The Janus Face of ‘Effective Control’: The ICJ’s Approach to Determining the Applicability of the Law of Occupation in Gaza After the Israeli Withdrawal

[Tatjana Grote is a PhD Candidate at the University of Essex]

Once again, the International Court of Justice (ICJ, ‘the Court’) has made its way into the headlines of the world. In its recent Advisory Opinion on ‘Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem’, the Court left no doubt that it considers the ongoing Israeli occupation of Palestine as well as several of its policies unlawful and that Israel is under a legal obligation to bring the occupation and the discussed policies to an end. Part of the Opinion’s significant punching power might be explained by the commendable acuity with which the Court condemns certain practices and policies of the Israeli government. In light of the extreme and inacceptable suffering caused by the current Israeli military campaign in Gaza, which – as the Court held in a previous decision (para. 54) – might constitute a genocide, this can be seen as an important judicial push towards self-determination, justice and peace for all involved. 

However, this post will argue that the Opinion could have been improved by even more clarity on one specific issue: the applicability of the law of occupation in Gaza after the Israeli withdrawal in 2004-2005. It will be argued that although the Court’s determination that Israel has remained bound by certain obligations arising from the law of occupation after its withdrawal is to be welcomed, its reasoning comes with a risk of misinterpretation. By mixing the question of whether effective control requires ‘boots on the ground’ and whether the law of occupation only applies when an occupying power (OP) exercises effective control, the Court made its Opinion vulnerable to a reading which could decrease the protective effect of the law of occupation. It would have been well-advised to maintain ‘effective control’ as a concept for the (actual or potential) exercise of exclusive control over all aspects of life and government, and ‘key elements of authority’ as the actual exercise of exclusive control over certain aspects of life and government.

What was the Question?

To start from the beginning: the Court considered that it had to ‘determine whether and how Israel’s withdrawal of its physical military presence on the ground from the Gaza Strip in 2004-2005 affected its obligations under the law of occupation in that area’ (para. 90). Note that this question slightly differs from the ‘is Gaza still occupied?’-debate (see, e.g., here, here and here). 

The way the Court framed the issue divorces the question of whether a state of occupation exists from that of whether obligations from the law of occupation arise, which allows to add crucial nuance to the discussion. Obligations could arise either because Gaza remained under the effective control of Israel, and thus continued to be occupied in a traditional sense, or because certain obligations from the law of occupation can remain applicable even when the remaining control exercised is less than effective and thus falls short of the standard required by Article 42 Hague Regulations (HR). In the former scenario, the entire law of occupation would remain applicable – as well as (unless derogated from) international human rights law (IHRL) in its entirety. In the latter case, only some obligations would remain applicable. The following will demonstrate that this distinction is crucial and should hence be reflected in the language used when discussing it. 

Effective Control does not Require ‘Boots on the Ground’

The Court first defined the concept of occupation. It referred to Article 42 Hague Regulations (HR) which it interpreted as establishing two criteria: ‘A State occupies territory that is not its own when, and to the extent that, it exercises effective control over it.’ (para. 90) At least if one understands ‘to the extent that’ in geographic terms, none of this is overly controversial. Such a reading seems convincing here as the next sentence seems to refer to effective control as a binary, not as a gradual concept. This also reflects the traditional understanding of ‘effective control’.

Turning to the thornier question of whether effective control requires ‘boots on the ground’, the Court first clarified that once territory has been placed under the effective control of a belligerent party, this control can be considered as maintained by the mere ‘capacity to enforce its authority, including by making its physical presence felt within a reasonable time’ (para. 91). 

The Court seems to imply that control initially must be established through physical presence. The capacity to establish effective control within reasonable time alone does not create a situation of occupation. This asymmetry is crucial to avoid absurd results: a State is not automatically occupying its neighbouring State simply by having the military might to invade it fairly quickly. The law of occupation deals with situations where a sovereign has been displaced, thus requiring the displacing state to ensure that the displacement has no significant negative effect on the civilian population by temporarily ‘filling in’ for the displaced sovereign. 

Note that in describing what is required to initially trigger the applicability of the law of occupation (para. 91, first sentence), the Court seems to understand ‘effective control’ as the complete control associated with physical presence on the ground, which is how ‘effective control’ has been understood traditionally. As to be seen below, the Court did not maintain this understanding of ‘effective control’ as complete control, and hence a binary concept, in its later reasoning.

