The Functional Approach to the Occupation of the Gaza Strip and the Right to Self-Determination

The Functional Approach to the Occupation of the Gaza Strip and the Right to Self-Determination

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)]

This is the fourth post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.

Many thanks to Opinio Juris for inviting me to participate in this symposium.

In this post I will seek to contribute to the debate, by considering the argument for a functional approach to the law of occupation from the perspective of the right to self-determination. First, I will comment on why I think it is necessary to address the right to self-determination in the process of interpreting the law of occupation.

Geneva Law was created to supplement rather than replace the Hague Law of occupation. As such, there is a basis (following the Vienna Convention on the Law of Treaties) for interpretation of any aspect of the law of occupation to include consideration of both the preservation of sovereign rights (a core rationale of Hague Law) and the protection of civilians (a core rationale of Geneva Law). However, given that both Hague Law and Geneva Law were created before the emergence of the legal right to self-determination, it might be seen as strange to suggest that the right to self-determination should also be considered.  In this respect, a central part of my reasoning is that there is a significant overlap between the right of a people to freely determine their political status and freely pursue their economic, social and cultural development and the right of a sovereign to freely choose and develop its political, social, economic and cultural systems. This overlap entails that application of the law of occupation (particularly provisions such as Article 43 Hague Law, which requires the occupant to take measures ‘to restore, and ensure, as far as possible, public order and safety’ but also stresses that it should do so ‘while respecting, unless absolutely prevented, the laws in force in the country’) is not only a means of helping to preserve meaning in sovereign rights in adverse circumstances, but also a means of preserving meaning in the right to self-determination. On this basis, I think it is reasonable for interpretation of the provisions related to whether and how the law of occupation continues to apply in the Gaza Strip – Article 42 Hague law (‘Territory is considered occupied when it is actually placed under the authority of the hostile army’) and Article 6 Geneva law (‘[the Occupying Power will be bound] to the extent that such Power exercises the functions of government in such territory’) – to include consideration of the implications for the right of the Palestinian people to self-determination.

A key part of the argument for the application of the law of occupation to be limited to the areas of direct control by Israel in the Gaza Strip – particularly as expressed in Gisha’s recent position paper (p. 32, p. 37)– is that this will help with the protection of civilians; placing obligations on an occupier in relation to aspects of governance that it does not have direct control over is nonsensical, it creates confusion about which actors are obligated and thereby facilitates the avoidance of legal responsibility. Neither Gisha’s position paper nor Aeyal Gross in his post as part of this symposium deals directly with how reducing the scope of application of the law of occupation relates to the right of self-determination. This could be because at first glance the functional approach can appear to be completely consistent with a concern for Palestinian self-determination.

At present, Israel’s involvement in Gaza includes: control of the airspace and territorial waters, the population registry, the passage of goods and people, collection of customs and valued added tax for goods entering Gaza, and electricity supply (Gisha’s position paper p. 9).  In reducing its involvement in the territory, Israel can be seen to have created some autonomous space for what goes on in the territory to be determined by the people of Palestine; and thereby to have reduced the level of infringement of the Palestinian’s right to self-determination that Israel’s presence represents. As such, the continued application of the law of occupation to the whole of the territory might be viewed as no longer necessary from a self-determination perspective. Indeed, there are grounds for the continued application of the law of occupation to the whole of the territory to be seen as an unjustified hindrance to the exercise of self-determination. For instance, the continued application of Article 43 Hague Law (noted above) places legal limits on the change and development of the infrastructure of Gaza that can be undertaken – if the Palestinian’s with governing authority are the legitimate representatives of the people, why should their discretion be limited by the law of occupation?

However, there are reasons to query the quality of the autonomous space that has been created as a result of Israel’s partial disengagement. Clearly, there is now greater autonomy. But one might query whether the identity of the actors with authority in Gaza Strip would be the same if Israel did not still exercise the level of control that it does. That is, the circumstances within the Gaza Strip that are connected to Israel’s continued control might help to explain why it is that Hamas has been able to rise to and sustain authority. Moreover, the control that Israel continues to exert can be expected to exert some influence on the governance decisions that are taken by those Palestinians with authority in the Gaza Strip. For instance, decisions in relation to the energy sector can be expected to be affected by Israel’s control of the electricity supply.

