An examination of the Israeli state position on its obligations to the residents of the Gaza Strip

Gisha – Legal Center for Freedom of Movement

Background

Gisha is an Israeli not-for-profit organization, founded in 2005, whose goal is to protect the freedom of movement of Palestinians, especially Gaza residents. Gisha promotes rights guaranteed by international and Israeli law.

On March 18, 2024, five human rights organizations in Israel (Gisha, together with HaMoked: Center for the Defence of the Individual, Physicians for Human Rights Israel, the Association for Civil Rights in Israel, and Adalah - The Legal Center for Arab Minority Rights in Israel; collectively “the Petitioners”) filed a petition calling on Israel’s High Court of Justice (HCJ) to order the Israeli government, Prime Minister, Defense Minister, and the Coordinator of Government Activities in the Territories (COGAT) (hereafter: “the Respondents,” also referred to as “Israel” or “the state”) to enable access of all humanitarian aid, equipment and staff to Gaza, especially to the north of the Strip; to significantly increase the volume of aid to Gaza, including by opening land crossings between Gaza and Israel, and to provide for all the needs of the civilian population in keeping with Israel’s obligations as the occupying power.

As part of the ongoing legal proceedings, the state was required by the court to comment upon the findings of the International Court of Justice (ICJ) that the Gaza Strip is under Israeli occupation. The state denies its status as occupying power and its commensurate obligations to the protected Palestinian population, as detailed below.

Israel’s occupation of the Gaza Strip

• The petition was necessitated by the humanitarian catastrophe in Gaza and the lethal harm to civilians caused, in part, as a result of Israeli restrictions on access to aid into and throughout the Strip. We argue that the state is obligated to act according to the duties imposed on it by virtue of the laws of belligerent occupation and the conditions set forth in the Hague Regulations, 1907, in addition to the obligations Israel is subject to under the laws of war and under human rights law.
• On July 19, 2024, the International Court of Justice (ICJ) issued an advisory opinion, according to which Israel is an occupying power in Gaza and owes legal obligations to residents there commensurate with its control over the territory. 
• The UK Government said it “does not disagree with the central findings of the ICJ’s advisory opinion.” As you will know, it is the stated position of the UK Government that “Gaza is Occupied Palestinian Territory.”
• The laws of belligerent occupation impose on Israel the obligation to avoid harming the civilian population in the Gaza Strip, alongside a positive obligation to provide for its humanitarian needs and to maintain public order and civil life.
• Since Hamas’s brutal attacks on the south of Israel on October 7, 2023, Israel’s unprecedented military offensive, ongoing military presence, and its vast control over the territory leave no room for ambiguity about its status as an occupying power. At present, Israel controls all entry and exit of people and goods, it has displaced the population through extensive and illegal evacuation orders, and it has maintained a military presence deep in the Strip, including through the building of physical installations, since its ground offensive began in November 2023. There are indications that even if its forces leave the territory, it will maintain an expanded “buffer zone” with implications for residents’ ability to live and cultivate lands in nearly a fifth of the area of the Strip. 
• As part of Gisha’s submissions to the HCJ, Dr. Marco Longobardo, an authority on international law, provided an expert opinion in July 2024, arguing conclusively for recognition of Israel’s status as occupying power in the entirety of the Gaza Strip especially following October 2023: “After 7th October 2023, there is no doubt that the Gaza Strip is under occupation and that Israel is the occupying power. In addition to exercising actual authority from outside the Gaza Strip, during the Israeli response to the attack (so-called operation ‘Swords of Iron’), Israel has also brought about many factual conditions that typically indicate the presence of an occupation from within the very territory of the Gaza Strip.”[1]
• Again as part of Gisha’s submissions to the HCJ, on April 1, 2024, a group of leading legal scholars in Israel published a legal opinion regarding the status of Israel’s control over the north of Gaza, and ensuing obligations: “Israel has an active obligation to ensure humanitarian relief for residents of the area, including by providing it itself insofar as this is necessary and in light of the specific provisions of the laws of occupation, as well as the general obligation to ensure public order in the area.”[2] This legal opinion was cited by the Report of the Panel of Experts in International Law which convened at the request of the Chief Prosecutor of the ICC. 

