The OTP Concludes Israel Is Still Occupying Gaza

by Kevin Jon Heller

As Thomas Escritt has reported for Reuters, the OTP has declined to open a formal investigation into Israel’s attack on the MV Mavi Marmara. I will have much more to say about the decision tomorrow; I agree with the OTP’s conclusion but have serious problems with much of its reasoning. But I thought I’d tease tomorrow’s post by noting that, despite the declination, Israel is going to be very angry at the OTP — because the OTP specifically concludes (as part of its decision to classify the conflict as international) that Israel is still occupying Gaza. Here are the relevant paragraphs:

26. Israel maintains that following the 2005 disengagement, it is no longer an occupying power in Gaza as it does not exercise effective control over the area.

27. However, the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement. In general, this view is based on the scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement – including, inter alia, Israel’s exercise of control over border crossings, the territorial sea adjacent to the Gaza Strip, and the airspace of Gaza; its periodic military incursions within Gaza; its enforcement of no-go areas within Gaza near the border where Israeli settlements used to be; and its regulation of the local monetary market based on the Israeli currency and control of taxes and customs duties. The retention of such competences by Israel over the territory of Gaza even after the 2005 disengagement overall supports the conclusion that the authority retained by Israel amounts to effective control.

28. Although it no longer maintains a military presence in Gaza, Israel has not only shown the ability to conduct incursions into Gaza at will, but also expressly reserved the right to do so as required by military necessity. This consideration is potentially significant considering that there is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.” In this respect, it is also noted that the geographic proximity of the Gaza Strip to Israel potentially facilitates the ability of Israel to exercise effective control over the territory, despite the lack of a continuous military presence.

29. Overall, there is a reasonable basis upon which to conclude that Israel continues to be an occupying power in Gaza despite the 2005 disengagement. The Office has therefore proceeded on the basis that the situation in Gaza can be considered within the framework of an international armed conflict in view of the continuing military occupation by Israel.

I’m not certain I agree with this analysis, though the OTP’s conclusion is far from unreasonable. Regardless, let the fireworks begin…

http://opiniojuris.org/2014/11/05/otp-concludes-israel-still-occupying-gaza/

66 Responses

  1. Any chance you can post a link to the report? The ICC website still hasn’t been updated.

  2. I will tomorrow. I have to put it in an uploadable format, and it’s nearly 2:00 am…

  3. Just to get basics right, the OTP does not conclude Israel occupies Gaza. Rather, it concludes that this is a colorable assumption at the preliminary stage of establishing admissibility.

  4. The OTP does not use the expression “colorable assumption,” because it is not simply assuming occupation. It concludes that there is a “reasonable basis” to believe Israel is occupying Gaza. If it had not concluded that, its subsequent legal analysis would have been very different — it would look like its analysis of the legality of the blockade, which it pointedly refused to conclude was either legal or illegal.

  5. To be sure, the standard of proof would rise if a defendant ever reaches the confirmation of charges stage. But nothing in the OTP’s analysis indicates that its conclusion was tentative or a close call.

  6. Par. 17: the characterization of Gaza as occupied is explicitly not “conclusive,” only for a “limited purpose,” and a “case of doubt”. Sounds like a lot of qualifications to me.

  7. Indeed, that language looks to be put in specifically to water-down the occupation discussion, and clearly present it as non-essential alternate holding.

  8. If it is not an occupation, it means that the blockade is illegal.

  9. I think what is more interesting is that they have clearly indicated that this is not an incident worthy of being investigated by the ICC. This will delight most Israeli’s and supporters of Israel.

    Eugene thank you for pointing out the additional paragraphs missing from Kevins post. They offer good clarification on the OTP’s position re the term “occupation” being used to describe Israels actions against Gaza. Many appreciate having the full picture to prevent being mislead.

  10. Wishful thinking, pure and simple. The OTP could not have concluded that there is reason to believe Israeli soldiers committed war crimes under 8(2)(a) and (b) if it did not conclude that Israel was occupying Gaza; those crimes apply only in international armed conflict.

    Indeed, Eugene is citing the executive summary, not the analysis itself. The OTP specifically notes in para. 35 that “The Office’s assessment below of alleged acts constituting war crimes focuses on the relevant provisions under articles 8(2)(a) and 8(2)(b) of the Statute as a result of the conclusion reached above concerning the existence of a military occupation.” The fact that a conclusion is subject to revision at a later stage does not mean it’s not a conclusion.

  11. Israel itself claims that this is an international armed conflict so I really don’t see the big issue here

  12. My previous comment refers to the comment about the blockade

  13. Eliavl

    I think you are correct the main focus elsewhere is the fact the OTP is not refering the issue to the ICE. Israels detractors seem to be enraged at this decision.

    The Executive Summary is usually described as possibly the most important part of any report, statement or document whether it be for business or government use. If the details of the report contradict the executive statement it will only serve to discredit the document itself.

  14. Now is an appropriate time to remind ourselves that when Naletilic endorsed this fast and loose definition of occupation, they found only one supporting citation: Jean Pictet’s 4th Geneva Convention commentary. Alternatively, the Court provided about half a billion citations for the definition of occupation as affirmed in the Hostages Trail.

    If the standard of occupation now suggested by the ICJ is valid, could someone be so kind as to provide me with a single military field manual that endorses this definition. USA? Russia? Tuvalu? Sealand?

  15. As a matter of current customary implications, we need look no farther than Russian’s position on its involvement in Eastern Ukraine and Crimea. This mirrors that of the ICJ in Congo vs. Uganda. If a local entity friendly to the belligerent state is doing the administrating, then an occupation does not exist. What should be said about an unfriendly local administration? Certainly, Uganda had far more control over the territories and administration in the Congo, and Russia has far more control over the territories and administration in Ukraine that Israel has over Gaza.

