On March 2, Israel imposed a near-total blockade on food and medicine entering the Gaza Strip. On March 18, the Israel Defense Forces (IDF) resumed major military operations, reportedly killing at least 3,924 people, injuring at least 11,267 people, and displacing at least 632,000 people as of this writing. On May 18, the IDF began a large-scale air and ground offensive it calls “Operation Gideon’s Chariots.”
Israel’s military offensive is illegal, and not just in the obvious sense that it is being conducted using means and methods that violate international humanitarian law (IHL), including denial of humanitarian relief, forcible transfer, and apparently unlawful attacks (see here, here, here, here, here, here, here, here, here, here, and here). This essay is not about Israel’s violations of the jus in bello—the legal rules which govern the conduct of hostilities. It is about Israel’s violations of the jus ad bellum—the legal rules that govern the use of force as a whole.
Israel’s military offensive is intended to exercise permanent control over Gaza, disperse its population, and prevent the Palestinian people from exercising its right to self-determination throughout the Occupied Palestinian Territory. Israel’s military offensive thereby violates the international legal prohibitions of forcible acquisition of territory and forcible deprivation of self-determination. Israel’s military offensive is illegal in its entirety and it must cease immediately.
The Legal Framework
In July 2024, the International Court of Justice (ICJ) issued its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The Opinion clarified several important legal questions.
First, Israel bears legal obligations under the law of occupation commensurate with the degree of its effective control over Gaza, notwithstanding its withdrawal of ground forces in 2005. Israel’s effective control includes its “control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone…. This is even more so since 7 October 2023.”
Second, “an occupation involves, by its very nature, a continued use of force in foreign territory” and is therefore subject to “the prohibition of the acquisition of territory by threat or use of force and the right of peoples to self-determination.” The Court found that Israel’s occupation is intended to exercise permanent control over occupied territory and therefore violates the prohibition of forcible acquisition of territory. The Court also found that Israel’s occupation violates the right of the Palestinian people to self-determination by fragmenting their territory, dispersing their members, appropriating their natural resources, and impeding their economic, social, and cultural development. The Court concluded, by an 11-4 vote, that Israel’s continued presence in the Occupied Palestinian Territory is unlawful and must be brought to an end as rapidly as possible.
Importantly, the Court considered that “the policies and practices contemplated by the request of the General Assembly” for an advisory opinion in December 2022 “do not include conduct by Israel in the Gaza Strip in response to the attack carried out against it by Hamas and other armed groups on 7 October 2023.” This limitation left the Advisory Opinion’s application to Gaza as of July 2024 unclear. Israel’s control over Gaza had intensified, but perhaps its intentions had changed.
Only one judge directly addressed “The Question of Gaza” at length: Judge Sarah Cleveland of the United States. In her Separate Opinion, Judge Cleveland wrote:
As the Court makes clear, it is the violation of the rules regarding the use of force, the jus ad bellum, that makes the presence of an occupying Power unlawful …. Instrumentalizing an occupation to achieve the acquisition of territory, as Israel has done in East Jerusalem and the West Bank, renders such presence unlawful, irrespective of any self-defence justification a State may have.
Judge Cleveland went on to write:
Some information before the Court may suggest that Israel has sought to exercise permanent control over the entire Occupied Palestinian Territory, including the Gaza Strip, in order to facilitate the progressive annexation of parts of the territory and the alteration of its demographic character, and to obstruct the right to a Palestinian State. The Court, however, does not make such a determination. It does not conclude that Israel is trying to permanently control the Occupied Palestinian Territory as a whole, or the Gaza Strip. It simply does not address the question.
Finally, Judge Cleveland wrote:
[T]he Court’s Opinion makes clear that it would violate the jus ad bellum for Israel to use its position as an occupying Power to seek to exercise permanent control over the Occupied Palestinian Territory as a whole, including the Gaza Strip. Such use of force also would further compound the violations of the Palestinian people’s right to self-determination.
