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Military occupation of Palestine by Israel

Conflict type: Military occupation

Israel is occupying the territory of Palestine. Israel is internationally recognised as the occupying power in the West Bank, including East Jerusalem, and the Gaza Strip.

Israel has occupied the West Bank, including East Jerusalem, and the Gaza Strip since the end of the Six-Day War in 1967. Today, this prolonged occupation of the territory of Palestine takes a unique form. For an overview of the conflict more generally and key developments that occurred during 2017, see M. Ferrer, 'The War Report 2017: The Armed Conflict in Israel-Palestine', Geneva Academy, January 2018.

  • Israel is the occupying power in the West Bank. However, as a result of the Oslo Accords, direct authority over the West Bank is divided between Israel and the Palestinian Authority. Despite the modalities of this agreement, Israel retains overall control over the entire territory.
  • Israel withdrew its ground forces from the Gaza Strip in 2005, as part of a unilateral disengagement plan. However, consequent to the level of control still exercised by Israel over the Gaza Strip, Israel continues to be recognised as the occupying power.

On 30 March 2018, mass protests began at the Israel-Gaza Strip border. Drawing international condemnation, the use of live ammunition by Israeli armed forces against the protestors led to the highest death toll since the 2014 conflict. 'O. Holmes and H. Balousha, 'Israel Faces Outcry over Gaza Killings During Jersualem Embassy Protests', The Guardian, 15 May 2018; O.Holmes and H. Beaumont, 'Global Protests Grow After Israeli Killing of Palestinian Demonstrators', The Guardian, 15 May 2018. For a discussion of the legal framework governing the use of force, see E. Lieblich, 'Collectivizing Threat: An Analysis of Israel's Legal Claims for Resort to Force on the Gaza Border', Just Security Blog, 16 May 2018. In a statement issued on 8 April 2018, the Prosector of the International Criminal Court, Fatou Bensouda, insisted that the 'resort to violence must be stopped' and added that her Office would continue to monitor the situation, including against the background of the ongoing preliminary investigation of the situation in Palestine since 2015. 'Statement of the Prosector of the International Criminal Court, Fatou Bensouda, Regarding the Worsening Situation in Gaza', Office of the Prosector of the International Criminal Court, 8 April 2018. For a discussion of the statement and its preventive function, see  M. Zakerhossein, 'The ICC, Palestine and the Prosector's Preventive Statement', Justice Hub, 11 April 2018.  After at least 60 Palestinians were reportedly killed during the protests on 14 May 2018, Nikolay Mladenov, the UN Special Coordinator for the Middle East Peace Process, called for an end to the cylce of violence during an emergency session of the Security Council on May 15. 'Cycle of Violence in Gaza Must Stop, Top United Nations Official in Middle East Tells Security Council while Reporting 60 Demonstrators Killed Overnight', United Nations Press Release, UN Doc S/13338, 15 May 2018. For reports on the earlier days of the protests, see 'Gaza Deaths: UN Secretary General Calls for "Transparent" Investigation', The Guardian / Associated Press, 31 March 2018; H. Balousha and P. Beaumont, 'Death Toll Mounts As Palestinians Protest at Gaza Border', The Guardian, 7 April 2018.

The protests on May 14 coincided with the inaguration of the United States embassy in Jerusalem. On May 16, Guatemala opened its embassy in Jerusalem. R. Eglash, 'As Criticism of Israel Mounts, Guatemala Opens Its Embassy in Jerusalem', The Washington Post, 16 May 2015. In December 2017, the United States had announced its decision to recognize Jerusalem as the capital of Israel and to relocate its embassy to Jerusalem. In response, the  United Nations General Assembly adopted a resolution on 21 December 2017 to reaffirm that in accordance with relevant General Assembly and Security Council resolutions any decisions and actions that purport to alter the status of Jerusalem are null and void and called upon states to refrain from establishing diplomatic missions in Jerusalem. See 'General Assembly Overwhelmingly Adopts Resolution Asking Nations Not to Locate Diplomatic Missions in Jerusalem', General Assembly', Tenth Emergency Special Session, 37th meeting, 21 December 2017. The resolution is not binding. A similar resolution in the Security Council was vetoed by the United States. For a thorough analysis of international law issues relating to the decision to recognize Jerusalem, see V. Bílková, 'Recognition of Jerusalem as the Capital City of Israel - Acknowledging the Obvious, or an Illegitimate Act', International Law Reflection 2018/1/EN, Centre for International Law, Institute of International Relations Prague', 2018. See also L.Sayej, 'President Trump's Recognition of Jerusalem: A Legal Analysis', Oxford Human Rights Hub, 11 December 2017.

