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Research Report

Is Gaza Occupied?: Redefining the Legal Status of Gaza

Elizabeth Samson
Copyright Date: Jan. 1, 2010
Pages: 57

Table of Contents

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  1. (pp. [i]-[ii])
  2. (pp. [iii]-[iv])
  3. (pp. 1-4)

    Many attempts have been made over the years to resolve the Israeli- Palestinian conflict by setting terms upon which both parties can agree. Israel and the Palestine Liberation Organization (PLO) entered into several agreements since 1993 which had all been designed to advance the process of transitioning the occupied territories to autonomous rule while taking into account Israel’s national security concerns. Despite these efforts there has been a political deadlock, particularly since the commencement of the Second Intifada – or Palestinian uprising – in 2000. With security breaches increasing since 2000 and an escalation of attacks on the Israeli civilian...

  4. (pp. 4-6)

    The Gaza Strip, a coastal territory along the Mediterranean Sea bordered by Israel and Egypt, is internationally recognized as part of the Palestinian Territories.4

    The first historic mention of Gaza is in the Hebrew Bible, in Genesis 10:19: “The different tribes of the Canaanites spread out until the Canaanite borders reached from Sidon southwards to Gerar near Gaza.” Gaza is mentioned again around the fifteenth century BC in Judges 16:25-30, which tells of Samson whose story is inextricably linked with Gaza. Samson was delivered into bondage in Gaza by Delilah and he died toppling the Temple of the god Dagon...

  5. (pp. 6-12)

    The laws of occupation are derived from two primary sources – the Regulations annexed to the 1899 and 1907 Hague Conventions Respecting the Laws and Customs of War on Land (“Hague Regulations”)20 and the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”).21

    The Hague Regulations codified the rules of customary international law on armed conflict and addressed international occupation law in Section III entitled “Military Authority Over the Territory of the Hostile State.” The laws address what happens after hostilities end and an occupation begins. This section deals with...

  6. (pp. 12-15)

    The international law of occupation as applied to the situation in the Palestinian Territories has often been questioned. Under Israel’s interpretation, the occupation provisions of the Hague Regulations and the Fourth Geneva Convention refer only to territory of “High Contracting Parties,” i.e., state parties to the treaties. Indeed, the international law of occupation has traditionally been understood to only apply to the relationships between sovereign states.51 Prior to Israel’s entry into the Gaza Strip in 1967, however, Gaza was not the sovereign territory of any state party to the treaties. Turkey had renounced sovereignty in 1923, Britain never acquired sovereignty...

  7. (pp. 15-35)

    Whether Israel is exercising “effective control” over Gaza is a matter of legal interpretation combined with factual analysis. The following reasoning indicates how none of the assertions of Israeli authority in Part III, even in combination, rise to the level of “effective control” under the legal test, thereby demonstrating that Israel’s relationship with Gaza is not subject to the laws of occupation.

    Israel’s authority in the sea and air is not an exercise of “effective control” for two reasons. First, control over adjacent waters and air space does not constitute “effective control” over Gazan land. Second, Israel’s control is neither...

  8. (pp. 35-38)

    As it has been established that Israel no longer exercises “effective control” over Gaza, and Gaza is no longer occupied, the obvious question is: “if not occupied then what is its status?”

    Oslo II, the Wye River Memo, and the Sharm el-Sheikh Memo, prohibit both parties from declaring a unilateral change of status of the Palestinian Territories. Oslo II states in Article XXXI(7), “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”161 The Wye River and Sharm el-Sheikh Memoranda both...

  9. (pp. 38-39)

    In recognizing the need for a political solution to the conflict with the Palestinians while balancing that recognition with Israel’s security considerations, the Israeli government withdrew all military and civilian personnel from Gaza in September 2005 in the hope that their initiative would end the occupation of the territory and be a positive step towards a resolution of the conflict. By applying the standards laid out in the Hague Regulations, the Fourth Geneva Convention and the precedent derived from the Hostages case to the situation in Gaza after Israel’s disengagement, Gaza can no longer be considered occupied and “effective control,”...

  10. (pp. 40-53)