Author: Sari Bashi

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.

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.