OCTOBER 9 — In an article published only last week (October 5), Safaa Sadi Jaber and Ilias Bantekas argue that despite the disengagement of Israel from Gaza in 2005 and the assumption of military and political authority by Hamas, Israel nonetheless continues to be in effective occupation of the Gaza Strip on the basis of the following grounds:

(1) the relatively small size of Gaza in connection with the technological superiority of the Israeli air force allows Israeli boots to be present in Gaza within a reasonable response time;

(2) Hamas’s authority and armed resistance do not impede the status of occupation;

(3) the long pre-disengagement occupation and close proximity between Israel and Gaza (geography) allow for the remote exercise of effective control; and

(4) all imports, exports in and out of Gaza, and any movement of persons are fully controlled and regulated by Israel. ("The Status of Gaza as Occupied Territory Under International Law” (2023) 72 International & Comparative Law Quarterly 1)

In short, Israel is an occupier of the Gaza Strip.

Israel has long argued that it is no longer the occupying power in Gaza and thus has no legal duties whatsoever. Like the authors above, Nicholas Stephanopoulos contends otherwise. Israel still occupies Gaza for two reasons: first, because it retains effective control over the territory, and second, because agreements between Israel and the Palestinian Authority (PA) prohibit unilateral changes to the legal status of Gaza and the West Bank.

Moreover, even if Gaza is no longer considered to be occupied, Israel continues to bear legal obligations to the territory under both international law and the Israel-PA accords. ("Israel’s Legal Obligations to Gaza After the Pullout” (2006) 31 Yale Journal of International Law 524)

The international law of occupation is set out in the 1907 Hague Convention on the Laws of War (Hague Convention) and the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).

According to the Hague Convention, a territory "is considered occupied when it is actually placed under the authority of the hostile army”, and "the occupation extends only to the territory where such authority has been established and can be exercised”.

According to the Fourth Geneva Convention, occupation is linked to the extent that a power exercises the functions of government in the allegedly occupied territory. If a territory is found to be occupied, then a host of responsibilities accrue to the occupying power. For example, responsibility to run schools, provide food and medical supplies, and ensure, as far as possible, public order and safety.

Israel’s continuing military incursions and control of Gaza’s borders indicate that Israel is still exerting authority over the territory.

Israel also continues to carry out several core functions of government in Gaza such as managing internal and external security, regulating the flow of people and goods, and collecting customs.

To that extent, Israel is still an occupying power. Gaza therefore remains an occupied territory with considerable legal consequences.

First, international humanitarian law imposes affirmative duties on an occupier in its treatment of the occupied civilian population. These duties and obligations are spelled out in provisions of the Hague Convention (II) respecting the Laws and Customs of War on Land and its annexed regulations of 1907, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949, and customary norms of international law pertaining to belligerent occupation.

In general, the regulations are designed to reduce the impact of military occupation on civilian life to the maximum extent possible, while preserving the freedom of the occupier to act according to military necessity. Israel has failed its legal duties as an occupying authority.

Article 43 of the Hague Regulations, for example, requires that an occupying power take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The Fourth Geneva Convention describes civilians who fall under the control of a foreign military authority as "protected persons” and vests the occupying forces with responsibility to ensure their basic welfare.

Article 3 of the Fourth Geneva Convention mandates that civilians must be treated humanely. Occupying authorities may not wilfully kill, ill-treat, or deport protected persons, and may seize or destroy civilian property only if militarily necessary.

Occupiers must ensure supplies of food and medical supplies, and facilitate the care and education of children. In the event that food or other vital supplies in the territory become inadequate, the occupier is obligated to permit the entry of relief consignments.

Your guess is as good as mine whether Israel has lived up to its legal duties as an occupying authority.

Second, the law of occupation also restricts an occupier’s right to use force in maintaining public order in the territory it occupies. The occupier’s obligation to protect the civilian population implies limits on the amount of force that can be lawfully employed to fulfil that duty.

According to Amnesty International, under normal circumstances, "the occupying power is bound by law enforcement standards derived from human rights law when maintaining order in occupied territory.

"For example, these would require the occupying power to seek to arrest, rather than kill, members of armed groups suspected of carrying out attacks, and to use the minimum amount of force necessary in countering any security threat.” (See The Conflict in Gaza: A Briefing on Applicable Law, Investigations, and Accountability 2009)

Again, your guess is as good as mine on Israel’s use of force in Gaza.

According to George E. Bisharat, Israel had engaged in deliberate killings of Palestinians in the occupied territories since the 1970s, but had generally done so surreptitiously, by means of "death squads”, which the regime typically denied.

Israel resorted, in some cases, to highly public means of killings — including bombings by air — that often caused many civilian casualties, and in which the absence of any attempt to arrest was patent.

In 2002, for example, an Israeli F-16 fighter-bomber dropped a one-ton bomb on an apartment building in Gaza, killing Hamas military wing leader Salah Shehadeh and 14 innocent bystanders.

Israel had also resorted to massive violence in suppressing riots, including the use of helicopter gunships, tanks, and F-16 aircraft, that did not square easily with a law enforcement model.

Israeli representatives attempted to justify these actions by arguing that the circumstances prevailing in the occupied territories constituted an "armed conflict short of war.” ("Israel’s Invasion of Gaza in International Law”, (2009) 38 Denver Journal of International Law & Policy 41)

Israel has rehashed the argument following the surprise large-scale attack by Hamas on Saturday.

The third legal consequence relates to the right to self-defence. If Israel continues to occupy the Gaza Strip, it may not be able to plead self-defense.

Bisharat argues that a state cannot claim self-defense vis-a-viz a territory it has already occupied. According to the American professor of law and frequent commentator on current events in the Middle East, and the Israeli–Palestinian conflict in particular:

"The Charter of the United Nations explicitly preserves the right of states to act in self-defense. It is, however, a limited exception to the general obligation established in the Charter that states resolve their disputes by pacific means. Under Article 51, a state making a claim of self-defense must have been the target of an "armed attack” by another state.

"Moreover, the exercise of self-defense must be both necessary and "proportional — that is, limited in scope to redress the harm that the invoking state has suffered.”

The International Court of Justice itself has cast serious doubt on Israel’s ability to invoke a claim of self-defence against attacks emanating from Gaza. Article 51 of the United Nations Charter entitles Israel to act in self-defence in response to armed attacks.

In its 2004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory decision, however, the ICJ stated that Article 51 of the UN Charter "recognises the existence of an inherent right of self-defense in the case of armed attack by one State against another State.”

Noting that Israel "does not claim that the attacks against it are imputable to a foreign state,” the Court concluded that attacks launched from the (occupied) West Bank do not give rise to an Israeli right of self-defence.

It does not mean that Israel, in principle, cannot use force to suppress violence emanating from the Gaza Strip, or act to protect its own civilian population. But as a matter of law, it must do this as an exercise of its right to police the occupied territories, and not as an exercise of the right of self-defence.

It is shameful that the leaders of Germany, France, Italy, Britain, the Netherlands, Spain, Ukraine and Czech Republic have backed Israel’s right to defend itself.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.