The opening of the border at Rafah

On 23 January 2008, Gazans broke down the iron wall that stands on the border between Gaza and Egypt at Rafah and reportedly around 750,000 Gazans visited the Egyptian towns of Rafah and al-Arish on the other side to buy essentials such as food and fuel.

The Rafah action came after a week of particularly strong Israeli actions against Gaza (leaving around 40 dead and 130 injured) and an almost complete closure of the Strip to fuel, medicine and food. Hospitals cut down operations and fresh water supplies as well as sewage systems came to a halt while Israeli military actions, including targeted killings, intensified. At the same time, Palestinian resistance groups continued firing rockets from Gaza into Israel. 

Immediately after the wall at Rafah was broken down, Israeli government officials stated that Gaza was now “Egypt’s responsibility”.  Is this correct, in law?

Is Gaza still occupied if the Rafah border is open?

In Israeli (and international) political circles the wish has at times been expressed to revert control over the Gaza Strip back to Egypt, which governed Gaza between 1948 and 1967. If the border between Gaza and Egypt is now open, and remains so, possibly under the joint control of Egypt and the Palestinians, has this changed the legal status of Gaza?

Legally speaking, for Gaza to remain occupied by Israel there is no need for actual Israeli “boots on the ground”. It is sufficient for Israel to be in effective control of Gaza, with the ability to enter at will. In the past year and especially in the past week, Israeli ground troops have entered Gaza on a regular basis. Israel also attacks Gazan targets from the air, and occasionally also from the ground outside of Gaza, and has several unmanned balloons constantly observing the population’s every move.

Israel also controls the Gaza population registry, the tax and customs collection, and, importantly for this discussion, Israel controls the Gaza borders, including the movement of people, goods, fuel, and money.

In the current scenario, Israel has allowed one border point to become porous, but it could close this at will, instantly.

Read more about the legal status of Gaza after the Israeli "disengagement" in 2005

The opening of the Rafah border does not mean that Gaza is no longer occupied while the current military actions in Gaza, military surveillance, administrative control and land and sea restrictions prevail.

In sum, the opening of the border at Rafah and the ability of the Gazans to buy some of their essentials in Egypt, are a long way off changing the legal position of the Palestinians and Israel. Israel still occupies the Palestinian territory and people, with the obligation to safeguard their humanitarian situation.