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International Criminal Law

Is the Kenyatta Case the End for the ICC?

by Julian Ku

I haven’t had time to comment on the collapse of the ICC Kenyatta prosecution last week.  But friend of blog and Northwestern University law professor Eugene Kontorovich has some interesting thoughts over at National Review.  Read the whole thing, but suffice to say, Eugene thinks this is pretty big body blow to the whole idea that the ICC can be an effective institution at deterring international atrocities.  Not that it is exactly shocking that a head of state accused of atrocities would use every lever in his tool box to block his own prosecution.

In his requiem for the ICC, Eugene writes:

The ICC was born of a Whiggish belief that in the 21st century, a shared commitment to law could end impunity; that telecommunication makes people care more empathetically about distant tragedies; that bad guys will act like Western democratic leaders; and that impartial international bureaucrats could evenhandedly prosecute both sides.

The Kenyatta case reminds us that the alternative to victor’s justice is not super-neutral international justice, but rather no justice.

Ouch!

The OTP’s Afghanistan Investigation: A Response to Vogel

by Kevin Jon Heller

As a number of commentators have recently noted, the latest report on the OTP’s preliminary-examination activities indicates that the OTP is specifically considering whether US forces are responsible for war crimes relating to detainee treatment in Afghanistan — something it only hinted at in its 2013 report. Here are the relevant statements (pp. 22-23):

94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.

I highly recommend the posts by David Bosco at Multilateralist and Ryan Goodman at Just Security on the OTP’s report. But I have reservations about Ryan Vogel’s post at Lawfare. Although Vogel makes some good points about the political implications of the OTP’s decision to investigate US actions, his legal criticisms of the OTP are based on a problematic understanding of how gravity and complementarity function in the Rome Statute.

First, there is this claim:

Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

It is not completely clear what Vogel’s objection is, but it’s likely one of two things: (1) he does not believe US actions in Afghanistan qualify as torture; or (2) he does not believe any acts of torture the US did commit are collectively serious enough to justify a formal OTP investigation.The first objection is irrelevant: whether acts qualify as torture is for the ICC to decide, not the US. The second objection is more serious, but is based on a misunderstanding of the difference between situational gravity and case gravity…

Why Can’t US Courts Understand IHL?

by Kevin Jon Heller

While researching an essay on the use of analogy in IHL, I had the misfortune of reading Al Warafi v. Obama, a recent habeas case involving an alleged member of the Taliban. Al Warafi argued that even if he was a member of the Taliban — which he denied — he was entitled to be treated in detention as permanent medical personnel under Article 24 of the First Geneva Convention (GC I), which provides that “[m]edical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease… shall be respected and protected in all circumstances.” That protected status is very important, because other provisions in GC I — as well as in the First Additional Protocol (AP I), which extends the rules of GC I — require medics to be given a number of protections and privileges that other detainees do not enjoy.

The District Court rejected Al Warafi’s argument, concluding (p. 17) that he did not qualify as permanent medical personnel under Article 24 because the Taliban had not provided him with “the proof required by the Convention — that is, official identification demonstrating that he is entitled to protected status under Article 24. Absent such identification, petitioner simply cannot prove that he qualifies as Article 24 personnel.” In reaching the conclusion, the District Court specifically relied on paragraph 734 of the Commentary to AP I:

A soldier with medical duties is actually an able-bodied person who might well engage in combat; a medical vehicle could be used to transport ammunition rather than the wounded or medical supplies. Thus it is essential for medical personnel, units, materials and transports to be identified in order to ensure the protection to which they are entitled, which is identical to that accorded the wounded, sick and shipwrecked.

The DC Circuit then rejected Al Warafi’s appeal of the District Court’s decision on the same grounds.

I was puzzled by paragraph 734 when I came across it in the District Court’s decision. It seemed obvious that a medic who was not wearing the identification required by GC I and AP I could be targeted without violating the principle of distinction. It seemed equally obvious that a captured medic without proper identification might have a difficult time convincing his captors of his status. But I found it difficult to believe GC I and AP 1 would actually deprive a medic of his protected status simply because he did not have the proper identification. Doing so would serve no humanitarian purpose whatsoever, assuming the individual could establish his status by other means.

But paragraph 734 said what it said. So surely the District Court’s conclusion was correct. Right?

Wrong. Had the District Court bothered to read the next twelve paragraphs in the Commentary to AP I, it would have realised that, in fact, proper identification is not necessary for a medic to be entitled to protected status. Here is paragraph 746 of the Commentary to AP I:

The basic principle is stated in this first paragraph. The right to respect and protection of medical personnel and medical objects would be meaningless if they could not be clearly recognized. The Parties to the conflict therefore have a great interest in seeing that such personnel and objects can be identified by the enemy. Thus the rule laid down here is in the interests of those who are responsible for observing it. In fact, it would be the medical personnel and medical objects of the Party concerned which would suffer from poor means of identification and which could become the target of an enemy that had not identified them. Yet it must be emphasized that the means of identification do not constitute the right to protection, and from the moment that medical personnel or medical objects have been identified, shortcomings in the means of identification cannot be used as a pretext for failing to respect them.

