Israeli occupation
Despite the 2005 Israeli disengagement from Gaza, the UN, international human rights organisations, and the majority of governments and legal commentators considered the territory to be still occupied by Israel, from the late 2000s until 2023, supported by additional restrictions placed on Gaza by Egypt. Israel maintains direct external control over Gaza and indirect control over life within Gaza: it controls Gaza's air and maritime space, as well as six of Gaza's seven land crossings. It reserves the right to enter Gaza at will with its military and maintains a no-go buffer zone within the Gaza territory. Gaza is dependent on Israel for water, electricity, telecommunications, and other utilities. The extensive Israeli buffer zone within the Strip renders much land off-limits to Gaza's inhabitants. The system of control imposed by Israel was described in the fall 2012 edition of International Security as an "indirect occupation". The European Union (EU) considers Gaza to be occupied.
The international community regards all of the Palestinian territories including Gaza as occupied. Human Rights Watch has declared at the UN Human Rights Council that it views Israel as a de facto occupying power in the Gaza Strip, even though Israel has no military or other presence, because the Oslo Accords authorize Israel to control the airspace and the territorial sea.
In his statement on the 2008–2009 Israel–Gaza conflict, UN Special Rapporteur Richard Falk wrote that international humanitarian law applied to Israel "in regard to the obligations of an Occupying Power and in the requirements of the laws of war." Amnesty International, the World Health Organization, Oxfam, the International Committee of the Red Cross, the UN, the UN General Assembly, the UN Fact Finding Mission to Gaza, international human rights organizations, US government websites, the UK Foreign and Commonwealth Office, and a significant number of legal commentators (Geoffrey Aronson, Meron Benvenisti, Claude Bruderlein, Sari Bashi, Kenneth Mann, Shane Darcy, John Reynolds, Yoram Dinstein, John Dugard, Marc S. Kaliser, Mustafa Mari, and Iain Scobbie) maintain that Israel's extensive direct external control over Gaza, and indirect control over the lives of its internal population mean that Gaza remained occupied. In spite of Israel's withdrawal from Gaza in 2005, the Hamas government in Gaza considers Gaza as occupied territory.
Israel states that it does not exercise effective control or authority over any land or institutions in the Gaza Strip and thus the Gaza Strip is no longer subject to the former military occupation. Foreign Affairs Minister of Israel Tzipi Livni stated in January 2008: "Israel got out of Gaza. It dismantled its settlements there. No Israeli soldiers were left there after the disengagement." On 30 January 2008, the Supreme Court of Israel ruled that the Gaza Strip was not occupied by Israel in a decision on a petition against Israeli restrictions against the Gaza Strip which argued that it remained occupied. The Supreme Court ruled that Israel has not exercised effective control over the Gaza Strip since 2005, and accordingly, it was no longer occupied.
Some legal commentators agree with the Israeli position. In an analysis published in the Netherlands International Law Review, Hanne Cuyckens asserted that Gaza is no longer occupied, stating that there is no effective control under Article 42 of the Hague Regulations. While she acknowledged that Israel has obligations toward Gaza due to its level of control, she argued these responsibilities stem from general international humanitarian law and international human rights law, rather than the law of occupation. Israeli law professors Yuval Shany and Avi Bell contested the classification of Gaza as occupied, with Shany asserting that it is difficult to view Israel as the occupying power under traditional law, while Bell argued that the Gaza Strip is not occupied as the blockade does not constitute effective control, citing international legal precedents requiring direct control over both the territory and its civilian population. Likewise, Israeli Supreme Court judge Alex Stein argued in 2014 that Gaza was not occupied. Michael W. Meier, a Visiting Professor at Emory University School of Law and Acting Director of Emory International Humanitarian Law Clinic, wrote that in his view, Gaza had not been occupied since 2005 as Israel no longer maintained military forces in the territory and because Hamas controlled most administrative functions and all public services, thus Israel did not have effective control. Michael N. Schmitt likewise writes that Israel did not occupy Gaza after 2005, as in his view effective control requires some degree of power over daily governance of the territory, while Hamas often governed in manner contrary to Israeli interests and desires, and that if an area is regularly used as a base of significant military operations against another party to the conflict, the other party cannot be said to have effective control over it. However, he wrote that this did not mean Israel bore no obligations to the people of Gaza.
