Is Gaza Still "Occupied" By Israel?

From Is the Gaza Strip Still Occupied by Israel? by Col. (Ret.) Pnina Sharvit Baruch, a Former Head of the International Law Department of the IDF Military Advocate General's Office:

...The question I will refer to is whether Israel is under the duty to provide for the wellbeing of the residents of the Gaza Strip? This is the practical question. The legal answer stems from the determination of whether the Gaza Strip is still occupied by Israel. A quick analysis of the law leads to a sound conclusion that the Gaza Strip does not fall into the definition of being occupied by Israel, as will be shown below.

...This does not necessarily mean that Israel has no legal obligations towards the population of the Gaza Strip, but that to the extent that there are any such legal obligations, they are limited in nature and do not include the duty to actively ensure normal life for the civilian population...
...Article 42 of the Hague Regulations...states that:

Territory is considered occupied when it is actually 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.

It is commonly agreed that, at its core, territory will be considered occupied when it is under the “effective control” of the foreign army...fulfilling “effective control” usually requires the occupier to have forces present on the ground or at least to have the ability to send, within a reasonable time, forces into the area to exercise the authority therein.

If one applies the ICJ’s formulation of the law to the situation in the Gaza Strip, it is extremely difficult, if not impossible, to see how Israel could still be considered an occupier....
...Moreover, it is clear that there is an already existing government in control of the Gaza Strip which is both capable and does in fact exercise exclusive governmental powers vis-à-vis the local population – the Hamas government. The fact that the Hamas is recognized as a terrorist organization and that this government is not formally accepted does not change this reality....

...the fact that Israel controls its land border with the Gaza Strip cannot serve as an indication of control over the area itself. Israeli control over the Israeli side of the crossing points between Israel and the Gaza Strip is a natural reflection of Israel’s sovereignty within its own territory, which includes the prerogative to set policy for movement of people and goods from and to its own territory, and therefore cannot be regarded as proof of control over the Gaza Strip. This is similar to the right of control that any sovereign state has over its borders and border crossings.

As for the border between the Gaza Strip and Egypt and the Rafah crossing point located therein, these are clearly not under Israeli control, but rather are under Palestinian and Egyptian control.Another contention that is sometimes made is that Gaza’s economic dependence on Israel is significant and entails Israel’s effective control over the Strip. However, on the basis of its own internal economy, the flourishing trade through the tunnels and with the reopening of the Rafah Crossing between Gaza and Egypt mentioned above, the Gaza Strip is in fact much less dependent on Israel than in the past...

As for the contention that since Israel still controls the West Bank, the Gaza Strip is also still occupied, this has no legal basis whatsoever. Firstly, these are separate geographical units which are in fact administered by separate governments. More importantly, even if both areas are regarded as forming one political entity, it is important to note that occupation law clearly recognizes that an occupation can extend to a part of a state or territory only while other parts remain unoccupied. Thus, there is no reason not to accept that part of the Palestinian entity could be considered to be occupied while another part is not.

...Rockets have been fired towards Israeli localities from the Gaza Strip almost on a daily basis (with limited periods of calm). Under these circumstances, Israel has a clear interest and right to take firm measures aimed at weakening the Hamas government that is actively involved in such acts of armed hostility towards Israel and its civilians. This was the rationale for imposing limitations on the transfer of goods between Israel and the Gaza Strip in 2006. (In this regard it should be noted that in June 2010, Israel lifted the majority of these restrictions, allowing the flow of all goods except those whose passage represents a concrete security threat to Israel.)

...Israel has certain obligations arising from the laws of armed conflict, such as the obligation to allow for the passage of goods of a humanitarian nature...

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