Military occupation of Palestine by Israel

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 effective 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.

In view of recent events as they unfolded since 7 October, Hamas and the Palestinian Islamic Jihad, because of their belonging to Palestine, are fighting Israel within the framework of an international armed conflict. Moreover, as they meet the criteria of intensity and organization, the clashes between Israel and Hezbollah amount to a non-international armed conflict in addition to the two international armed conflicts – respectively between Israel and Lebanon and between Israel and Syria – resulting from the use of force by Israel against the territory of Lebanon and SyriaSee International armed conflicts in Syria and the military occupation of parts of these territories by Israel (see Military occupation of Lebanon by Israel and Military occupation of Syria by Israel).

The West Bank and East Jerusalem

Factual developments

At the end of the 1967 Six-Day War, Israel seized control of the West Bank from Jordan, establishing a military occupation of the territory. Following the Oslo Accords, the Palestinian Authority (PA) 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. In the context of this occupation, Israel also initiated administrative measures that resulted in the unilateral annexation of East Jerusalem in 1967, 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.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, §§ 14, 16, 24 & 41; 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’, A/HRC/31/43, 20 January 2016. See also ICC Office of the Prosecutor, Report on Preliminary Examination Activities, 2018, §§256–259. Moreover, since the beginning of occupation, in addition to applying its military law in the West Bank, Israel has extended the application of its domestic law to the settlements.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 44.

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, S/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 Jewish Virtual Library: A Project of Aice, ‘Legal Aspects Jerusalem’, 2008. The Security Council, in its resolution 478 (1980), 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 established diplomatic missions in Jerusalem to withdraw them. The status of Jerusalem is to be settled by negotiations.See UNSC, S/RES/478(1980), 20 August 1980.

In December 2017, the United States announced its decision to recognize Jerusalem as the capital of Israel and to relocate its embassy there.See M. Lander, ‘Trump recognizes Jerusalem as Israel’s Capital and Orders U.S. Embassy to Move’, The New York Times, 6 December 2017. 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 UNGA, A/RES/ES-10/19, 22 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. On 14 May 2018, the United States inaugurated its embassy in Jerusalem followed, two days later, by the opening of Guatemala’s embassy in the city.See R. Eglash, 'As Criticism of Israel Mounts, Guatemala Opens Its Embassy in Jerusalem', The Washington Post, 16 May 2015.

In June 2019, the Israeli High Court of Justice approved the demolition of about 100 housing near East Jerusalem, action that was carried out the following month.See ‘Court okays demolition of 100 East Jerusalem homes under Palestinian control’, The Times of Israel, 18 June 2019. In November 2019 the US said that Israeli settlements would no longer be considered illegal as for international law.See J. Borger and O. Homes, ‘US says Israeli settlements no longer considered illegal in dramatic shift’, The Guardian, 18 November 2019. Furthermore, in January 2020 it released the “Peace Plan” for the Middle East, which included the recognition of Israeli sovereignty over the settlements in the West Bank.See U.S. Government, ‘Peace to Prosperity: A Vision to Improve the Lives of the Palestinian and Israeli People’, 28 January 2020.

In late July 2019 Israel approved the construction 6000 housing for Israelis in the West Bank.See A. Forrest, ‘Israel approves thousands of new settler homes in West Bank’, Independent, 31 July 2019. The Israeli Prime Minister Netanyahu announced that if re-elected, he would annex the Jordan Valley and the northern Dead Sea region.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 52. Moreover, in January 2020 Israel approved the construction of hundreds of houses in Area C of the West Bank and approved the plan for the construction of new nature reserves and the expansion of several existing ones in the West Bank.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 34; ‘Israel approves more than 1’900 new settler home: NGO’, Al Jazeera, 6 January 2020; ‘Israel creates seven ‘nature reserves’ in occupied West Bank’, Al Jazeera, 15 January 2020. In the meantime, Prime Minister Netanyahu reaffirmed that, if elected, he would annex part of the West Bank and the Israeli settlements in the territory.See D. M. Halbfinger and I. Kershner, ‘Trump Plan’s First Result: Israel Will Claim Sovereignty Over Part of West Bank’, The New York Times, 28 January 2020. In February 2020, Netanyahu announced that he would approve the construction of about 3,000 new housings for Israeli in the West Bank (E1 Area). Soon thereafter, the construction of almost 2,000 housings for Israelis in the West Bank was approved.See ‘Israel approves over 1’700 new settler homes’, DW, 28 February 2020.

In March 2020, following the outbreak of the new coronavirus pandemic, Israel closed the crossings with Palestine.See ‘Israel extends closure of West Bank, Gaza Strip amid coronavirus outbreak’, The New Arab, 12 March 2020.

In April 2020 tension escalated, as the Israeli government approved the construction of 7,000 new settlement units within the West Bank.See Middle East Monitor, ‘Israel approves building 7’000 new settlement units’, 7 May 2020. Moreover, a military order was issued by Israel, ordering banks in the West Bank to avoid proceeding payments for Palestinian families of former or current prisoners in Israel.See A. Rasgon and M. Najib, ‘Israel Cracks Down on Banks Over Payments to Palestinian Inmates’, The New York Times, 9 May 2020. Israeli prime minister reaffirmed his intention to annex the West Bank: in response, the PA announced the suspension of all agreements with Israel.See OCHA OPT, ‘End of Palestinian Authority coordination with Israel in response to annexation threat: decision already impacting medical referrals’, 20 July 2020. In June 2020, the Israeli Supreme Court annulled the 2017 Regularization Law retroactively authorizing Israeli settlements and outposts built on private Palestinian land, but ruled that they could still be authorized if they had been established in “good faith”.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 27. During the following months, Israel continued the expansion of Israeli settlements in the West Bank. Notably, in September 2020 it approved the construction of about 5,000 housings in the settlements; in October additional 5,000 settler housing units are approved in the West Bank; in November Israel demolished an entire Palestinian village, while Israeli authorities issued several eviction notices to Palestinians in East Jerusalem.See ‘Gantz said planning to okay almost 5’000 new settler homes after 6-month freeze’, The Times of Israel, 6 September; 'Statement by UN Special Coordinator for the Middle East Peace Process, Nickolay Mladenov, on advancement of settlement units in the occupied West Bank', 15 October 2020; ‘Israeli army razes entire village in occupied West Bank’, Al Jazeera, 4 November 2020; ‘Eviction of Palestinians in Sheikh Jarrah part of Israeli policy’, Al Jazeera, 20 November 2020. Then US State Secretary Pompeo visited settlements in the West Bank and announced that food products from Area C would be labelled as “Made in Israel”.See T. Lazaroff, ‘US to label all of West Bank Area C goods ‘made in Israel’’, The Jerusalem Post, 24 December 2020.

In 2021, settlement expansion in the West Bank continued. Notably, in January 2021 Israel announced the construction of thousands of new housing units for settlers and, in February, demolished a Bedouin village in the West Bank, while an Israeli NGO (Jewish National Fund) approved a new policy allowing it to directly purchase land in West Bank to expand Israeli settlements.See Foundation for Middle East Peace, ‘Settlements & Annexation Report: January 15, 2021’, 15 January 2021; Norwegian Refugee Council, ‘Israel displaces more Palestinian Bedouins, seizes their tents in Humsa Al-Bqai’a’, 9 February 2021; H. Shezaf, J. Maltz and A. Kaplan Sommer, ‘JNF’s Israel-based Board Votes to Allocate Funding for West Bank Land Purchases’, Haaretz, 25 February 2021.

Following uncertainty about Israel’s position regarding voting participation by residents of East Jerusalem, Palestinian President Abbas cancelled the elections, which were expected to take place in May 2021, for the first time after 15 years.See J. Krauss, ‘Abbas delays Palestinian elections; Hamas slams ‘coup’’, AP, 30 April 2021.

In April and May 2021, tensions between local residents and the Israeli forces escalated in occupied East Jerusalem (notably in the predominantly Palestinian neighbourhood of Sheikh Jarrah), as a result of the possible eviction of several Palestinians from their homes, intending to replace them with Israeli settlers.See ‘Palestinians fight eviction from home in East Jerusalem’, CNN, 10 May 2021; A.R. Arnaout, ‘Sheikh Jarrah neighbourhood in Jerusalem: the full story’, AA, 8 May 2021; R. Ayyoub, Z. El-haroun and S. Farrell, ‘East Jerusalem’s Sheikh Jarrah becomes emblem of Palestinian struggle’, Reuters, 11 May 2021. Attacks on Palestinians took place also in the Al-Aqsa mosque in concomitance with the prayers for the holy month of Ramadan.See ‘Hundreds hurt as Palestinians protest evictions in Jerusalem’, Al Jazeera, 7 May 2021; S. Farrell and R. Ayyub, ‘Israeli police, Palestinians clash at Jerusalem’s Al-Aqsa, scores injured’, Reuters, 8 May 2021. It has been reported that the attacks in Jerusalem injured hundreds of Palestinians.See ‘Israeli police wound dozens of Palestinians in Al Aqsa Mosque raid’, TRT World, 8 May 2021. The UN Secretary-General Antonio Guterres expressed deep concern over the escalation of violence in East Jerusalem.See ‘UN chief and senior officials express deep concern over East Jerusalem violence’, UN News, 10 May 2021.

In July 2022, the Israeli Supreme Court ruled that the Mitzpeh Kramin settlement in the West Bank, built on private Palestinian land, should not be evacuated as it met the good-faith test. As stated by the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, “in the decision, the Court effectively gave carte blanche to the approval of outposts on private Palestinian land in the West Bank.”See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 27.

Between June 2021 and June 2022, six new settlements were built in the West Bank. In July 2022, settlers attempted to establish six additional settlements, but were eventually prevented from doing so by the Israeli army.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 28.

In May 2022, the Israeli Supreme Court decided that forcible transfer and demolition of Palestinian herder communities in Masafer Yatta, who faced several waves of evictions and demolitions, were legal.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 63.

Between January and July 2022, settler attacks doubled compared with the previous two years, totalling 398, 84 of which resulted in fatalities.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 64. In addition, as in the case of the demonstrations against the Evyatar settlement, Palestinians protesting against the construction of new settlements, including by throwing stones and Molotov cocktails at Israeli forces, are often violently repressed, sometimes using lethal force.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 68.

