356

THE ISRAELI DISENGAGEMENT FROM THE GAZA STRIP: AN END

OF THE OCCUPATION?1
Mustafa Mari2

1.

INTRODUCTION

In 2004 the Israeli government adopted a plan for its unilateral disengagement
from the Gaza Strip and areas in the north of the West Bank, a plan which was
carried out the following year.3 Debated in the Israeli parliament and governmental
and academic circles, the Israeli disengagement plan provoked disagreement with
respect to its effects on the legal status of the Gaza Strip, and Israels responsibility
for the lives of Gazan Palestinians, if any, in its aftermath.4

1. M. Mari, 2005.
2. Professor of Laws and Human Rights, School of Graduate Studies, Bir Zeit University, Bir Zeit,
Palestine. The views expressed here are those of the author, and do not necessarily reflect those of the
Bir Zeit University or any other group with which he is affiliated.
3. The disengagement plan included the evacuation of all Israeli settlements in the Gaza Strip, and
the withdrawal of Israeli troops from most of the territory of the Strip (except for areas surrounding
Israel-Gaza crossings). Though the disengagement plan is generally referred to as the Gaza disengagement plan, it actually includes the evacuation and total destruction of four Israeli settlements in
the West Bank, a declaration by the Israeli government of the strengthening of Israeli settlement movement in the West Bank, and the eventual annexation of parts of the West Bank to pre-1967 Israeli
territory. For the full text of the disengagement plan, see Addendum A Revised Disengagement
Plan Main Principles, released by the Communications Department, Prime Ministers Office, Government of Israel, 6 June 2004 (hereinafter, Addendum A). See also hamisima hoshlima [mission
accomplished], 12 September 2005 <www1idf.il/DOVER/site/mainpage.asp?s1=HE&id=7&do
cid=45389&Pos=12&last=0&bScope=False> (Hebrew), and Declaration regarding end of military
rule in Gaza, 12 September 2005 <www1.idf.il/DOVER/site/mainpage.asp?s1=EN&id=7clr=1&do
cid=45427.EN>.
4. Uncertainty left by the somewhat vague language of the disengagement plan called for contributions by a variety of Palestinian entities in an attempt to shed light on various aspects of the plan, as
well as its implications. While the list is indeed long, the following examples are illustrative of the
great interest Palestinian organisations have shown in investigating the implications of the disengagement plan on a variety of aspects of the lives of Palestinians, including legal aspects. This and other
aspects are addressed in great detail in the following publications: The Palestinian Non-Governmental
Organizations Network (PNGO), waqai al motamar al khas bi tathirat wa abad khitat al fasl al
israiliyyah uhadiyyat al janeb [Proceedings of the Special Conference on the Implications and Effects
of the Israeli Unilateral Disengagement Plan], Gaza, June 2005; Al Mizan Center for Human Rights,
Report on the legal and economic consequences of the unilateral disengagement plan, Gaza, September 2005; Arkan Support for Rule of Law Reform project, mada jahiziyyat al tashriat al falastiniyyah
limowajahat khittat al infisal al israiliyyah an qita ghaza [To what extent can Palestine legislation
provide answer to issues arising form the Israeli disengagement plan?], Gaza, April 2005, and Al
Yearbook of International Humanitarian Law
Volume 8 - 2005 - pp. 356-368

DOI 10.1017/S1389135905003569

The Israeli disengagement from the Gaza Strip

357

This paper seeks answers to the question of Israels continued responsibility (or
lack thereof) vis--vis the Occupied Palestinian Territories (hereinafter, OPT), and
the status of those territories following the Israeli disengagement from the Gaza
Strip (and parts of the West Bank). Without being dismissive of arguments made
to the contrary, this paper demonstrates the validity of the views of the majority of
scholars that Israel has maintained the status of Occupying Power vis--vis the
OPT, contrary to its claims and one of the main objectives of the disengagement,
as announced by the Israeli government.5
First, a brief introduction to the history of the Israeli-Palestinian conflict and the
beginning of the occupation of the West Bank (including Jerusalem) and the Gaza
Strip is provided. This includes a review of issues, positions and arguments related
to the question of the legal status of the OPT, as well as the question of when
occupation begins. Secondly, the question of the legal status of the OPT following
the establishment in 1994 of the Palestinian National Authority (hereinafter, PNA)
is addressed. Thirdly, the Israeli disengagement from the Gaza Strip (and parts of
the West Bank) is introduced, and the possible implications for the legal status of
the Gaza Strip and Israels status vis--vis the said territory is discussed. This includes addressing the question of Israels effective control with respect to the Gaza
Strip (and parts of the West Bank) after the disengagement from Gaza, and its
relevance to the discussion of the current legal status of the territory. Conclusions
shall follow.