Israel exercises different forms of control over the West Bank, including East Jerusalem, and the Gaza Strip. The occupation in the two territories will be dealt with separately.

West Bank

At the end of the 1967 Six-Day War, Israel seized control of the West Bank from Jordan, establishing a belligerent occupation of the territory. In the context of this occupation, Israel also initiated measures that resulted in the unilateral annexation of East Jerusalem. Following the Oslo Accords, the Palestinian Authority was established and the West Bank was divided into three areas:

  • Area A (18% of the territory) is placed under the Palestinian Authority’s control.
  • Area B (22% of the territory) is placed under the Palestinian Authority’s partial control; Israel retained security control, exercised through a continued military presence.
  • Area C (60% of the territory) remains under the full control of Israel.

This mechanism was planned as a temporary solution, with the aim of achieving a gradual withdrawal of Israeli troops and a transfer of responsibilities to the Palestinian Authority. To date, however, these arrangements are still enforced by the Israeli government. See B’Tselem, ‘What Is Area C?’, 18 May 2014; UNOCHA occupied Palestinian territory, ‘Restricting Space: the Planning Regime Applied by Israel in Area C of the West Bank’, Special Focus December 2009; Report of the Secretary-General, ‘Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the Occupied Syrian Golan’, UN doc A/HRC/31/43, 20 January 2016.

East Jerusalem

The West Bank includes East Jerusalem, which was unilaterally annexed in 1967 with a series of administrative acts such as the extension of West Jerusalem Municipality’s jurisdiction to East Jerusalem, the expropriation of land and properties, and the application of Israeli laws to the city and its Palestinian inhabitants. In its resolution 252 (1968), the United Nations Security Council 'considers that all legislative and administrative measures and actions taken by Israel are invalid and cannot change that status'.  See UNSC Res 252 (1968), 21 May 1968. Israel formalised the unilateral annexation of East Jerusalem with the passing of a law in 1980, which, amongst others, declared Jerusalem the capital of Israel. See Basic Law: Jerusalem, Capital of Israel, 30 July 1980. The Security Council affirmed that the law 'constitutes a violation of international law' and that 'all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the recent "basic law" on Jerusalem are null and void' and called upon 'all Member States to accept this decision' and for those who have establish diplomatic missions in Jerusalem to withdraw them.The status of Jerusalem is to be settled by neogtiations. See  UNSC Res 478 (1980), 20 August 1980. See also  UNSC Res 2334 (2016), 23 December;  B’Tselem,  ‘Legal Status of East Jerusalem and its Residents’, 9 May 2010; Z. Tahhan and F. Najjar, 'Why Jerusalem Is Not the Capital of Israel', Al Jazeera, 10 December 2017. 

Effective control

For a territory to be considered occupied, it must be 'under the authority of the hostile army.' Article 42, 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land. For an occupation to exist, hostile foreign forces must exercise effective control. Three elements must be fulfilled for effective control to exist.

  • First, the armed forces of a foreign state are physically present in the territory and the territorial state did not consent to their presence.
  • Second, the presence of the foreign forces prevents the effective local government in place at the time of invasion from exercising its powers.
  • Third, the foreign forces establish their own authority. For further information, see ‘military occupation – elements of occupation’ in our classification section.

An occupation may continue after the withdrawal of troops from the territory under certain conditions: if the occupying power continues to exercise effective control the law of occupation will apply. For further information, see ‘military-occupation – functional occupation’ in our classification section. See also T. Ferraro and L. Cameron, ‘Article 2 Application of the Convention’, ICRC, Commentary on the First Geneva Convention, 2016, §§307-8; T. Ferraro, ‘Determining the Beginning and End of an Occupation Under International Humanitarian Law’, 94 International Review of the Red Cross 885 (2012), 134 ff.