Moreover, from January to September 2022, Israel destroyed 500 Palestinian structures, the majority of them related to agriculture and livelihoods.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 62.

On 19 December 2022, the UN Special Coordinator for the Middle East Peace Process expressed to the UN Security Council his deep concern over the escalation of tensions in West Bank for the second half of 2022, reporting clashes, protests, attacks, Israeli security operations and settler-related violence in which civilians and human rights defenders were increasingly targeted.See ‘Security Council briefing on the situation in the Middle East, reporting on the implementation of UNSCR 2334 [as delivered by Special Coordinator Wennesland]’, 19 December 2022; ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/HRC/53/22, 9 May 2023, §§ 19-21. In response to several attacks by Palestinians on Israeli civilians, the Israeli security forces launched Operation ‘Break the Wave’ in March 2022, which led to an increase in the number, frequency and force used in search and arrest operations carried out by Israeli forces in the West Bank. This trend, which resulted in an increase in the number of deaths, injuries and destruction of civilian property, continued in the first half of 2023.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, §§ 26-27. Furthermore, a new Palestinian armed group, Lions' Den, emerged in August 2022. Based in Nablus (West Bank), this group regularly engages in armed clashes with Israeli security forces and attacks on Israeli soldiers and civilians in the West Bank.See European Council on Foreign Relations, ‘Mapping Palestinian Politics: Lions’ Den’.

After its inauguration in late December 2022, the new Israeli coalition government announced that settlement expansion in the Golan Heights, the West Bank and East Jerusalem was one of its key policy priorities.See ‘Israel: New Netanyahu government vows to expand settlements’, DW, 28 December 2022. The first half of 2023 evidenced a renewal of violence between Israelis and Palestinians in the West Bank, including Palestinian attacks on Israeli settlers and troops, violent Israeli settlers incursions, such as the rampage conducted in Huwara on 26 February 2023, and frequent deadly Israeli military raids.See I. Tharoor, ‘Israel’s far-right government is at the heart of a surge in violence’, The Washington Post, 28 February 2023; M. Berger and S. Rubin, ‘Israeli settlers rampage through Palestinian towns in revenge for shooting’, The Washington Post, 27 February 2023. For example, on 22 February 2023, a search and arrest operation in Nablus against three Palestinians suspected of shooting at Israeli security forces degenerated, resulting in the death of 10 Palestinians, including at least 3 civilians, 453 injuries and the destruction of property and infrastructures.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, §§ 28-30.

At the end of June 2023, Israel decided to approve the construction of over 5’000 new housing units for settlers.See ‘US ‘deeply troubled’ by Israel’s approval of settler building permits’, Reuters, 27 June 2023.

The IDF stepped up their operations in the West Bank.See ‘Israel air attacks hit Gaza, escalation fears after Jenin raid’, Al Jazeera, 27 January 2023; ‘Israeli army raids Palestinian city of Ramallah, 35 wounded in clashes’, Reuters, 8 June 2023; ‘Six Palestinians killed in Israeli military raid in Jenin’, BBC News, 20 June 2023; H. Vernon, ‘Palestinian shot dead after opening fire at Israeli West Bank checkpoint’, The Guardian, 24 June 2023. On 3 July 2023, in response to a series of recent attacks from Palestinian militants, the IDF conducted its largest military operation in the West Bank in two decades in the Jenin refugee camp. The Operation ‘Home and Garden’, consisted of a two-day offensive, involving airstrikes and hundreds of soldiers, and resulted in the death of 12 Palestinians, of which at least five were fighters, and one Israeli soldier; 143 Palestinians were injured and 30 arrested.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, § 31; M. Harb, ‘As Israel ends 2-day West Bank offensive, Palestinian residents emerge to scenes of vast destruction’, AP, 5 July 2023; B. McKernan, ‘Israeli forces withdraw from Jenin as rockets fired from Gaza’, The Guardian, 5 July 2023. Israeli military operations continued across the West Bank in August and September 2023 and the situation kept deteriorating.See OCHA OPT, ‘Protection of Civilians Report: 8-21 August 2023’, 28 August 2023; OCHA OPT, ‘Protection of Civilians Report: 5-18 September 2023’, 26 September 2023.

On the whole, the situation East Jerusalem is increasingly tense, but remains markedly different from the ongoing tensions in the West Bank.See UNWRA, ‘UNWRA Situation Report # 11 on the Gaza Strip and the West Bank, including East Jerusalem’, 22 October 2023. For instance, on 5 April 2023, Israeli police carried out two raids on the same day on the al-Aqsa mosque, one of Islam’s holiest sites, injuring 12 people and arresting 350 people.See A. Salman, M. Tawfeek and J. Hauser, ‘Israeli police storm al-Aqsa mosque for the second time on Wednesday’, CNN, 6 April 2023.

In reaction to Hamas attack on 7th October 2023 (see below ‘Operation ‘Al-Aqsa Flood’’), Israeli authorities closed all crossings from the West Bank to East Jerusalem for Palestinian ID holders, including employees of the United Nations and international NGOs. On 10 October 2023, checkpoints reopened progressively around East Jerusalem while flying checkpoints were installed at entrances of Palestinian neighbourhoods in Jerusalem.See UNWRA, ‘UNWRA Situation Report # 4 on the Gaza Strip and the West Bank, including East Jerusalem’, 11 October 2023. On 25 October 2023, Israeli security forces carried out an operation in the Kalandia refugee camp, north of Jerusalem, which resulted in one death and 17 arrests.See UNWRA, ‘UNWRA Situation Report # 15 on the Gaza Strip and the West Bank, including East Jerusalem’, 26 October 2023. On 26 October 2023, Palestinian was shot and killed after having allegedly stabbed and severely injured an Israeli police officer.See UNWRA, ‘UNWRA Situation Report # 18 on the Gaza Strip and the West Bank, including East Jerusalem’, 31 October 2023.

In the aftermath of the October 2023 Hamas attack on Israel (see below ‘Operation ‘Al-Aqsa Flood’’), the number of Palestinians killed and wounded by the IDF in West Bank, mainly during demonstrations in solidarity with the Gaza Strip and stone-throwing clashes, continued to rise. In addition, numerous movement restrictions were imposed, such as the closure of several checkpoints and town entrances in the West Bank.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #4’, 10 October 2023. Palestinians kept being attacked by Israeli settlers, sometimes accompanied by Israeli forces.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #4’, 10 October 2023. On 22 October 2023, the IDF carried out an air strike on a mosque in the Jenin refugee camp, alleging that it was a military compound located beneath the mosque and used by Hamas and Palestinian Islamic Jihad (PIJ) to plan an imminent attack. As a result, one Palestinian was killed and two others injured.See I. Kershner and R. Abdulrahim, ‘Israel Strikes West Bank Mosque, Killing Two’, The New York Times, 22 October 2022; ‘Israel strikes militant compound under West Bank mosque, military says’, Reuters, 22 October 2023. Between 7 and 15 November 2023, 190 Palestinians, including 48 children, were killed by IDF or settlers, and three Israeli was killed by Palestinians. During the same period, 2’721 Palestinians, among them at least 279 children, were injured by Israeli forces or settlers. While the majority of injuries occurred in the context of demonstrations, of the total Palestinians fatalities, about 65 % took place during confrontations following search-and-arrest operations by Israel, 26 % in demonstrations, and the rest in the course of attacks against IDF or settlers, and in settler attacks.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023.

Classification of the situation

Military occupation

For a territory to be considered occupied, three elements must be cumulatively fulfilled:

First, one State must effectively control part of another State’s territory.

Second, the territorial State must have lost effective control over that territory.

Third, the State previously controlling the territory did not consent to the enemy State’s presence in its territory.

While effective control is usually exercised by means of the presence of the troops on the ground, under certain conditions, it could continue to be exercised even after the withdrawal of troops from the territory. Therefore, an occupation may continue “although the foreign forces are not physically present in the territory concerned, [since] the authority they retain may still amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions.”See ICRC, Commentary of 2016, Art. 2 GC I-IV, § 308. In such cases, the functional approachSee ‘military-occupation – functional occupation’ in our classification section. to occupation is the one to be preferred. Under this approach, the extent and the content of the Occupying Power’s obligations depend on the authority still retained.

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, S/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; ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, §§14 & 24; ICRC, ‘Israel and the Occupied Territories', Annual Report 2017, June 2018, pp 468 – 472. Furthermore, the annexation of East Jerusalem has no influence on its classification as an occupied territory.See ICRC, Commentary of 1958, Art. 47 CG IV.

The marked increase in the death toll in West Bank, which is almost eight times higher than the average recorded for the first half of 2023,See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #25’, 31 October 2023 as well as the appearance of new armed groups engaging in clashes with the Israeli security forces such as the Lion’s Den, are developments worthy of special consideration and monitoring. However, the situation in the West Bank continues to meet the criteria of an ongoing military occupation. The scope and degree of Israeli control materializes in particular in the continued authority over security in the West Bank. Area C, which includes Israeli settlements, is kept under Israel’s full government and security control. Notwithstanding the fact that areas A and B are under the full and partial control of the PA respectively, Israel retains significant influence. This control may also be demonstrated by limitation of 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. The Israeli military law still applies and military court system also continues to operate in the West Bank. Moreover, Israeli Forces frequently enter the areas, conduct search-and-arrest operations, and are able to impose movement restrictions and close areas. The expropriation and exploitation of land, and the establishment of civilian settlements are also indicators of Israeli control.See above. See also ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, §§ 31, 55 & 60. Even after the October 2023 events in Gaza, the international community has reiterated the view that the West Bank including East Jerusalem constitutes occupied territory.See e.g. ‘Report of the Special Rapporteur on the situation of Human Rights in the Palestinian occupied since 1967, Francesca Albanese’, A/78/545, 20 October 2023, § 55; Committee on the Elimination of Racial Discrimination, ‘Statement 5 (2023): Israel and the State of Palestine’, 27 October 2023.

The Gaza Strip

Factual developments

At the end of 1967 Six-Day War, Israel seized control of the Gaza Strip from Egypt and established a military occupation. The PA was established in the 1990’s as part of the Oslo peace process. Under the Oslo Accords, much of the administration of the Gaza Strip came under PA control, while Israel retained control of settlements and military zones, as well as airspace, territorial waters, immigration, trade and tax policy.See 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 19.