2.

THE 1967 WAR, THE BEGINNING OF OCCUPATION AND THE

IMPLICATIONS FOR THE LEGAL STATUS OF THE WEST BANK
AND GAZA

2.1

The Palestine Question and the occupation in 1967 of the West Bank
(including Jerusalem) and the Gaza Strip

The modern Palestine Question refers to developments since and arising from the
1916 Sykes-Picot Agreement, signed by Great Britain and France, which stipulated that once Palestine fell into the hands of the Allies during World War I, it
should be placed under British rule.6 The following year, in 1917, Britain issued

Mizan Center for Human Rights, molahathat hawl al markaz al qanoni li al aradi allati sawfa tokhliha qowwat al ihtilal fi qita ghaza [commentary on the legal status of territory evacuated in the course
of the Israeli disengagement plan], Gaza, September 2005.
5. Revised Disengagement Plan Main Principles. See also Y, Shany, Faraway, so close: the legal
status of Gaza after Israels disengagement, this volume, p. 369.
6. Sykes-Picot Agreement, 16 May 1916. On the history of Palestine and the Palestine Question,
see The origins and evolution of the Palestine problem 1917-1988 (New York, United Nations 1990)
(hereinafter, The origins) ; W. Khalidi, ed., All that remains: the Palestinian villages occupied and
depopulated by Israel in 1948 (Institute of Palestine Studies 1992); S. Hadawi, Bitter harvest: a
modern history of Palestine (Interlink Publishing Group 1998), and B. Morris, The birth of the Palestinian refugee problem, 1947-1949 (Cambridge, Cambridge University Press 1989).

358

M. Mari

the notorious Balfour Declaration to European Jewish leaders, in which Britain

undertook to assist in the creation, in Palestine, of a home for Jews.7 This, however, was in clear contravention of the terms of a 1915-1916 promise Britain made
to Sheriff Hussein of Mecca, by which Britain undertook to assist all Arab regions
which were then under Ottoman rule in achieving independence, in exchange
for an Arab promise to support the Allied forces during the war.8
Following Britains occupation of Palestine in 1917, in 1922 the League of Nations issued the Palestine Mandate, which aimed at helping Palestine until then
with an overwhelmingly Arab-Palestinian population achieve independence.9
Jewish immigration to Palestine, under British rule, triggered disturbances between the indigenous Arab-Palestinian people and the mainly European Jewish
immigrants, and tensions increased as Palestinians became increasingly suspicious
of the intentions of Jewish immigrants. Palestinian suspicions were, in fact, wellfounded, especially when 1947 witnessed the issuance by the United Nations General Assembly of a recommendation which included the partitioning of the territory
of Mandate Palestine into two states, one Arab and the other Jewish, with a special
regime for Jerusalem and Jaffa. The withdrawal of British forces from Palestine six
months later, amidst escalating violence between Palestinians and Jewish immigrants, resulted in the first Arab-Israeli war of 1948, the occupation of approximately 80 percent of the territory of the Palestine Mandate by Jewish forces, and
the transformation of almost half of all Palestinians, or about 800,000 people, into
refugees.10
2.2

The 1967 War and the Israeli occupation of the West Bank
(including Jerusalem) and the Gaza Strip

With the conclusion of the 1948 Israeli-Arab War, the remaining parts (some 20
percent) of Palestine came under Arab control, with Egypt controlling the part
currently known as the Gaza Strip, and Jordan controlling the part currently
known as the West Bank, which included East Jerusalem. With the end of the
1967 Israeli-Arab War, Israeli armed forces completed the occupation of the territory of Mandate Palestine.11
Since Israels occupation of the West Bank and the Gaza Strip in the wake of the
1967 War, the international community continues to consider Israel as the Occupying Power of those territories, and therefore views the occupation through the

