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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.

Occupation Law Symposium: Response by Matthew Saul

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)] This is the third 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. Thank you to all of my fellow symposium participants for a very interesting set of posts. This symposium has clearly raised a number of very important issues. One point that I find particularly interesting is the scope for there to be a difference in the significance of the functional approach in the context of the establishment of an occupation and in the context of a reduction of an extant occupation. In this respect, I agree with Sari Bashi that the level of control over territory that is necessary for the commencement of the law of occupation is not the same as for its continuation. However, I think it is also important to recognize that there is likely to be a difference in the nature of the governance space that will surround the occupied functions in the two contexts. In the establishment context, the governance space that is left unregulated by the law of occupation (by limiting the application of the law of occupation to the functions undertaken by the external power) has a character that has been created by the target state and its people. In contrast, in the disengagement context, the governance space that is to be left unregulated can be expected to have been affected by the prior, more extensive occupation. Indeed, there is a risk that the scope for the level of regulation of the law of occupation to be reduced in line with a reduction in the direct control of the occupiers will encourage an occupier to exert more influence on domestic politics in the period when it is in full control of the territory. This would be as a means of ensuring that when it reduces control – and thereby benefits from a reduction in obligations and an improvement in the way in which its involvement is projected – matters will still develop across the whole of the territory in accordance with its preferences. One way to address the scope for the functional approach to be exploited by occupiers could be for some criteria to be posited as to the sort of conditions that must prevail in the space created by a partial disengagement for the functional approach to be activated. In this respect, Aeyal Gross recognizes that there is an issue, when he suggests that ‘the functional approach must not mean that occupiers are relieved of their duties when there is no one else exercising them, or when the occupier’s behavior prevents a legitimate sovereign from exercising them.’ The two aspects highlighted by Aeyal could serve as criteria for determining when it is appropriate to adopt the functional approach in the context of disengagement, but both could benefit from more detail. For instance, should there be a quality threshold in terms of the exercise of certain functions in the space left by disengagement?