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’. See also 'Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 20.

Since the initiation of the closure in 2007, several confrontations between Hamas and Israel - such as Operation ‘Cast Lead’ in 2008, Operation ‘Pillar of Defense’ in 2012 and Operation ‘Protective Edge’ in 2014 – as well as other episodes involving the use of force have occurred in the Gaza strip.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, § 48. See also CRC, ‘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’, A/HRC/29/52, 24 June 2015. See for instance, T. Staff, J. Ari Gross, ‘IDF strikes Hamas targets after Gaza rocket hits Israeli town’, The Times of Israel, 18 December 2017; ‘Eight killed in covert Israeli action in Gaza', BBC News, 12 November 2018. Before the events of 7 October 2023, the total number of Palestinian deaths in Gaza since 2008 was 6,542, compared with 52 Israeli deaths. The number of wounded Palestinians was over 155,000, against 102 wounded Israelis.See OCHA OPT, ‘Data on casualties’. Since 2008, Palestinians armed groups have launched indiscriminately over 20’000 projectiles, such as rockets and mortars, towards Israel, causing the death of over 35 Israeli civilians and the injuries of 3’230.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, § 51.

On 30 March 2018, mass protests began at the Israel-Gaza Strip border. The use of live ammunition by Israeli armed forces against the protestors led to the highest death toll since the 2014 conflict.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. In a 25 February 2019 report, a Commission of Inquiry established by the UN Human Rights CouncilUN Human Rights Council, Resolution S-28/1, 18 May 2018 found that, from 30 March to 31 December 2018, Israeli Security Forces killed 183 Palestinians and injured 9,204 others with live ammunition, by bullet fragmentation, rubber-coated metal bullets or hits from tear gas canisters (according to OCHA estimates, the total number of Palestinians injured during the demonstrations is over 23,000); it also found that one Israeli soldier was killed and four injured at the demonstrations.See OCHA, ‘2018: More casualties and food insecurity, less funding for humanitarian aid’, 27 December 2018; The UN Independent Commission of Inquiry on the 2018 Gaza protests, ‘No Justification for Israel to Shoot Protesters with Live Ammunition’, Press briefing, 28 February 2019; Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory, A/HRC/40/74, 25 February 2019.

After an initial closure on Gaza in March 2020 in the context of the coronavirus pandemic, in August 2020, following the launch of explosive balloons by Hamas-affiliated groups across the border, Israeli air strikes hit Hamas sites. Then, in response to rocket attacks on southern Israel by Palestinian militants, Israel closed the crossing with Gaza and the fishing zone on the coast.See ‘Israel extends closure of West Bank, Gaza Strip amid coronavirus outbreak’, The New Arab, 12 March 2020; ‘Israel shuts Gaza fishing zone after overnight fighting’, The Washington Post, 16 August 2020.

Following the tensions between Israeli forces and Palestinian residents in East Jerusalem, on 10 May 2021 Hamas fired rockets from Gaza while Israeli forces conducted several airstrikes, which killed at least 20 people, including 9 children, in the northern part of Gaza. Accordingly, militants in Gaza fired rockets in the Jerusalem area for the first time after the 2014 war.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, § 54; P. Kingsley and I. Kershner, ‘After Raid on Aqsa Mosque, Rockets from Gaza and Israeli Airstrikes’, The New York Times, 10 May 2021; O. Holmes and P. Beaumont, ‘Israel launches airstrikes on Gaza Strip after Hamas rocket attacks’, The Guardian, 10 May 2021; N. Al-mughrabi and J. Heller, ‘Jerusalem violence leads to rockets, air strikes’, Reuters, 11 May 2021. Israeli airstrikes (and tank-artillery shelling) in Gaza continued during the following week, causing several deaths and bombing of residential buildings and two media towers in Gaza, including one that housed the Associated Press and Al Jazeera’s offices.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, § 55; ‘‘Give us 10 minutes’: how Israel bombed a Gaza media tower’, Al Jazeera, 15 May 2021. Notably, the death toll in the Gaza Strip following Israeli airstrikes rose to 241 persons, including 60 children and 38 women, while Hamas fired thousands of rockets into Israel, killing 10 in total.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, § 54; U. Uras and U. Siddiqui, ‘Gaza death toll nears 200 amid surge of Israeli raids’, Al Jazeera, 16 May 2021; S. Winer and T. Staff, ‘A child, a teen, a man unable to run: 10 Gaza rocket victims in Israel’, The Times of Israel, 16 May 2021. Protests occurred not just in the Occupied Territories but also among the Palestinian citizens of Israel.See M. Nassar, ‘Protests by Palestinian citizens in Israel signal growing sense of a common struggle’, The Conversation, 13 May 2021. On 16 May 2021, the UN Security Council held an emergency meeting over the escalation of violence between Israel and Palestine.See ‘U.N. Security Council Meets Over Israeli-Palestinian Violence’, NPR, 16 May 2021.

On 5 August 2022, Israel conducted airstrikes against Gaza, which caused the death of at least 10 people, including a commander of the PIJ. On the same day, PIJ fired dozens of rockets against Israel. Israeli airstrikes continued during the following two days, while PIJ fired hundreds more rockets into Israel. Following mediation led by Egypt, Israel and PIJ agreed to a ceasefire that entered into force on 7 August 2022.See M. Humaid, ‘Israel hits Gaza with air attacks as tensions escalate’, Al Jazeera, 5 August 2022; ‘Timeline: Major flare-ups between Israel and Palestinians in Gaza’, Reuters, 7 August 2022.

The start of 2023 was also marked by an outbreak of violence between PIJ and the IDF in the Gaza Strip.See ‘Israel air attacks hit Gaza, escalation fears after Jenin raid’, Al Jazeera, 27 January 2023; ‘Timeline of conflict between Israel and Palestinians in Gaza’, Reuters, 7 October 2023. On 9 May 2023, the situation further deteriorated when the IDF launched the ‘Shield and Arrow’ military operation, during which it carried out airstrikes and shelling directed at several targets in Gaza, including residential areas allegedly housing members of the PIJ and their families. In turn, Palestinian armed groups fired over a thousand rockets towards Israel. Hostilities continued until the conclusion of a ceasefire on 13 May 2023, which came into effect at 22:00. More than 30 Palestinians were reported dead and around 100 wounded, while Israel reported two dead and 40 wounded.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, §§ 58-60; OCHA OPT, ‘Escalation of hostilities between Israeli forces and Palestinian armed groups in Gaza: Flash Update #1 as of 17:00, 10 May 2023’, 10 May 2023; ‘Statement by UNICEF Executive Director Catherine Russell on escalation of hostilities in Israel and the State of Palestine’, 13 May 2023; OCHA OPT, ‘Humanitarian situation in Gaza: Flash Update #5 as of 17:00, 15 May 2023’, 16 May 2023. On 5 July 2023, following the IDF’s two-day major offensive in the Jenin refugee camp (see above ‘West Bank’), Hamas conducted a car-ramming and stabbing attack in Tel Aviv and fired rockets towards Israel.See B. McKernan, ‘Israeli forces withdraw from Jenin as rockets fired from Gaza’, The Guardian, 5 July 2023. Palestinian demonstrations in front of the Israeli security fence resumed at the end of August 2023 and left dozens of wounded and one dead.See S. Forey, ‘How recent tensions between Palestine and Israel have centered on the Gaza Strip’, Le Monde, 7 October 2023. Mid-September 2023, demonstrations carried on, with demonstrators burning tires and throwing stones and explosive devices at Israeli observation posts, and Israel firing live ammunition, rubber bullets, and teargas in response. On 15 September 2023, the IDF also conducted airstrikes and fired missiles at reportedly armed groups’ military outposts into Gaza, injuring one Palestinian.See OCHA OPT, ‘Protection of Civilians Report: 5-18 September 2023’, 26 September 2023.

Operation ‘Al-Aqsa Flood’

On 7 October 2023, Hamas and the PIJ launched the biggest operation against Israel in years, named ‘Operation Al-Aqsa Flood’. The surprise assault combined a heavy rocket fire into Israel and the passage of thousands of gunmen into southern Israel territory, having breached the border security fence or resorted to motorboats or paragliders to cross it.See B. Hutchinson, ‘Israel-Hamas War: Timeline and key developments in month of war’, ABC News, 10 November 2023; ‘Timeline of conflict between Israel and Palestinians in Gaza’, Reuters, 7 October 2023. In the course of the operation, Palestinian fighters shot at civilians and soldiers in Israel territory, killing more than 1’200 people and wounding thousands more, most of them Israeli civilians.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #16’, 22 October 2023; OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023; T. Goldenberg and W. Shurafa, ‘Israel declares war, bombards Gaza and battles to dislodge Hamas fighters after surprise attack’, AP, 9 October 2023; N. Ebrahim, ‘One month on, what we know about the Israel-Hamas war’, CNN, 7 November 2023; B. Hutchinson, ‘Israel-Hamas War: Timeline and key developments in month of war’, ABC News, 10 November 2023. Among the victims were 260 attendees at a techno music festival and residents of nearby Kibbutzim.See Human Rights Watch, ‘Hamas, Islamic Jihad: Holding Hostages is a War Crime’, 19 October 2023.

Between 2’500 and 5’000 rockets were fired by Palestinian armed groups during the initial assault on 7 October 2023.See ‘What happened in Israel? A breakdown of how Hamas attack unfolded’, Al Jazeera, 7 October 2023. In addition, the Israeli border towns of Sderot and Ofakim were raided by Palestinian fighters. Houses were ransacked and set on fire in towns and kibbutzim targeted by Palestinian armed groups.See ‘What happened in Israel? A breakdown of how Hamas attack unfolded’, Al Jazeera, 7 October 2023; M. Darwish and others, ‘Children found ‘butchered’ in Israeli kibbutz, IDF says, as horror of Hamas’ attacks near border begins to emerge’, CNN, 13 October 2023. Palestinian fighters also breached into at least three military bases around the frontier: Beit Hanoon/Erez border crossing, Zikim base and Reim Gaza division headquarters, resulting in the burning of buildings and capture of military vehicles.See ‘What happened in Israel? A breakdown of how Hamas attack unfolded’, Al Jazeera, 7 October 2023.