7. Balfour Declaration 1917, letter from Lord Arthur James Balfour to Lord Rothschild on 2 November 1917, reprinted in The origins, supra n. 6, p. 8.
8. Ibid., pp. 4-7. See also A.Cassese, Self-determination of peoples: a legal reappraisal (Cambridge, Cambridge University Press 1996) pp. 231-233.
9. See Article 22 Covenant of the League of Nations.
10. See The origins, supra n. 6, pp. 71, 112-114. See also GA Res. 181 (II), 29 November 1947;
see also Morris, supra n. 6.
11. R. Rabah, Palestinian refugees and displaced & the final status negotiations, (Beirut, Arab
Progress House for Press, Publishing and Distribution 1996).

The Israeli disengagement from the Gaza Strip

359

lenses of the provisions of both the Hague Regulations of 1907 and the Fourth
Geneva Convention of 1949.12 The extension in 1967 of Israeli jurisdiction to occupied East Jerusalem, which amounts to Israeli annexation, has also been declared illegal under international law.13
Israel, however, has never fully accepted the above position, presenting a series
of arguments in support of its case. Before we get into reviewing, and in fact,
refuting Israels claims, let us begin with a basic question: when does occupation
begin? This is not only necessary in the course of determining the pre-disengagement situation (and the legal consequences of the establishment in 1994 of the
PNA), but is also equally relevant for the discussion (in part 4 below) of the legal
status of the Gaza Strip following the Israeli disengagement from the territory
(and limited areas in the north of the West Bank).
According to Article 42 of the Hague Regulations of 1907: [a] territory is considered occupied when it is placed under the authority of the hostile army. The
occupation extends only to the territory where such authority has been established
and can be exercised. Therefore, when an army enters into enemy territory and
exercises control, occupation exists and international humanitarian law protections
apply.
The Fourth Geneva Convention uses a lower threshold for the continued application of its protections for civilians than that applied by the Hague Convention,
according to Bruderlein.14 In its Article 6, the Fourth Geneva Convention provides
for its continued applicability to the extent that the Occupying Power exercises the
functions of government. Article 2 of the Fourth Geneva Convention provides for
the Conventions applicability in all cases of declared war or other armed conflict,
regardless of whether the occupation is total or partial.
The Israeli position with respect to the Hague Regulations of 1907 has from the
outset been different from its position regarding the applicability to the Israeli occupation of the OPT of the provisions of the Fourth Geneva Convention. Though
the Israeli government has never made a formal announcement accepting the applicability of the provisions of the Hague Regulations with respect to its presence
in or administration of the OPT, the Israeli High Court of Justice has considered
the Hague Convention to be fully applicable to the OPT, and that Israel is bound by

12. Fourth Hague Convention Relative to the Customs of War on Land and its annex Regulations
Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907; and Geneva Convention Relative to the Protection of Civilian Persons in Times of War, 12 August 1949.
13. On this, see I.S. Lustick, Has Israel annexed East Jerusalem?, 5 Middle East Policy (1997)
pp. 34-45. See also SC Res. 465, 1 March 1980; SC Res. 904, 18 March 1994; and U. Halabi, AlQuds: athardam Al-Quds ila Israel ala hoqouq wawad sukaniha alArab [Jerusalem: the effects
of Israel's annexation of Jerusalem on the rights and position of its Arab population] (Jerusalem, The
Palestinian Academic Society for the Study of International Affairs 1990).
14. C. Bruderlein, Legal aspects of Israels disengagement plan under international humanitarian
law, Harvard University Program on Humanitarian Policy and Conflict Research (November 2004)
p. 9.

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M. Mari

its provisions as a belligerent occupant.15 Further, the Hague Convention is clearly

part of customary international law, and is therefore binding on Israel in its relationship with the OPT, regardless of the position of the Israeli government on the
matter.
With respect to the Fourth Geneva Convention, however, Israel denies its de
jure applicability to the OPT. A number of Israelis have previously put forward
arguments in support of the Israeli position, which include the uncertain title to the
West Bank and Gaza, respectively, of Jordan and Egypt.16
There is almost universal agreement that the Convention applies to occupied
territory, regardless of whether the ousted power had good title to said territory, an
issue which Israel has consistently raised to deny the applicability of the Convention to the OPT. The position of the International Committee of the Red Cross
(hereinafter, ICRC) since 1968 has been that an occupation exists and the Convention therefore automatically applies where territory under the authority of one of
the parties passes under the authority of an opposing party.17 In 2001 the ICRC
reaffirmed its position.18
The above position has been internationally accepted.19 More recently, the applicability of the Convention to the OPT has been affirmed in the Statement of the
Conference of High Contracting Parties to the Fourth Geneva Convention, held in
Geneva on 15 July 1999.20 A second Conference of High Contracting Parties to the

