Elizabeth Samson, Esq. is a Visiting Fellow at the Hudson Institute] This is our sixth 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. I am very pleased to contribute to this symposium and to offer an analysis of international occupation law that may bring a new understanding to the discussion of this most challenging issue. In determining the legitimacy of Israel’s actions with respect to Gaza since Israeli disengagement from the territory in 2005, two questions must be addressed:
- Do Israel’s actions after disengagement rise to the level of occupation under international law with respect to the legal requirements for “effective control”?; and
- Are the Israeli actions that do not rise to the level of occupation permissible, are they relevant to maintaining Israeli security, and are, therefore, justifiable?
- the territory is “actually placed under the authority of the hostile army[,]” and “authority has been established and can be exercised” (Hague Regulations, Art. 42);
- the state in power “exercises the functions of government in such territory” (Fourth Geneva Convention, Art. 6); and
- the occupier’s authority is “to the exclusion of the established government” (U.S. v. List).