On 19 July 2024, the International Court of Justice noted in Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem that "for the purpose of determining whether a territory remains occupied under international law, the decisive criterion is not whether the occupying Power retains its physical military presence in the territory at all times but rather whether its authority has been established and can be exercised" and concluded that "The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel's presence in the Occupied Palestinian Territory unlawful". The court also ruled that Israel should pay full reparations to the Palestinian people for the damage the occupation has caused, and determined that its policies violate the International Convention on the Elimination of All Forms of Racial Discrimination.
Yuval Shany, along with law professors Amichai Cohen and Marko Milanović, argued that the court stopped short of declaring Gaza to be under occupation, but instead declared that Israel maintained certain obligations under the law of occupation. They noted the opinions of judges Yuji Iwasawa and Sarah Cleveland in particular. Judge Iwasawa pointed out that while the court stated Israel is bound by some obligations related to occupation law, it didn't determine whether Gaza remained "occupied" within the meaning of the law of occupation after 2005. Judge Cleveland noted that the court observed that after Israel's withdrawal in 2005, it continued to exercise key elements of authority over the Gaza Strip. This included "control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone." As a result, the court concluded that certain aspects of the law of occupation still applied to Gaza, based on Israel's level of effective control. However, it did not specify which obligations still bound Israel after 2005, nor did it find any violations of those obligations.
Aeyal Gross, a Professor of International and Constitutional Law at Tel Aviv University, wrote that the court had adopted his "functional approach" theory to occupation, which argues that a territory may be occupied but not in an "all or nothing" way, as following the disengagement Israel exercised no policing functions in Gaza and Hamas gained extensive control over the territory, but continued Israeli control over certain functions significantly impacted the local population. Gross' functional approach theory argues that rather than an occupier automatically having all the responsibilities associated with military occupation, the occupying power's responsibilities are commeasurate with the level of control it exercises. Likewise, he argued that despite arguments stating that Israel had no right of self-defense against a territory it occupies, an armed attack from Gaza under this theory could potentially trigger an Israeli right of self-defense subject to the limits on this right and on the ways force is used under international law.
Several rights groups have characterized the situation in Gaza as an "open-air prison", including the UN, Human Rights Watch, and the Norwegian Refugee Council. This characterization was often cited by a number of human rights activists, politicians, and media news outlets reporting on the Gaza–Israel conflict and the wider Israeli–Palestinian conflict. Former British prime minister David Cameron, US senator Bernie Sanders, Israeli journalist Gideon Levy, and Israeli historian Ilan Pappe have endorsed this characterization as well.
In 2022, Human Rights Watch issued a report on the situation in the Gaza Strip, which it called an "open-air prison" due to the blockade and held Israel responsible as the occupying power, and to a lesser degree Egypt, which has restricted movement of Palestinians through its border. The report highlighted how this blockade has led to humanitarian crises, namely shortages of essential supplies, limited access to healthcare, and high levels of poverty and unemployment among the Palestinian population in Gaza. It claimed that Israel has formed a formal policy of separation between Gaza and the West Bank, despite both forming parts of the Palestinian territories. The Israeli blockade on Gaza has restricted the freedom of movement of Gaza Palestinians to both the West Bank and the outside world; in particular, Palestinian professionals were most impacted by these restrictions, as applying for travel permit takes several weeks.
The Norwegian Refugee Council report issued in 2018 called the territory "the world's largest open-air prison", highlighting in it several figures, including lack of access to clean water, to reliable electrical supply, to health care, food and employment opportunities. It lamented the fact that a majority of Palestinian children in Gaza suffer from psychological trauma, and a portion of which suffer from stunted growth.