15. Piski Din 1, 13 (1979) 34(1), reported in G. Bindman et al., Human Rights in a Period of
Transition: The Case of the Occupied Territories, Jericho, And The Gaza Strip (London, The Law
Society and the Bar of England and Wales Human Rights Committee, 1994) p. 26.
16. These and other Israeli arguments were first put forward in a letter from Colonel Joel Singer,
the then head of the International Law Section Israeli Military Advocate Generals Corps, sent on 13
July 1987 to the Delegate General of the ICRC, Middle East and North Africa, cited in N. Bar-Yaacov,
The applicability of the laws of war to Judea and Samaria [the West Bank] and to the Gaza Strip, 24
Israel LR (1990) pp. 485-506 at 491. See also Y. Blum, The missing reversioner: reflections on the
status of the Judea and Samaria, 3 Israel LR (1968) p 279; M. Shamgar, ed., Military government in
the territories administered by Israel, 1967-1980: the legal aspects, Vol. 1 (1982). For a rebuttal, see
R. Shehadeh, qanoun al mohtal: Israel wa al-daffah al gharbiyyah [Occupiers law: Israel and the
West Bank] (Beirut, Institute of Palestine Studies 1990) pp. 5-11.
17. Middle East activities of the ICRC, 10 IRRC (1970) p. 426, cited in Th. Kuttner, Israel and
the West Bank: Aspects of the law of belligerent occupation, 7 Israel YB HR (1977) pp. 169-170.
18. On the recent ICRC statement, see Red Cross says Jewish settlements are equal to war crimes,
Reuters News Service, 17 May 2001, and Press Statement issued by the Permanent Observer Mission
of Palestine to the United Nations, 18 May 2001 <www.palestine-un.org>.
19. For more on the applicability of the Convention to the OPT, see Shehadeh, supra n. 16, also A.
Roberts, Prolonged military occupation: the Israeli-Occupied Territories 1967-1988, in E. Playfair,
ed., International law and the administration of occupied territories (Oxford, Clarendon Press 1992)
pp. 25-85.
20. Conference of High Contracting Parties to the Fourth Geneva Convention, Statement, 15 July
1999. On the background to the Conference, see Palestinian Centre for Human Rights, Fourth
Geneva Convention and Israeli occupation of Palestinian Territories: theory and practice (November
1998), and Politicization of international humanitarian law (January 2000).

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361

Fourth Geneva Convention was held in Geneva on 5 December 2001.21 The 2001
Conference ended with a Declaration affirming the applicability to the OPTs, including East Jerusalem, of the Fourth Geneva Convention, thus reaffirming the
well-known position of the international community with respect to the applicability of international humanitarian law to the OPT.22
2.3

The ICJ on the legal status of the OPT

Israel objected to the very intervention of the International Court of Justice (hereinafter, ICJ) in the matter of its construction of the wall in the OPT, and made
every effort to prevent the Court from giving an opinion on this matter, using arguments of both a legal and Realpolitik nature. The ICJ, however, accepted the challenge, and issued its Advisory Opinion on 9 July 2004.23
The Court, in the course of developing its Opinion, had to decide on the legal
status of the OPT, and the international legal framework governing Israels relations with the OPT. In the course of doing so, the Court considered at length arguments presented before it by participants in the proceedings, including Israel and a
large number of countries,24 primarily in two parts of its Advisory Opinion; first in
paragraphs 69-78, and again in paragraphs 89-101.
The position of the Israeli authorities on the matter was considered, but the
Court noted that its position is contrary to the position of the great majority of
other participants in the proceedings.25 The Court clearly rejected Israels arguments, emphasising, first, the fact that though Israel is not party to the Fourth
Hague Convention, the Convention and the Regulations annexed thereto are regarded as part of customary international law, and that the Fourth Geneva Convention, pursuant to Article 154 thereof, is supplementary to Sections II and III of the
Hague Regulations.26 The Israeli position has also always been contrary to that of
the international community on this matter, as repeatedly pronounced in a large
number of resolutions, both by the Security Council and the General Assembly.27