    At the end of the day, there are the standard primary sources of international law, and then there are academics who legislate from the ivory tower.

  16. The failure to engage Congo v. Uganda at all is shocking. They really looked to be pulling this out of thin air, or rather, from “The prevalent view within the international community” – ie, not from general principles of law, but political judgements about the particular situation. That’s not law, its a popularity contest.

  17. Thanks for the post. It should just be noticed, that: the Israeli court (supreme court 201/09 , 248/09 for exe) regards functionally the Gaza situation as obliging the IDF (Israeli army) to provide the population of Gaza, any humanitarian provisions, deriving from the control or blockade of the IDF over Gaza , let alone those in actual military conflict .

    It means, that there is a sort of functional or effective occupation of Gaza, by the IDF, and at least as mentioned, concerning the duty of the IDF to provide what it does deprive by blockade.

    Currency has got nothing to do here !! Since it is a fact that the Israeli currency is in use in Gaza, but it’s not a humanitarian basic need, and if currency was a criteria, then: employing the local civil law, could be also argued as a duty of the IDF, by itself an absurd, since, there is no military presence in Gaza itself (the international law, oblige the occupier to maintain the local national civil law).So, if one could argue that currency indicates something at all , then: any control of the civil internal law, would have been also relevant. Absurd!!

    Strictly: The courts in Israel, consider positively the duty of the IDF, to be responsible for humanitarian aid or provisions, has to do or, derive out of the blockade, but not in general terms or rather: de jure v. De facto. Thanks

  18. Eliavl are you claiming that you and the State of Israel recognize the Gaza Strip as a State? Before answering: West Bank and Gaza form 2 parts of a unit.

  19. “There is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.””

    This is a reference to paragraph 217 of Naletilic, in which the Court provides some guidelines which “provide some assistance.”

    It is useful to go through the guidelines here, and apply it to Gaza:

    1. the occupying power must be in a position to substitute its own authority for that of the
    occupied authorities, which must have been rendered incapable of functioning publicly

    Does this apply to Gaza? No. Hamas functions very publicly as the governing administration. This guideline corresponds to the following in the Hostages Trial:

    “To the extent that the occupant’s control is maintained and that of the civil government *eliminated*, the area will be said to be occupied.”

    2. the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation;

    Does this apply to Gaza? No. Hamas maintains a fully functional standing army.

    The first two sentences correspond to the following:

    “occupation…presupposes the destruction of organised resistance”

    The final sentence will be discussed below.

    3. the occupying power has a sufficient force present, or the capacity to send troops within a
    reasonable time to make the authority of the occupying power felt;

    Does this apply to Gaza? No. The following from the Hostages Trial contextualizes this guideline:

    “It is ‘clear that the German Armed Forces were able to maintain control of Greece and Yugoslavia until they evacuated them in the fall of 1944. While it is true that the partisans were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and not such as would deprive the German Armed Forces of its status of an occupant”

    In this context, we are dealing with sporadic partisan resistance with temporary control. The ability ability to reassert authority is understood within this context. Moreover, it is absolutely critical to note that Germany’s control ended upon evacuation (there were no longer boots on the ground).

    Moreover, it is useful to look at the citations provided by Naletilic for these guidelines:

    ee “Manual of Military Law of War on Land”, United Kingdom, Part III, 1958, paras 502, 506 ; “The Law of Land Warfare”, Field Manual No. 27-10, US Department of the Army, 18 July 1956, chapter 6, para 356; “Interim Law of
    Armed Conflict Manual”, New Zealand Defence Force, 26 November 1992, paras 1302.2, 1302.3 and 1302.5.

    The above corresponds with the Hostages Trial view on this matter.

    There is no indication in the relevant primary sources that the above applies to territory with a fully functioning standing army.

    Finally, it is simply unintelligible to maintain that the ability to reassert authority in and of itself constitutes occupation. If that were the case, the USA would still being the occupying power in Japan. Israel would still occupy

    4. a temporary administration has been established over the territory;

    Does this apply to Gaza? No. This guideline corresponds to the following in the Hostages Trial:

    “[occupation] presupposes… the establishment of an administration to preserve law and order.”

    5. “the occupying power has issued and enforced directions to the civilian population;”

    To contextualize this, see the first citation provided by the Court for this guideline:

    “See Article 43 of The Hague Regulations, according to which “the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”;”

    This is clearly inapplicable to Gaza.

    —————-

    In closing, the ICC egregiously cherrypicked from a list of guidelines, and even the guideline is highlighted does not support the assertion that Israel occupies Gaza.

  20. Matthew

    Thank you for the informative post. It worries me however that the ICC can be so egregious. Many have stated similar issues with other reports by Un bodies. I am shocked that an organisation that is seen by many to be a World court fo some kind can be act so improperly with regards to its citation of legal clauses and paragraphs. This cherry picking seems to be rife amongst so called “Legal experts” and deos nothing but tarnish the rule of law and the UN in general.

  21. The suggested approach acquires relevance in respect of the use of unmanned aerial vehicles, or drones. The possibility of continuously tracking the target puts it in the extra-territorial power of the State, which is operating the unmanned aircraft. Once the drone engages the target, it is unlikely it loses it. Actually, the target moves under the umbrella of a persistence menace, and thus its condition is analogous to that of an individual who is physically in the hands of State’s agents.

  22. Matthew, assuming that you are right (comparing Israel-Gaza with the “USA would still being the occupying power in Japan” is more than a symptom that this might not be the case), you are not considering the main issue here discussed: if the Gaza Strip is not occupied it means that the blockade is illegal.

  23. Tod – what is the basis of your argument that the blockade would be illegal if Gaza is not occupied? There seems to be little dispute over the legality of the USA’s blockade of Cuba, and there are no credible positions that the USA occupied the Island.