It is apparent, then, that the quality of the autonomous space in the Gaza Strip is not the same as what one would expect to exist in an unoccupied territory. The question that arises is whether the political discretion of the Palestinian’s in Gaza is sufficiently hindered by Israel to justify the continued application of the law of occupation to the whole of the territory. My suggestion is that while it remains reasonable to doubt the quality of the autonomy that has been created by a partial withdrawal, it is more consistent with a concern for self-determination for the law of occupation to continue to apply to the entire territory, rather than for it to be limited on a functional basis. One reason for this view is that it is difficult to evaluate the quality of the autonomous space. Whilst the occupier retains some control, there is always likely to be some way in which the occupier is able to indirectly influence governance. At what point has an occupier withdrawn enough so that the governance which fills the space created is sufficiently independent? Another reason is that the continued application of the law of occupation to the entire territory (particularly the obligations this creates for the occupier) is likely to provide more of a motivation for complete withdrawal. And a complete withdrawal will allow the space for genuine self-government.

Even if one accepts that the functional approach struggles from the perspective of self-determination, this does not answer how this issue should be balanced against other considerations, such as the protection of civilians. I would therefore be very interested to hear the views of my fellow participants in this symposium on how much significance they think should be placed in the self-determination angle when assessing the merits of the functional approach; and, of course, whether they think that the functional approach does, as I have suggested, struggle from the perspective of self-determination.

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Why do law professors and others persist in trying to label the relationship between Israel and Gaza as an “occupation” when it plainly is not, at least if we care about the plain English meaning of that word.  I can think of two reasons. 1)  One argument might be that certain Israeli actions have some of the same consequences as an actual occupation by an occupying army.  As first year law students, we learned that while “possession” means physical possession, it’s also possible to “constructively possess” some item that you do not physically possess.  The point of “constructive possession” is that for public policy purposes, the law imposes certain rights and obligations based on certain actions that are similar in their consequences to physical possession.  Maybe the law professors are arguing for a parallel concept of “constructive occupation?” If so, why then don’t they say that, and argue that Israel is in “constructive occupation” of Gaza and that the law should impose certain obligations on it as a result?  The reason for the failure to make this more honest argument is that “constructive occupation” does not have the politically useful connotations – of soldiers in jackboots breaking down doors and… Read more »

Kevin Jon Heller

Actually, we don’t care what the plain English meaning of “occupation” might be.  We care about the legal definition.  I happen to believe that Israel is no longer legally occupying Gaza, but it is an incredibly close and incredibly complex question.  Perhaps instead of dismissing those who disagree with you as “useful idiots” — a description that says far more about you than about them — you might try to defend your position with legal analysis.


Response… Douglas I think that there is ample evidence in state practice and opinio juris for the concept of “constructive occupation” by a foreign army. It’s reflected in both plain English and a common legal term of art: “effective control”.    I also tend to agree with Matthew in regard to the application of the principle of self-determination. War does not involve the cessation of all legal relations between the belligerents. Matthew’s views are in-line with the ICJ’s legal analysis and findings regarding the territory occupied since 1967 and the responsibilities of all states to remove any impediments to the exercise of the Palestinian people’s right to self-determination. For example, during its first session UN General Assembly resolution 9 (1) reminded members that they had all accepted the treaty obligations contained in Chapter XI of the Charter, “Declaration Regarding Non-Self-Governing Territories”. The Assembly also advised the members that those obligations had immediate force and effect and did not require the conclusion of any trusteeship or special agreements.    In any event, the Fourth Geneva Convention recognizes belligerent states in which the Occupying Power agrees to transfer certain powers and responsibilities of government to the local authorities under the terms of… Read more »