During the attack, Hamas and PIJ took 239 hostages (mainly Israelis, but also few foreign citizens) and moved them into Gaza.See ‘At least 199 people being held captive by Hamas, Israel says’, Al Jazeera, 16 October 2023; L. O’Carroll, ‘Israel confirms 155 people being held hostage by Hamas’, The Guardian, 16 October 2023; E. Fabian, ‘IDF says number of confirmed hostages held by Hamas rises to 239’, The Times of Israel, 29 October 2023. In addition to the music festival, the hostages were taken from homes and military bases in areas along the Israeli border with Gaza. They include civilians, soldiers, children, elderly and people with disabilities.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023; Human Rights Watch, ‘Hamas, Islamic Jihad: Holding Hostages is a War Crime’, 19 October 2023; ‘What happened in Israel? A breakdown of how Hamas attack unfolded’, Al Jazeera, 7 October 2023; C. Vinograd and I. Kershner, ‘Israel’s Attackers Took About 240 Hostages. Here’s What to Know About Them.’, The New York Times, 2 November 2023. A few hostages have since been releasedSee OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023; M. Wendling and F. McCamley, ‘Judith and Natalie Raanan: Hamas frees two US hostages’, BBC News, 21 October; J. Burke, ‘Two Israeli hostages released as efforts intensify to free people held by Hamas’, The Guardian, 23 October 2023. and over 57 have been allegedly killed in Israeli airstrikes.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023; Human Rights Watch, ‘Hamas, Islamic Jihad: Holding Hostages is a War Crime’, 19 October 2023. In response to the ensuing Israeli bombardment (see below ‘Operation ‘Iron Swords’’), Hamas announced on 9 October 2023 that it would execute one Israeli hostage for every civilian house in Gaza shelled without warning; however, no executions have been reported yet.See N. Al-Mughrabi and D. Williams, ‘Israel on war footing, Hamas threatens to kill captives’, Reuters, 9 October 2023.

It took days for the IDF to overcome the militants holed up in several locations in Israel, and to eventually regain control of the territory, killing around 1’500 members of the armed groups.See T. Goldenberg and W. Shurafa, ‘Israel declares war, bombards Gaza and battles to dislodge Hamas fighters after surprise attack’, AP, 9 October 2023; N. Al-Mughrabi and D. Williams, ‘Israel on war footing, Hamas threatens to kill captives’, Reuters, 9 October 2023; D. Gritten, ‘Israel's military says it fully controls communities on Gaza border’, BBC News, 9 October 2023; J. Federman and I. Adwan, ‘Palestinians scramble for safety as Israel pounds sealed-off Gaza Strip to punish Hamas’, AP, 11 October 2023. In the days and weeks following the surprise attack, Palestinian armed groups have continued firing up to 9’500 rockets indiscriminately into Israeli territory, causing some material damage but no casualties, with the exception of one moderate injury.See ‘Rocket impacts near Ben Gurion Airport; no reports of injuries or damage’, The Times of Israel, 9 October 2023; E. Fabian, ‘Rockets hit 4 buildings in Sderot; 1 man moderately hurt’, The Times of Israel, 11 October 2023; E. Fabian, ‘Rocket from Gaza lands near Rehovot highway, sparking fire’, The Times of Israel, 26 October 2023; Tel Aviv University, The Institute for National Security Studies, ‘Real-time Updates’, 16 November 2023.

Operation 'Swords of Iron'

Soon after the initial attack by Hamas and PIJ, Israeli Prime Minister Benjamin Netanyahu declared that the country was at war with Hamas and that ‘the enemy will pay a price it has never known before’. In parallel, Israel’s Defense Minister Yoav Gallant announced that the IDF were calling up reservists to fight against Hamas.See ‘Netanyahu vows war as attacks kill hundreds’, NBC News, 8 October 2023. On 7 October 2023, the IDF launched a large-scale counter-offensive on Gaza, called ‘Operation Swords of Iron’, with intensive and constant air strikes and bombardments on Gaza in the following days that hit high-rise buildings,See ‘Israel flattens Palestine Tower amid deadly Gaza bombardment’, Al Jazeera, 7 October. medical facilities,See OCHA OPT, ‘Escalation in the Gaza Strip and Israel: Flash Update #1 as of 18:00, 7 October 2023’, 7 October 2023. several entire neighbourhoods, including Rimal (Gaza City),See I. Adwan, ‘Unprecedented Israeli bombardment lays waste to upscale Rimal, the beating heart of Gaza City’, AP, 11 October 2023. schools,See OCHA OPT, ‘Escalation in the Gaza Strip and Israel: Flash Update #3’, 9 October 2023. and Al-Shati and Jabalia refugee camps.See ‘Graphic video shows chaos at Gaza refugee camp after Israeli airstrike’, CNN. The IDF also carried out targeted operations against key Hamas and PIJ officials, including strikes on their homes and Hamas-run banks.See R. Abu Alouf, ‘Gaza hospital deluged as Israel retaliation kills and wounds hundreds’, BBC News, 9 October.

On 14 October 2023, the IDF declared that they were preparing for the next step, ‘with an emphasis on significant ground operations’.See ‘Israeli military preparing for 'significant ground operations'’, Reuters, 14 October 2023. Before that announcement, on 9 October 2023, IDF had urged the inhabitants of Gaza to flee to Egypt, then retracted its call due to the closure of Rafah crossing, the only crossing point on Gaza’s southern border.See ‘Israeli military revises call on Gazans to flee to Egypt’, Reuters, 10 October 2023. On 13 October 2023, 1.1 million inhabitants of northern Gaza were ordered to evacuate south by IDF;See I. Debre and others, ‘Palestinians flee northern Gaza after Israel orders 1 million to evacuate as ground attack looms’, AP, 14 October 2023; H. Regan and others, ‘Israel tells 1.1 million Gazans to evacuate south. UN says order is ‘impossible’’, CNN, 13 October 2023. tens of thousands complied with the military order, and a convoy was reportedly hit as it evacuated.See P. Brown and J. Herd, ‘Strike on civilian convoy fleeing Gaza: What we know from verified video’, BBC News, 16 October 2023; OCHA OPT, ‘Escalation in the Gaza Strip and Israel: Flash Update #11’, 17 October 2023. In reaction, Hamas encouraged inhabitants to stay and not comply with the evacuation order.See R. Amer, ‘Fear, confusion as Israel issues evacuation order for northern Gaza’, Al Jazeera, 13 October 2023. On 28 October 2023, the IDF warned that it now considered Gaza City and its surroundings as a “battlefield” and reiterated its order for residents to leave towards the south of the Strip.See S. O’Donoghue, ‘Israel Hamas war: UN warns Gaza ground offensive will cause even 'more pain' as death toll climbs’, Euronews, 28 October 2023. Those announcements were accompanied by massive overnight bombardments, ground incursions against underground targets, such as tunnel network built by Hamas, and a breakdown in communications.See S. O’Donoghue, ‘Israel Hamas war: UN warns Gaza ground offensive will cause even 'more pain' as death toll climbs’, Euronews, 28 October 2023; S. Sheth and others, ‘Israel's ground forces push into northern Gaza supported by 100 warplanes, targeting Hamas tunnel network’, Business Insider, 28 October 2023. Israeli Prime Minister Benjamin Netanyahu vowed “to destroy Hamas' governing and military capabilities and to bring the hostages home”.See J. Mackenszie and M. Lubell, ‘Israel launches Gaza war's second phase with ground operation, Netanyahu says’, Reuters, 28 October 2023.

On 29 October 2023, the Israeli ground offensive appeared to be intensifying. The Al Quds hospital, the second largest in Gaza City, has received several warnings to evacuate immediately.See OCHA OPT, ‘Escalation in the Gaza Strip and Israel: Flash Update #23’, 29 October 2023; Palestinian Red Crescent, ‘Imminent Threat received for Immediate Evacuation of PRGS AI Quds Hospital’, 29 October 2023; A. Salam and other, ‘Israeli troops advance in Gaza, hostage freed and ‘impossible’ hospital evacuation: What to know Monday’, CNN, 31 October 2023. More broadly, all hospitals located in Gaza city and Northern Gaza have received repeated Israeli evacuation orders.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel - reported impact: Day 33’, 8 November 2023. On 30 October, the largest Israeli ground operation took place within northern Gaza, resulting in intense fighting in the outskirt of Gaza city.See OCHA OPT, ‘Escalation in the Gaza Strip and Israel: Flash Update #25’, 31 October 2023. As of 15 November, ground operation intensified and clashes between IDF and Palestinian armed groups in northern Gaza continued while intense strikes were carried out by IDF in the south. Israeli ground troops continued to cut off the north from the south, with the exception of a corridor to the south.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023.

The UN General Assembly (with a two-third required majority), EU leaders, António Guterres (UN Secretary-General), Josep Borell (High Representative of the EU for Foreign Affairs and Security Policy), Volker Türk (UN High Commissioner for Human Rights), and many UN experts have all called for a humanitarian ceasefire.See UNGA, A/ES-10/L.25, 26 October 2023; OHCHR, ‘Israel/occupied Palestinian territory: UN experts deplore attacks on civilians, call for truce and urge international community to address root causes of violence’, Press releases, 12 October 2023; OHCHR, ‘Israel/OPT: Türk says humanity must come first, urges humanitarian ceasefire’, Press releases, 23 October 2023; ‘EU leaders issue statement calling for ‘humanitarian corridors and pauses’ in Gaza’, The Times of Israel, 26 October 2023; S. O’Donoghue, ‘Israel Hamas war: UN warns Gaza ground offensive will cause even 'more pain' as death toll climbs’, Euronews, 28 October 2023. On 15 November, United Nations Security Council adopted resolution 2712 (2023) by which it called for urgent and extended humanitarian pauses and corridors through the Gaza Strip to facilitate the provision of essential goods and services.See UNSC, S/RES/2712 (2023), 15 November 2023.