  24. Exactly Matthew, the blockade is legal just in internationally armed conflict. If there is no occupation the conflict between Gaza and Israel cannot be but non international. In the absence of an occupation, either the Gaza Strip is a State (and part of a unity) or the conflict in non-international.

  25. Tod,

    Gaza most certainly does not have to be occupied in order for the conflict to be an international conflict. The USA did not occupy Cuba, but the blockade was an act within an international armed conflict. The same applies to Gaza.

    With respect to the issue of non-international armed conflict and blockades:

    4 years ago, KJH tried to raise a similar argument, demanding that the legality of the blockade be based on a positive right to blockade in non-international armed conflict.

    This position was bombarded by all sides with rational rebuttal. You can read everything (especially the comments) here:

    http://opiniojuris.org/2010/06/02/why-is-israels-blockade-of-gaza-legal/

  26. As usual, Matthew Mainen misunderstands and caricatures my position. I did not say that it was illegal for a state to institute a blockade in non-international armed conflict; I said that doing so has always been considered an act of war that would internationalize a non-international conflict. That is not a controversial position — it was endorsed most famously by the US Supreme Court in The Prize Cases. So what I wrote in my earlier post was perfectly accurate: for a state to have the right to institute a blockade in a non-international armed conflict without it thereby becoming internationalised, it would have to show that custom had evolved to that position. None of the so-called “rational rebuttal” to my post did so; indeed, the commenters almost exclusively cited blockades in international armed conflict to “rebut” my argument. Mainen, of course, makes precisely that mistake above by citing the blockade of Cuba — which, as he notes, is part of an international armed conflict.

  27. Kevin,

    I think you have misunderstood what I said. I did not say that you said it was illegal to institute a blockade in non-international armed conflict, thus transforming the conflict into an international armed conflict.

    What I said was “4 years ago, KJH tried to raise a similar argument, demanding that the legality of the blockade be based on a positive right to blockade **in** non-international armed conflict.”

    “In” should be read expansively; the blockade is occurring during non-international armed conflict and did not transform the status of the conflict upon its emergence.

    You most certainly did demand that one identify a positive right to blockade in non-international armed conflict:

    “The Lotus Principle, by the way, is the ultimate red herring. Gaza is not Israeli territory. If Israel can do anything it wants to Gaza that is not prohibited by international law, so can any other state. And that includes sending humanitarian aid — nothing in international law prohibits sending such aid. Does that mean Israel cannot stop aid being sent to Gaza? Of course not. But it does have to find positive authority in international law to do so; otherwise, stopping aid being sent by ship under another state’s flag is an act of war. So we are back where we started — what permits Israel to blockade Gaza? The absence of prohibition is not enough.”

    These comments were most certainly within the context of non-international armed conflict. You already made quite clear of your position that blockade is acceptable in international armed conflict.

    As to why I brought up Cuba, it was not in reference to the above discussion but because Tod suggested that “if the Gaza Strip is not occupied it means that the blockade is illegal.” I simply pointed out that a legal blockade most certainly does not depend on the existence of an occupation.

    And by the way, in a prior discussion I reminded you that Biafra was blockaded for quite a well with little to no evidence of legal objections from the international community. Though I do not think that one need to give such an example. The Lotus Principle combined with the doctrine of non-liquet in addition to the undeniable post-9/11 developments affirming a right to self-protection against non-state actors. These are two of the myriad of issues that were raised and to which you did not respond.

  28. Matthew,

    Probably is my fault. I try again: Cuba is a State. My question: is the Gaza Strip a State or not? If yes, do you recognize that the Gaza Strip is part of a unity? If not, can you claim that the one between Israel and the Gaza Strip is an international conflict?

    Before answering consider that the U.S. State Department has a web page, that cites the US Civil War, which explains that blockades have historically resulted in belligerent recognition, because they are “a weapon of war between sovereign states.”

    According to the Washington Post and many other sources, Israeli government spokesman Mark Regev cited the San Remo Manual and maintained that Israel was clearly within its rights to stop the aid flotilla, saying “any state has the right to blockade ANOTHER STATE in the midst of an armed conflict.”

    Finally, a bit of history. The population in the Gaza Strip is mainly composed by refugees kicked out and trasported via bus from Kawkaba, Najd, al-jura, Majdal…the cities that today you call Or HaNer, Sderot and Ashkelon (The latter was a Cananite city that included in his area also Majdal). Is it relevant in your parallelism with Cuba-US, or is it just an irrelevant aspect?

    PS
    I read all the comments to the past KJH’s article and I didnt find 1 argument that refuted what he claimed. On the contrary, many comments added further proves that his claim was largely accurate.

  29. I am very open to the idea that Gaza is a state, meeting the criteria set out in the Montevideo Convention and repeatedly affirmed. Not sure what you mean by single unit though. Single unit with what?

    If you found the arguments unconvincing, the perhaps you could argue in Kevin’s stead (it’s been 4 years since he gave his word that he would give Bell a response, so I don’t think he would mind).

    How do you address the argument that this issue is fully resolved through the Lotus Principle and the non liquet doctrine?

  30. To clarify what I meant above – I don’t think it would be discourteous for you to address arguments that were addressed to someone else, especially given the lapse in time.

  31. Matthew, that’s an important starting point. So the Gaza Strip is a State that under the Oslo Accords agreement – signed between Israel and the Palestine Liberation Organization – is part of a “territorial unit: the two sides agreed the West Bank and Gaza Strip would be treated as a “single territorial unit, whose integrity will be preserved”. If you don’t like Oslo, give up it entirely and don’t maintain only only what you wish or like.

