Binary Law Meets Complex Reality: The Occupation of Gaza Debate

Abstract

The debate surrounding the legal status of Gaza after Israel's disengagement in September 2005 exemplifies some of the chronic limits and deficiencies that international humanitarian law in general and the law of occupation in particular suffer from: (a) binary application—the law operates within clear-cut dichotomies and struggles with recognizing ambiguous situations; (b) varying realities—prevalent tensions between “legal reality” and the actual conditions “on the ground” cause the characterization of conflicts to be based upon different law-based and fact-based perceptions of reality: (c) inconsistent legal and policy approaches—parties to a conflict attempt to simultaneously advance different legal and political goals, which leads to a state of affairs that encourages the application of IHL in a selective and inconsistent manner; (d) chronic gaps between law as it is and law as it should be—lex lata may bring about unsatisfactory outcomes—hence, parties and commentators often attempt to modify existing laws through radical reinterpretations. Focusing on the recent debate over the status of Gaza, this Article illustrates how these four fundamental tensions hamper the application of the law of occupation in factually complicated situations.