Author: Elizabeth Samson

Israel, Gaza, and the End of “Effective Control”

[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?

Brief Conclusion: In analyzing the requirements for the international law of occupation, as well as international legal precedent, and testing the various instances that allege Israeli “effective control” over Gaza after disengagement against the standards for “effective control,” the conclusion that I have reached is that pursuant to occupation law and legal precedent, Israeli action does not constitute “effective control” and does not rise to the level required for international occupation law to apply. While there is no question that Israel is, indeed, involved in certain aspects of life in Gaza, those actions do not rise to the level of occupation, and are necessary to maintain Israeli security in the face of the rocket attacks and general security threats emanating from Gaza.  Furthermore, while certain Israeli actions may frustrate life in Gaza (i.e. restrictions on movement, control of borders) those actions in no way are an exercise of occupation and are permissible acts that any state may undertake in relation to the territories near it. International Occupation Law and “Effective Control” (For a complete and thorough analysis click here for my American University International Law Review article – “Is Gaza Occupied?”) International occupation law determines the exercise of authority in a territory by combining three requirements for “effective control” (a term of art with no definite source in international law):

• 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).