    Unfortunately, despite being a State and while Israel removed its military installations and settlements from inside Gaza in 2005, it retained control of the Palestinian population registry, of Gaza’s sea and airspace, of a “buffer zone” of land inside Gaza, of Gaza’s only commercial crossing (thus controlling all entrance and exit of goods) and the pedestrian crossing at Erez, connecting Gaza to the West Bank and Israel. The extent and nature of this control – which impacts almost every aspect of life in Gaza – translates into responsibilities.

    No idea who does Bell is. The use of the Lotus Principle, quoting Judge Simma, “reflects an anachronistic, highly consensualist vision of international law rooted in the so-called Lotus principle developed by the Permanent Court more than 80 years ago […]”, it is necessary “to move beyond this anachronistic, extremely consensualist vision of international law”.

  32. I’m not sure why you are bringing up Oslo. Hamas took over Gaza and removed it from the authority of the PA.

    I’m not sure what any modest responsibilities that Israel may have towards Gaza has to do with the legality of a blockade in non-international armed conflict.

    Unfortunately, Judge Simma is/was not the Grand Ayotollah of international law. Customary international law derives from state practice and opinio juris. I’ve seen no evidence that these factors have turned against the Lotus Principle.

  33. Matthew, I bring up Oslo in order to answer to your question “what you mean by single unit”.

    Hamas took over Gaza winning an election. They are extremists as extremists are the Likud leaders and their manifesto.

    “any modest responsibilities that Israel may have towards Gaza”: maybe you didnd get what I wrote you, otherwise you would not write “modest”.

    If Gaza is a State is a “international armed conflict”.

    Judge Simma was echoing a common stance among jurists: the Lotus Principle does not prove anything.

  34. The Lotus Principle is one of the foundational elements of modern customary international law. I’m more than happy to see your opinio juris and state practice demonstrating that the principle has been obviated.

    Moreover, what you fail to realize is that Simma’s position is normative. He did not deny that the Lotus Principle is the law of the land; he is simply saying that it shouldn’t be.

    Someone calling for the abolition of slavery obviously recognized that slavery nonetheless remained the law of the land. The same applies here.

  35. Matthew

    I believe tod is trying to force the conversation towards a discussion with regards to Gaza status as a state. I can see why you find this odd and i would add that this is frustrating for those of us who are trying to read the opinions based on opino juris that relate directly to the post. It would be nice if, like you have been with your responses to Tod, everyone who posted an opinion would remain within the context of the post subject rather than attempting to hijack the commentory. Tods comments come across as omethign simlar to Trolling. He does not directl answer your well formed rebuttals and instead continously leads the conversation away from the subject at hand.

  36. Jurist 1492,
    for me it is important that people like you disapprove what I write. I would be worried if this would not be the case.

    Matthew,
    I did not claim that “the Lotus principle has been obviated”. I claimed that alone it represents just a small piece of a much larger cake.

    In general terms, the Lotus Principle, I would say international law in general, can explain just a little part of this issue. If you don’t consider the history of the Gaza Strip and who are the persons that live on it, but instead tries to explain this complex issue to a ancient principle, you will understand very little.

    In particular and going back to IL, the 2004 ICJ AO, that I hope we agree constitutes an authoritative statement of international law, clarified the West Bank and Gaza are occupied territories and that Israel is an occupying power with legal responsibilities: all states, according to the Court, are obliged not to recognize the situation as lawful.

    As I wrote above Israel retains control of the Palestinian population registry, of Gaza’s sea and airspace, of a “buffer zone” of land inside Gaza, of Gaza’s only commercial crossing (thus controlling all entrance and exit of goods) and the pedestrian crossing at Erez, connecting Gaza to the West Bank and Israel. This is not my definition of a sovereign State.

    Indeed, as long as the Gaza Strip – that is part of a self-determination unit – is non-sovereign, it is occupied, and as long as it is occupied its relationship to Israel continues to be governed by IHL (the Criminal Procedure Law of 2006 allowed Israel to incarcerate Palestinians from the Gaza Strip suspected of criminal offences in detention facilities in Israel and to prosecute them in Israeli civil courts). Gaza (unilateral) withdrawal was a disengagement and not an end of accupation (Israeli drones monitor Gaza from the air, Israeli naval ships prevent Gazan fishermen from sailing more than 4 kilometers from shore). On top of this, the wall and the evacuation of the ground settlements in Gaza were parts of the same national security logic of unilateral solutions that the settlements were – perpetuating and intensifying animosity and violence, rather than undoing them (and btw, in 2005 Sharon removed 7,000 settlers from Gaza, and simultaneously settled tens of thousands of others in settlements across the West Bank).

    Gaza is far from being a State, but if you like to believe so you cannot but consider that it is part of a unity (between 2000 and 2012 Israel let just three Gazans travel to study at universities in the West Bank). You cannot claim that Israel has the right to have full civil and security control of Area C of the West Bank, while denying the fact that the Gaza Strip and the West Bank are part of a unity. Otherwise you are cherry picking the claims that fits your ideology.

    PS
    following Israel’s ‘Operation Cast Lead’ in the Gaza Strip in December 2008-January 2009, the Security Council stressed that the Gaza Strip constitutes an ‘integral part’ of the self-determination unit comprised of
    the Palestinian territory occupied in 1967. The Wye River Memorandum and the Sharm el-Sheikh Memorandum contain provisions prohibiting ‘any step that will change the status of the West Bank and the Gaza Strip in accordance with the Interim Agreement.’ Israel’s High Court of Justice, also relying on the Israeli-Palestinian Interim Agreement, has affirmed Israel’s recognition of the unity of the West Bank and Gaza as a single territorial unit.

