Is the Gaza Strip Still an Occupied Territory? Divergent Approaches in International Humanitarian Law

Abstract

Since Israel withdrew its troops from the Gaza Strip, there has been a fierce academic but also political debate over the legal status of the territory. While the Israeli government repeatedly asserted that by giving up military presence it has abrogated its rights and duties as Occupant, a substantial number of countries and international lawyers maintain that notwithstanding the lack of territorial control Israel still remains the Occupying Power. This short article attempts to clarify this problem by analyzing the legal concept of occupation and applying it to the factual situation in the Gaza Strip. It concludes that the two opposing positions can be reconciled by applying a functional approach: in the absence of effective control over the territory Israel does not occupy the Gaza Strip but it still has to discharge obligations flowing from the law of occupation to the extent Palestinians are "in the power" of Israel.

Keywords: international humanitarian law, occupation, laws of war, laws of armed conflict, jus in bello