Otherwise Occupied: The Legal Status of the Gaza Strip 50 Years after the Six-Day War

By Roi Bachmutsky

Fifty years after Israel’s occupation of the Palestinian territories began, and a dozen years after its disengagement from Gaza, the legal status of the Gaza Strip has been regarded as settled. Although no single conclusion has achieved consensus, two distinct camps have formed and dug in their heels over whether control of Gaza’s periphery—its airspace, waters, and borders—can amount to an occupation. This Note seeks to turn the conventional wisdom of these two camps on its head by arguing that while control of Gaza’s periphery cannot amount to an occupation, the Israeli military’s ability to exercise its authority in the Gaza Strip within a reasonable time can. By taking a dynamic approach to assessing the legal status of Gaza, this Note reveals a trend whereby the Israeli military was able to exercise its authority in the Gaza Strip more rapidly with each armed conflict after the disengagement. It concludes that although Israel no longer occupied the territory as of its disengagement in 2005, it re-occupied nearly all of Gaza by Operation Protective Edge in 2014. As a consequence, this Note determines that the armed conflict between Israel and Hamas is of an international character and persists to this day. The legal and policy implications for Israel, Palestine, and the international community are profound; the most striking is that the Prosecutor of the International Criminal Court would have at her disposal certain war crimes that are only available in international armed conflict, which renders it more likely that the she will initiate an investigation into the situation in Palestine.

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