As of 15 November 2023, Israel's near constant and "unprecedented" air strikes and bombardments, as well as its ground operation against the north of Gaza Strip, have left more than 11’000 people dead (the majority of them women and children), 27,400 wounded, some 1.5 million people internally displaced, and hundreds of thousands of homes and public facilities destroyed or damaged.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023. 53 Israeli soldiers have died since the start of the offensive in Gaza.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023. Over 60% of deaths were reported in the northern Gaza region. In addition, as of 29 October 2023, around 1,800 people, including at least 940 children, have gone missing and may be trapped or dead under the rubble, waiting to be rescued or recovered. Rescue teams are struggling to carry out their missions, against a backdrop of incessant airstrikes and a severe shortage of fuel to run vehicles and equipment. The decomposition of bodies under collapsed buildings, while rescue missions are limited, raises humanitarian and environmental concerns.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #23’, 29 October 2023.

Halting of basic supplies and humanitarian aid

As of 7 October 2023, the Israeli authorities ceased supplying electricity and fuel to Gaza,See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #9’, 15 October 2023. leaving Gaza without electricity since 11 October 2023.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023. In the evening of 8 October 2023, Israel decided to stop its water supply to Gaza.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #4’, 10 October 2023. In the evening of Monday 9 October 2023, Israeli authorities decided to halt all deliveries of food, water, electricity and fuel to the Gaza Strip.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #4’, 10 October 2023. Five days later, clean water was running out in Gaza.See UNWRA, ‘No humanitarian supplies allowed into Gaza for one week now’, 14 October 2023. The Erez crossing and the Kerem Shalom goods crossing (the only two crossings into Israel) have remained closed throughout the conflict so far.See I. Debre and others, ‘Palestinians flee northern Gaza after Israel orders 1 million to evacuate as ground attack looms’, AP, 14 October 2023. For about two weeks, the Rafah crossing to Egypt was closed and no humanitarian aid has been allowed to reach Gaza from Egypt.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #10’, 16 October 2023. The European Union announced the launching of a humanitarian air bridge operation on 16 October 2023, “consisting of several flights to Egypt to bring lifesaving supplies to humanitarian organisations on the ground in Gaza”.See European Civil Protection and Humanitarian Aid Operations, ‘EU launches Humanitarian Air Bridge operation to bring aid to Gaza’, 16 October 2023. On 18 October 2023, Israel declared that it would allow the passage of restricted humanitarian aid to Gaza from Egypt, on condition that it be inspected and exclusively directed to civilians.See N. Jobain and others, ‘Israel will let Egypt deliver some aid to Gaza, as doctors struggle to treat hospital blast victims’, AP, 19 October 2023. The humanitarian aid convoy, composed of 20 aid trucks and expected to enter the Gaza strip from Egypt, was delayedSee ‘Humanitarian Aid Convoy to Gaza Delayed’, VOA News, 20 October 2023. and eventually entered the Gaza Strip on 21st October 2023. Over 200 trucks are awaiting at Rafah crossing,See ‘Egypt-Gaza Rafah crossing opens, allowing 20 aid trucks amid Israeli siege’, Al Jazeera, 21 October 2023. and a second convoy of 14 trucks passed through on 22nd October 2023.See ‘Second aid convoy ‘another glimmer of hope’ for millions in Gaza: UN relief chief’, UN News, 22 October 2023. On 29 October 2023, the largest delivery of humanitarian aid, composed of 33 trucks carrying water, food and medical supplies, entered Gaza.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #23’, 29 October 2023. Lack of fuel is severely hampering the operation of medical equipment and water and sanitation facilities.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #23’, 29 October 2023. In the south, water is mainly supplied by two pipelines coming from Israel, while in the north, water desalination plant and Israeli pipeline do not function.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023. Between 21 October and 15 November, 1’139 trucks carrying water, food and medicines entered in Gaza.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023. On 15 November, for the first time, some 23’000 litres of fuel entered Gaza. Israel has restricted the use of this fuel for UNWRA trucks distributing aid. The entry of fuel for another purpose remains banned, including for hospital generators and water and sanitation facilities.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023.

On 15 November, out of 24 hospitals in northern Gaza, 18 hospitals have shut down and evacuated, five hospitals are providing extremely limited services to patients already admitted and only one, Al Ahli in Gaza city, is currently operational and admitting patients.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023.

On 14 November, Rafah crossing to Egypt was opened for evacuating about 600 of foreign nationals and dual citizens, and four injured people, making a total of 139 people who were taken to Egypt for medical treatment. On November 15, Israel was still refusing to open the Kerem Shalom crossing, which had been the main point of entry for goods prior to the hostilities.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #40’, 15 November 2023.

Classification of the situation

Military occupation

For a territory to be considered occupied, three elements must be cumulatively fulfilled:

First, one State must effectively control part of another State’s territory.

Second, the territorial State must have lost effective control over that territory.

Third, the State previously controlling the territory did not consent to the enemy State’s presence in its territory.

While effective control is usually exercised by means of the presence of the troops on the ground, under certain conditions, it could continue to be exercised even after the withdrawal of troops from the territory. Therefore, an occupation may continue “although the foreign forces are not physically present in the territory concerned, [since] the authority they retain may still amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions.”See ICRC, Commentary of 2016, Art. 2 GC I-IV, § 308. In such cases, the functional approachSee ‘military-occupation – functional occupation’ in our classification section. to occupation is the one to be preferred. Under this approach, the extent and the content of the Occupying Power’s obligations depend on the authority still retained.

Classification following the 2005 Disengagement Plan

Following the implementation of the 2005 Disengagement Plan, Israeli armed forces were 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, international practice and the majority of scholarly opinions have long considered that, even after its withdrawal in 2005, Israel has continued to occupy the Gaza Strip by virtue of the control exercised over its airspace and territorial waters, land crossings at the borders, the supply of civilian infrastructure, and the exercise of key governmental functions such as the management of the Palestinian population registry.See ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/HRC/50/21, 9 May 2022, § 16 and accompanying footnotes; ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/77/328, 14 September 2022, § 19. For this position, see also 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. Indeed, as specified by the ICRC, “in some specific and exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) while retaining key elements of authority or other important governmental functions that are typical of those usually taken on by an Occupying Power – the law of occupation might continue to apply within the territorial and functional limits of those competences […] although the foreign forces are not physically present in the territory concerned, the authority they retain may still amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions.”ICRC, Commentary of 2016, Art. 2 CG I, §§ 307-308. Such a functional approach to occupation allows to determine “the extent to which obligations under the law of occupation remain incumbent on hostile foreign forces that are phasing out or suddenly withdrawing from an occupied territory while retaining a certain authority over it”.ICRC, Commentary of 2016, Art. 2 CG I, § 310.

This view has been supported in relation to the Gaza Strip by several reports and declarations by relevant international bodies, such as the UN, the ICC and the ICRC.See 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; UN High Commissioner for Human Rights, Press briefing note on Gaza and Guatemala, 6 April 2018; Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Human Rights Council, A/HRC/37/75, 14 June 2018; African Union, ‘Report of The Commission on the Situation in Palestine and the Middle East’, EX.CL/1115(XXXIV), 7-8 February 2019; International Criminal Court, Pre-Trial Chamber I, Decision on the Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 5 February 2021, § 101; UNGA, ‘Assistance to the Palestinian people’, A/RES/76/126, 17 December 2021; ICRC, ‘What does the law say about the responsibilities of the Occupying Power in the occupied Palestinian territory?’, Article, 28 March 2023; ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’, A/78/198, 5 September 2023, §§ 5 & 49.

Classification following the 2023 Operations ‘Al-Aqsa Flood’ and ‘Swords of Iron’

The events that have unfolded since Hamas’ attack on 7th October 2023 do not warrant a change in the classification of the situation in the Gaza Strip as an instance of military occupation. While they can affect the range of applicable norms, they do not appear to have affected the elements on which that classification stood. Several considerations, which will be analysed in turn below, warrant this conclusion.

First, the occurrence of military operations and confrontations between the parties to the armed conflict is not, in and of itself, incompatible with occupation, to the extent that the occupier continues to retain effective control over territory.See United States Military Tribunal at Nuremberg, The Hostages Trial – Trial of Wilhelm List and Others (8 July 1974 – 19 February 1948), reproduced in UN War Crime Commission, Law Reports of Trials of War Criminals (1949) vol VIII, 34, 56; ICRC, Commentary of 2016, Art. 2 CG I, § 302. Neither the magnitude of Operation Al-Aqsa Flood in Israeli territory, nor the intensity of the fighting that Israel has encountered in its ground operation in northern Gaza, have affected the elements by which Israel used to exert its effective control over the Gaza Strip. The means and tools through which Israel has exercised its authority over the Gaza Strip since 2005, (and that have justified a classification as occupation throughout that period) – namely, airspace and sea control, border control, administrative issues – have not disappeared as a consequence of the October 2023 attack. Furthermore, it would be incorrect to consider the carrying out of a ground operation in Palestinian territory as evidence of a loss of control by Israel over Gaza – quite the contrary, such an operation could eventually result in the re-establishment of an Israeli military presence and authority in the Gaza Strip, and therefore in the re-enactment of an occupation stricto sensu (such as the one that had preceded the 2005 Disengagement Plan). In this regard, it should be noted that since this latest round of hostilities began, several UN organs and international NGOs have continued to classify the situation in the Gaza Strip as one meeting the definition of occupation.See e.g. ICRC, ‘Frequently asked questions on ICRC’s work in Israel and the occupied territories’, 13 October 2023; ‘Report of the Special Rapporteur on the situation of Human Rights in the Palestinian occupied since 1967, Francesca Albanese’, A/78/545, 20 October 2023, §§ 33 & 56; Committee on the Elimination of Racial Discrimination, ‘Statement 5 (2023): Israel and the State of Palestine’, 27 October 2023; OHCHR, ‘Occupied Gaza Strip: UN Committee calls for immediate ceasefire and urges end to hate speech amid fears of broader conflict’, Press releases, 27 October 2023; OCHA OPT, ‘Crisis Context and Impact’; Human Rights Watch, ‘How Does International Humanitarian Law Apply in Israel and Gaza?’, 27 October 2023.

