Responsibility without Control; Control without Responsibility

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

This is the second 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.

It has been a pleasure to read all the contributions and Kevin’s thoughtful introduction. I want to respond to Valentina Azarov‘s and Pnina Sharvit Baruch‘s posts, which in some ways are mirror images of each other. I enjoyed them both but respectfully express reservations about each. Valentina’s post appears to undermine accountability by imposing on Israel responsibilities that it cannot fulfill; Pnina’s post appears to undermine accountability by exempting Israel from responsibilities that only it can fulfill.

I’m not sure what it means to say, as Valentina does, that an occupier maintains “an overarching responsibility to manage daily affairs in the occupied territory”, while at the same time insisting that the occupier is not responsible for “defaults made by the local authorities”. If the occupying power is responsible for managing daily affairs in the occupied territory, either it must do so directly or it must take responsibility for the actions of the local authorities managing those affairs. Otherwise, it is not clear what the meaning of responsibility is. I don’t believe that the law of occupation requires Israel to step in to correct actions of the Palestinian Authority in the West Bank or the Hamas government in Gaza. If, as Matthew Saul suggests, the sovereignty interest protected by Article 43 of the Hague Regulations is the right of the people to self-determination, forcing the occupier to interfere would seem contrary to the purpose of Article 43 (notwithstanding the important questions that Matthew raises about the quality of the autonomous space being protected). Similarly, imposing responsibility for areas outside the control of the occupier would also seem to violate an entrenched principle of jus in bello, which adopts a neutral stance to the fact of conflict but seeks to regulate the way in which it is waged, including regulation of the administration of captured territory.  My understanding of state practice and the case law is that the law of occupation does not require the occupier to deepen its control in order to manage the territory. We might imagine a situation in which, in order to provide for the needs of the civilian population, an occupier decides to conquer a neighboring seaport, claiming it must do so to restore access to commercial trade and civilian transportation routes cut off by the armed conflict. Certainly IHL would not require an occupant to do so in the name of fulfilling its obligations under Article 43 of the Hague Regulations! To say that Article 43 requires occupiers to fulfill obligations beyond their control is to dilute the nature of the responsibility imposed by IHL.

On the other hand, I fear that Pnina exempts Israel from obligations that only it can fulfill, because of its exclusive control over movement of people between Gaza and the West Bank and significant control over movement of goods. Pnina’s post raises an interesting dilemma: what to do when the local authorities managing daily civilian affairs are in an adversarial position vis a vis the occupying power, either politically or militarily or both? In the Palestinian territory, this issue arises in both Gaza and the West Bank. Since the creation of the Palestinian Authority in 1994, Israel has been in a politically adversarial position and at times in direct military conflict with the PA and the Hamas government. Certainly IHL allows Israel to take military measures against groups or individuals engaged in armed conflict and working directly or indirectly for Palestinian factions, including factions holding positions of authority over civilian affairs. But even if Israel is no longer responsible for the daily managing of civilian affairs, I don’t think it may deliberately interfere with the civilian functions of government, as it has done, for example, at various points by withholding tax moneys collected on behalf of the Palestinian Authority – money used to provide governmental services to Palestinian residents of Gaza and the West Bank – or by restricting movement into and out of Gaza beyond what is required by concrete security needs. Article 43 states that where control over civilians is exercised, such control must take into account their needs, not just for basic humanitarian supplies but also for a properly functioning society and economy.  A factual point not clear from Pnina’s post is that Israel, not a Palestinian authority, controls the ability of people to travel between Gaza and the West Bank and to transfer and sell manufacturing and agricultural goods outside Gaza.  To exempt Israel from the obligation to facilitate normal life in Gaza, insofar as it depends on the movement of people and goods, is to leave a normative vacuum that would deprive (and is right now depriving) civilians in Gaza of the ability to engage in ordinary economic, cultural, social, and family life.

In short, I think that Valentina’s argument undermines accountability by imposing on Israel obligations that it does not have the ability to fulfill, in the absence of a large-scale military operation to deepen its control over Gaza. And I think Pnina’s argument undermines accountability by exempting Israel from obligations that only it can fulfill: the Palestinian authorities cannot regulate the flow of people and goods into and out of Gaza, especially between Gaza and the West Bank, because Israel prevents them from doing so. The choice to exercise that control creates obligations.