21. See Conference of High Contracting Parties to the Fourth Geneva Convention, Declaration, 5
December 2001 <www.palestine-un.org/news/conference4GC.html>.
22. However, the Conferences Declaration did not include any enforcement mechanism, a matter
which human rights NGOs have been advocating for years. See PCHR/LAW Press Release 71/2001,
PCHR and LAW condemn High Contracting Parties farce, 22 November 2001 <www.pchrgaza.org/
files/PressR/English/2001/71-2001.htm>. See also Declaration of the NGO parallel meeting concerning the Fourth Geneva Convention, 5 December 2001, <www.reliefweb.int/w/Rwb.nsf/s/
34D82A8C0B950F5B85256B1A005A76ED>.
23. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004 <www.icj-cij.org>.
24. On the Israeli position, see ibid., para. 90. The Palestinian position/accession is noted in para.
91.
25. Ibid., para. 93.
26. Ibid., para. 89.
27. Ibid., paras. 98-99.

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M. Mari

The Court further noted that in 1967 the Israeli authorities issued Order No. 3,
instructing the military courts it set up in the OPT to apply the provisions of the
Fourth Geneva Convention, though reference to the Convention was removed in
later legislation organising the work of the said courts.28 Not only that, but the
Court also noted that the Israeli Supreme Court had, in 2004, concluded that the
military operations Israel conducted at the time in Rafah were governed by []
the Geneva Convention Relative to the Protection of Civilian Persons in times of
War 1949.29
In summary, the accepted interpretation of common Article 2 of the Geneva
Conventions, according to the ICJ, is that the Fourth Geneva Convention applies
to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.30 The Court thus made it clear
that the existence of armed conflict between two contracting parties is sufficient for
the application of the Fourth Geneva Convention.31 According to the Court, this
was the intention of the drafters, a matter which was confirmed by States Parties
to the Convention on 15 July 1999 and again on 5 December 2001.32 The position
of the ICRC on the matter has been the same, which position has consistently been
announced since the beginning of the occupation in 1967.33
From the above it is clear that although Israel has consistently tried to escape
responsibility through its denial of the de jure applicability of the Fourth Geneva
Convention to the OPT, it has, also consistently, been reminded by the world community, the ICRC, and more recently by the ICJ, of the fact that its position on the
matter is flawed, to say the least. Israel is, therefore, in terms of its relations with
and presence and actions in the OPT, an Occupying Power; the West Bank (including Jerusalem) and the Gaza Strip are territories Israel occupies; and the population
of these territories are protected civilians. This is supported by both the spirit and
the letter of international humanitarian law.

3.

DID THE ESTABLISHMENT OF THE PNA AND THE

REDEPLOYMENT OF ISRAELI FORCES IN THE OPT AFFECT
THE LEGAL STATUS OF THE OPT?

To be able to answer this question, one must first address the theoretical or legal
question of when an occupation ends. This also helps in the determination of the
legal implications of the establishment in 1994 of the PNA in parts of the OPT, and
the redeployment, during the period 1994-1998, of Israeli armed forces in the terri-

28.
29.
30.
31.
32.
33.

Ibid., para. 93.

Ibid., para. 100.
Ibid., para. 97 (quoting para. 1 of Art. 2 GC IV).
Ibid., paras. 92, 94-95.
Ibid., paras. 95-96.
Ibid., para. 97.

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363

tories, as well as the implication of the recent Israeli disengagement from the Gaza
Strip (and parts of the West Bank).
3.1

The end of occupation

Occupation is not a theoretical/legal matter only but is also a matter of fact, based,
amongst other things, on the ability of an Occupying Power to exercise effective
control. Occupation, as we shall see later, is not only determined or established
based on the recognition by the Occupying Power of the state of occupation or the
number of troops available in the occupied territory. Occupation is also not conditioned on the absence from the OPT of an authority, power or body of a political or
administrative nature representing or providing services to the population of the
OPT, or the good legal title of the ousted Power to the territory in question.34
The question of when an occupation ends has been extensively addressed with
respect to the OPT, not only following the recent Israeli disengagement from the
Gaza Strip and parts of the West Bank but since the redeployment of Israeli troops
in the OPT during the period 1994-1998, following the signing in 1993 of the
Declaration of Principles (hereinafter, DoP, also called the Oslo Accords). As was
explained in the preceding part, the 2004 Advisory Opinion of the ICJ with respect
to the construction in the OPT of the wall by Israel, the Occupying Power, has
done everyone a great service, by shedding light on the question of the applicability of international humanitarian law to the OPT.
3.2

Did the signing of the DoP and the establishment of the PNA change
the legal status of the OPT?