Israel’s failure to meet its obligations

Israel’s failure to facilitate, protect and ensure aid and its distribution into and throughout the Gaza Strip since the start of the current war on October 7, 2023, is well-documented. Israel has, in summation:

• Blocked entry of all goods in the Gaza Strip for the period October 7-21, 2023.
• Blocked all entry of fuel October 7 – November 15, 2023. Capped entry of fuel November 15, 2023 – present.
• Cut off Gaza’s electricity supply October 7, 2023 – present.
• Closed Kerem Shalom Crossing, through which the majority of goods entered prior, October 7 – December 17, 2023.
• Closed Erez Crossing October 7, 2023 – May 1, 2024.
• Refused to open any additional northern crossing until May 12, 2024. Israel continues to allow only one of the two northern crossings to be open at any given time.
• Refused to allow Ashdod Port to be used for the passage of aid October 7, 2023 – April 17, 2024.
• Blocked all entry of commercial goods from October 7 until December 2023 when it began to allow some entry from Egypt only; and continued to block entry of commercial goods from Israel and the West Bank until May 2024.  Fully blocked Gaza’s private sector from bringing in commercial goods from October 1, 2024 until the present.
• Blocked entry of water from Israel to Gaza through all three Mekorot pipelines on October 9, 2023 and only restored supply through the southern and central pipelines on October 31, 2023, and the northern pipeline in April 2024. Failed to repair pipelines such that, for example, the southern pipeline did not function from December 5, 2023 to May 16, 2024, and the central pipeline, operated at less than 50% capacity until February 2024.  
• Issued some 100 illegal evacuation/displacement orders covering approximately 80% of the Strip, including areas containing key transit routes and aid warehouses, and displacing approximately 90% of Gaza’s population, limiting the population’s access to food, shelter and sanitation.
• Failed to carry out effective deconfliction, frequently endangering and carrying out strikes on aid convoys.
• Fueled the breakdown of public order and created conditions that have led to widespread looting, including by targeting of civilian police and other security personnel guarding aid convoys.
• Prevented entrance of all humanitarian aid to the protected population in northern Gaza October 1-14, 2024 and continuing to deny all access for aid to the North Gaza governorate, including essential supplies for hospitals. 
• Denied visas to humanitarian staff.
• Consistently denied facilitation of humanitarian missions, for example, facilitating only 33 percent of requested convoys across the Gaza Strip in the period December 1-30, 2024.

The above is not an exhaustive list of Israel’s policy and actions which have limited and blocked humanitarian aid. The duty towards protected persons lies at the core of humanitarian law, and Israel cannot claim to be respecting the law while denying its obligations and simultaneously engaging in conduct that critically harms protected persons and wreaks destruction upon them.  

Israel denies its status as occupying power and shirks its commensurate responsibilities

• The state acknowledges that it has obligations under the laws of armed conflict to “facilitate and allow” the transfer of humanitarian aid necessary for the survival of the civilian population in areas of armed conflict. Israel claims that it is acting in line with these obligations (and even going beyond them), including in coordination with humanitarian organizations and the international community, a claim which the Petitioners dispute.

• The state claims that “the laws of belligerent occupation do not apply to IDF operations in the Gaza Strip as part of the Swords of Iron war, but rather, the laws of war, the relevant provisions of which are upheld by the Respondents.”[3]