Israel’s military presence in the West Bank, including East Jerusalem, satisfies the effective control test, and establishes Israel as the occupying power. This view is supported by several reports and declarations by relevant international bodies such as the United Nations, the International Court of Justice (ICJ), and the International Committee of the Red Cross (ICRC). See for example UNSC Res 2334 (2016), 23 December 2016; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, §78; ICRC, ‘Israel and the Occupied Territories', Annual Report 2015, pp 494 – 500.

Area C, which includes Israeli settlements, is kept under Israel’s full government and security control. B’Tselem, ‘What Is Area C?', 18 May 2014; B’Tselem, ‘Reality Check: Almost Fifty Years of Occupation’, 5 June 2016; P. Malanczuk, ‘Some Basic Aspects of the Agreements Between Israel and the PLO from the Perspective of International Law’, 7 European Journal of International Law 4 (1996), 497; UNOCHA occupied Palestinian territory, ‘Restricting Space: the Planning Regime Applied by Israel in Area C of the West Bank’, December 2009; A. Gross, The Writing On the Wall, Cambridge University Press, 2017. Notwithstanding the fact that areas A and B are under the full and partial control of the Palestinian Authority respectively, Israel retains significant influence. This control may be demonstrated by Israel’s continuing military and security influences, as well as the control exercised in relation to Palestinians’ movement through checkpoints, physical obstructions, and control of all crossing points with Israel and Jordan. Israel has therefore the authority to determine the passage of persons and goods from and to the West Bank, to influence the movement within and between areas A and B (since they are made of non-contiguous zones surrounded by area C) and to approve any use of area C’s resources and land by Palestinians. B’Tselem, ‘Reality Check: Almost Fifty Years of Occupation’, 5 June 2016. The Israeli military court system also continues to operate in the West Bank. Israeli Forces frequently enter the areas, carrying out security operations such as raids, detentions, and curfews. Amnesty International, ‘Israel and Occupied Territories’, Amnesty International Report 2016/2017, 2017.

The Gaza Strip

At the end of 1967 Six-Day War, Israel seized control of the Gaza Strip from Egypt and established a belligerent occupation. The Palestinian Authority was established in the 1990’s as part of the Oslo peace process. However, Israel remained present and in control of the Gaza Strip.

In 2005 Israel implemented a unilateral Disengagement Plan. This involved the removal of Israeli settlers from the Gaza Strip, the withdrawal of troops from the territory, and a formal end to its military rule. Israel claimed that, as a result of this withdrawal it could no longer be considered the occupying power, and that it therefore ceased to have any responsibility vis-à-vis ensuring public order and civil life in Gaza. The position of Israel is presented in a press release issued upon completion of the withdrawal, see Israel Ministry of Foreign Affairs, ‘Exit of IDF Forces from the Gaza Strip Completed’, Press Release, 12 September 2005.

A split between Fatah and Hamas in 2006 led to Hamas assuming overall control over Gaza. In response, Israel declared Gaza to be a hostile territory and initiated a closure of the territory, largely closing the border crossings and severely restricting the transportation of goods. The position of Israel is presented on the website of the Ministry of Foreign Affairs, see Israel Ministry of Foreign Affairs, ‘Behind the Headlines: Israel Designates Gaza a “Hostile Territory”’, 27 September 2007; see also  UNOCHA, ‘Gaza Blockade’.

Since the initiation of the closure in 2007, several conflicts have taken place between Hamas and Israel in the Gaza Strip, most recently Operation Protective Edge in 2014. ICRC, ‘Gaza-Israel Conflict: Disregard for Humanitarian Law Led to Unacceptable Toll on Civilians’, News Release, 8 August 2014; Report of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1, UN doc A/HRC/29/52. It remains controversial whether the conflicts after the unilateral disengagement are to be classified as international or non-international. For the classification as a non-international armed conflict, see S. Casey-Maslen, ‘Armed Conflict in Gaza in 2012’ in S. Casey-Maslen (ed) The War Report 2012, Oxford University Press, 2012, p 110 ff; for international armed conflict, see I. Scobbie, ‘Gaza’ in E. Wilmshurst (ed) International Law and the Classification of Conflicts, Oxford University Press, 2012, p 290ff.; A. Bellal, ‘Armed Conflict Between Israel and Palestine in 2014’ in A. Bellal (ed) The War Report. Armed Conflict in 2014, Oxford University Press, 2014, p 38ff. For further references on various legal aspects related to the armed conflicts in Gaza since 2008, see Oxford University Press, ‘Debate Map: Israel-Gaza Wars 2008-2014’, last updated 13 November 2014.

