Gaza Strip
Israeli occupation

Despite the 2005 Israeli disengagement from Gaza, the United Nations, international human rights organisations, and the majority of governments and legal commentators consider the territory to be still occupied by Israel, supported by additional restrictions placed on Gaza by Egypt. Israel maintains direct external control over Gaza and indirect control over life within Gaza: it controls Gaza's air and maritime space, as well as six of Gaza's seven land crossings. It reserves the right to enter Gaza at will with its military and maintains a no-go buffer zone within the Gaza territory. Gaza is dependent on Israel for water, electricity, telecommunications, and other utilities. The extensive Israeli buffer zone within the Strip renders much land off-limits to Gaza's inhabitants. The system of control imposed by Israel was described in the fall 2012 edition of International Security as an "indirect occupation". The European Union (EU) considers Gaza to be occupied.

The international community regards all of the Palestinian territories including Gaza as occupied. Human Rights Watch has declared at the UN Human Rights Council that it views Israel as a de facto occupying power in the Gaza Strip, even though Israel has no military or other presence, because the Oslo Accords authorize Israel to control the airspace and the territorial sea.

In his statement on the 2008–2009 Israel–Gaza conflict, Richard Falk, United Nations Special Rapporteur wrote that international humanitarian law applied to Israel "in regard to the obligations of an Occupying Power and in the requirements of the laws of war." Amnesty International, the World Health Organization, Oxfam, the International Committee of the Red Cross, the United Nations, the United Nations General Assembly, the UN Fact Finding Mission to Gaza, international human rights organizations, US government websites, the UK Foreign and Commonwealth Office, and a significant number of legal commentators (Geoffrey Aronson, Meron Benvenisti, Claude Bruderlein, Sari Bashi, Kenneth Mann, Shane Darcy, John Reynolds, Yoram Dinstein, John Dugard, Marc S. Kaliser, Mustafa Mari, and Iain Scobbie) maintain that Israel's extensive direct external control over Gaza, and indirect control over the lives of its internal population mean that Gaza remained occupied. In spite of Israel's withdrawal from Gaza in 2005, the Hamas government in Gaza considers Gaza as occupied territory.

Israel states that it does not exercise effective control or authority over any land or institutions in the Gaza Strip and thus the Gaza Strip is no longer subject to the former military occupation. Foreign Affairs Minister of Israel Tzipi Livni stated in January 2008: "Israel got out of Gaza. It dismantled its settlements there. No Israeli soldiers were left there after the disengagement." On 30 January 2008, the Supreme Court of Israel ruled that the Gaza Strip was not occupied by Israel in a decision on a petition against Israeli restrictions against the Gaza Strip which argued that it remained occupied. The Supreme Court ruled that Israel has not exercised effective control over the Gaza Strip since 2005, and accordingly, it was no longer occupied.

Israel's claim that the exercise of effective control or authority determines occupation in international law is based on previous court rulings. At the Nuremberg trials, it was established that "occupation indicates the exercise of governmental authority to the exclusion of the established government". Similarly, according to the Hague Convention, "territory is considered occupied when it is actually placed under the authority of the hostile army". In 2015, The European Court of Human Rights concluded that occupation required "the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign." The court added in the context of current occupation that "according to widespread expert opinion, physical presence of foreign troops is a sine qua non requirement of occupation, that is, occupation is not conceivable without “boots on the ground”, therefore forces exercising naval or air control through a naval or air blockade do not suffice."

In a legal analysis Hanne Cuyckens agrees with the Israeli position that Gaza is no longer occupied: "Gaza is not technically occupied, given that there is no longer any effective control in the sense of Article 42 of the Hague Regulations.... 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." She disagrees that Israel cannot therefore be held responsible for the situation in Gaza because: "Nonetheless, Israel continues to exercise an important level of control over the Gaza Strip and its population, making it difficult to accept that it would no longer have any obligations with regard to the Strip.... 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". Yuval Shany also argues that Israel is probably not an occupying power in Gaza under international law, writing that "it is difficult to continue and regard Israel as the occupying power in Gaza under the traditional law of occupation".

Avi Bell argues that the Gaza Strip is not occupied as the Israeli blockade does not constitute effective control, citing several international legal precedents that the occupier must be in direct control with forces on the ground and have direct control over the civilian population superior to that of the established government. He argues that Israeli control over Gaza does not meet these standards. Likewise, Alex Stein claimed in 2014 that Israel did not occupy Gaza and its only obligation was to minimize harm to the civilian population during military operations.
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