27 Apr 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.
Furthermore, even if one accepts Gross and Bashi’s contention, that under a concept of functional occupation certain obligations apply even where effective control does not exist, the way this concept is implemented by them with regard to the relationship between Israel and the Hamas controlled Gaza Strip is questionable. Here two important factors must be mentioned. (Interestingly they receive almost no mention in the posts of my fellow bloggers.)
Firstly, there is an ongoing armed conflict between Israel and the Hamas, which includes periods of intense rocket fire towards Israel from the Gaza Strip. The Hamas has an effective government which is in full control of the Gaza Strip and has organized armed forces with military capabilities. In this regard it is also worth mentioning that Israel did not and does not assert a right to reenter the Gaza Strip at will (as Valentina Azarov suggests) and that all its incursions into the Gaza Strip since disengagement in 2005 have occurred in the context of this armed conflict. In addition, on a practical level such incursions face fierce armed opposition. Therefore, the claim made by Azarov that Israel has the ability to “reinstate its control over any domain of daily life whenever it so wishes” does not reflect present reality. Israel’s actions with regard to the Gaza Strip must be viewed in light of this reality, as I will further elaborate below.
Secondly, Israel does not have full control over the external perimeter of the Gaza Strip, since it has no control over the land border between Gaza and Egypt and there are direct contacts between the Hamas government and the Egyptians authorities.
According to Bashi and Gross, Israel retained powers as an occupier with regard to movement of persons and goods to and from the Gaza Strip. They contend that any restrictions on such movement, beyond what is required under concrete security considerations, is unlawful since Israel is under the obligation to ensure the welfare of the residents of the Gaza Strip, being their occupier.
This analysis ignores the fact that the power of Israel to decide who and what enter its territory or pass through it is part of its sovereign right and therefore that exercising such powers in relation to its borders with the Gaza Strip cannot imply a continuation of its occupation by Israel. This is so especially when taking into account that the border of the Gaza Strip with Egypt is not under Israeli control.
Moreover, various restrictions imposed by Israel on the movement of goods were a result of the Hamas takeover of the Gaza Strip and its assault on Israel and were intended to put economic pressure on the Hamas Government to stop its hostile actions. The contention that Israel remains governmentally responsible for the welfare of the residents of the Gaza Strip would impose on Israel the duty to maintain normal economic relations with Gaza as if no hostilities were taking place. This seems to me a far reaching outcome. Accepting such a conclusion would effectively leave Israel with no legal means to defend itself other than to resort to forceful measures. This is an odd outcome for those seeking to protect civilians from the inevitable dangers of military operations in a densely populated Gaza Strip. Such a conclusion is also out of step with state practice, as well as the various measures of coercion contemplated by the UN Charter, for example, when setting out the measures which may be taken by the Security Council (economic measures before the use of force).
Admittedly, as is reflected in the Al-Bassiouni case, Israel accepts that it continues to have certain obligations towards the residents of the Gaza Strip. These are not the obligations of an occupier under the law of occupation. Gross sees the Court’s judgment as a reflection of a “functional approach”. However, even if this is accepted as a correct reading of the Court’s judgment (which I do not), it should be pointed out that such a functional approach is not necessarily limited to determining that occupation refers only to certain powers and obligations and not to others, but also that the level of responsibility may differ in comparison to a “classical” occupation. In other words, even if one accepts, as the Israeli Supreme Court concluded in the Al-Bassiouni case, that Israel may not cut all electricity and fuel supplies from its territory to the Gaza Strip due to the unique relationship and continued dependency between them, this does not inevitably mean that it must provide these commodities to the Gaza Strip without restriction. Here considerations derived from Israel’s sovereign right to determine policy towards the Hamas regime in light of the threat it poses and the armed conflict situation existing may be taken into account and influence the scope of any obligations considered applicable.
Undeniably, the result of the Israeli Supreme Court’s decision is confusing and lacks certainty, but so is the reality of the situation. Gross points out that the answers are not always purely legal but rather involve also ethical aspects. I agree. One must only bear in mind in this regard that situations are complex and that those labeled “occupiers” are not always necessarily the bad guys.