In other words: the District Court and the DC Circuit should not have dismissed Al Warafi’s habeas petition on the ground the Taliban had not issued him with “official identification demonstrating that he is entitled to protected status.” Neither GC I nor AP I require such identification.

Another day, another misunderstanding of IHL by US courts. Sad, but predictable.

ICC/Palestine Event at Doughty Street Chambers

by Kevin Jon Heller

London-area readers interested in the ICC and Palestine might want to attend the following event, which is co-sponsored by Chatham House and Doughty Street Chambers (where I’m an academic member). It should be good, despite my participation:

Milestones in International Criminal Justice: The ICC and Palestine

Date: Tuesday 02 December 2014

Time: 18.00 – 19.30

Location: 54 Doughty Street, London WC1N 2LS

Venue: Doughty Street Chambers

Speakers: Elizabeth Wilmshurst, Professor Kevin Jon Heller, Professor Yaël Ronen, Stephanie Barbour, Head of Amnesty International Centre for International Justice

CPD: 1.5

Fee: Free

Availability: Book a seat

In 2009 Palestine lodged a declaration accepting the jurisdiction of the ICC but only two years later the ICC Prosecutor decided to close its preliminary examination of the situation in Palestine because of uncertainties surrounding Palestine’s statehood.

The meeting will explore the implications of the UN General Assembly’s decision to accord to Palestine the status of non-member observer state in 2012, issues concerning Palestine’s prospective accession to the Rome Statute, and the possibility for Palestine to lodge a retroactive declaration giving the Court jurisdiction over Israeli military operations in Gaza such as ‘Cast Lead’ and ‘Protective Edge’.

Please note this event will be followed by a drinks reception.

This event is held in association with Doughty Street Chambers and is accredited with 1.5 CPD points.

Hope to see (some of) you there!

Let’s Be Real: An International Anti-Corruption Court Would Never Work

by Julian Ku

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.

Guest Post: The Suspension of the Colombian Peace Talks and the Illegality of the Deprivation of Liberty of Members of State Armed Forces in Non-International Armed Conflicts

by Nicolás Carrillo-Santarelli

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the Autónoma de Madrid University.] 

Introduction

Colombian President Juan Manuel Santos announced on Monday, November 17,2014, that the negotiations between the Colombian Government and the FARC guerrilla seeking to reach a peace agreement were suspended because of information that the FARC kidnapped a Colombian general, an officer, and a lawyer (see here and here [in Spanish]).

While the reaction of the non-state armed group is yet to be seen, it is interesting to take into account its likely position regarding the type of conduct it is accused of having perpetrated. On Sunday November 9, 2014, the FARC kidnapped two Colombian soldiers, called César Rivera and Jonathan Andrés Díaz, but claimed that, in its opinion, far from breaching international humanitarian law, the group acted in accordance thereof. The FARC considers the soldiers to be captured as ‘prisoners of war’ and claims to have treated them in accordance with humanitarian principles by respecting their rights to life and integrity (Spanish) (it must be noted that, in the past, those deprived of their liberty by the FARC have notoriously been treated in an inhuman fashion and to the detriment of the enjoyment of their human rights [see here and here]).

Illegality of all deprivations of liberty attributable to non-state armed groups during non-international armed conflicts

It is important to examine if the claim of the FARC can be consistent with international law: namely, whether a non-state armed group can deprive individuals of their liberty during non-international armed conflicts under International Humanitarian Law (IHL). If the victims are civilians, the answer is clearly a negative one. Furthermore, in a scenario as the Colombian one, in which many civilians have suffered the deprivation of their liberty and their being placed in harsh conditions and treated cruelly or even killed at the hands of the guerillas, which have also extorted money as a condition to release some of them, it can be said that those deprivations of liberty have been carried out “as part of a widespread or systematic attack directed against any civilian population”, and so that those who perpetrate them commit a crime against humanity, according to article 7.e of the Rome Statute of the International Criminal Court. From the point of view of human rights law, it can also be argued that the conduct in question amounts to a violation of those rights (and if it is accepted that non-state entities have human rights obligations, the armed groups would breach them as well).

