In 2004 the Israeli government adopted a plan for its unilateral disengagement from the Gaza Strip and areas in the north of the West Bank, a plan which was carried out the following year. Debated in the Israeli parliament and governmental and academic circles, the Israeli ‘disengagement’ plan provoked disagreement with respect to its effects on the legal status of the Gaza Strip, and Israel's responsibility for the lives of Gazan Palestinians, if any, in its aftermath.

This paper seeks answers to the question of Israel's continued responsibility (or lack thereof) vis-à-vis the Occupied Palestinian Territories (hereinafter, OPT), and the status of those territories following the Israeli disengagement from the Gaza Strip (and parts of the West Bank). Without being dismissive of arguments made to the contrary, this paper demonstrates the validity of the views of the majority of scholars that Israel has maintained the status of Occupying Power vis-à-vis the OPT, contrary to its claims and one of the main objectives of the ‘disengagement’, as announced by the Israeli government.

Since 1977 Israel has pursued an open policy of settlement building in the Occupied Palestinian Territories. Although the Security Council determined that this action constituted a flagrant violation of the Fourth Geneva Convention, Israel continued to settle its nationals and new Jewish immigrants in these territories.

The approval by the Israeli government on 26 February 1997 of a disputed plan to settle a colony in Djabal Abou Ghounaym, in the south of Jerusalem, led to a draft resolution being submitted to the Security Council, which was not adopted due to the repeated veto of the United States on 5 and 21 March 1997.

On 12 September 2005, at around 7 a.m., the last group of Israeli soldiers left the Gaza Strip, thereby ending 38 years of continued Israeli military presence in the area. In a short ceremony at one of the exit gates, IDF Brigadier-General Aviv Kochavi, the departing Gaza Region Commander, stated: ‘the responsibility for whatever takes place inside befalls upon the [Palestinian] Authority.’ On that same night, the IDF Chief of Southern Command, Major-General Dan Harel, promulgated an official decree proclaiming the end of military rule in the Gaza Strip and formally nullifying the decree issued on 6 June 1967, which instituted military rule in the region. So came to end Israel's prolonged occupation of Gaza – or did it?

In a concise order, issued on 19 August 2004, the Supreme Court of Israel (HCJ) ordered the Israeli government to respond to a new petition brought by a number of Palestinians and the Association for Civil Rights in Israel (ACRI) against the route of the West Bank separation barrier (or separation wall) near the West Bank villages of Boudrous and Shukba. Specifically, the order invited the government to refer to the recent advisory opinion of the International Court of Justice (ICJ) on the legality of the same barrier. On 23 February 2005 the Office of the Attorney General at the Ministry of Justice filed with the Court the state's response to the petition. More than half of the comprehensive 142-page memorandum submitted by the state addresses the implications of the ICJ advisory opinion on the Wall upon the case at hand. After an exhaustive review of the opinion, the written response concludes that the ‘advisory opinion has no bearing upon the claims at hand, and the claims should be adjudicated in accordance with the factual and normative framework designed by the Supreme Court, as manifested in the Beit Sourik case’. Since the state's response represents the first comprehensive statement of the position of the state of Israel with relation to the ICJ advisory opinion, it is indicative of the degree of influence that the advisory opinion is likely to have upon Israel's future conduct in the Occupied Territories.

The issuance by the International Court of Justice (ICJ) of its Advisory Opinion on the consequences of Israel's construction of the separation barrier in the Occupied Palestinian Territories (OPT) raises myriad legal questions worth addressing. This paper focuses on one of the key claims made by Israel and a number of other states since the request for an Advisory Opinion was brought before the Court: whether the involvement of the Court in the issue of the construction of the barrier constituted an obstacle to Israeli-Palestinian peace.