In other words, while Judge Cleveland did not think the Court had established that Israel intends to permanently control Gaza, she agreed that such an intent would render Israel’s military presence in Gaza unlawful “irrespective of any self-defence justification” it may have. The reason is simple. The use of force with the intent to permanently control foreign territory violates the prohibition of the forcible acquisition of territory. As an internationally wrongful act, it must cease immediately. While the right of self-defense operates as an exception to the prohibition of the use of force, there is no self-defense exception to the prohibition of forcibly acquiring territory. Importantly, Judge Cleveland clarified that the intent to exercise permanent control over occupied territory is illegal whether or not the occupying power asserts sovereignty over occupied territory or purports to incorporate occupied territory into its own territory, as Israel had in East Jerusalem.
Judge Cleveland observed that “[a]ny foreign occupation, by definition, however lawful, will likely involve the temporary denial of aspects of the right to self-determination.” In her view, Israel’s occupation of East Jerusalem and the West Bank is made illegal by “the features of Israel’s occupation that are potentially analogous to a situation of foreign domination. These features include a situation of prolonged occupation characterized by annexation through permanent control and the accompanying suppression of self-determination, over a period of decades.” However, Judge Cleveland was not convinced that “a violation of the right to self-determination — in the absence of a violation of the prohibition of acquiring territory by force — renders an occupying Power’s presence unlawful” or that “such a violation can somehow override any legitimate exercise of the right to self-defence that Israel may have with respect to the Gaza Strip.” In other words, Israel’s military presence in Gaza would be lawful were it a temporary and proportionate act of self-defense. But Israel’s military presence in Gaza is unlawful if it is intended to permanently control territory and indefinitely suppress self-determination.
Illegal Aims: Permanent Control, Fragmenting Population, Obstructing Statehood
According to military plans shown to Israeli journalists, Israel’s current military offensive “aims to occupy 75 percent of the Gaza Strip’s territory within two months … clear it of Hamas infrastructure, raze most buildings, and hold it for the foreseeable future. This captured territory will include all of Rafah, Khan Younis, and the towns north of Gaza City.” Prime Minister Netanyahu has consistently said that “with or without a permanent settlement, Israel will maintain full security control over all areas west of the Jordan River. Of course, this includes Judea and Samaria, and the Gaza Strip.” As Netanyahu explains, “[w]e will see to the general security in the Gaza Strip and will allow the realization of the Trump plan for voluntary migration. This is the plan. We are not hiding this and are ready to discuss it at any time.” According to Netanyahu, “[a]t the end of the effort, all areas of the Gaza Strip will be under Israel’s security control—and Hamas will be totally defeated…. Gaza will be completely demilitarized, and we will carry out the Trump plan, which is so correct and so revolutionary, and it says something simple: The residents of Gaza who wish to leave—will be able to leave.”
Similarly, Defense Minister Katz explains that Israel aims to
[c]lear the area of terrorist infrastructure above and below ground, and add the area, including command posts, to Israel’s security zones in order to protect the communities. Unlike in the past, the IDF is not vacating areas that have been cleared and seized. The IDF will remain in the security zones as a buffer between the enemy and the communities in any temporary or permanent situation in Gaza — as in Lebanon and Syria.
To date, hundreds of thousands of residents have been evacuated and tens of percent of the area has been added to the security zones.
At the same time, the plan for voluntary relocation for Gaza residents is being promoted.
It is clear that Israel intends to control Gaza permanently. It may or may not deploy ground troops over every inch of land. It may or may not assert sovereignty over Gaza, or build settlements, or otherwise incorporate it into Israel. But it clearly intends to exercise permanent control over occupied territory through a permanent military presence. Importantly, Israel’s stated intention is to control Gaza even if it achieves its other stated goals of destroying Hamas and recovering hostages, rendering any invocation of self-defense beside the point. This fact has not gone unnoticed. Yesterday, at the United Nations Security Council, the United Kingdom made it clear that “[w]e also reject the Israeli Government’s unacceptable intention to take control of the Gaza Strip. Permanent forced displacement is a breach of international humanitarian law.”
