Is Gaza Still Occupied? The Law After the 2005 Withdrawal

Why people still ask whether Gaza is occupied

On 12 September 2005 the last Israeli soldiers left the Gaza Strip and the gate behind them closed. Ever since, one argument has come up in almost every debate about Gaza: Israel left, so how can Gaza be occupied? It's a fair question, and the answer turns on what "occupation" means in law rather than what it looks like on the ground. If you're new to the wider history, our Palestine learning hub is the place to start.

The short version is that most international bodies, including the International Court of Justice (ICJ), the International Committee of the Red Cross (ICRC) and the UN Security Council, treat Gaza as occupied territory. Israel doesn't, and some serious military lawyers agree with Israel. Below we set out both positions, with the sources, and explain why the majority view holds.

What makes a territory "occupied"?

A territory is occupied when a foreign army has it under its authority. The basic test comes from Article 42 of the Hague Regulations of 1907, which the ICJ has treated as customary law: territory "is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised" (quoted in the ICJ's 2024 advisory opinion, paragraph 86).

Notice what that sentence doesn't say. It says nothing about how many soldiers must be inside the territory, or whether they have to be there every day. Lawyers call the test "effective control", and the whole Gaza argument comes down to one question: can a state keep effective control of a place after pulling its soldiers out?

Effective control without troops on the ground

The ICJ's answer, in July 2024, was yes. "Physical military presence in the occupied territory is not indispensable for the exercise by a State of effective control," the Court said, "as long as the State in question has the capacity to enforce its authority, including by making its physical presence felt within a reasonable time" (paragraph 91). The Court drew that principle from the Nuremberg-era Hostage case and from a 2003 judgment of the tribunal for the former Yugoslavia, so it wasn't new.

The functional approach

The ICRC goes a step further with what is called the functional approach. Where an occupier withdraws its troops but keeps key powers over a territory, it keeps the legal duties that go with those powers. The ICRC applies this to Gaza directly: it "considers Gaza to remain occupied territory on the basis that Israel still exercises effective control over the Strip", through its control of Gaza's airspace, sea and land borders, except the border with Egypt.

Did Israel leave Gaza in 2005?

Partly. Israel occupied Gaza in the 1967 war. In 2004 it announced a "Disengagement Plan" and, as the ICJ records, "by 2005, Israel had completed the withdrawal of its army and the removal of the settlements in the Gaza Strip" (paragraph 88). What it gave up and what it held on to are both on the record.

What Israel withdrew

Israel dismantled all 21 of its Gaza settlements, moved out thousands of settlers and completed the withdrawal of its forces on 12 September 2005, according to Encyclopaedia Britannica. No Israeli soldiers were permanently stationed inside the Strip after that date.

What Israel kept

This is the part that gets left out. Two UN commissions of inquiry, quoted by the ICJ in paragraph 89 of its 2024 opinion, listed the powers Israel kept after 2005:

• Airspace and sea: "continued exclusive control by Israel of Gaza's airspace and maritime areas", with Palestinians allowed only limited fishing.
• Crossings: Israel "regulates all crossings allowing access to and from Gaza". Even at Rafah, which Egypt runs, only Palestinians with passports could cross, and passports could only be issued to people on the Israeli-controlled population registry.
• Population registry: Palestinian ID cards "can only be issued or modified with Israeli approval".
• Money and customs: Israel "regulates the local monetary market, which is based on the Israeli currency and has controls on the custom duties".
• Buffer zone: since 2000 the Israeli army has enforced "a no-go zone of varying width inside Gaza along the Green Line fence".
• Infrastructure: control over the supply of civilian infrastructure, including water and electricity.

The blockade from 2007

Then came the closure. In June 2007, after Hamas took military control of Gaza, OCHA reports that Israel "significantly intensified existing movement restrictions", creating the blockade that has shaped life in Gaza since. Before the Second Intifada in 2000, up to half a million exits from Gaza into Israel were recorded in a single month. For the first seven years of the blockade, the monthly average was just over 4,000. You can follow these dates on our timeline.

Picture it from inside. A student in Gaza City wins a scholarship abroad. Whether she can leave depends on a permit system run by another state's army, and her passport depends on that state's registry. That's the kind of control the law of occupation was written for.

What did the ICJ say about Gaza in 2024?