Second, the classification as occupation is not ruled out by the recourse to specific means and methods of warfare in the context of the Israeli response to the 7 October 2023 attack. The IDF have referred to the ongoing operations as a ‘complete siege’ and Israeli Defence Minister Yoav Gallant told the Knesset that Israel would no longer have “responsibility for life in Gaza”. According the majority view, this would rule out the persistence of an occupation insofar as the two notions are mutually exclusive.See M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Cheltenham/Northampton (Edward Elgar Publishing), 2019, §. 8.196. From this point of view, sieges are designed “to control a defended locality and obtain surrender or otherwise defeat the enemy through isolation”;G. Gaggioli, ‘Joint Blog Series on International Law and Armed Conflict: Are Sieges Prohibited under Contemporary IHL?’, EJIL:Talk!, 30 January 2019. it is only “if the siege ends in surrender or defeat [that] the place under siege falls under belligerent occupation”.J. Kraska, ‘Siege’, Max Planck Encyclopedias of International Law, December 2009. This seems to be confirmed by statements such as that of the United States of America, which warned Israel of the dangers arising from an occupation of Gaza saying that it would “be a big mistake”, implying that Israel is not yet occupying Gaza.See H. Gold and others, ‘Israeli Defense Minister Orders “Complete Siege” of Gaza, as Hamas Threatens Hostages’, CNN, 9 October 2023; P. Baker, ‘Biden Warns Israel Not to Occupy Gaza’, The New York Times, 15 October 2023; ‘Israel reveals plans to sever links with Gaza as part of a 'three phase' war with airstrikes and ground manœuvres’, LBC, 20 October 2023. In reality, military occupation is not precluded by the establishment of a siege. Sieges (which are not explicitly defined under IHL) might be conceived as an attack within the meaning of Article 49 (1) AP ISee AP I, Art. 49 (1); M. Nijs, ‘Humanizing siege warfare: Applying the principle of proportionality to sieges’, International Review of the Red Cross, Vol, 102, 2020, p 683-704. and attacks can be conducted in a territory under the control of an adverse Party.See AP I, Art. 49 (2). We cannot rule out situations (such as the one under review here) where conducts that can be characterized as "sieges" on specific and well-defined localities take place in the broader context of a situation amounting to belligerent occupation. This, in our view, is the correct way of construing those statements by a number of actors in the international community who, since 7 October 2023 have continued to classify the situation in the Gaza Strip as meeting the definition of occupation while at the same time referring to the total siege or blockade of Gaza.See ICRC, ‘Frequently asked questions on ICRC’s work in Israel and the occupied territories’, 13 October 2023; ‘Report of the Special Rapporteur on the situation of Human Rights in the Palestinian occupied since 1967, Francesca Albanese’, A/78/545, 20 October 2023, §§ 33 & 55-56; OHCHR, ‘Israel and the Occupied Palestinian Territories (20 October 2023)’, Press releases, 20 October 2023; OCHA OPT, ‘Crisis Context and Impact’. See also T. Dannenbaum, ‘The Siege of Gaza and the Starvation War Crime’, Just Security, 11 October 2023. In this respect, Israel declared on 5 November 2023 that it had “encircled” Gaza City and, on 21 November 2023, that it had “completed encirclement” of Jabaliya in Gaza.See E. Fabian ‘IDF says troops have encircled Gaza City, split coastal enclave into two’, The Times of Israel, 5 November 2023; E. Fabian, ‘IDF says it has completed encirclement of Gaza’s Jabaliya amid battles with gunmen’, The Times of Israel, 21 November 2023. Moreover, the conducts in which siege(s) in Gaza would materialize (such as reducing and ultimately interrupting the supply of commodities to the Gaza Strip, retaining control over the admission of humanitarian assistance, ordering inhabitants to evacuate, and deploying troops thereon) demonstrate that Israel keeps exercising a continued, effective control over Gaza. Therefore, for the time being, the classification as occupation remains the most accurate depiction of the situation, while the precise contours and scope of the obligations incumbent on Israel as an occupying power will have to be assessed (as has been the case in the recent past) through the lenses of a functional approach to the notion. This being said, the situation remains volatile, and it cannot be ruled out that the classification will change depending on how events will unfold.

Hamas and PIJ qualification

A further set of questions concerns the status of Hamas and PIJ, whether an armed conflict exists between (each of) them and Israel, and, in the positive, whether such armed conflicts should be classified as international or non-international. Answers to these questions diverge considerably, and although the rules on the conduct of hostilities are similar whether the conflict is classified as international or non-international, this classification is fundamental to identifying the type of protection afforded to persons in the power of the enemy.

Past hostilities in Gaza between Israel and Hamas and PIJ have been classified as either international armed conflicts or non-international armed conflicts.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 the classification as an international armed conflict, see Supreme Court of Israel, Public Committee against Torture in Israel v. Government of Israel, Case No. HCJ 769/02, 13 December 2006, as reproduced in ICRC Casebook, §§ 16ff; 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.

The majority of commentators refrain from classifying the ongoing hostilities as international or non-international,See K. Watkin, ‘Israel – Hamas 2023 Symposium – Strategy and Self-Defence: Israel and its War with Iran’, Articles of War, Lieber Institute (West Point), 18 October 2023; R.-L. Lauterbach, ‘Israel – Hamas 2023 Symposium – A “Complete Siege” of Gaza in Accordance with International Humanitarian Law’, Articles of War, Lieber Institute (West Point), 16 October 2023; R. Goldman, ‘How the ‘laws of war’ apply to the conflict between Israel and Hamas’, The Conversation, 15 October 2023; R. Goodman and others, ‘Expert Guidance: Law of Armed Conflict in the Israel-Hamas War’ Just Security, 17 October 2023. others tends to classify the conflict as a non-international armed conflict,See Human Rights Watch, ‘Questions and Answers: October 2023 Hostilities between Israel and Palestinian Armed Groups’, 9 October 2023; M. N. Schmitt, ‘Israel – Hamas 2023 Symposium – The Legal Context of Operations Al-Aqsa Flood and Swords of Iron’, Articles of War, Lieber Institute (West Point), 10 October 2023; J. C. Tramazzo and others, ‘Israel – Hamas 2023 Symposium – Hostage-Taking and the Law of Armed Conflict’, Articles of War, Lieber Institute (West Point), 11 October 2021. and some classify it as international.See T. Dannenbaum, ‘The Siege of Gaza and the Starvation War Crime’, Just Security, 11 October 2023. See also, 'L'intervista [M. Sassòli] Crimini di Guerra? “La CPI indaga da 8 anni, ma non ci sono progressi”’, Corriere del Ticino, 14 October 2023.

At the outset, it should be stressed that the question whether Hamas and the PIJ constitute terrorist organizations is not determinative of the issue. Until today, there is no commonly accepted definition of terrorism under international law.See OHCHR, ‘OHCHR and terrorism and violent extremis: Overview’; A. Schmid, ‘Terrorism – The Definitional Problem’, Case Western Reserve Journal of International Law, Vol. 36, Iss. 2, 2004, 375. As noted by the OHCHR, “in reality, national definitions of terrorism remain largely left to the discretion of States, leading to varying interpretations in domestic counter-terrorism legislation”.OHCHR, ‘OHCHR and terrorism and violent extremis: Overview’. While both Hamas and PIJ are designated as terrorist groups in particular by Israel, the United States and the European Union,See U.S. Department of State, Bureau of Counterterrorism, ‘Foreign Terrorist Organizations’; UE, ‘Council Decision (CFSP) 2023/1514 of 20 July 2023 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP)', 20 July 2023; ‘What is Islamic Jihad? The Hamas ally at war with Israel’, Reuters, 18 October 2023; Council of Foreign Relations, ‘What is Hamas?’, 31 October 2023. other countries have so far refrained from making such designations. Although the designation of such groups as terrorist enables national or international sanctions to be imposed, and terrorist acts are prohibited under international humanitarian law, the fact of designating an organized armed group as terrorist has no impact on conflict classification under international humanitarian law.See AP I, Art. 51 (2); ICRC, ‘The applicability of IHL to terrorism and counterterrorism’, Report, 1 October 2015; M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Cheltenham/Northampton (Edward Elgar Publishing), 2019, §§ 10.20ff.

Secondly, while at first sight the conflict should be considered non-international because it involves organized armed groups, the actual situation is more complex. In this respect, one eminent author ascertained that “[a]n armed conflict which takes place between an Occupying Power and rebel or insurgent groups—whether or not they are terrorist in character—in an occupied territory, amounts to an international armed conflict”,See A. Cassese, International Law, 2nd edn, Oxford University Press, Oxford, 2005, p. 420. and another one estimated that the declaration of blockade amounts to a recognition of the belligerent status of insurgent forces.See I. Scobbie, ‘Gaza’ in E. Wilmshurst (ed) International Law and the Classification of Conflicts, Oxford University Press, 2012, p 301ff. In addition, following the Unity Agreement signed between Fatah and Hamas on April 2014,See ‘Hamas and Fatah Unveil Palestinian Reconciliation Deal’, BBC News, 23 April 2014. an author considered that Hamas “forms an integral part of Palestine”.See 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 39.

Neither of these elements can be considered as completely determinative of the question. As regards the former, admittedly recognition of belligerency could be tacit, in particular in case of the declaration of a blockade in the high seas.See ICRC, Commentary of 1987, § 4345. However, in view of the ongoing occupation of Gaza, of which maritime control is one element, and meaning that an international armed conflict is already underway, it is doubtful to assert that Israel has thus tacitly recognized belligerency to the Hamas and the PIJ. As for the latter element, undoubtedly the two agreements aimed at forming a Palestinian consensus government including Hamas indicate that Hamas may be seen as an integral part of the representatives of Palestine.In this respect, see also Council of the European Union, ‘Council conclusions on the Middle East (Gaza)’, 15 August 2014. On the other hand, it should be also be recalled that the 2014 Unity Agreement and subsequent 2017 Reconciliation Agreement have fallen apartSee ‘Palestinian governments resigns’, DW, 17 June 2015; ‘Hamas chief in Gaza says Palestinian unity deal is collapsing’, Reuters, 21 December 2017. and that the tensions between Palestinian factions have continued in recent years.See European Council of Foreign Affairs, ‘Mapping Palestinian Politics: Political Parties’. As a consequence, the better view is to consider that the classification of the conflict as international or non-international will in fact depend on the possibility to establish a relevant link between these organizations and the State of Palestine, as legitimately represented by the Palestine Liberation Organization (PLO).For Palestine's statehood and its representation by the PLO, see RULAC, ‘Palestine’; UNGA, A/RES/43/177, 15 December 1988; UNGA, A/RES/67/19, 29 November 2012; Arab League, Seventh Arab League Summit Conference, Resolution on Palestine, 28 October 1974; European Council of Foreign Affairs, ‘Mapping Palestinian Politics: Palestine Liberation Organisation (PLO)’. The analysis will be carried out separately for Hamas and the PIJ.

