In Reluctant Defense of the Law of Occupation

[Sari Bashi is Executive Director at Gisha – Legal Center for Freedom of Movement.]

This is the second 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 grateful to Opinio Juris for hosting this symposium in its best tradition of fostering robust debate on cutting-edge issues in international law and to Aeyal Gross for providing the theoretical framework for understanding Israel’s obligations in Gaza.

As the director of Gisha, an Israeli human rights organization working to protect the rights of Palestinian residents of Gaza, I co-wrote Scale of Control about the legal status of the Gaza Strip, because I believe that the law of occupation, flawed as it is, provides a useful framework for understanding and regulating Israeli control over Gaza. Whether Gaza is considered occupied is not only an intellectually compelling question but also a question whose answer has significant consequences for the ability of 1.6 million people to overcome movement restrictions in order to lead normal lives. In this post, I want to explain why I believe Israel bears the responsibility of an occupying power in the spheres over which it exercises control in Gaza and also – why that matters.

Israel’s regulation of access into and out of Gaza is influenced by the way in which important actors – including the Israeli Supreme Court, the United Nations, the International Committee of the Red Cross and key Western powers – view Israel’s obligations to Palestinians living in Gaza. Public opinion within Israel and concern over diplomatic pressure help determine the standard that Israel observes in regulating movement – whether mathematical formulas are used to determine how much food will be permitted into the Gaza Strip, as was the case between June 2007 and June 2010, or whether, as is the case today, incoming goods are permitted but outgoing goods banned, and movement of people is restricted in seemingly arbitrary ways (the current rules allow football players to travel between Gaza and the West Bank but ban university students).

The Israeli government claims that its detailed criteria outlining who may travel between Gaza and the West Bank (male merchants may travel, but female hairdressers are banned), its determination of which kinds of export goods may leave Gaza and where they may be marketed, and its insistence that parents in Gaza register their newborn children in the Israeli controlled population registry as a condition of allowing those children to cross borders – are actions taken under the law of armed conflict. Under the law of armed conflict, Israel claims, it owes minimal obligations, primarily to allow the entry into Gaza of items essential to the survival of the civilian population and to allow exit from Gaza under exceptional humanitarian circumstances, with an emphasis on urgent medical cases.

So, according to the Israeli government, it may control many of the spheres of life that determine whether civilians will lead normal lives, including the movement of persons and goods critical to the economy, educational system, family unity, and civil society, but may use such control to disrupt normal life in Gaza, as long as it allows in basic foodstuffs and other humanitarian necessities.

That doesn’t seem right to me as an activist who cares deeply about human rights, and as a lawyer specializing in international humanitarian law, I think it reflects a misunderstanding of the meaning and purpose of the law of occupation.

I’ll start from first principles, as I understand them. Occupation law regulates the exceptional circumstance in which a foreign power exercises control over a civilian population as the result of an armed conflict whose ramifications have yet to be resolved. Occupation law (Article 43 of the Hague Regulations) authorizes the occupying power to act for just two purposes: to protect security and to restore, as far as possible, normal civilian life. Why restore normal life? Because the occupying power is preventing the lawful or local sovereign from exercising the governmental functions necessary for ordinary social, economic and other civilian needs and therefore – it must fill in the gap. In a long-term occupation such as the Israeli occupation of the Palestinian territory, the duty to facilitate normal life has been given a robust interpretation, especially by the Israeli government and Israeli Supreme Court (check out this recent decision holding that the usual limitations on extracting the natural resources of an occupied territory are to be relaxed in light of a long-term occupier’s obligation to facilitate economic development in the occupied territory).

But what happens when the occupying power is not usurping all functions of government but rather only some? As it turns out, that situation is pretty common, and the experience in northern Cyprus, the former Yugoslavia, Iraq and the Palestinian territory indicates that where the occupying power is controlling some aspects of life relevant to its obligations under the law of occupation and exercising some functions of government, it owes obligations commensurate with the nature and extent of its control. We review some of these cases in Chapter 2 of Scale of Control. The bottom line is that where the occupying power has the capacity, without deepening its control or taking additional territory, to fulfill some, but not all, of the obligations owed by an occupying power– it must do so.  And the underlying consideration, commensurate with the revolution in IHL since the horrors of World War II, is to avoid a gap in protections for civilians who find themselves under the control of a foreign power.