When it comes to the legal analysis of the deprivation of liberty of members of the Colombian armed forces by the FARC, it is important to begin by noting that the regulation of international and non-international armed conflicts is not always identical or even similar. In fact, applying the rules of the former to the latter may sometimes be problematic, being this one of those events. In this regard, while treaty and customary norms permit the detention of prisoners of war during international armed conflicts, as Rule 99 of the Customary IHL Database of the International Committee of the Red Cross (ICRC) indicates, there is no indication that such a rule is applicable in non-international armed conflicts. In fact, the aforementioned rule, dealing with deprivation of liberty, when discussing non-international armed conflicts, focuses on the human rights standards governing the deprivation of liberty attributed to States, stressing that it must be lawful and non-arbitrary; and so implicitly indicates that there is no legal authorization for non-state armed groups to deprive anyone of his or her liberty or to detain them. In doctrine, this is confirmed by the analysis of conflicts such as the Israeli-Palestinian one, regarding which it has been said that: (more…)

Thoughts on the Baffling Comoros Declination

by Kevin Jon Heller

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation? After all, the OTP took barely 10 pages to explain why it was not going to open an investigation into British war crimes in Iraq. And it routinely refuses to open investigations with no explanation at all.

There are, I think, two possible explanations for the length of the decision. The first is that the OTP learned its lesson with its 2006 Iraq decision, which no one found convincing and was widely interpreted as Luis Moreno-Ocampo succumbing to Western pressure. This time, the OTP was going to do better, providing a much more detailed discussion of its decision not to investigate.

The second possible explanation is that the OTP felt the need to say more than usual because this was the first time a state had referred crimes committed by another state to the OTP. Nothing in the Rome Statute requires the OTP to treat state referrals differently than “referrals” by individuals or organisations (the scare quotes are necessary because individuals and organisations don’t refer situations; they ask the OTP to use its proprio motu power to open an investigation into a situation), but the OTP is, of course, ultimately dependent upon states to cooperate with it. Hence greater solicitude toward state referrals is warranted.

These two explanations are not mutually exclusive, and I imagine both are at least partially correct. But I still can’t help but think that the OTP made a serious mistake, one that will come back to haunt it in the future, should it ever need to formally address the Israel/Palestine conflict again — which seems likely.

To be clear, I don’t think refusing to investigate the attack on the Mavi Marmara was a mistake. I agree with the OTP that the potential crimes committed during the attack, however troubling, are not grave enough to warrant a formal investigation. My problem is with the OTP’s explanation of why those crimes are not adequately grave – that attacks on peacekeepers (in Darfur) are more serious than an attack on civilians engaged trying to break a blockade that has been widely condemned as illegal because of its devastating consequences for the inhabitants of Gaza. I fully agree with Michael Kearney’s recent guest-post on the Comoros decision, in which he questions the OTP’s characterisation of the flotilla as not really being humanitarian. I’d simply add that I find problematic its insistence that a genuinely humanitarian mission would have worked with Israel to distribute goods in Gaza instead of trying to break the blockade. Doing so would have meant, of course, giving final say over the goods to a state whose officials have admitted they want to keep Palestinians at near-subsistence levels. Complying with the blockade would simply have made the flotilla complicit in Israel’s ongoing collective punishment of Gaza’s civilian population.

The OTP’s gravity analysis is also analytically confused…

This War of Mine — A New (and Better) Type of Videogame

by Kevin Jon Heller

Nearly nine years ago, I blogged about the ICRC’s efforts to prevent the use — or, more accurately, the misuse — of the Red Cross symbol in videogames. I imagine it will have less of a problem with the new game This War of Mine, which challenges the player to survive as long as possible as a civilian in a war-torn fictional city. Here is the powerful trailer for the game, which mixes survivor testimony with haunting in-game graphics:

And here is a snippet of a glowing (if that’s the right adjective) review of the game by Matt Peckham in Wired:

I’ve seen some refer to This War of Mine as an antiwar video game. That’s too reductive—like calling pictures of civilian casualties in conflict zones “pacifist propaganda.”

The scenarios This War of Mine engages are less antiwar than they are actual war stories, and that, I think, is the point: This is what unflinching war looks like from the standpoint of those powerless to stop it, the ones caught in the teeth of the machine without catchy operational monikers to rally behind or celebrated by politicians to usher them home as heroes. The ones whose war this isn’t.

It’s what Cormac McCarthy was getting at in The Road: We’re a faint signal cutting through the static of existence, and war, with its reduction of civilian lives to collateral damage, scrambles even that.

The version of war we’re often sold involves abstract military numbers, splashy interactive news maps and easy slogans on bumper stickers. In real war, whatever the reasons and however noble the rhetoric, it comes down to individuals like the ones in This War of Mine: People like you or me trapped in appalling scenarios, their social constructs crumbling, needing basic shelter, food, a bed to sleep in, pills or antibiotics, and perhaps most of all, a reason in all the madness not to check out for good.

