Israel’s Temporary Control of Gaza

In his July 25^th address to the US Congress, Israeli Prime Minister Benjamin Netanyahu pledged that Israel would “retain overriding security control” over Gaza until a political process creates a new, demilitarized and deradicalized Gaza run by Palestinians. Under international humanitarian law (IHL) as properly understood, he correctly declined to call this temporary period of Israeli control an “occupation.”  Here’s why.

Occupation Law

When an army captures and holds foreign territory, it typically becomes an occupying power. An occupation is a stage of war; it is not a war crime. Generally speaking, occupation begins when troops that are “physically present” in the foreign territory seize “effective control” over the foreign governmental functions, and the status ends when the troops leave the territory, lose effective control, or obtain consent for their presence.

An occupying power must govern the captured territory in a manner that balances three interests. It may pursue its own military goals. It must serve the humanitarian needs of the occupied population. And it must preserve the laws of the “ousted sovereign.” In Gaza, contrary to a smokescreen of misreporting, Israel already facilitates deliveries of the goods required by occupation law, and there is no ousted sovereign because Hamas never made Gaza a sovereign state. The precise question here is whether Israel may pursue its demilitarization/deradicalization goal, continue the ongoing humanitarian aid, and prepare Gaza for a new Palestinian government, all without being subject to occupation law.

Legal History of Gaza

The San Remo Treaty of 1920 outlined a district in the Eastern Mediterranean associated with the ancestral homeland of the Jews, named it Mandatory Palestine, and allocated it to the Jewish people to reconstitute their self-rule. The pre-state realm, after passage of the Palestine Mandate of 1922, included present-day Israel and two territories presently called the Gaza Strip and the West Bank (the Territories).

The Gaza Strip is a short finger of land along the Mediterranean coast named by the Egyptian military to describe the extent of its 1948 invasion of Israel. Egypt occupied Gaza but never annexed it. The Israeli Defense Force (IDF) captured Gaza in the 1967 Six-Day War, thus ending the Egyptian occupation, and imposed martial law. Israel agreed to forebear from exercising its sovereign rights to the Territories pending negotiation of land-for-peace deals with its Arab enemies. One such deal was reached in the form of the 1979 Egypt-Israel Peace Treaty. Starting in 1993, Israel and the Palestinians entered into the Oslo Accords, wherein Israel delegated autonomy to the Palestinians in nearly all of Gaza, and the Palestinians let Israel maintain a community with a buffer of troops in the southwest corner of the enclave. In 2005, Israel unilaterally withdrew its civilians and troops from the area. Israel left behind valuable greenhouses to help Gazans jump-start their economy. It was a bid for peaceful co-existence that Hamas exploited when it destroyed the greenhouses, snatched control of Gaza, and developed it into a springboard of terrorism. In self-defense, Israel erected the Gaza blockade. Hamas’s October 7^th invasion marked its fifth war against Israel.

Israel Never Occupied Gaza

Based on the above occupation laws, Israel never occupied Gaza.

To begin with, a state cannot occupy its own land. Israel never lost its sovereign right to Gaza through the periods of physical possession by Egypt or Hamas. To this day, no party other than Israel holds as strong a legal right to the locale. A similar event occurred in World War I. When France recovered Alsace-Lorraine from Germany, the act was not considered an occupation but a continuance of France’s pre-war ownership.

Although the Palestinians, in a threatening doctrinal overreach, claim a right of “self-determination” in all of Israel and the Territories, self-determination does not rise to the legal status of sovereignty and certainly cannot supersede another party’s pre-existing sovereign rights. Anyway, Palestinians already exercise self-determination in their temporarily-assigned portions of the Territories, thanks to the Oslo Accords.

A second reason why Israel never occupied Gaza is rooted in the IHL definition of “occupation,” which indicates that a foreign territory is not occupied if it is not part of a sovereign state. Considering a key purpose of occupation law is to preserve the rights of the ousted sovereign, it follows that occupation law is not triggered where there is no ousted sovereign. Before Israel captured Gaza in 1967, the terrain was not controlled by any sovereign state. Anti-Israel critics dispute this reading of IHL but have never offered a more reliable interpretation, only an ahistorical ipse dixit.

Even assuming hypothetically that Israel occupied Gaza in 1967, that legal status expired in 1979, when Egypt and Israel made peace. The peace treaty set an international border “without prejudice to” the status of Gaza, thereby making Israel’s military/civilian control of Gaza effectively consensual.

In the Oslo Accords, the Palestinians added their own consent to Israel’s military/civilian presence in Gaza. At that point, the IDF did not occupy Gaza any more than the U.S. occupies Jordan, Saudi Arabia, or the Persian Gulf states, where it maintains military bases and personnel.

When Israel withdrew its soldiers and civilians from Gaza in 2005, it completely removed its presence there. And two years later, effective control over Gaza was seized by Hamas.

Hamas’s October 7^th invasion of Israel dragged the IDF back into Gaza. But the renewed troop presence did not erase the other IHL factors that exempted Israel from occupation law in that sector.

How Israel may Administer Gaza Today

Many, if not most, Israelis may dread the prospect of temporarily administering an enclave known for terrorism and economic decay. However, if Israel were to reimpose martial law in Gaza, putting aside questions as to the wisdom of such an endeavor, the IDF could execute the demilitarization/deradicalization initiative, continue its humanitarian aid services, and facilitate a new Palestinian government in Gaza, all without being subject to occupation law. The arrangement would present a valuable lesson in IHL: not every wartime seizure of territory is an occupation.