Is Gaza still occupied by Israel and does Israel have a duty to respect the laws regarding occupation?

  • Israel’s detractors say Gaza continues to be occupied by Israel as Israel controls all of the border crossings, the air and the sea; and its soldiers can enter Gaza at will.
  • This is not true because Israel’s “occupation” of Gaza does not fall under the classic definition of military (belligerent) occupation in the Geneva Convention;
  • Technically, Israel never occupied Gaza because Egypt acquired control as a result of an illegal act of aggression between 1948 and 1967 and did not have legal sovereignty over it. When Israel gained control of Gaza in 1967, it did not take control of “the territory of a High Contracting Party” within the meaning of the Geneva Convention. There was no ousted sovereign, so there was no question of occupation within the meaning of international humanitarian law.
  • Israel withdrew its citizens and army from Gaza in September 2005 and since then has not had effective control, nor potential control, over Gaza which is necessary for it to be an occupier.
  • Hamas, (and previously the Palestinian Authority) has effective control over Gaza and is the authority which openly governs in a way that is not sanctioned by Israel. Gaza has its own locally organized military forces which are not controlled by Israel. Israel does not control Gaza, which is one of the basic conditions of occupation.
  • The law of belligerent occupation does not apply to Israel vis-à-vis Gaza, so Israel does not have a duty to respect the laws regarding occupation.

Hamas in Gaza

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