The ICJ said Israel's 2005 withdrawal did not end its duties as an occupier in Gaza. In its advisory opinion of 19 July 2024, the Court found that Israel "remained capable of exercising, and continued to exercise, certain key elements of authority over the Gaza Strip, including 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, despite the withdrawal of its military presence in 2005. This is even more so since 7 October 2023" (paragraph 93).

Its conclusion, in paragraph 94, was carefully worded: Israel's withdrawal "has not entirely released it of its obligations under the law of occupation. Israel's obligations have remained commensurate with the degree of its effective control over the Gaza Strip." In plain English, the more Israel controls, the more it owes the people living there.

Two further points matter. The Court treated the West Bank, East Jerusalem and Gaza as "a single territorial unit" (paragraph 78). And by 11 votes to 4 it found that Israel's continued presence in the Occupied Palestinian Territory, Gaza included, is unlawful and must end "as rapidly as possible" (paragraph 285). The Court also said its opinion did not cover Israel's conduct in Gaza in response to the attack of 7 October 2023. For a readable summary, Just Security's synopsis is a good companion to the full text.

The 2025 opinion: more control, more obligations

Most explainers stop at 2024. They shouldn't. On 22 October 2025 the ICJ gave a second advisory opinion, on Israel's obligations towards the UN and aid agencies such as UNRWA, and it returned to Gaza. Noting that "a small group of participants contested Israel's status as an occupying Power in relation to the Gaza Strip", the Court repeated its 2024 findings and went further: since 7 October 2023, "Israel's effective control over the Gaza Strip has increased significantly", shown by its military control of large parts of the territory and its blocking of all aid between 2 March and 18 May 2025 (2025 advisory opinion, paragraphs 85 and 86).

So, the Court concluded, Israel's obligations under occupation law "have also increased significantly". The judges unanimously advised that Israel, "as an occupying Power", must ensure the population has the essentials of daily life, "including food, water, clothing, bedding, shelter, fuel, medical supplies and services" (paragraph 223).

Who says Gaza is occupied?

Nearly every international body that has looked at the question. Here are the main ones, with their own words where we could check them:

• The UN Security Council. Resolution 1860, adopted on 8 January 2009, called for a ceasefire leading to "the full withdrawal of Israeli forces from Gaza". It opens by "Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state". It passed by 14 votes to none, with the United States abstaining (vote record).
• The ICJ, in its opinions of July 2024 and October 2025, as set out above.
• The ICRC, which considers Gaza "to remain occupied territory".
• Human Rights Watch, which wrote in its 2021 report A Threshold Crossed that despite withdrawing settlers and ground troops, "Israel has remained in critical ways the supreme power in Gaza" and so keeps its legal obligations as an occupying power.
• Amnesty International, which said in February 2024 that "the Gaza Strip remains occupied even after the withdrawal of Israeli forces and removal of settlers in 2005" because Israel controls its borders, territorial waters, airspace and population registry.

The case that Gaza isn't occupied

We're an openly pro-Palestinian site, but you should hear the other side in its strongest form, not a straw man.

Israel's position is that occupation ended with disengagement. Its High Court of Justice took the same view in a 2008 case, Jaber al-Bassiouni Ahmed v. Prime Minister, holding that "military rule that applied in the past in this territory came to an end by a decision of the government, and Israeli soldiers are no longer stationed in the territory permanently, nor are they in charge of what happens there" (quoted by the Atlantic Council).

The fullest legal version comes from Michael W. Meier, writing for the Lieber Institute at West Point in December 2023. His argument runs like this:

• Troops matter. Meier reads the effective control test as needing foreign forces physically present without consent, and cites the European Court of Human Rights describing physical presence as a "sine qua non".
• Someone else was governing. Since 2007, he writes, "Hamas has controlled most of the governmental administration functions" in Gaza. At most, Israel had "concurrent control", not the authority of an occupier.
• Border control isn't enough. Israel's control of the borders, airspace and sea "does not rise to the level of effective control" in his view, and the scale of the 7 October attack "clearly shows that Israel does not have effective control over Gaza".
• The functional approach is risky. Letting a state carry only some occupation duties, he argues, "is more likely to erode civilian protections in occupied territory than enhance them".

