The implementation of the Disengagement Plan in September 2005, raised questions regarding the continued status of Gaza as occupied territory, especially in light of the withdrawal of the Israeli army (IDF) land forces from the Gaza Strip. According to international humanitarian law (IHL), occupation ends when the occupying power no longer exercises effective military control over the occupied territory and does not apply government authorities there.
To the Israeli Ministry of Foreign Affairs and the Disengagement Plan
Read more about the end of occupation
Read more about the responsibilities of the occupying power
Presence of land troops in the territory – a necessary requirement?
The legal analysis mainly differs as to whether the presence of land troops inside the territory is a necessary requirement for obtaining control in order to legally consider a territory occupied.
The presence of land troops has traditionally been a requirement to identify a territory as occupied. However, the test of "effective control" should, in light of modern technology and new means of maintaining control, take into account all kinds of control exercised over a territory, both military control and control over civilian life.
Despite the withdrawal of military troops in 2005, there are ongoing as well as new measures of Israeli military and administrative control in the Gaza Strip, which amount to "effective control". Therefore, the withdrawal of Israeli troops alone does not turn the occupied territory into unoccupied. It is important to note that facts on the ground define the legal situation. Israel maintain its effective control over the Gaza Strip by different means, such as control over air space, sea space and the international borders. In addition, Israeli military troops are present in the Gaza Strip since "Operation Summer Rains" in June 2006.
The law of occupation still applies
The law of occupation still applies to the Gaza Strip, with relevant adaptations. Israel's specific positive IHL obligations towards the civilian population, such as the active duty to ensure public order inside the Gaza Strip, are as a result of the disengagement, limited. This can be compared with Israel’s IHL responsibilities in areas that are designated as areas A and B in the West Bank under the Oslo Agreements. However, the adaptation of the level of responsibility does not change the status of the territory as occupied. ICRC as well as other international bodies such as the UN and the EU did not state any status change of the Gaza Strip.
Read more about occupation
Read more about the Oslo Agreements
Israel continues to be legally responsible for protected persons
Even during the period from the Israeli military troops' withdrawal from the Gaza Strip in September 2005 until "Operation Summer Rains" in 2006, there has been a consensus amongst the international community that Israel, regardless of the specific question on applicability of the laws of occupation, continues to be legally responsible for protected persons that live in the Gaza Strip under general provisions of international humanitarian law (IHL).
Read more about protected persons
Collective punishment against the civilian population in Gaza
On 19 September 2007, the Israeli security cabinet declared the Gaza Strip a “hostile territory” and decided to cut off electricity and fuel in response to Palestinian armed groups launching Qassam rockets towards southern Israeli towns.
The decision has been criticized by Israeli human rights groups for imposing a collective punishment on the civilian population in Gaza in contradiction to international humanitarian law.
To B'Tselem's website and a press release on the Cabinet's decision
Read more aout the decision from an IHL perspective
Civilian ships attempt to break the naval blockade -May 2010
On 31 May IDF special armed forces intercepted six ships of Freedom flotilla. The flotilla carried around 700 civilians and cargo intended for the civilian population of the Gaza Strip in light of their dire humanitarian crisis.
The attempted breaking of the blockade resulted in the death of between 10-20 passengers whose identity is currently unknown) and injuries of tens of others. The ships were seized and taken to Ashdod port and passengers detained and/or deported.
Read more on the Legal Analysis on access of humanitarian aid through the Gaza sea
IDF Operation Cast Lead Legal Analysis
The methods used in the current military operation are highly problematic and raise reasons to consider them as war crimes - violation of the principle of distinction, proportionality. There have also been violations of international humanitarian law such as collective punishment, disregard of the obligation to take precautions in and during an attack, disregarding wounded civilians and impeding their treatment, and lack of special protection of children.
Read more on the Legal Analysis of the IDF Operation Cast Lead
to UN-OCHA Field up-date on Gaza for 17-18 January 2009
According to the Nuremberg Tribunal’s "Hostages' Trial", a territory is considered occupied when there is an ability to exercise effective control. Therefore, even if Israel would not have any soldiers on Gaza land, since it has the ability to exercise effective control over the Gaza Strip at will, the territory continues to be occupied.
To Wikipedia and an explanation of "hostages trial"
Dugard Report 2006
"Statements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate. Even before the commencement of "Operation Summer Rains", Gaza remained under the effective control of Israel."
Prof. John Dugard, Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, September 2006.
The Gaza Strip is still occupied (June 2007):
- Israel continues to exercise control, although indirectly, over Palestinian movement in the Rafah crossing – the only exit outside of Gaza to countries other than Israel – namely Egypt.
- Israel continues to exercise control over the movement of Palestinians, as well as goods, in the Kerem Shalom, Erez, Karni and Sufa crossings.
Read more about Israeli control over the Gaza Strip