Videogames are now a $15 billion industry. Here’s hoping at least some of that money goes to the innovative developers of This War of Mine for showing us the educative and transformative potential that well-designed videogames possess.

November 19: UNWCC Event at SOAS

by Kevin Jon Heller

I want to call our London-area readers attention to a very interesting event I’ll be chairing on November 19. The event is entitled “Reinforcing International Criminal Justice: Building on the Work of the 1943-48 UN War Crimes Commission”; here is the description:

As part of Centre for International Studies and Diplomacy’s Research Programme on UN War Crimes Commission which was published in the Criminal Law Forum, CISD will be holding a Panel Discussion on recently disclosed archives from the United Nations War Crimes Commission (1943-48), uncovering a critical gap in the historical narrative of World War II and the development of international criminal law, upon which the international community can draw in view of strengthening the effectiveness of the International Criminal Court and sharpening international responses to contemporary war crimes and crimes against humanity.

And here are the participants:

Overview: Shanti Sattler (by skype)

Shanti Sattler is the assistant director of the War Crimes Project at the Center for International Studies and Diplomacy at SOAS, University of London.

Complementary Justice: Dr Mark Ellis

Mark Ellis is Executive Director of the International Bar Association (IBA) and leads the foremost international organisation of bar associations, law firms and individual lawyers in the world.

Torture: Dr Lutz Oette

Dr Lutz Oette is Counsel at REDRESS and a lecturer in law at the School of Law, SOAS, University of London.

Prosecution of Sexual Crimes and of Low Level Officials: Dr Dan Plesch

Dr Dan Plesch is the Director of the Centre for International Studies & Diplomacy at SOAS, University of London.

Additional information about the event, which is open to the public and does not require registration, is available here. Readers with a particular interest in the UNWCC’s underappreciated work should also check out CISD’s amazing website here.

Guest Post: Initial Thoughts on the ICC Prosecutor’s Mavi Marmara Report

by Michael Kearney

[Dr Michael Kearney is Lecturer in Law at the School of Law, Politics and Sociology at the University of Sussex.]

On 6 November 2014 the Office of the Prosecutor at the International Criminal Court released the report of her preliminary investigation into the Israeli army’s attack on a flotilla of ships, which, in 2010, had been sailing towards Palestine with the aim of breaking Israel’s naval blockade of the Gaza Strip. As a result of this investigation the Prosecutor is of the belief that during the interception and takeover of the ship, the Mavi Maramara, in which ten people were killed, Israeli soldiers committed war crimes. The Prosecutor has decided that further action by the Court is not currently feasible on the grounds that the crimes in question are not of sufficient gravity so as to warrant a full investigation. The following thoughts will address issues arising from the Report other than the actual war crimes. (Due to the manner in which the Report is formatted, and specifically the repetition of paragraph numbers, references to excerpts from the Report’s Summary are cited as eg ‘para Z ExecSumm’).

I don’t think this is an unexpected or an unreasonable conclusion from the Office of the Prosecutor with respect the gravity aspect of a preliminary examination. What this statement should encourage however, is the immediate ratification of the Rome Statute by Palestine. The analysis demonstrates how, while distant from any possibility of alleged criminals taking to the dock in The Hague, the International Criminal Court can play a crucial role in considering Israel’s policies and practices against Palestinians through the lens of criminal justice.

(more…)

What Happens if Comoros Appeals? (Answer: Not Much.)

by Kevin Jon Heller

According to Marlise Simons at the New York Times, Comoros intends to appeal the OTP’s decision not to open a formal investigation into Israel’s attack on the MV Mavi Marmara. That’s its right — but it’s a right without a remedy, because the judges cannot order the OTP to investigate the attack. The relevant provision in the Rome Statute is Art. 53:

1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

The problem for Comoros is that the OTP refused to open a formal investigation because it concluded that the crimes in question are not grave enough to warrant investigation — Art. 53(1)(b). As a result, although Comoros has the right under Art. 53(3)(a) to ask the Pre-Trial Chamber (PTC) to review the OTP’s decision, the PTC does not have the authority to order the OTP to investigate. All it can do is “request the Prosecutor to reconsider that decision” — to which she would no doubt reply, “thanks, but no.”

The situation would have been very different if the OTP had deemed the crimes adequately grave but refused to investigate because of the “interests of justice” — Art. 53(1)(c). In that case, the PTC would have had the right under Art. 53(3)(b) to review that decision sua sponte and the authority to refuse to confirm the OTP’s decision — which would presumably mean that the PTC could have ordered the OTP to formally investigate. It was thus a very smart move by the OTP to rely on gravity instead of the interests of justice.

No one quite knows what would happen if the PTC ever ordered the OTP to conduct a formal investigation against its will. Such a situation, of course, seems practically untenable. We’ll have to wait a while longer to find out.

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…