  37. Matthew,

    I would like also to quote for you Michael Bothe on the Lotus principle and the other topics here discusses:

    “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. […]
    The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side.
    In such a case, the argument that everything is permitted in the absence of a specific practice is incorrect.
    The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle.”

    http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

  38. You’re more than welcome to introduce larger pieces to this cake, but my modest request remains the same: please provide opinio juris and state practice (or treaty law) for any circumstances that would challenge the full effect of the Lotus Principle as it applies to the blockade.

    We can end this single territorial unit nonsense here. Using the Hostages Trial as our starting point, moving through the various military field manuals, and ending with Congo vs. Uganda, we can say with absolutely certainty that the whole of a territory is not considered occupied just because some of that territory is occupied. All of Congo was not considered Occupied just because some of it was occupied. You can read my comments on Congo vs. Uganda above. Looking to Israel, certainly Syria is a single territorial unit, yet no one has argued that Damascus or Alepo is occupied by Israel just because one might hold that the Golan Heights is occupied. Nobody argued that Cairo was occupied territory just because Israel occupied the Sinai.

    In order for your single territorial unit theory to hold, you need to concede one of two things:

    1) Damascus is occupied by Israel
    2) The Golan Heights and Damascus do not form a single territorial unit.

    I’d like to remind you that the Hostages Trial quite explicitly states: “To ***the extent*** that the occupant’s control is maintained and that of the civil government eliminated, the area will be said to be occupied.”

    Occupation is a matter of fact. A territory is either occupied or it is not. Consequently, we can only read “to the extent that” as having a territorial connotation. An occupation exists only in territory where “the occupant’s control is maintained and that of the civil government eliminated.”

    What exactly does it mean that “Israel *controls* the population registry” in Gaza? Israel most certainly does not exercise control over the buffer zone, at least not in any meaningful sense. If a crime took place in the buffer zone (one Gazan farmer kills another), Israel would exercise absolutely no authority in the matter. Taking preventive measures against foreign infiltration does not amount to control of the foreign territory.

    All of your alleged elements of occupation in Gaza are irrelevant (drone monitoring, control of air and sea etc..). The requirements of occupation were quite explicitly spelled out at Nuremberg, the bedrock of modern international law. I have not seen a single military field manual in the English language that deviates from this framework, let alone embrace your definition of occupation.

  39. Matthew, I beg to disagree and I already explained you why. I quote for you Prof. Michael Bothe on why you are musing the Lotus principle and why what you claim is factually (and morally) wrong:

    Bothe:
    “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power.
    Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip.
    It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.
    The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side.
    In such a case, the argument that everything is permitted in the absence of a specific practice is incorrect.
    The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle.”

    http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

    Your logic implies that if a state can circumvallate an area, controlling many of the internal basic aspects but without physically sending ground forces into it, that State can do whatever it wishes.

  40. Why my answers are not published?

  41. Matthew,
    I tried to answer you several times but it seems that there is a problem. I try again.

    I already answered you about why, in MHO, you are misusing the Lotus principle and the other aspects. So I decided to quote for you Prof. Michael Bothe:

    “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power.
    Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip.
    It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.
    The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side.
    In such a case, the argument that everything is permitted in the absence of a specific practice is Incorrect.
    The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle”.

    http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

  42. Prof. Michael Bothe:

    “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power.
    Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.
    The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side.
    In such a case, the argument that everything is permitted in the absence of a specific practice is Incorrect.
    The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle.”

    http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

  43. Prof. Michael Bothe:

    “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power.
    Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.
    The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side.
    In such a case, the argument that everything is permitted in the absence of a specific practice is Incorrect.
    The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle .”

    http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

  44. Matthew, I used this fantasy name (Shmuel) because they don’t publish my replies.

    1) I already answered you why you are misunderstanding the Lotus principle and misusing the other issues. I quote Prof. Michael Bothe on this:

    “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air.
    Israel, thus, remained in full control of the lifelines of the Gaza Strip.
    It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation.
    If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.
    The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side.
    In such a case, the argument that everything is permitted in the absence of a specific practice is Incorrect.
    The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle.”
    http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

    2) Your parallelisms are utterly misleading. Looking to Israel, certainly Syria is a single territorial unit, yet no one has argued that Damascus or Alepo is occupied by Israel just because one might hold that the Golan Heights is occupied”: Israel is occupying East Jerusalem (Israel was admitted to the UN after having assured that the future of Jerusalem must be decided “according to international consent”), the entire West Bank (thanks to Oslo, that you use selectively) and controlling the lifelines of the Gaza Strip.
    Do you notice some differences between this and Syria/Golan?

    3) “The Golan Heights and Damascus do not form a single territorial unit”: again, this is a weak and misleading comparison.

    4) “Occupation is a matter of fact”: true, and the fact is that Israel controls most of the basic aspects in Gaza and that the logic that 1 country can circumvallate an area but that, in as much as it is not physically sending ground forces into it, that State can do whatever it wishes, is reprehensible.

    5)
    “What exactly does it mean that “Israel *controls* the population registry” in Gaza?”: Since 1967, the population registry has been central to
    Israel’s administrative efforts to control the demographic composition of
    the occupied Palestinian territory, where Palestinians want to establish a
    state….feel free to study and better understand the issue:
    http://www.hrw.org/sites/default/files/reports/iopt0212webwcover.pdf

    6)
    “Israel most certainly does not exercise control over the buffer zone”: please consider the possibility to study what the Pals can and cannot do in the buffer zone area, that is about 1/4 of the total Gaza Strip.

