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Why does the United Nations continue to consider the Gaza Strip to be “occupied territory” when Israel dismantled all settlements and withdrew the IDF from the area as part of its disengagement in September 2005?

Even Hamas, which has controlled Gaza since it overthrew the Palestinian Authority in June 2007, concedes that Gaza is no longer occupied. 

This is the question two journalists posed to Martin Nesirky, Spokesperson for UN Secretary-General Ban Ki-moon early last month. A reply was issued some three weeks later, UN Watch reported.

Spokesperson: Under resolutions adopted by both the Security Council and the General Assembly on the Middle East peace process, the Gaza Strip continues to be regarded as part of the Occupied Palestinian Territory. The United Nations will accordingly continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until such time as either the General Assembly or the Security Council take a different view.
Question: Can I follow up on that? It is the legal definition of occupation and why is Gaza considered occupied?
Spokesperson: Well, as I have just said, there are Security Council and General Assembly resolutions that cover this. For example, there was a Security Council resolution adopted on 8 January 2009 – 1860 – and that stressed that the Gaza Strip constitutes an integral part of the territory occupied in 1967. And as you know, Security Council resolutions do have force in international law.
Furthermore, there is a resolution from the General Assembly from 20 December 2010, and while it noted the Israeli withdrawal from the Gaza Strip and parts of the northern West Bank, it also stressed, in quotes, “the need for respect and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem”. So just to repeat that the United Nations will continue to refer to the Gaza Strip as part of the Occupied Palestinian Territory until either the General Assembly or the Security Council take a different view on the matter.

In other words, in the view of the United Nations, the principle of territorial integrity is paramount. According to this logic, if Israel controls any part of “the Occupied Palestinian Territory, including East Jerusalem”, then every part of the disputed areas continue to be considered Israeli occupied unless the UN Security Council or the General Assembly declares otherwise.

As an aside, it is also worthwhile to note the subtle shift in language in recent years describing the West Bank and the Gaza Strip in an increasing number of official United Nations documents as the Occupied Palestinian Territory – and not territories – in support of the indivisibility of the West Bank and the Gaza Strip.

Leaving alone for a moment the illogical notion of territorial occupation as an all-or-nothing proposition, this position harms the interests of a two-state peace solution that UN bodies claim to support.

Instead of encouraging compromise, it incentivises maximalist Palestinian demands with the understanding that, regardless of how much land Israel withdraws its troops from and surrenders effective control over, it cannot cease to be considered an occupier of any of that land unless the Palestinians agree that Israel has satisfied their territorial demands in total.

Furthermore, especially problematic in the UN spokesman’s statement is the relationship he attempts to establish between UN Security Council resolutions and international law.

Sir Michael Wood, KCMG, in his 2006 lecture “The UN Security Council and International Law” at the Hersch Lauterpacht Centre for International Law, noted

The Council is a forum in which States continually have to take positions, individually or collectively, on questions of relevance to international law. But caution is required. In her book, Rosalyn Higgins includes some important caveats, which others sometimes overlook. In particular, she points out that “the fact that voting patterns to some extent conform to political pressures rather than to legal beliefs must be recognized.” That is putting it quite gently.

A Security Council resolution carries much weight, but the experts are clear – the Security Council’s interpretations of international law are often influenced by politics.

The straightforward legal definition of occupation fails to support the UN view, the Elder of Ziyon website found.

The definition of “occupation” from the 1907 Hague Regulations – the only legal definition there is – says:
[T]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The Elder of Zion further explains how Gaza fails to meet the criteria for occupation as interpreted by Amnesty International  and the International Committee of the Red Cross.

Many renowned scholars of international law have similarly concluded that Gaza is no longer occupied under the legal definition put forward in the relevant treaties.

So concluded Peter Berkowitz, the Tad and Dianne Taube Senior Fellow at Stanford University’s Hoover Institution, in a paper published in August 2011. 

To put the matter succinctly, since it neither has troops stationed in Gaza nor exercises the functions of government there, Israel does not exercise “effective control” of Gaza, and therefore does not meet the test that international humanitarian law establishes to determine whether a territory is occupied by a hostile power.

The previous year, Elizabeth Samson, writing for the American University International Law Review, asked Is Gaza Occupied?: Redefining the Status of Gaza Under International Law.

The mere existence of restrictions on a territory does not necessarily indicate an occupation, and so it is important to be clear about what an exercise of “effective control” requires.

In her paper, Samson systematically listed the various restrictions Israel enforces on Gaza and explained how such restrictions are not only legitimate under international law but also fall short of “effective control” over a territory that is required to deem such territory occupied.

In an essay published in January 2008, Bar-Ilan University Law professor and then Director of the International Law Forum at the Jerusalem Center for Public Affairs Dr. Avi Bell cited another criteria for occupation that failed to be met in the case of Israel and the Gaza Strip.

There is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of a state party to the convention and the occupier “exercises the functions of government” in the territory. Gaza is not territory of another state party to the convention and Israel does not exercise the functions of government in the territory.

Perhaps the UN’s stance could be more charitably interpreted if the body was consistent in how it viewed the status of the Gaza Strip. However, this is not the case.

In 1955, while Gaza was governed ostensibly by Jerusalem Grand Mufti Amin al-Husseini’s All-Palestine Government but occupied by the Egyptian military, UNSC Resolution 106:

Noting that the Egyptian-Israel Mixed Armistice Commission on 6 March 1955 determined that a “pre-arranged and planned attack ordered by Israel authorities” was “committed by Israel regular army forces against the Egyptian regular army force” in the Gaza Strip on 28 February 1955

[An attack, it should be noted, that was in retaliation for deadly “fedayeen” infiltrations and subsequent terror attacks launched from Gaza bases (there) that had killed or injured hundreds of Israelis since the conclusion of the War of Independence, although this context of the operation is omitted from the UNSC’s narrative]

In UNSC Resolution 106, no mention whatsoever was made of Gaza’s status as Egyptian occupied.

Fast forward to 2009, to the preamble of UNSC Resolution 1860, written in the midst of Operation Cast Lead – Israel’s operation against Hamas in the Gaza Strip following years of missile attacks launched against Israel from that territory.

The Security Council,
Recalling all of its relevant resolutions, including resolutions 242 (1967), 338 (1973), 1397 (2002), 1515 (2003) and 1850 (2008),
Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state

The double standard presented by the very different ways the UNSC treated the same territory undermines the UN’s arguments for its position regarding Gaza’s status since 2005.

– Ahron Shapiro