Terms like “voluntary relocation” are euphemisms for forcible displacement. As Netanyahu told lawmakers during closed-door testimony before the Knesset’s Foreign Affairs and Defense Committee, Israel is “destroying more and more houses [in Gaza and Palestinians accordingly] have nowhere to return. … The only obvious result will be Gazans choosing to emigrate outside of the Strip.” As the ICJ explained, “transfer may be ‘forcible’ … not only when it is achieved through the use of physical force, but also when the people concerned have no choice but to leave.” Rendering an area uninhabitable and placing civilians on a subsistence diet are obvious means of forcible displacement. Forcible displacement is a violation of the Fourth Geneva Convention, a war crime, and a crime against humanity.
Forcible displacement is also a violation of the right of self-determination by which, as the ICJ explains, “a people is protected against acts aimed at dispersing the population and undermining its integrity as a people.” Israel’s military campaign is aimed at permanently dispersing the Palestinians of Gaza, separating them from their land, from one another, and from the Palestinians of East Jerusalem and the West Bank. For this reason, the intent to forcibly displace Palestinians from Gaza is both a violation of IHL and a violation of the right to self-determination. Israel’s intent to permanently suppress Palestinian self-determination renders its entire military campaign unlawful.
Conclusion
In October 2023, Israel’s Intelligence Ministry considered three postwar plans for Gaza: administration by the Palestinian Authority (PA), prolonged military occupation administered by a new local authority, and permanent expulsion of the entire civilian population. The Ministry reported that PA administration “is the option with the most risks.” It explained that “[t]he division between the Palestinian population in Judea and Samaria and Gaza is one of the main obstacles today preventing the establishment of a Palestinian state. It is inconceivable that the outcome of [the 10/7/23 Hamas] attack will be an unprecedented victory for the Palestinian national movement and a path to the creation of a Palestinian state.” The Ministry concluded that prolonged military occupation was untenable. The Ministry recommended permanently expelling the entire civilian population.
On March 4, the League of Arab States proposed a framework for ending the war in Gaza that involves the release of all Israeli hostages and the transfer of governance from Hamas to the Palestinian Authority (PA). Hamas had reportedly agreed to cede governance of Gaza to the PA a few weeks earlier, but Israel’s Foreign Ministry quickly rejected the plan, stating that “with President Trump’s idea, there is an opportunity for the Gazans to have free choice based on their free will. This should be encouraged!”
Israel’s rejection of the Arab League plan should surprise no one. The plan envisions PA administration of Gaza and the West Bank as a path toward an effective and unified government of an independent State of Palestine. That is an outcome that the Israeli government seeks to prevent at all costs. The Israeli government opposes Palestinian statehood in principle (see here, here, here, and here) while publicly stating that broader recognition of the State of Palestine would somehow reward Hamas (see here, here, here, and here). This latter claim is absurd—Hamas opposes a permanent two-State solution as opposed to a long-term truce—but also striking in its echo of the Intelligence Ministry report. The Israeli government’s current plan to permanently control territory while permanently removing people is clearly intended, in part, to prevent the consolidation of the State of Palestine under a single government.
Israel’s military campaign seeks to permanently control Palestinian territory, disperse the Palestinian population, and suppress Palestinian self-determination. It seeks to prevent, in the words of the ICJ, “the realization of the right of the Palestinian people to self-determination, including its right to an independent and sovereign State, living side by side in peace with the State of Israel within secure and recognized borders for both States.” These illegal aims infect the military campaign as a whole, rendering it an unlawful act that cannot be justified by invoking the right of self-defense. Israel’s current military offensive in Gaza is illegal in its entirety and it must stop.