  45. Matthew, I used this fantasy name because they don’t publish my replies.

    1) I already answered you why you are misunderstanding the Lotus principle and misusing the other issues. I quote Prof. Michael Bothe on this:

    “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air.
    Israel, thus, remained in full control of the lifelines of the Gaza Strip.
    It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation.
    If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.
    The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side.
    In such a case, the argument that everything is permitted in the absence of a specific practice is incorrect.
    The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle.”
    http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

    2) Your parallelisms are utterly misleading. Looking to Israel, certainly Syria is a single territorial unit, yet no one has argued that Damascus or Alepo is occupied by Israel just because one might hold that the Golan Heights is occupied”: Israel is occupying East Jerusalem (Israel was admitted to the UN after having assured that the future of Jerusalem must be decided “according to international consent”), the entire West Bank (thanks to Oslo, that you use selectively) and controlling the lifelines of the Gaza Strip.
    Do you notice some differences between this and Syria/Golan?

    3) “The Golan Heights and Damascus do not form a single territorial unit”: again, this is a weak and misleading comparison.

    4) “Occupation is a matter of fact”: true, and the fact is that Israel controls most of the basic aspects in Gaza and that the logic that 1 country can circumvallate an area but that, in as much as it is not physically sending ground forces into it, that State can do whatever it wishes, is reprehensible.

    5)
    “What exactly does it mean that “Israel *controls* the population registry” in Gaza?”: Since 1967, the population registry has been central to
    Israel’s administrative efforts to control the demographic composition of
    the occupied Palestinian territory, where Palestinians want to establish a
    state….feel free to study and better understand the issue:
    http://www.hrw.org/sites/default/files/reports/iopt0212webwcover.pdf

    6)
    “Israel most certainly does not exercise control over the buffer zone”: please consider the possibility to study what the Pals can and cannot do in the buffer zone area, that is about 1/4 of the total Gaza Strip

  46. I’d love to see it. Please bite the bullet, write it all out on a word program first and paste it. It sucks when a post gets deleted by accident, but it has happened to all of us. Nothing you can really do except learn from the mistake and never type directly into a comment section.

  47. The discussion of the Lotus Principle was confined to the blockade. At any rate, you provided no opinio juris or state practice challenging the Lotus Principle in any way, shape or form. The opinion of a professor is not opinio juris and it is not state practice.

    As to whether Gaza is occupied, I cited an axiomatic primary source of international law: Nuremberg. You provide me with the opinion of a professor. According to the Hostages Trial, occupation demands the elimination of organized resistance and governing to the exclusion of the established regime. Please cite me opinio juris and state practice – not the baseless opinion of someone – that the requirements of occupation have been reformulated. I say baseless on account of the lack of citation for opinio juris and state practice. The Professor’s citation of Article 42 of the Hague Regulations is absolutely absurd. The Hostage’s Trial was operating under this definition when it enunciated its strict standard for establishing effective control and occupation.

    I will quote here, the relevant passage from the case:

    it is essential to a proper understanding of the issues involved in the present case, that the status of Yugoslavia, Greece and Norway be determined during the periods that the alleged criminal acts of these defendants were committed. The question of criminality in many cases may well hinge on whether an, invasion was in progress or an occupation accomplished. Whether an invasion has developed into an occupation is a question of fact. The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organised resistance and the establishment of an administration to preserve law and order. To the extent that the occupant’s control is maintained and that of the civil government eliminated, the area will be said to be occupied.”

    I’m not sure what you are saying about my analogy with Syria. Are you arguing that Gaza is occupied in virtue of the fact that the West Bank is (allegedly) occupied, and because the two form of single territorial unit, the occupation of the later carries onto the former? If this is your argument, then we must also conclude that Damascus is occupied or that Damascus and the Golan are not a single territorial unit.

  48. Thank you for your reply, Matthew.

    As I wrote you, the 2004 ICJ AO, that I hope we agree constitutes an authoritative statement of international law, clarified the West Bank and Gaza are occupied territories and that Israel is an occupying power with legal responsibilities: all states, according to the Court, are obliged not to recognize the situation as lawful..

    1) Israel does “manage civilian life in the Gaza Strip”, at least meaningful parts of it. The demographic registries are just 1 menaingful example: http://www.hrw.org/sites/default/files/reports/iopt0212webwcover.pdf

    2) So far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation

    3) The civilian population of gaza is heavily dependent on israel, not because Israel is magnanimous, but because of the role played by Israel in the Gaza tragedy

    4) In the Naletilic case, that clarified the concept of occupation in the Geneva Convention (reflective of customary law), the Court ruled that an occupation exists so long as the occupying army has ‘the capacity to send troops within a reasonable time to make the authority of the occupying power felt’. It seems quite relevant also for Gaza-Israel.

    5) The International Criminal Tribunal for the former Yugoslavia ruled that one of the guidelines for determining occupation was whether “the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt”.
    By stating that “Israel will guard and monitor the external land perimeter of the Gaza Strip, will continue to maintain exclusive authority in Gaza air space, and will continue to exercise security activity in the sea off the coast of the Gaza Strip”, Israel’s disengagement plan showed the intention to maintain effective control.

    6) Cassese expressed the view that “by exercise of authority one should mean not only the display of sovereign or other powers (lawmaking, law enforcement, administrative powers, etc.) but also any exercise of power, however limited in time (for instance, the use of belligerent force in an armed conflict). And btw, Uganda-Gaza (360 km2) and Syria(Golan) are misleading comparisons.

  49. The ICJ case was in 2004. Israel Withdrew from Gaza in 2005.

    Israel most certainly does not manage civilian life in Gaza. It has zero control over day-to-day life in Gaza inasmuch as governing is concerned. The governing on the ground is conducted exclusively by Hamas. Whatever control Israel has, it does not amount to governing.

    The laws of occupation in the 4th Geneva Convention, by definition, do depend on a state of occupation.

    You’re selectively quoting from Naletilic in (4), and then quoting from it again in (5).
    I addressed this matter above in some detail. See above at 11.07.2014 at 8:44 am EST.

    Using your logic, the USA still occupies Japan. After all, it can certainly send troops in a reasonable period of time.

