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19 Cardozo J. Int'l & Comp. L. 59 (2011)
Occupied or Not: The Question of Gaza's Legal Status after the Israeli Disengagement

handle is hein.journals/cjic19 and id is 61 raw text is: OCCUPIED OR NOT: THE QUESTION OF GAZA'S LEGAL STATUS AFTER THE ISRAELI DISENGAGEMENT Solon Solomon* In September 2005, Israel withdrew its army and dismantled all of its settlements in the Gaza Strip, claiming that Gaza's occupation had come to an end. Yet Israel did retain control over Gaza's border cross- ings, aerial and water space; leading to claims by the Palestinian side as well as some international scholars that the Israeli occupation had not come to an end. The following note will examine these arguments and will take the position that the current status of the Gaza Strip is a sui ge- neris one, where positive law, applied in globo, cannot provide an ade- quate approach. As such, any Israeli obligations in post-disengagement Gaza should be seen under the prism of natural law. TABLE OF CONTENTS I. INTRODUCTION .......................................................................... 60 II. THE GAZA STRIP AND ITS LEGAL STATUS BEFORE AND AFTER 200 5 ........................................................................................ . . 60 A. Status of the Gaza Strip from 1948 until 2005 ................. 60 B. The Gaza Strip and its Legal Status after 2005 ................ 64 1. The Position of International Actors ........................... 64 a. The Israeli Stance ................................................. 64 b. The Palestinian Stance .......................................... 66 c. The Stance of the International Community ...... 67 2. The Position of International Legal Theory ................ 69 III. THE EFFECTIVE CONTROL CRITERION IN INTERNATIONAL AND NATIONAL JUDICIAL BODIES: NORM AND APPLICATION IN THE QUESTION OF ISRAELI CONTROL OF GAZA AFTER 2005 ............ 71 A. The Norm: Exercise of Control as a Criterion of O ccupation Status ............................................................. 71 B. Application: The Israeli Supreme Court and the Al- B assiouni Case ................................................................. 74 IV. GAZA'S LEGAL STATUS: DECLARATION AND CONSEQUENCES

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