The Palestinian delegation to the Palestinian-Israeli negotiations held in 1991-1992

in Washington, led by Dr Haidar Abdu Shafi, reportedly made a serious effort to
negotiate with the Israeli delegation, using the international legal status of the OPT
as a point of departure.35 However, these talks failed to produce results, as the
Israeli government refused to accept the consequences of its status in the OPT as
an Occupying Power, and to subject the negotiations to the dictates of applicable
rules of international humanitarian law (IHL).36
This failure, and the Israeli governments intransigence, should not, however, be
a source of disillusionment for the legal community, as there is enough in applicable IHL instruments, the many Israeli-Palestinian agreements signed since 1993,

34. See Art. 42 Hague Regulations, and Arts. 2 and 6 GC IV.

35. See H. Abed Al-Shafi, A political reading of the DoP, in Challenges Facing Palestinian
Society in the Interim Period (Jerusalem, Palestinian Academic Society for the Study of International
Affairs 1994) pp. 11-18; and R. Shehadeh, A legal reading of the DoP, in ibid., pp. 19-26. See also
R. Shehadeh, Al-madameen al-qanoniyah walamaliyah liitifaqiyat al-qahira [Legal and practical
implications of the Cairo Agreement], 1 Al-siyasa Al-falastiniyah (1994) pp. 52-60.
36. See Shehadeh, A legal reading of the DoP, supra n. 35, pp. 19-26; see also Shehadeh, Almadameen, supra n. 35, pp. 52-60.

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M. Mari

and the policies, procedures and forums these agreements have established to shed
light on the legal status of the OPT in the period following the signing of the DoP
and the establishment of the PNA. For example, the 1993 DoP, on which the Interim Agreement was based, does not in and of itself end the Israeli occupation of the
OPT. Further, the DoP and subsequent agreements clearly ensured that Israel retained ultimate powers in the fields of external security, borders and international
relations, to name but a few.
Further, the Interim Agreement, signed in September 1995, states that: [t]o this
end, the Israeli military government shall retain the necessary legislative, judicial
and executive powers and responsibilities, in accordance with international law.37
Although the agreement does not define or identify the source of Israels jurisdiction under international law, this should be interpreted in the light of the Israeli
status in the OPT, which until then was that of Occupying Power, subject to, inter
alia, the provisions of the Fourth Geneva Convention. Israel also shares, with a
veto power, the PNAs jurisdiction in other areas, through joint committees, giving
Israel effective control in these spheres as well.38 For all the above reasons, Israel
must continue to be seen as the power occupying the OPT, until it becomes possible to make a determination that the Israeli occupation of said territories has in fact
ended.
This is not only the view of a Palestinian lawyer. Both Meir Shamgar, then
president of the Supreme Court of Israel, and David Kretzmer, of Hebrew University, have expressed the view that the Fourth Geneva Convention continues to
apply in the PNA areas, despite the DoP.39 Further, according to Joel Singer, the
then legal advisor of the Israeli Ministry of Foreign Affairs, and a main negotiator
of the Interim Agreement on behalf of Israel, Article 1 of the Interim Agreement
provides the basis for the Israeli assumption of residual powers, and thus he concludes that if the agreement is silent on the question of where a particular power
vests, then that power is retained by Israel.40
The above is, in fact, a situation which the Convention permits and envisages.
The Convention clearly envisions the transfer of powers and responsibilities from
the Occupying Power to an authority representing the population of the occupied
territory, in accordance with its Articles 8 and 47. In such situations, Article 6 of
the Convention makes clear that such arrangement does not absolve the Occupying
Power of its responsibility in so far as it exercises the functions of government.
Eyal Benvenisti holds a dissenting opinion, allegedly because Israel is not in a
position of control in these areas.41 While it is true that Israel has, at least until

37. Art. XVII, para. 4(b) Israeli-Palestinian Interim Agreement on the West Bank and the Gaza
Strip, Washington D.C., 28 September 1995.
38. Ibid., Art. XVII, para. 4(a).
39. Bindman et al., supra n. 15, p. 28.
40. J. Singer, The West Bank and Gaza Strip: phase two, JUSTICE, Association of Jewish Lawyers and Jurists (December 1995).
41. E. Benvinisti, Responsibility for the protection of human rights under the Interim Israeli-Palestinian agreements, 28 Israel LR (1994) p. 312.