    Effective control was quite explicitly defined at Nuremberg. Please end this argument ad naseum and provide me with opinio juris and state practice that renders the Nuremberg ruling obsolete. All you’re doing is providing me with more quotes.

    I’m not sure if I would call my bringing up Uganda a comparison. I brought up the ICJ case to make clear that the ICJ holds that just because some territory in a single territorial unit is occupied, it does not mean that all territory in that territorial unit is occupied. This is the case whether we are dealing with Russia or Vatican City.

    I brought up Syria to attack the single territorial unit theory. Again, if being a single territorial unit is sufficient for extending the status of occupation unto the whole of a territory, then we are forced to conclude that either Damascus is occupied territory or that it is not part of a greater single territorial unit.

  50. “The ICJ case was in 2004. Israel Withdrew from Gaza in 2005”:
    Goos, so we agree that to write that the “West Bank is allegedly occupied”, as you did, is problematic. It is occupied.

    “Israel most certainly does not manage civilian life in Gaza”: so how you explain this? http://www.hrw.org/sites/default/files/reports/iopt0212webwcover.pdf

    “The laws of occupation in the 4th Geneva Convention, by definition, do depend on a state of occupation”:
    problematic claim. The Fourth Geneva Convention was concerned with the rights of individuals, and Gazans have rights enshrined in that Convention.

    “Using your logic, the USA still occupies Japan. After all, it can certainly send troops in a reasonable period of time”:
    The US does not control the air, the movement, the demographic registries, the borders..ect of Japan. Another utterly misleading comparison.

    “provide me with opinio juris”: done, but you hear only what you like.

    “t does not mean that all territory in that territorial unit is occupied.”: The non-member state of Palestine is fully occupied, unless you consider area a and b of the west bank as non-occupied.
    Your Uganda case is historically, geographically, legally and morally mispleaced.

  51. I’m not interested in expanding this discussion into whether or not the West Bank and the other territories qualify for the status of occupation. That is beyond the scope of this discussion.

    There is nothing problematic with my claim regarding the 4th Geneva Convention. A treaty is its explicit content in light of the object and purpose. The binding parts of a treaty are not a vague aspiration. If that were the case, all that need be written in the convention was “be nice to other people; don’t harm them.” It’s clear you have little interest in the letter of the law.

    My Analogy with Japan is perfectly suitable. Your citation of Naletilic dealt with the ability to send troops within a reasonable period of time. If that alone is sufficient for occupation, then the USA occupies Japan. This is simple Modus Tollens logic. As you apparently do not understand your own logic, I will have to break it down for you:

    Premise: If forces can be sent to reassert authority in a reasonable period of time, then a territory is occupied.

    Premise: Israel can send its forces to reassert authority in a reasonable period of time.

    Conclusion: Israel occupies Gaza.

    You have yet to provide me with a single instance of opinio juris and state practice. Kindly tell me in which post of yours I can find this.

    Your HRW document provides no evidence that Israel has governmental authority to the exclusion of other entities.

    My Uganda case relies on a universal principle of international law – the circumstances under which a territory can be considered occupied. This is grounded in what was affirmed at Nuremberg and reflected in, as far as I can tell, every single military field manual available in the English language.

    It’s clear that at the end of the day, you want one standard of law for the rest of the world and another standard of law for the Jewish State. That’s called Apartheid.

    I’ve continually bombarded you with primary sources of international law. In turn, you’ve provided me with nothing more than “this is misleading,” “that is misleading” without substantiating your claim with primary sources of international law.

  52. The most hilarious part of your post is this one: “It’s clear that at the end of the day, you want one standard of law for the rest of the world and another standard of law for the Jewish State. That’s called Apartheid.”

    You embody Orwell’s legacy: “War is peace. Freedom is slavery. Ignorance is strength”.

    FYI, Israel is singled out for the favorable treatment that it receives. A State that since decades keeps millions of people without a State without providing them citizenship, while continuing to exploit their natural resources and without taking any responsability for them, is the only non-EU member State admitted to participate in Horizon2020 and received most of the percentage of US’s external funds. Non other State in the world keeps millions of people in such a limbo: you support a wrong and immoral cause that doesnt have anything to do with Israel’s right to exist or to defend itself.

    “I’m not interested in expanding this discussion into whether or not the West Bank…”: you should, because it makes a huge difference if Israel occupies only the West Bank or all the Palestinian territories.

    There is nothing problematic with my claim regarding the 4th Geneva Convention. A treaty is its explicit content in light of the object and purpose. The binding parts of a treaty are not a vague aspiration. If that were the case, all that need be written in the convention was “be nice to other people; don’t harm them.” It’s clear you have little interest in the letter of the law.

    That the Fourth Geneva Convention was concerned with the rights of individuals, and that Gazans have rights enshrined in that Convention are 2 established facts.

    “My Analogy with Japan is perfectly suitable”: no, it is not. It would be only if the US would control the water, air, demographic registries (btw, you did not answer also to that point), borders, electricity…ect. Moreover Gaza is more or less big like 1/4 of Tokyo: just a sick mind can compare the 2.

    “If forces can be sent to reassert authority in a reasonable period of time, then a territory is occupied”: 1 think is to claim that the US or whatever state can invade Japan or South Africa because of its military power, another thing is to argue that one state that has sealed a tiny strip of land and control most of its lifelines can “reassert authority in a reasonable period of time”.

    You didnt “bombard anyone “with primary sources of international law”. On the contrary, you misinterpreted them and applied them out of context and in a selective way. You pasted and copied common arguments that have been refuted by the most authoritative legal bodies.

  53. Did you or did you not say this:

    “[Naletilic] ruled that an occupation exists so long as the occupying army has ‘the capacity to send troops within a reasonable time to make the authority of the occupying power felt’. It seems quite relevant also for Gaza-Israel.”