Effective control

For a territory to be considered occupied, it must be 'under the authority of the hostile army.' Article 42, 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land. For an occupation to exist, hostile foreign forces must exercise effective control. Three elements must be fulfilled for effective control to exist.

  • First, the armed forces of a foreign state are physically present in the territory and the territorial state did not consent to their presence.
  • Second, the presence of the foreign forces prevents the effective local government in place at the time of invasion from exercising its powers.
  • Third, the foreign forces establish their own authority. For further information, see ‘military occupation – elements of occupation’ in our classification section.

An occupation may continue after the withdrawal of troops from the territory under certain conditions: if the occupying power continues to exercise effective control the law of occupation will apply. For further information, see ‘military-occupation – functional occupation’ in our classification section. See also T. Ferraro and L. Cameron, ‘Article 2 Application of the Convention’, ICRC, Commentary on the First Geneva Convention, 2016, §§307-8; T. Ferraro, ‘Determining the Beginning and End of an Occupation Under International Humanitarian Law’, 94 International Review of the Red Cross 885 (2012), 134 ff.

Following the implementation of the 2005 Disengagement Plan, Israeli armed forces are no longer present in the territory of the Gaza Strip. For this reason, some reject Israel’s classification as an occupying power. See, e.g.: M. Milanovic, ‘European Court Decides that Israel Is Not Occupying Gaza’, EJIL: Talk! Blog, 17 June 2015. For further references see ‘military-occupation – functional occupation’ in our classification section.

However, the majority of international opinion considers that Israel has retained effective control over the Gaza Strip by virtue of the control exercised over, inter alia, its airspace and territorial waters, land crossings at the borders, supply of civilian infrastructure, and key governmental functions such as the management of the Palestinian population registry. For this position, see S. Bashi and K. Mann, ‘Disengaged Occupiers: the Legal Status of Gaza’, Position Paper, Gisha: Legal Center for Freedom of Movement, 21 January 2007; B’Tselem, ‘The Scope of Israeli Control in the Gaza Strip’, 5 January 2014; S. Bashi and T. Feldman, ‘Scale of Control: Israel’s Continued Responsibility in the Gaza Strip’, Position Paper, Gisha: Legal Center for Freedom of Movement, November 2011. For a contrary view, arguing that Israel can no longer ‘make its authority felt’, see Y. Shany, ‘The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni V. Prime Minister of Israel, International Law Forum, The Hebrew University of Jerusalem, Research Paper 13-09, February 2009, available at SSRN; Y. Shany, ‘Faraway So Close: The Legal Status of Gaza After Israel’s Disengagement’ 7 2005 Yearbook of International Humanitarian Law (2007) p 359, available at SSRN.

This view is supported by several reports and declarations by relevant international bodies such as the UN and ICRC. UNOCHA, Statement on Gaza by the United Nations Agencies Working in the Occupied Palestinian Territory, 6 February 2007; ICRC, ‘Fifty Years of Occupation: Where Do We Go From Here?’, Article, 2 June 2017.

The law of military occupation is set forth in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land, in the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Person in Time of War, and the 1977 Additional Protocol I applicable to International Armed Conflicts. Israel is party to the Geneva Convention (IV), but has not ratified the 1977 Additional Protocol I. Palestine acceded to the four 1949 Geneva Conventions, the 1977 Additional Protocol I, and the 1907 Hague Regulations in 2014. See ICRC,Treaties, States Parties and Commentaries: Palestine.

Customary international humanitarian law, including the Hague regulations, also applies. Customary international law consists of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.

In addition to international humanitarian law, international human rights law continues to apply during times of armed conflict. Israel is a party to both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Israel remains bound by its international human rights law obligations in the territory it occupies.

Last updated: Thursday 17th May 2018