The Law of Belligerent Occupation and the Legal Status of the Gaza Strip

Israel’s presence in the Gaza Strip does, in fact, raise many interesting issues in international law, including questions concerning the law of belligerent occupation, and the law of self-determination. This note examines some of these questions. Part I of the Note discusses pertinent aspects of the law of belligerent occupation. It points out that among the features of the traditional concept of belligerent occupation is the existence of an armed conflict between the occupying state and the state whose territory is occupied. Part II examines the history of the Gaza Strip, in an attempt to determine whether it can be considered a territory subject to a belligerent occupation. An analysis of the history of the Gaza Strip points out the historical inadequacy of international law, which seemingly only recognizes the status of full title or the status of belligerent occupant within the traditional model, with no “intermediate” status which describes Israel’s occupation. Nonetheless, Part II concludes that since 1948 the Strip has been subjected to a series of belligerent occupations, and that Israel must be considered a belligerent occupant of the Gaza Strip, although it does not fit the traditional model. Part III analyzes the implications of Israel’s status as a belligerent occupant. Part III contends that the Israeli government would like to continue its belligerent occupation indefinitely, because it may allow Israel to maintain control over the territory without giving the Palestinian Arabs rights of citizenship. Part III also examines the prolonged Israeli occupation of Gaza in light of the Egypt-Israel Peace Treaty of 1979 and the law of self-determination, concluding that Israel’s present position may be contrary to its legal obligations to negotiate in good faith with the indigenous Arab population and to permit the Palestinian Arabs to exercise their sovereign rights in the Gaza Strip.