Faraway, so Close: The Legal Status of Gaza after Israel's Disengagement
Yearbook of International Humanitarian Law, Vol. 8, 2006
21 Pages Posted: 9 Aug 2006
The present note seeks to analyse, in brief, the conflicting positions on the legal status of the Gaza Strip in the aftermath of the withdrawal of the IDF in 2005. In doing so, it strives to identify the relevant legal conditions governing the beginning and end of occupation and to apply them to the situation in Gaza. The note argues that the three pronged test for the existence of occupation set out in the 1948 Hostages case (which was reaffirmed, inter alia, by the Israeli Supreme Court in the 1983 Tsemel case) should be applied - actual presence of hostile forces in the territory; their potential to exercise effective powers of government in the area; and the inability of the legitimate government of the area to exercise its sovereign authority over the territory. The recent decision of the International Court of Justice (ICJ) in Armed Activities in Congo represents a regrettable departure from the traditional understanding of the conditions of occupation, which has undesirable policy implications. Application of the three aforementioned tests to the situation in Gaza might produce mixed results: Although Israeli forces have left Gaza, some legal theories might downplay the significance of their lack of physical presence on the ground; in addition, it seems that Israel still exercises some control over Gaza in parallel with the Palestinian Authority (PA). The note argues that in order to identify the ultimate power of government in Gaza one should engage in a comparative analysis of the degree of effective control exercised by the two competing sources of authority. This comparative analysis suggests after the Israeli disengagement, the PA is better situated than Israel to exercise most powers of government in the Gaza Strip and that, as a result, it is difficult to continue and regard Israel as the occupying power in Gaza under the traditional law of occupation.
Keywords: occupation, occupied territories, Gaza, Israel, Palestine, disengagement, effective control
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