Is Israel Still an Occupying Power in Gaza?

Abstract

The West Bank and the Gaza Strip came under Israeli occupation in 1967. Both territories had been under constant Israeli control since then, until Israel decided to withdraw its land forces and settlements from the Strip in 2005. Whereas the occupied status of the West Bank still remains uncontested, the status of Gaza after the disengagement is less clear. This article addresses the question whether the Gaza Strip can still be considered to be occupied after the 2005 disengagement. In order to formulate an answer to this question, the article will first outline the different elements needed to trigger occupation. It will then show that, even though the majority argues that the Gaza Strip is still occupied, the effective control test at the core of the law of occupation is no longer met and hence Gaza is no longer occupied. Given that Israel nevertheless continues to exercise some degree of control over Gaza and its population, the absence of occupation does not mean the absence of accountability. This responsibility is however not founded on the law of occupation but on general international humanitarian law, potentially complemented by international human rights law.