With regard to the former, Hamas 2017 Principles and Policies document (a revised version of the original 1998 Charter) states that the organization ‘is a Palestinian Islamic national liberation and resistance movement [whose] goal is to liberate Palestine’.See Hamas, ‘A Document of General Principles & Policies’, 2017. In addition, on 7 October 2023, top military commander of Hamas’ Al-Qassam Brigades stated fighting against Israeli “colonial occupation” of Palestine.See Middle East Monitor, ‘Statement by Hamas’s Al-Qassam Brigades top military commander’, 7 October 2023. Therefore, the question turns on whether Hamas can be considered as falling into art. 4 (A) (2) GC III and constituting an organized armed group belonging to a party to an international armed conflict, namely Palestine, even if Hamas does not meet the collective conditions listed in art. 4 (A) (2) a)-d) required to qualify for Prisoner of War status. According to the ICRC, ‘[t]he requirement that the group ‘belong’ to the State for the purpose of Article 4A(2) [GCIII] has been described as necessitating a de facto relationship [which] may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting. […] [E]xample of such acceptance would be where a group is involved in combat operations alongside the State and claims to be fighting on behalf of the State, and when given a formal, public or other opportunity to deny this link, the State does not or declines to do so.”ICRC, Commentary of 2020, Art. 4 GC III, §§1002, 1004 & 1007. In other words, as emphasized by some scholars, the decisive factor is whether the State refuses that the group fights on its behalf.See L. Cameron and V. Chetail, Privatizing war : Private Military and Security Companies under Public International Law, Cambridge (Cambridge University Press), 2013, pp 396-397. See also ZAMIR N., Classification of Conflicts in International Humanitarian Law: The Legal Impact of Foreign Intervention in Civil Wars, Cheltenham/Northampton (Edward Elgar), 2017, pp 140-141. Statements made by other States, such as the one of Canada and the United States of America according which Hamas does not represent the Palestinian people,See U.S. Government, ‘Remarks by President Biden on the United States’ Response to Hamas’s Terrorist Attacks Against Israel and Russia’s Ongoing Brutal War Against Ukraine’, 20 October 2023; Canadian government, ‘Statement by the Prime Minister on the humanitarian situation in the Gaza Strip’, 14 October 2023. are irrelevant. Furthermore, the fact that an armed group belongs to a party to an international armed conflict does not necessarily mean that the group is under the effective/overall control of that party, for the purpose of attribution under the rules of State responsibility. The "belonging test" encompasses effective/overall control but is actually broader. For the overall control, see e.g. ICTY, the Appeals Chamber, Prosecutor v. Dusko Tadic, Judgement (15 July 1999), IT-94-1-A, §§ 137, 141 & 145 . For the effective control, see e.g. ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, I.C.J. Reports 1986, p. 14, § 115; ICJ, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, I.C.J. Reports 2007, p. 43, §§ 402-406. For the inequivalence between the overall (or effective) control and the belonging, see e.g. L. Cameron and V. Chetail, Privatizing war : Private Military and Security Companies under Public International Law, Cambridge (Cambridge University Press), 2013, pp 393-395 et 400-401; K. Del Mar, ‘The Requirement of ‘Belonging’ under International Humanitarian Law’, The European Journal of International Law, Vol. 21 no. 1, 2010, pp 109, 111-112 & 115, available at SSRN; ZAMIR N., Classification of Conflicts in International Humanitarian Law: The Legal Impact of Foreign Intervention in Civil Wars, Cheltenham/Northampton (Edward Elgar), 2017, p 140. For an intermediary position, see ICRC, Commentary of 2020, Art. 4 GC III, § 1008. For the opinion that a group under the overall control of a State belongs to it, see ICTY, the Appeals Chamber, Prosecutor v. Dusko Tadic, Judgement (15 July 1999), IT-94-1-A, §§ 91-95; ICC, Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo, In the Case of The Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges (29 January 2007), ICC-01/04-01/06, §§ 209-211; ICC, Trial Chamber I, Situation in the Democratic Republic of the Congo, In the Case of The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute (14 March 2012), ICC-01/04-01/06, § 541. Hamas's operations, its 2017 Charter and the statement of its main military commander clearly indicate that the movement is fighting for Palestine. Despite ongoing tensions between Palestinian factions, it does not appear that the PLO has clearly distanced itself from Hamas, either before or (even more significantly) after Operation Al-Aqsa Flood. On 7th October 2023, Palestinian President Mahmoud Abbas (leader of Fatah and head of both the PLO and the Palestinian Authority (PA)See European Council of Foreign Affairs, ‘Mapping Palestinian Politics: Institutions’. stressed the Palestinians' right to defend themselves, ‘directing that everything necessary be provided in order to strengthen the steadfastness’.See M. Aggarwal, ‘Palestinian president convenes emergency meeting’, NBC News, 8 October 2023. On 12 October 2023, Mahmoud Abbas war reported as initially blaming Hamas for the 7 October attacks, stating “ […] that Hamas' policies and actions do not represent the Palestinian people, and the policies, programs and decisions of the PLO represent the Palestinian people as their sole legitimate representative”.See A. Sawafta, ‘Palestinian President Abbas condemns violence against civilians’, Reuters, 12 October 2023. In reality, it appeared that the quotation on Hamas was added by the PA intelligence chief Majed Faraj.See J. Magid, ‘Abbas fumed after Hamas condemnation was added to PA readout without his knowledge’, The Times of Israel, 17 October 2023. In any case, a few hours later, any mention of Hamas was removed from his quote, stating only that “the PLO represents the Palestinian people as their sole legitimate representative, and not the policies of any other organization”.See ‘Hamas critique removed from Palestinians' Abbas comments on Israel attack’, Reuters, 16 October 2023; ‘Abbas says Hamas actions ‘don’t represent Palestinians,’ then seems to backtrack’, The Times of Israel, 16 October 2023. Moreover, in his interview by France 24 on 9 November 2023, Prime Minister of PA declined to blame Hamas for its actions, including 7th October attacks.See ‘Eliminating Hamas is not going to happen', Palestinian PM tells FRANCE 24’, FRANCE 24 English (YouTube), 9 November 2023. Because of the absence of clear distanciation from PLO, it seems arguable that the legal framework governing hostilities between Hamas and Israel is provided by the law of international armed conflict and that Hamas could be considered as an “organized resistance movement” belonging to Palestine.See 'L'intervista [M. Sassòli] Crimini di Guerra? “La CPI indaga da 8 anni, ma non ci sono progressi”’, Corriere del Ticino, 14 October 2023.

A similar argument could be made with regard to the PIJ, which is described by European Council on Foreign Relations as “not participat[ing] in politics and limit[ing] its role to military confrontation with Israel”.See European Council of Foreign Affairs, ‘Mapping Palestinian Politics: Islamic Jihad’. Admittedly, tensions between the PIJ and the PA have occurred in the past, for instance following the arrest and detention of PIJ members by PA in the West Bank and the critics the PIJ formulated against the PA.See European Council of Foreign Affairs, ‘Mapping Palestinian Politics: Islamic Jihad’. As recently as 30 July 2023, the PIJ, citing its members imprisoned by the PA, refused to participate in the inter-Palestinian meeting in Cairo convened by Mr. Abbas to end 17 years of division – an event attended by Hamas and most Palestinian political factions, and where participants agreed to form a reconciliation committee.See, ‘Palestinian rival governments form ‘reconciliation committee’, Al Jazeera, 30 July 2023. Still, the PIJ and Fatah officials held a meeting in Gaza on 14th August 2023 and issued a joint statement on strengthening bilateral relations and defending the Palestinian cause.See B. Farhat, ‘Palestinian Islamic Jihad, Fatah hold rare meeting in Gaza’, Al-Monitor, 15 August 2023; K. A. Toameh, ‘Fatah moves closer to Palestinian Islamic Jihad in rare Gaza meeting’, The Jerusalem Post, 15 August 2023. The PIJ also reportedly participated in intra-Palestinian reconciliation efforts between Hamas and Fatah.See European Council of Foreign Affairs, ‘Mapping Palestinian Politics: Islamic Jihad’. Moreover, as observed by European Council on Foreign Relations, ‘[w]hile they initially sought to replace the PLO as the dominant force within the Palestinian liberation movement, Hamas and PIJ have more recently indicated their desire to join the PLO in an effort to co-opt it from within.See Council of Foreign Affairs, ‘Mapping Palestinian Politics: Non PLO groups’. Above all, PIJ's operations, its emphasis on military confrontation with Israel and PLO’s failure to distinguish itself from the PIJ’s actions suggests that this group is fighting for Palestine and could be characterized as an organized armed group belonging to Palestine, as such engaged in an international armed conflict with Israel.

Lebanon

Factual developments

Immediately after the operation of 7th October 2023, rockets were reportedly launched by Palestinian armed groups from Lebanon towards Israel, which responded with artillery fire.See ‘Rockets fired from southern Lebanon towards Israel as Gaza is bombed’, Al Jazeera, 10 October 2023; J. Federman and I. Adwan, ‘Palestinians scramble for safety as Israel pounds sealed-off Gaza Strip to punish Hamas’, 11 October 2023. PIJ has claimed responsibility for an operation on 9th October 2023 during which they infiltrated Israel, resulting in three IDF soldiers and two PIJ members killed.See OCHA OPT, ‘Hostilities in the Gaza Strip and Israel: Flash Update #4’, 10 October 2023; Middle East Monitor, ‘Islamic Jihad claims responsibility for operation in southern Lebanon against Israel soldiers’, 9 October 2023; M. Majed and W. Seifeddine, ‘Islamic Jihad claims responsibility for operation in southern Lebanon against Israeli soldiers’, AA, 9 October 2023. For the classification of the conflict between Israel and PIJ, see above ‘Hamas and PIJ qualification’.

