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Rules of Disengagement: Relating the Establishment of Palestinian Gaza to Israel's Right to Exercise Self-Defense as Interpreted by the International Court of Justice at the Hague

38 Pages Posted: 1 Sep 2010  

Robert A. Caplen

Hunton & Williams LLP

Date Written: October 1, 2005

Abstract

In this essay, I address what has been described as the "puzzle of Gaza's new legal status" in the aftermath of Israel's Disengagement from the Gaza Strip and assess the ramifications of that action, particularly with regard to Israel's right to exercise self-defense. In order to place Disengagement in proper context, I provide a history of the Gaza Strip during the course of the ongoing Arab-Israeli conflict and explore each Palestinian Intifada, Israel's construction of a counterterrorism initiative (commonly referred to as the "security fence"), and the policy behind Disengagement. I also analyze how the 2004 advisory opinion issued by the International Court of Justice (ICJ) presents conflicting applications of the law of self-defense, arguing that it simultaneously and inconsistently accords "Palestine" both state and nonstate status. I then evaluate the status of "Palestine" as a nonstate actor for purposes of Israel's right to exercise self-defense following Israel's Disengagement from the Gaza Strip and conclude that any state-like attributes Palestinian Gaza may exhibit place it squarely within the ICJ's interpretation of Article 51 of the United Nations Charter. As such, Disengagement refutes any claim that Israel cannot lawfully utilize either forcible or non-forcible measures to combat Palestinian terrorist activities under Article 51.

Keywords: International Law, Law of Self-Defense, Arab-Israeli Conflict, Article 51 of the UN Charter

Suggested Citation

Caplen, Robert A., Rules of Disengagement: Relating the Establishment of Palestinian Gaza to Israel's Right to Exercise Self-Defense as Interpreted by the International Court of Justice at the Hague (October 1, 2005). Florida Journal of International Law, Vol. 18, No. 2, pp. 679-716, 2006. Available at SSRN: https://ssrn.com/abstract=1670082

Robert A. Caplen (Contact Author)

Hunton & Williams LLP ( email )

United States
202-955-1677 (Phone)

HOME PAGE: http://https://www.hunton.com/en/people/robert-caplen.html

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