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365

2000, redeployed its forces to positions surrounding main population centres in the
OPT, or out of the Gaza Strip in the case of Gaza following the 2005 disengagement, throughout the period following the signing of the DoP Israel remained in a
position allowing her to exercise effective, even if not direct or full, control in the
OPT. This has consistently and clearly included the imposition of severe restrictions of movement, very long and successive closures and curfews, and conducting
military operations and incursions into even the areas it has supposedly evacuated.
This, again, is a situation which the Fourth Geneva Convention has not precluded,
as the exercise by the Occupying Power of effective administrative control does
not preclude local authorities from a major role in the administration of the territory.42
The ICJ, in its Advisory Opinion on the legal consequences of the construction
by Israel of the wall, has also contributed to the discussion of the possible effects
of the conclusion of the DoP and the subsequent agreements between Israel and the
PLO and the resulting transfer of powers and responsibilities on the status of the
OPT, by concluding that:
Those agreements inter alia required Israel to transfer to Palestinian authorities certain
powers and responsibilities exercised in the Occupied Palestinian Territory by its military authorities and civil administration. Such transfers have taken place, but as a result
of subsequent events, they remained partial and limited.43

In order to make things even clearer, the ICJ, using the text of Article 42 of the
Hague Regulations, further stated that: under customary international law territory is considered occupied when it is actually placed under the authority of the
hostile army, and the occupation extends only to the territory where such authority
has been established and can be exercised.44 Therefore, the Courts conclusion
was that under customary international law the Palestinian territories Israel occupied in 1967 remained occupied, and Israel had the status of occupying Power.45
The Court further stated that:
Subsequent events in these territories, as described in paragraphs 75 to 77 [of the Advisory Opinion, pertaining to the conclusion of Israeli-Palestinian agreements since
1993, and the transfer of powers and responsibilities to the PNA], have done nothing to
alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.46

42.
43.
44.
45.
46.

Bruderlein, supra n. 14, p. 9.

Consequences of the Construction of a Wall, para. 77.
Ibid., para. 78.
Ibid.
Ibid.

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M. Mari

4.

ISRAELS DISENGAGEMENT FROM THE GAZA STRIP (AND

PARTS OF THE WEST BANK): POSSIBLE IMPLICATIONS FOR
THE LEGAL STATUS OF THE OPT

The implementation, in 2005, of the Israeli unilateral plan for the disengagement
from the Gaza Strip and parts of the West Bank was preceded by massive destruction of property on the border between Gaza and Egypt, allegedly to create a
buffer zone along the so-called Philadelphi route, which the disengagement
plan envisions will remain under Israeli authority.47
It is true that Israeli ground troops may have, at least initially following the implementation of the Israeli disengagement plan, left most of the territory of the
Gaza Strip, however, Israeli boats have remained in Palestinian territorial waters.
Furthermore, Israels air force remained active and controlled airspace over the
entirety of the Gaza Strip. Israel also prevented the operation of the Arafat International Airport in Gaza, and Gazas only seaport. These are only a few examples of
control Israel still exercises in the OPT, especially in Gaza.
Further, even following the Israel disengagement from Gaza, the Rafah border
crossing with Egypt (not with Israel) was only permitted by Israel to resume operations under strict Israeli control, through an EU force (as a proxy), and uninterrupted live data and AV transmission to Israel. Israel also dictated the specific
category of Palestinians who may use/cross the border, into and out of the Gaza
Strip, and has even dictated, under threat of border closure, sanctions or even the
use of force, that goods entering and leaving the Gaza Strip go through Israeli
inspection in an Israeli facility before reaching the Strip or on the way out of it.
There is no need for further elaboration with respect to the means of control vis-vis the affairs of life in the Gaza Strip Israel has retained. To be clear, Israel has
intentionally designed the disengagement in order to reduce friction with the population of the Gaza Strip but without loosing effective control. This makes clear
the Israeli disengagement from the Gaza Strip, regardless of how extensive the
disengagement from the affairs of the Palestinian population of the Strip might
seem, is in fact closer to an enhanced redeployment of troops than to an end of
occupation.