For their part, the IDF allegedly bombed a border town in southern Lebanon, killing three Hezbollah members.See M. Majed and W. Seifeddine, ‘Islamic Jihad claims responsibility for operation in southern Lebanon against Israeli soldiers’, AA, 9 October 2023. Cross-border fighting has recently intensified, with rocket, missile and artillery fire, although for the moment exchanges of fire between Hezbollah and Israel are limited to border areas. As of 18 November 2023, a total of 70 Hezbollah members, six members of Hamas and PIJ, 10 Lebanese civilians and at least 10 Israelis, including seven soldiers, have reportedly been killed; hundreds of thousands of people have fled the violence on both sides.See K. Chehayeb, ‘Hezbollah and Israel Exchange Fire Amid Warnings of a Widened War’, Time, 22 October 2023; L. Bassam and T. Perry, ‘Lebanon's Hezbollah works to curb hefty losses in Israel clashes, sources say’, Reuters, 31 October 2023; D. Williams, ‘Israel sharpens warning to Lebanon as cross-border hostilities spike’, Reuters, 13 November 2023; ‘Shelling intensifies at Lebanon-Israel border’, Reuters, 16 November 2023; ‘Hezbollah, Israel trade strikes at Lebanese border in latest escalation’, Reuters, 18 November 2023. Israel has deployed tens of thousands of soldiers in the area.See ‘Israel evacuates communities near Lebanon border amid fears of escalation’, BBC News, 16 October 2023.

Classification of the situation

Consequently, one could consider that Hezbollah is party to a non-international armed conflict against Israel. Two criteria need to be assessed in order to answer the question whether a situation of armed violence amounts to a non-international armed conflict.

• First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions.

• Second, in every non-international armed conflict, at least one side to the conflict must be a non-state armed group which must exhibit a certain level of organization in order to qualify as a party to the non-international armed conflict. Government forces are presumed to satisfy the criteria of organization. (see ‘non-international armed conflict’ in our classification section).

There is no doubt that Hezbollah possesses a sufficient level of organization. This is notably evidenced by the facts that it has command structure, the Jihad Council, is able to engage in protracted armed violence and exercises territorial control Lebanese Shiite-majority areas, such as parts of Beirut, southern Lebanon, and the eastern Bekaa Valley region.See Eye on Hezbollah, ‘Organizational Chart’; Council on Foreign Relations, ‘What Is Hezbollah’, 14 October 2023. As far as the intensity criterion is concerned, especially if accumulated since the end of the 2006 conflict, the number, duration and intensity of individual clashes appear to meet the criteria. This is confirmed by the fact that the fighting pits members of the military wing against Israeli soldiers. In addition, the weapons used, the number of casualties, the number of people fleeing the area and the frequency of fightingSee Tel Aviv University, The Institute for National Security Studies, ‘Real-time Updates’, 16 November 2023; H. Sallon, ‘Escalation persists on the border between Lebanon and Israel’, Le Monde, 16 November 2023. all point to the existence of a non-international conflict between the Hezbollah and Israel. Statements by both the Israeli Minister of Defense Yoav Gallant’s (“I hope we will be able to keep the quiet on this front”)See K. Chehayeb, ‘Hezbollah and Israel Exchange Fire Amid Warnings of a Widened War’, Time, 22 October 2023; L. Bassam and T. Perry, ‘Lebanon's Hezbollah works to curb hefty losses in Israel clashes, sources say’, Reuters, 31 October 2023. and Hezbollah leader Hassan Nasrallah (according which a wider regional escalation could not be ruled out if Israel continues its war in Gaza)See ‘‘All scenarios open’: Hezbollah chief in first speech since Israel-Gaza war’, Al Jazeera, 3 November 2023. seem to indicate that, so far, they want to contain the violence and avoid escalation. However, declarations are irrelevant for classification purpose, under IHL, such “determination [is] made based on the facts”.ICRC, Commentary of 2016, Art. 3 GC I-IV, § 387.

Furthermore, to the extent that Lebanon does not consent to Israeli use of force against Palestinians armed groups or Hezbollah on its territory, an international armed conflict exists between Israel and Lebanon. Indeed, as stated by the ICRC “[a] third State’s intervention […] carried out without the consent of the territorial State […] would amount to an international armed conflict between the intervening State and the territorial State. […] In some cases, the intervening State may claim that the violence is not directed against the government or the State’s infrastructure but, for instance, only at another Party it is fighting within the framework of a transnational, cross-border or spill over non-international armed conflict. Even in such cases, however, that intervention constitutes an unconsented-to armed intrusion into the territorial State’s sphere of sovereignty, amounting to an international armed conflict within the meaning of common Article 2(1) […] This does not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group”.ICRC, Commentary of 2016, Art. 2 GC I-IV, §§ 260-261. In addition, since 1967, Israel has occupied the Shebaa Farms. Which are recognised as forming part of Lebanon (see our entry on ‘Military occupation of Lebanon by Israel’).

In addition, for the time being, we do not have sufficient elements to conclude that Hezbollah can be considered as belonging to Lebanon within the meaning of art. 4 (A) (2) GC III. Admittedly, the Commission of Inquiry for Lebanon in 2006 made suggestions to that effect.See ‘Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S-2/1’, A/HRC/3/2, §§ 56-59. However, certain early indicators suggest that, for the time being, the relationship between Hezbollah and Lebanon cannot be said to be one in which “[f]irst, the group […] in fact fight on behalf of that Party [and] [s]econd, that Party […] accepts both the fighting role of the group and the fact that the fighting is done on its behalf.”ICRC, Commentary of 2020, Art. 4 GC III, § 1005. See also, L. Cameron and V. Chetail, Privatizing war : Private Military and Security Companies under Public International Law, Cambridge (Cambridge University Press), 2013, p 395. This is confirmed by the fact that the Lebanese caretaker Prime Minister Najib Mikati recently declared that “[f]or now Hezbollah has managed the situation rationally and wisely, and the rules of the game have remained constrained to certain limits”, further stressing that “I am doing my duty to prevent Lebanon from entering the war”,See M. Nashed and J. Salhani, ‘Lebanon fears regional war as Hezbollah-Israel fighting intensifies’, Al Jazeera, 30 October 2023; ‘Lebanon PM says working to avoid 'war' with Israel’, RFI, 20 October 2023. evidencing that he considers Hezbollah as not fighting on behalf of Lebanon.

The International Criminal Court (ICC)

In 2014, Palestine issued a declaration accepting the jurisdiction of the ICC and, in January 2015, it acceded to the Rome Statute (becoming the 123rd State Party to the ICC Statute). During the same month, the Prosecutor of the ICC opened a preliminary examination of the situation in Palestine.Palestine, Declaration Accepting the Jurisdiction of the International Criminal Court, 31 December 2014; ICC, Palestine declares acceptance of ICC jurisdiction since 13 June 2014, 5 January 2015; ICC, The State of Palestine accedes to the Rome Statute, 7 January 2015. In May 2018, Palestine issued a referral according to Articles 13(a) and 14 of the Rome Statute, asking the prosecutor to investigate past, ongoing, and future crimes committed on its territory. Accordingly, in April and October 2018 the ICC Office of the Prosecutor (OTP) announced that it was monitoring the situation.ICC, Office of the Prosecutor, 'Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, Regarding the Worsening Situation in Gaza', 8 April 2018; ICC, Office of the Prosecutor, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding the Situation in Palestine’, 17 October 2018. The first report on preliminary examination activities was issued by the Office of the Prosecutor of the ICC in December 2019, after 5 years of investigations. A second report on the preliminary examination activities was published in December 2020.ICC, Office of the Prosecutor, Report on Preliminary Examination Activities (2019), 5 December 2019, pp. 53 – 59; ICC, Office of the Prosecutor, Report on Preliminary Examination Activities (2020), 14 December 2020, pp. 55 – 58. In January 2020, the Prosecutor requested a ruling on the ICC’s jurisdiction in Palestine under Article 19(3) of the Rome Statute.ICC, Pre-Trial Chamber I, Situation in the State of Palestine, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 22 January 2020. The Court’s ruling was issued in February 2021, finding that the State of Palestine is part of the Rome Statute and that the Court’s jurisdiction in the situation in Palestine extends to the territories occupied by Israel since 1967 (notably, Gaza, the West Bank and East Jerusalem).ICC, Pre-Trial Chamber I, Decision on the Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 5 February 2021. On 3 March 2021, the ICC Prosecutor, Fatou Bensouda, initiated an investigation respecting the situation in Palestine.See ICC, ‘Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine’, 3 March 2021. On June 2021, the new ICC Prosecutor Karim A.A. Khan KC established a dedicated team to investigate the Palestine situation.See ICC, ‘Statement of ICC Prosecutor Karim A. A. Khan KC from Cairo on the situation in the State of Palestine and Israel’, 30 October 2023. On 29 October 2023, ICC Prosecutor Karim A.A. Khan KC visited Rafah Border Crossing between Egypt and the Gaza Strip. On this occasion, the Prosecutor spoke from Cairo on the current situation, recalling that the ICC has jurisdiction not only over crimes committed in the territory of Palestine, but also over those committed by Palestinian nationals on the territory of Israel. He also pointed out that ICC staff had still not been authorized to enter Israel and the Gaza Strip.See ICC, ‘Statement of ICC Prosecutor Karim A. A. Khan KC from Cairo on the situation in the State of Palestine and Israel’, 30 October 2023. In addition, on 17 November 2023, the ICC Office of the Prosecutor received five referrals of the Situation in the State of Palestine from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti. The ICC Office of the Prosecutor took the opportunity to confirm that it is currently investigating the Situation in the State of Palestine, and that this investigation encompasses all conducts that may constitute crimes within the ICC's jurisdiction committed since 13 June 2014 on the territory of Palestine (Gaza and the West Bank, including East Jerusalem) or by Palestinian nationals.See ICC, ‘Statement of the Prosecutor of the International Criminal Court, Karim A.A. Khan KC, on the Situation in the State of Palestine: receipt of a referral from five States Parties’, 17 November 2023.

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.

• Israel
• Palestine
• Lebanon
• Hamas
• Palestinian Islamic Jihad
• Hezbollah