So how does that apply to Gaza, where Israel exercises control over movement of persons and goods, the tax system and the population registry but has removed (in 2005) its permanent ground troop presence from the interior of the Gaza Strip?

It turns out that the law of occupation applies to Gaza pretty much as it has applied since 1967 and also as it applies to the West Bank. To use the term coined by Aeyal Gross – it applies functionally. Since Israel began transferring some control over government functions to the Palestinian Authority (PA) in the 1990s, but retained other forms of control, the relevant actors – the Israeli and Palestinian governments, international organizations, Israeli courts, and human rights groups – have adopted a functional approach. Beginning in 1995, Israel abdicated responsibility for the daily running of schools, hospitals and traffic circles in various parts of the Palestinian territory, claiming that control, and thus responsibility, had been transferred to the Palestinian Authority. Most of the world, including the Palestinian Authority, accepted this claim. Today, when a prisoner alleges torture by a Palestinian police officer in Jenin, the International Committee of the Red Cross intervenes with the PA – and refrains from demanding that Israel, as the occupying power, enter the jail to make it stop. Yet, all parties, including the Israeli Justice Ministry, agree that Israel holds the West Bank in belligerent occupation.

Perhaps Israel should not have been able to get off the hook for the vast obligations – health care, education, social welfare – that have been transferred to the PA, which in turn receives foreign donations to meet these obligations.  Perhaps other occupying powers, such as the United Kingdom in Basra and Turkey in northern Cyprus, should have been made responsible for all the obligations of an occupying power, despite findings of partial control. But the law of occupation takes as a given the fact of control, as well as its extent and nature, and it allocates responsibility accordingly. So in Gaza, where Israel controls the movement of people and goods and as a result – the tax system and population registry – its obligations are no more, but also no less, than what it has the capacity to do, based on the nature and extent of its control. And these days, those obligations are primarily to allow the passage of people and goods into and out of Gaza, including to and from the West Bank, a critical destination for economic, educational, cultural and social development as well as family wholeness. That would mean canceling restrictions on transferring goods from Gaza to their markets in Israel and the West Bank, canceling the ban on construction materials entering Gaza, and allowing the free movement of people between Gaza and the West Bank, subject to individual security checks. It would not mean sending troops into Gaza in order to introduce economic development projects or to reform the school system. And Israel would still have the authority to impose movement restrictions, where those are necessary for concrete security goals.

Before concluding this post, I want to address two thoughtful objections that I have heard to the application of the law of occupation to Gaza.

First, on the distinction between influence and control: We do not claim that every time a state exercises economic influence over a foreign territory – it occupies the territory. Israel’s control over the flow of people and goods into and out of Gaza is based in military power, not just economic dominance: Israeli warships prevent passage via the sea, fighter jets prevent air traffic, and ground forces (including remote control weapons) exercise control over parts of Gaza’s land territory. Israel’s prevention of movement into and out of Gaza is not a sovereign choice about trade relations but rather an act of physical force.

Second, on the test for seizing territory under belligerent occupation:  the elements of control currently held by Israel were seized as part of the military conquest of Gaza and Israel’s establishment of effective control there. We do not and need not ask whether these elements of control alone would be sufficient to establish effective control under Article 42 of the Hague Regulations, where no such control existed previously. As Adam Roberts points out, there need not be symmetry in the test for the beginning of an occupation and the test for its end. The elements of control that Israel continues to exercise over Gaza were seized as part of a belligerent occupation and have yet to be relinquished, despite a significant reduction in Israeli control over Gaza over the past two decades. For that reason, Israel’s obligations as an occupying power have yet to be extinguished.

I wrote Scale of Control together with Tamar Feldman, based on the insightful analysis that Aeyal Gross will publish in his forthcoming book, because I believe that international humanitarian law provides useful tools in regulating Israeli control over Gaza. While these tools suffer from the flaws inherent to a body of law that purports to regulate people’s use of violence against each other, they remain useful to the goals of recognizing the security interests of Israel while providing some protections to Palestinians living in Gaza – ordinary civilians struggling to lead ordinary lives.