It's Time to Talk About the Far-Reaching Potential Implications of Occupying Gaza
Against the backdrop of reports indicating the possibility of Israel fully occupying the Gaza Strip, it is essential to address the moral, strategic, international, security, economic, and social ramifications associated with such a move.
Photo by REUTERS
The debate over the future governing arrangements that will apply in the Gaza Strip has raged almost since the very first day of the war following October 7. Ministers from the far-right in the government stated their goal early on: the re-occupation of Gaza and the establishment of Israeli settlements. The Prime Minister, by contrast, previously declared that Gazans should be able to self-govern (but not through the Palestinian Authority), with oversight by Arab states, and that the IDF would control parts of the Gaza Strip as needed, without the establishment of Israeli settlements there.
However, as the fighting has dragged on, and in particular since the IDF's more recent stage of the war known as "Operation Gideon's Chariots," the military's control over the territory has expanded significantly. Thus, even prior to the latest reports and before any public decision has been made, there is growing concern that Israel is already creeping toward occupation of the Strip. To ensure there is an informed debate on the topic, and for the far-reaching consequences to be well understood, it is worthwhile to begin by examining the legal implications of occupation and the obligations such a situation imposes on the State of Israel.
Many of the rules governing the law of military occupation were already codified some 120 years ago in the 1907 Hague Regulations, one of the first laws of war treaties, and have since attained the status of customary international law binding on all states. They apply in situations of “belligerent occupation”—that is, when a state has established “effective control” over territory outside its own (typically the territory of another state against which it is fighting). These rules impose both rights and duties regarding the population living in that territory, which the 1949 Fourth Geneva Convention defines as “protected persons,” as well as regarding the territory itself and its public and private property. The occupying power effectively and temporarily replaces the prior authority in many respects, stepping into its shoes. However, it is subject to various limitations on its powers, aimed at protecting the rights of the “protected persons” residing in the occupied territory and preventing significant changes to the area so long as the occupation has not ended. “Effective control” of territory requires "boots on the ground," namely actual physical military presence in the foreign territory, and the ability to exercise governmental authorities in lieu of the previous governing power of the territory.
At the core of the obligations of an occupying power is to ensure the public order and safety of the residents of the occupied territory, and that their basic needs are met across various aspects of their lives—including their nutrition, health, and shelter. As the security situation on the ground stabilizes, the responsibilities of the occupying power grow, to encompass all aspects of life, from education and welfare to the economy and municipal services. The occupying power may fulfill its responsibilities through other actors, such as international organizations or local entities, but in the end, it bears ultimate responsibility for the population. In other words, there is no prohibition on food supply or the provision of medical services being carried out by other actors operating in the occupied territory, but if their activities are insufficient, it is the occupying power's responsibility to ensure that the civilian population receives what it needs, including supplementing any shortfall from its own resources.
The legal obligations mentioned above, which are binding on an occupying power, are already in the background of global accusations regarding Israel’s humanitarian assistance policy in the Gaza Strip. From the perspective of some countries, such as the United Kingdom, Israel's status as an occupying power in Gaza never ended (due to its control over Gaza's borders and various aspects of life there). Therefore, they argue, from the very first day of the war, Israel has had active duties to provide humanitarian aid to Gaza’s residents.
The position of the Israeli government, upheld by the Israeli Supreme Court back in 2007 and in subsequent decisions since, has been that with the implementation of the "Disengagement Plan" in 2005 and the complete withdrawal of Israeli military and civilian presence from the Gaza Strip, Israel no longer had any obligations towards Gazans emanating from the laws of belligerent occupation. This position was reiterated recently in the context of petitions submitted to the court by various NGOs challenging the legality of Israel's humanitarian aid policy in Gaza throughout the war. In a decision delivered in March this year, the court ruled that based on the facts on the ground as they stood up until that point in time, the Gaza Strip was not under Israeli occupation, and thus the relevant governing legal framework to determine the extent of Israel's humanitarian aid obligations was that which is applicable to parties to an armed conflict rather than that of belligerent occupation. The court therefore ruled that Israel's humanitarian obligations were limited to allowing and facilitating humanitarian aid by others and that Israel complied with such obligations. However, since then, the IDF has significantly expanded its territorial control in the Strip, and the claims of international actors that Israel is already bound by the obligations of an occupying power—at least in parts of Gaza—have grown stronger.
Nevertheless, the government’s actions clearly indicate that it is attempting to avoid the classification of occupying power. It refrains from establishing a “military government” or a “civil administration” in the Strip similar to those that exist in the West Bank (and in the Gaza Strip prior to the Oslo Accords and Israel's disengagement from the territory), and it is meticulous about ensuring that humanitarian aid to Gaza’s residents is distributed by third parties. Still, despite the government’s lack of transparency regarding the organization and funding of these activities, we occasionally glean insights that suggest the government may be increasingly stepping into the shoes of Hamas as the previous governing authority in the Gaza Strip. Moreover, according to recent reports, the Prime Minister is pushing towards "full occupation” of the Gaza Strip. It is yet to be seen what decisions are made and steps taken towards their implementation. What's important is that once Israel assumes the status of the occupying power in the Gaza, in whole or in parts of the Strip, the bundle of rights and obligations that comes with this status applies to it. Avoiding the establishment of a military government or civil administration will not diminish its legal obligations.
Occupation of the Gaza Strip could have far-reaching implications for the State of Israel. First, there are diplomatic consequences, and we need only look several miles east at the heavy diplomatic costs Israel pays due to its long-standing control over the West Bank. There are national security implications, as occupation of the Gaza Strip would impose an additional burden on the IDF, at the expense of other military missions, and intensify the already-heavy burden on its personnel. Economically, there would be a severe impact on Israel and the Israeli taxpayer of controlling the Gaza Strip—the aforementioned legal obligations would be incredibly costly considering Gaza's large population, devastated economy, and destroyed infrastructure. And, of course, there are moral and ethical consequences of ruling over more than two million additional Palestinians. As a democratic state, it would be appropriate for the Israeli government to exhibit full transparency in its plans regarding the Gaza Strip, as well as in its policies and actions there. But instead of presenting these implications to the public and engaging in an honest and open public discussion, we may be heading towards a de facto occupation—with significant consequences we will be forced to grapple with for many years to come.