5.

CONCLUSIONS

The above makes clear that the universally accepted interpretation of relevant provisions of applicable international humanitarian law is that occupation is a matter
of both fact and law, and that the ability of a Power to exercise effective control in
enemy territory plays a key role in deciding on the status of a Power with respect to
enemy territory. Facts on the ground both immediately following the disengage-

47. See Art. 3(1)(1) Revised Disengagement Plan Main Principles, supra n. 3.

The Israeli disengagement from the Gaza Strip

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ment in 2005, and more recently since early 2006, leave no room for questioning
the status of Israel in the Gaza Strip: it remains the Occupying Power.
Additionally, the fact that a national authority operates in an occupied territory,
even if in agreement with the Occupying Power, does not preclude the existence of
a state of belligerent occupation. An Occupying Power may coexist with an authority representing or serving the population of occupied territory, a matter which
iInternational humanitarian law envisages. Therefore, the establishment in 1994 of
the PNA, following the signing of the DoP, does not in and of itself suggest or
support the Israeli claim that its occupation of the OPT has ended, as the PNA has,
since 1994, simply coexisted with a continuing Israeli occupation authority in the
OPT.
The same law also does not accept or envision half occupations: either a territory is occupied or it is not. Further, withdrawal, disengagement, and/or redeployment from parts of occupied territory does not end occupation, though the
degree to which the Occupying Power remains responsible for the well-being of
the population depends on the extent to which the occupier can exercise power.
In Gaza, the disengagement was followed by two major developments:
a) An Israeli decision to close the Rafah crossing, the only land crossing-point
between Gaza and the outside world, was issued by IsraelThe crossing was only
allowed to reopen when the PNA concluded an agreement with the Israeli occupation authority, according to which Israel exercises effective control over who enters
the Gaza Strip, and who may leave the territory.
b) Immediately following the implementation of the disengagement, Israel resumed its assassination of Palestinians and bombing raids in Gaza. This intensified
starting early 2006, and in June 2006 Israeli ground troops invaded the Gaza Strip.
Since June 2006 the Rafah crossing has been closed again upon Israeli orders.
The above removes any doubt that the Gaza Strip was, since 1967 and to this
date, territory occupied by Israel, and that its inhabitants are protected civilians.
As to the West Bank, although Israel has evacuated four small settlements in
northern parts of the West Bank as part of the disengagement plan, it has at the
same time intensified its settlement activity in the West Bank, making it clear it
was not carrying out the disengagement as a step towards ending its occupation of
the OPT. The disengagement plan itself includes a clear commitment by the Israeli
government to annex West Bank territory. In the plan, the Israeli government announced: ... [i]t is clear that in the West Bank, there are areas which will be part of
the State of Israel, including major Israeli population centers, cities, towns, and
villages, security areas and other places of special interest to Israel.48
Although the evacuation of a small number of West Bank settlements and all
Jewish settlements in Gaza may serve to deceive people of the plans Israel has for
the OPT, human rights groups, both Palestinian and international, have kept their
eye on the big picture, and were able to clearly make the point that Israels disen-

48. See Addendum A, supra n. 3.

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M. Mari

gagement was not actually ending the occupation of the OPT.49 On 11 April 2005,
Human Rights Watch wrote to US president George W. Bush, calling on him to
make it clear that the US cannot accept illegal Israeli settlements in the occupied
West Bank in exchange for the evacuation of Gaza settlements.50
Only time will tell if the United States and other key players will heed this call.
In the meantime, the Israeli government continues the construction of its wall in
the OPT, with its de facto annexation of large parts of the West Bank, and the
entire OPT clearly remains under Israeli effective control.

49. For a list of publications addressing this, see supra n. 4.

50. Human Rights Watch News Release, Israel: Bush should lay down the law on settlements, 11
April 2005 <hrw.org/english/docs/2005/04/11/isrlpa10462.htm>.

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