  54. Tod

    You have not provided opinion juris to substantiate your claims. Neither have you offered a suitable rebuttal of Matthews well constructed argumrnts . he clearly lays out the primary sources of International law including primarily the Nuremberg and 4th Geneva convention and HSS explained how these render your opinions mute.

    Yet you continue,as pointed out by jurist1942 to attempt to steer the conversation elsewhere rather than accept that you are incorrect and have no means of rebutting Matthews opinion juris arguments. You then proceed to make as hominem comments or even insults.

    Your repeated quotations are transparently cherry picked and you refrain from answering Matthew directly.

    Those who read this blog are interested in the opinion juris and a constructed legal argument should be issued in response to posters rather than cut and paste exercises. Your post, as per Jurist 1942s comments is akin to trolling and I suggest you either answer Matthew seriously or not at all.

  55. District12, as I wrote to you (jurist1942) before, I cannot but thank you for your words. Matthew provided a partial and selective use of IL, often based on misleading (from an historical, legal, and moral point of view) parallelisms such as the one between Japan-US and Israel-Gaza.

    Matthew, yes, I wrote that Naletic is “quite relevant also for Gaza-Israel”. Naletic helps us to understand how to interprete the concept of occupation within the frame of the Geneva Convention (the ICJ “must take into consideration the changes which have occurred in the supervening half-century..’.).
    Israel controls the water, the air,the demographic registries (still waiting for the Third time your reply on this), borders, electricity…ect…: the situations where you have a state of occupation under GC 4.
    Israel has the capacity and often the will ‘to send troops within a reasonable time” and to control the lifelines of the Gaza Strip: to conflate this with the US and Japan is a way to force an argument without addressing the issue.

    The major issue that you should consider is that Israel should not continue to keep millions of people in a sort of limbo, both in the West Bank and Gaza Strip. Your are justifying something wrong.

  56. A mere yes or no will suffice.

    Did you or did you not say this:

    “[Naletilic] ruled that an occupation exists so long as the occupying army has ‘the capacity to send troops within a reasonable time to make the authority of the occupying power felt’. It seems quite relevant also for Gaza-Israel.”

  57. Matthew, yes, I wrote that Naletic is “quite relevant also for Gaza-Israel”. Naletic helps us to understand how to interprete the concept of occupation within the frame of the Geneva Convention (the ICJ “must take into consideration the changes which have occurred in the supervening half-century..’.).
    Israel controls the water, the air,the demographic registries (still waiting for the Third time your reply on this), borders, electricity…ect…: the situations where you have a state of occupation under GC 4.
    Israel has the capacity and often the will ‘to send troops within a reasonable time” and to control the lifelines of the Gaza Strip: to conflate this with the US and Japan is a way to force an argument without addressing the issue.

  58. So we agree that you wrote the following:

    “[Naletilic] ruled that an occupation exists so long as the occupying army has ‘the capacity to send troops within a reasonable time to make the authority of the occupying power felt.'”

    Is this an independent statement from Naletilic, or is it part of a greater and intertwining criteria?

  59. I’ll answer my own question seeing as how this thread will be closed at midnight.

    The above is part of a a greater and intertwining criteria. I discussed this criteria in my post of 11.07.2014 at 8:44 am EST.

    So if anyone is guilty of “provid[ing] a partial and selective use of IL.”

    It’s you. Had you bothered to have actually read this thread, you would have already known this. I think it’s clear that you really have not read the discussions on this thread or, for that matter, Naletilic.

  60. I read several times your post and I disproved it in several posts, that you have simply ignored. Just 1 example: “To the extent that the occupant’s control is maintained and that of the civil government *eliminated*”: The most important aspect of the “civil government” in the gaza strip are in Israeli hands. The most relevant is probably the one that you continue to ignore but that affects the past, the present and the future of almost each Palestinian family in Gaza: the population registry, used as an oppressive political tool:
    http://www.hrw.org/sites/default/files/reports/iopt0212webwcover.pdf

    Bottom line of the entire discussion: You are misusing international law to justify the oppression of millions of human beings. This does not have anything to do with Israel’s right to defend itself.

  61. So we agree that you wrote the following:

    “[Naletilic] ruled that an occupation exists so long as the occupying army has ‘the capacity to send troops within a reasonable time to make the authority of the occupying power felt.’”

    Is this an independent statement from Naletilic, or is it part of a greater and intertwining criteria?

    Please spare me the pontification and just answer the question. If you believe I answered properly, then tell me that instead.

  62. It part of criteria that, contrary to your claims, can largely be found in the Gaza context. On top of this, in December 2005 the ICJ ruled that Uganda would be deemed an occupier of Congolese territory if Ugandan forces “had substituted their own authority for that of the Congolese Government”, stating that “whether or not Uganda had established a structured military administration of the territory occupied” was irrelevant.
    In many spheres, Israel exercises governmental authority and denies the Palestinians fundamental powers of government or otherwise obstructs their exercise. Indeed, the ability of the Palestinians to exercise any authority is in fact dependent in large measure upon the continued willingness of Israel to allow them to do so.
    Once Adam Robert noted, in his classic ‘What is a military occupation?’,……”a more general tendency to think of the laws of war as a set of minimum rules to be observed in the widest possible range of situations, and not to worry excessively about the precise legal definition of military occupation.”
    https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/Roberts%20What%20is%20Military%20Occupation.pdf

    You, on the contrary, adopt a very limited and solipsistic use of each of the aspects analyzed in these posts. IL is something else.

  63. I’m not sure which part of “please spare me the pontification” you misunderstood.

    So you readily admit that you selectively quoted from a greater criteria?

    I think this is a good place to wrap up this thread.

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