A critique of the ICJ's sliding scale

After the 2025 opinion, Sean Watts, also writing for the Lieber Institute, questioned the "commensurate with" formula. Occupation law has traditionally applied as all or nothing, he notes, and "the underlying legal basis for excusing an occupying power from some obligations—but not others—remains unclear". He also argues the Court leaned heavily on scholars and humanitarian organisations rather than on what states themselves do and accept as law.

Why the majority view differs

Each of those arguments has an answer, and the ICJ gave most of them.

Start with troops. The Court didn't ignore Meier's point; it rejected it on authority going back to 1948. The test is whether authority "has been established and can be exercised", and a state that can make its presence felt within a reasonable time still has that capacity (paragraphs 91 and 92). After 2005 Israel's army kept operating in the buffer zone inside Gaza, even in quiet periods, according to the 2015 UN inquiry the Court quoted. A garrison isn't required.

Then Hamas. A local authority running schools and police doesn't end an occupation if the outside power still decides who and what enters, taxes imports, controls the registry that decides who can hold a passport, and patrols the sea and sky. The ICJ's list in paragraph 93 is a list of the powers a government would normally have. Israel held them.

The "erosion" worry cuts both ways. Watts and Meier fear that a sliding scale lets an occupier pick its duties. But the alternative leaves the population with no protection at all: a state keeps the powers of an occupier and walks away from every duty. The ICJ's formula ties duties to power, which is close to the ICRC's reading.

And the 7 October argument proves less than it claims. An armed group breaching a fence shows that control was not total; it doesn't show that Israel wasn't controlling Gaza's borders, trade and registry the day before. Resistance happens in occupied territories. That's partly why occupation law exists.

Is Gaza still occupied now, in 2026?

Even on Meier's own test, the answer today looks different. He wrote in 2023 that simply fighting in a territory isn't occupation, "however, if Israel does stay and begins to exert its authority it will be occupying that area".

Israel has stayed. Under the ceasefire announced on 10 October 2025, its forces pulled back to a demarcation known as the "Yellow Line". OCHA reported in June 2026 that since October 2025 the line has marked the area of Gaza "where access is restricted by Israeli forces; and that area has been expanded multiple times through the placement of yellow blocks". According to Al Jazeera, the line originally left Israel holding about 53 percent of the Strip, and in footage aired in May 2026 Prime Minister Benjamin Netanyahu said: "At this point, we are fully in control of 60 percent of the territory of the Gaza Strip … and my directive is to get to … 70 percent."

There's also a UN-authorised attempt to change that, at least on paper. On 17 November 2025 the Security Council adopted Resolution 2803 by 13 votes to none, with Russia and China abstaining, endorsing a US-brokered Gaza plan and authorising a "Board of Peace" and a UN-backed International Stabilization Force (ISF) to eventually take over security in the Strip. A UN special rapporteur called the resolution itself a violation of the Palestinian right to self-determination (OHCHR). Ten months on, the ISF still hadn't taken over from Israel: Kosovo signed up as a troop contributor only on 7 September 2026, one of a handful of states to do so, with its advance elements then expected to arrive in Gaza "soon" (Al Jazeera). Until an international force actually takes over, the ICJ's test still points the same way: it's Israel, not the Board of Peace, that is exercising control on the ground.

Soldiers inside the territory, holding it, and a leader saying on camera that they control most of it. The debate about 2005 to 2023 will go on in law journals. For Gaza in 2026, it's hard to see what an occupation would look like if not this.

Why it matters legally

Because an occupier has duties, and the people of Gaza have rights that depend on them. Two articles of the Fourth Geneva Convention, which Ireland gave force of law through the Geneva Conventions Act 1962, show what's at stake:

• Article 55: "To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population", bringing them in if local resources are inadequate.
• Article 59: "If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal."

What this means for Ireland

If Gaza isn't occupied, Israel can argue it owes Gaza's roughly two million people little more than any state owes a hostile neighbour. If it is occupied, as the ICJ has now said twice, blocking food and aid breaches specific treaty duties, and other states, Ireland included, must not recognise as legal or "render aid or assistance in maintaining" Israel's unlawful presence, as the ICJ advised by 12 votes to 3 in 2024. That reasoning sits behind Ireland's Occupied Territories Act and much of why Ireland supports Palestine.

If someone tells you Gaza was "free" after 2005, our myths and facts page has a short reply you can share, and the primary documents quoted here are collected on our resources page.