Author: Pnina Sharvit-Baruch

The Status of the Gaza Strip – a Short Response

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General's Office] This is the fourth response in 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 grateful for the opportunity to respond in brief to some of the points made in the excellent contributions of fellow bloggers. At the outset, as a former practitioner, I admit that I prefer functional approaches to the law over rigid dichotomies. From my experience, strict formulas are unsatisfactory when facing complex situations and the situation between Israel and the Palestinians is as complex as they come. As noted in my earlier post, I think it questionable to view the functional approach to occupation offered in some of the posts as reflecting the existing law, as opposed to lege ferenda. However, I set this question aside for present purposes and wish to discuss this concept on its merits. The underlying problem with the concept of "functional occupation" is that it takes a situation which does not possess the most fundamental feature of occupation – effective control – and insists on still calling it occupation. This is done not because the set of rights and obligations pertinent to occupation are suitable to such a situation, but rather in order to "prevent occupiers from relinquishing responsibility when control is transformed" and to ensure that "as long as an occupying party continues to exercise some degree of control, it will continue to be held accountable" (as Gross puts it). In other words the reasoning is not based on finding the suitable categorization of a given situation and applying the relevant rules thereto, but rather on deciding which rules should apply and then terming the situation accordingly. This is a conceptual problem. Even if one believes that certain obligations should be imposed even after effective control has ended, it may well be that the legal basis for imposing them lies beyond the limits of the law of occupation. This is my reading of the Al-Bassiouni judgment given by Israel’s Supreme Court.

Is the Gaza Strip Still Occupied by Israel?

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General's Office] This is the fifth 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 thankful for the opportunity to participate in this symposium in one of the leading blogs on international law. The question I will refer to is whether Israel is under the duty to provide for the wellbeing of the residents of the Gaza Strip? This is the practical question. The legal answer stems from the determination of whether the Gaza Strip is still occupied by Israel. A quick analysis of the law leads to a sound conclusion that the Gaza Strip does not fall into the definition of being occupied by Israel, as will be shown below. There are no existing rules in international law imposing post-occupation obligations, nor human rights' obligations regarding areas and persons outside a state's control. These are at best de lege ferenda. This does not necessarily mean that Israel has no legal obligations towards the population of the Gaza Strip, but that to the extent that there are any such legal obligations, they are limited in nature and do not include the duty to actively ensure normal life for the civilian population, as would be required by the law of belligerent occupation (article 43 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land of 1907). The basic formulation for when a territory is considered to be subject to belligerent occupation is found in Article 42 of the Hague Regulations, which states that:

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

It is commonly agreed that, at its core, territory will be considered occupied when it is under the “effective control” of the foreign army. By necessary implication, therefore, occupation does not extend to territory where such authority is no longer established and cannot any longer be exercised.