Gaza was not occupied by Israel, as a matter of law or fact, on Oct. 7, 2023 when genocidal Hamas terrorists invaded Israel and committed rapes, kidnappings, sadistic murders and other atrocities.
Israel fully withdrew from Gaza in 2005, including any military presence and all Israeli residents. Moreover, the records of the United Nations reflect that any occupation of Gaza ended in 1994. Thereafter, the Palestinian Authority era began, as acknowledged and agreed to by the P.A.—including in a 2010 U.N.-sponsored agreement.
President George W. Bush provided Israel with several substantive assurances as an inducement for Israel to proceed with withdrawing from Gaza. The agreement is summarized in President Bush’s letter to Israeli Prime Minister Ariel Sharon, dated April 14, 2014. It includes four critical provisions:
- Palestinians must undertake an immediate cessation of armed activity and all acts of violence against Israelis anywhere, and all official Palestinian institutions must end incitement against Israel.
- The Palestinian leadership must act decisively against terror, including sustained, targeted and effective operations to stop terrorism and dismantle terrorist capabilities and infrastructure.
- The U.S. reaffirms its commitment to Israel’s security, including secure, defensible borders, and to preserve and strengthen Israel’s capability to deter and defend itself by itself against any threat or possible combination of threats.
- Israel retains its right to defend itself against terrorism, including proactively against terrorist organizations. Existing arrangements regarding control of airspace, territorial waters and land passages of Gaza are to continue.
The Bush-Sharon letter was, in effect, ratified by a near unanimous (95-3, with two absent) Senate resolution, dated June 24, 2004. Thus, it is arguably not just a binding executive agreement, but also U.S. law.
While Bush and Sharon were well-meaning and had the best of intentions and Sharon, the stark reality of the bad faith and ulterior motives of the P.A. and Hamas, as well as Hamas’s genocidal program, sabotaged their agreement. Hamas defeated P.A. chief Mahmoud Abbas’s Fatah Party in the 2006 P.A. elections. Abbas maneuvered to retain power and a civil war ensued with Hamas seizing control of Gaza in 2007.
Hamas established Gaza as an armed camp in violation of the Oslo Accords and regularly attacked Israel. Now, there is the ongoing war triggered by the Oct. 7 massacre.
Hamas is a U.S.-designated Foreign Terrorist Organization (FTO) and it is illegal to provide it with material support or resources (18 USC 2339). Its avowed goal, enshrined in its Charter, is to destroy Israel. It also espouses antisemitic and genocidal doctrines directed against Jews. Clearly, Hamas’s atrocities cannot be justified or excused. Its baseless pretext of “occupation” is just another canard.
The foundational definition of the term “occupation” under international law is embodied in the Hague Convention. It provides that a territory is only considered occupied when it is actually placed under the authority of a hostile army. As a threshold matter, the military forces of the conquered territory must have surrendered, been defeated or withdrawn.
It also requires (1) a military presence in the occupied territory and (2) exercising governmental authority over the area conquered to the exclusion of the established civil government. Unless all of these criteria are satisfied, there is no occupation, as a matter of law. Merely having the potential to invade and control a territory that is not coupled with an actual presence and effective control is insufficient.
Gaza was part of the original area referred to as the Palestine Mandate. It was conquered by Egypt in the 1948 Israel-Arab war, which Egypt and other Arab nations started in an attempt to prevent the re-emergence of the modern Jewish state of Israel. Gaza was conquered by Israel in the 1967 defensive war. Israel administered the territory until governmental authority was transferred to the P.A. in 1994 under the Gaza-Jericho Agreement.
Under the Oslo II Agreement and the 2005 Disengagement Agreement, Israel obtained certain rights to patrol Gaza’s coastal waters and air space, which do not constitute effective governmental control over Gaza. This was intended to enable Israel to interdict illegal weapons deliveries to Gaza, which are expressly prohibited under those agreements.
Reflecting on these circumstances in 2008, the Israeli Supreme Court in the Al-Bassiouni case held there was no occupation by Israel of Gaza under international law. The European Court of Human Rights in 2015 ruled that control of the airspace above territory and the adjacent sea is insufficient to constitute an occupation under international law, noting that occupation is inconceivable without “boots on the ground.”
Peace should have been achieved when Israel withdrew from Gaza in 2005. As the wise Charles Krauthammer wrote, “Israel evacuated Gaza completely. It declared the border between Israel and Gaza an international frontier. Gaza became the first independent Palestinian territory in history. Yet Gazans continued the war. ... Why? Because occupation was a mere excuse to persuade gullible and historically ignorant Westerners to support the Arab cause against Israel. The issue is, and has always been, Israel’s existence. That is what is at stake.”
History and experience dictate that an immediate and full Israeli withdrawal from Gaza is not the answer. Fundamental changes must first occur in Gaza and the P.A., including fully honoring the Oslo Accords, ending “pay to slay” and totally demilitarizing Gaza. Until then, there is every reason for Israel to demur, so as not to reward terrorism.
Creating nothing more than another Potemkin façade of peace masking another dysfunctional terror state is not a solution. A phased withdrawal plan based on the satisfaction of essential conditions over time makes more sense. Enough with the illusions of peace. Israel, the U.S. and the world need real peace.
