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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.
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.
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).
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