Certain Obligations from the Law of Occupation can Remain Applicable when a State Exercises Only) Partial Control

The Court then seamlessly connected the above discussion with its views on whether the law of occupation can continue to apply in situations where the authority of the (former) OP is no longer complete, but to some extent shared with the formerly displaced or a new sovereign. In this respect, the Court opined that ‘having previously established its authority in the occupied territory’, the OP ‘may still bear obligations under the law of occupation to the extent that it remains capable of exercising, and continues to exercise, elements of its authority in place of the local government.’ (para. 92) The wording the Court chose closely mirrors the functional approach to the applicability of the law of occupation advocated for, inter alia, by the International Committee of the Red Cross (p. 12).

Note that advocates of such an approach do not argue that retaining ‘key elements of authority’ triggered the applicability of the entire law of occupation. Instead, the key idea of the functional approach is that in situations where the displacement of the authority of the sovereign becomes partial, the obligations of the (former) OP do not disappear entirely but reduce in unison with its authority. By mirroring the factual situation on the ground in a more nuanced manner, this approach allows to close critical gaps in legal protection (see, e.g., Ferraro, p 158). This further stays true to the spirit of the law of occupation: The need to have a body of law like the law of occupation emanates from the fact that, by completely displacing the enemy sovereign, a belligerent party has created a relationship of dependence between itself and the local population. This dependence lies at the heart of the law of occupation, which should hence remain applicable for as long as the (former) OP decides to maintain it, even if only with respect to certain aspects of life. Against this background and in the view of this author, the fact that the Court put its judicial weight behind the functional approach constitutes a commendable development. 

The Cause of Confusion and Concern: ‘Effective Control’ as a Question of Degree?

However, the Court would have been well-advised to distinguish more clearly between ‘effective control’ as the traditionally binary concept and a novel understanding of ‘effective control’ as a spectrum. In the view of this author, there should be two distinct questions: 1) whether effective control, understood in a traditional sense of complete control, requires physical presence, and 2) whether the parts of the law of occupation can remain applicable when a State shares authority with the actual sovereign after a period of completely displacing it. 

Yet, due to the structure of the Court’s reasoning as well as intermingling the language of effective control with the idea of the functional approach, this reading might not be the most intuitive. The Court seems to use ‘effective control’ first as a binary concept when speaking of what initially triggers the applicability of law of occupation (see para. 91), and then as a gradual concept when explaining what can maintain its (partial) applicability (‘commensurate with the degree of its effective control over the Gaza Strip’, para. 94).

This is problematic. Traditionally, if a state exercises effective control over foreign territory, all its obligations under the law of occupation and IHRL are applicable. This is why ‘effective control’ has been construed as such a rigorous standard: if only partial control were to constitute ‘effective control’, there could be a situation where a State can influence only certain parts of public life, e.g., the movement of goods, but is legally responsible for maintaining all aspects of it, e.g., the suppression of violent crime. This would render the law ineffectual or encourage interferences with a state’s sovereignty under the guise of fulfilling obligations under international law. As long as ‘effective control’ is – even if not in IHL, then in IHRL – understood as a standard triggering the applicability of all obligations, using ‘effective control’ to describe a situation of partial applicability might cause confusion.

Moreover, mixing the language of effective control with the idea of the functional approach opens the possibility of a mala fide interpretation. Remember that while the Court accepted that effective control in a traditional sense can be based on a potential exercise of authority, key elements of authority need to actually be exercised. Imagine a situation where a State completely displaces the sovereign, but then refuses to assume responsibility for, e.g., the health care system. Mixing the reduced scope of obligations from the functional approach and the acceptance of potentiality regarding effective control understood in a traditional sense, the State might argue that it does not exercise authority over the health care system, even when it completely displaced the sovereign, and hence has no obligations in this respect. This would then leave precisely the sort of vacuum the law of occupation seeks to prevent.

Against this background, it might have been wiser to give two answers to the question the Court was faced with: 1) Effective control, understood as complete control triggering the entire applicability of the law of occupation, can be exercised in absence of actual physical presence on the ground. 2) When the previously displaced sovereign gains back some of its authority, the (former) OP will still be bound by those obligations of the law of occupation which it continues to exercise control over to the exclusion of the returned sovereign. Based on the latter, Israel remained bound by certain obligations towards the population in Gaza, even after its withdrawal in 2004-2005.

Conclusion

In sum, the Court was right to allow for a functional approach to the applicability of the law of occupation. This is important to close protective gaps arising when applying a strictly binary approach to the applicability of the law of occupation to situations like that of Gaza after 2005. 

Yet, the lack of a clear separation between ‘effective control’ binary concept triggering all obligations under the law of occupation and IHRL on one hand, and as a spectrum justifying the applicability of only certain obligations, on the other hand, might cause confusion further down the line. In a world where all States interpret international law in good faith and with the best interest of the civilian population in mind, this might not cause any issues. However, this author fears that this is not the world we are living in and, therefore, would have wished for even more clarity in an in many aspects remarkably clear and praiseworthy Advisory Opinion.