhite.org.uk/books/
A more extensive discussion of the subject, specifically the legal status of the occupation, can be found here:
Norman G. Finkelstein, Gaza: An Inquest Into Its Martyrdom (University Of California Press, Oakland 2018), Appendix (pp.367–408).
Israel’s pre-eminent international lawyer, Yoram Dinstein, who has written the definitive book on the subject, argues that Gaza is still occupied, which is also the overwhelming view of international lawyers:
(Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge 2009), p.277.
The same “occupied” designation applies to the West Bank, East Jerusalem and the Golan Heights. The fact that Trump recognised Jerusalem as the capital of Israel and the Golan Heights as part of Israel is irrelevant. No other state does.