• The state argues that the conditions necessary to create the situation of belligerent occupation were not fulfilled in the period September 2005 – October 2023, nor in the period following October 7, 2023 to the present day: “These conditions ceased to exist upon Israel’s withdrawal from the Gaza Strip amid the implementation of the Disengagement plan and the abolition of the military administration in the Gaza Strip, in September 2005 [...] The current factual picture and the changes on the ground since October 7th have had no effect on this bottom line since there is no Israeli effective control over the Gaza Strip as the term is defined in the laws of belligerent occupation.”[4]
• Contra the ICJ, the International Committee of the Red Cross, the UN Security Council and General Assembly, and others, the state rejects outright any functional interpretation of occupation (as applied to the period September 2005 – October 2023); according to the state, the test for the existence of occupation under the Hague Regulations demonstrates that “the applicability of the laws of belligerent occupation is a binary matter - they either apply or they do not.”[5]
• The state rejects the ICJ’s findings regarding Gaza and shows disdain for its conclusions and determinations: “Without detracting from Israel’s reservations on its overall findings, the Respondents maintain that nothing in it alters the conclusion on the inapplicability of the laws of belligerent occupation to the Gaza Strip. Firstly, the ICJ’s finding on the Gaza Strip was made as a side note in the Advisory Opinion, and it is not relevant to the issue and timeframe that are the subject of the petition. Secondly, in any event, an advisory opinion is not legally binding (and is certainly not binding on this Honorable Court), particularly given that the findings of the Advisory Opinion are inconsistent with the jurisprudence of the Honorable Court. Thirdly, the ICJ was presented with an incomplete factual picture, and, in any event, no attempt was made at an in-depth factual analysis. Furthermore, the legal position implied by the Advisory Opinion in the context in question is incompatible with the prevailing law and with the ICJ’s own findings in past decisions.”[6]
• The state claims that the ICJ’s assertion that “Israel’s withdrawal from the Gaza Strip has not entirely released it of its obligations under the law of occupation”.[7]does not necessarily mean that the ICJ holds the position that Israel is the occupying power in Gaza: “the ICJ did not explicitly declare that the State of Israel is an occupying power in the Gaza Strip or that the area is under belligerent occupation. Instead, the ICJ chose to make a general and ambiguous statement that Israel has not been released from its obligations under these laws. This is a fundamentally different statement, which may suggest recognition of the continuity of certain legal obligations even after the end of the occupation.” .[8]
• Moving beyond the question of functional occupation in the period before October 2023, the state claimed in September and November 2024 that the scope of forces and nature of its military activities in Gaza even now do not allow for the establishment of effective control over Gaza.
• Despite its ongoing and established military presence in the Gaza Strip since October 2023, and its extensive control over many aspects of daily life, the state continues to claim that it “does not have effective control” over the area and even asserts that local governance by Hamas is functioning at capacity:
• “Israel has dealt significant blows to Hamas and its military capabilities, but these capabilities have not yet been fully neutralized, and violent clashes continue. This is especially true given Hamas's return to action in areas from which the IDF has withdrawn and the rebuilding of its capabilities in the area, necessitating the return of IDF forces to fight again in areas where they previously operated.”[9]
• “The State of Israel is unable to perform governmental functions in the area, other than through local authorities; despite the significant damage inflicted on Hamas, the organization has not yet lost its military and governmental capabilities entirely and continues to function and exercise its governmental authority in the area.”[10]

Conclusions

The above demonstrates that, against the conclusions of the ICJ, bodies of the UN, and experts in international law, Israel denies its status as occupying power in Gaza, both prior to the current war and since its onset. Despite Israel’s control over many aspects of civilian life in Gaza, and the degradation of the governing capabilities of Hamas, as declared by Israeli officials and demonstrated by the collapse of civil order in Gaza, Israel does not acknowledge its responsibilities and obligations to the Palestinian residents of Gaza.

The significance of this is that, while Israeli officials and representatives attempt to demonstrate the fulfilment of its obligations under international law, Israel considers these obligations to arise under the laws of war, and not of belligerent occupation, and even then, it interprets its obligations under the laws of war in the most minimal terms.  While it is the position of Gisha and the other petitioning human rights organizations in Israel that the state is not fulfilling its obligations even under the laws of war, it is important to note that, when Israeli officials claim that they are abiding by international law, their interpretation of the application of international law upon them in relation to Gaza differs drastically from the UK’s stated interpretation. This is significant evidence to consider when assessing the UK’s position to “support Israel’s right to self-defence in line with international humanitarian law.”

The UK must hold Israel to its obligations as an occupying power to see to the welfare and wellbeing of the protected population, wherever they are located within the Gaza Strip, and to ensure that aid and necessary services reach them.

January 12, 2025