As I famous in my first put up on the ICJ Palestine AO, the Court docket has held that the regulation of occupation, no less than to some extent, continues to use in Gaza. On this put up I’ll study the Court docket’s holding and reasoning extra carefully.
Readers can be conscious that the query whether or not Gaza remained occupied after Israel’s 2005 disengagement has been very controversial. Portray with a really broad brush, many educational specialists, states, numerous worldwide our bodies and NGOs, together with the ICRC, have argued that Gaza remained occupied, because of Israel’s management of Gaza’s borders and different methods of projecting its energy inside the territory. Different specialists, together with many from army backgrounds, have argued that occupation requires boots on the bottom and that, after its disengagement, Israel had no efficient management over Gaza, with its adversary, Hamas, finally assuming such management. (For extra background, see this put up of mine from 15 years in the past analyzing the talk, one other put up a related judgment of the European Court docket of Human Rights, and this more moderen put up by Mike Meier over at Articles of Conflict).
Whereas this debate has centred on Gaza, it additionally raised essential questions of precept, particularly as as to whether occupation is a binary standing, that both exists or not, or whether or not it may well as a substitute exist functionally, on a sliding scale, with the quantum of obligations of the occupying energy being variable and depending on the diploma of management that it workout routines within the territory. This practical method has echoed, to some extent, the so-called ‘Pictet idea’, which argued that the regulation of occupation might additionally apply on the invasion stage, earlier than an occupation was absolutely established, with no intermediate stage between the 2. Equally, an essential query of precept is whether or not the notion of efficient management needs to be understood otherwise on the finish relatively than in the beginning of an occupation, particularly in a scenario similar to Gaza the place the occupying energy withdraws unilaterally however maintains some measure of affect over the territory. (For extra background on the practical method specifically, see the work of Aeyal Gross, who originated the time period, and see additionally this put up explaining how the ICRC adopted and mainstreamed it; see additionally the proceedings of a 2012 skilled assembly on occupation convened by the ICRC, and see additionally the ICRC new Frequent Article 2 commentary, reiterating its place).
So, with this background in thoughts, what has the ICJ determined in its new AO? Briefly, the Court docket has clearly embraced some variant of a practical method. However, it additionally mentions elements that don’t essentially issue into that method. And whereas it’s clear that the Court docket’s view is that the regulation of occupation governs no less than a few of Israel’s actions, it’s not clear what precise obligations the Court docket regards to be engaged. It’s furthermore unclear whether or not the Court docket really regards Gaza to have been occupied, absolutely or partially, and in what exact interval after 2005, or relatively whether or not it regards some obligations to use residually, even after the occupation had ended. In different phrases, the Court docket’s method is kind of ambiguous. This ambiguity is once more almost certainly because of the want to take care of unity inside the Court docket.
After offering some background (AO paras 86-89), the Court docket begins its dialogue as follows (para 90):
In these circumstances, the Court docket should decide whether or not and the way Israel’s withdrawal of its bodily army presence on the bottom from the Gaza Strip in 2004-2005 affected its obligations underneath the regulation of occupation in that space. Because the Court docket noticed above (see paragraph 86), territory is occupied when it’s really positioned underneath the authority of the hostile military. A State occupies territory that’s not its personal when, and to the extent that, it workout routines efficient management over it. A State due to this fact can’t be thought-about an occupying Energy except and till it has positioned territory that’s not its personal underneath its efficient management (see Armed Actions on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reviews 2005, p. 230, para. 173). (emphasis added)
Two factors are value noting right here. First, the ‘to the extent’ language clearly implies that the Court docket regards efficient management as a variable criterion, relatively than as a binary one. Second, its quotation to a paragraph of its personal Congo v. Uganda judgment doesn’t help that proposition – quite the opposite, that paragraph was extensively criticized for holding, or showing to carry, that an occupying energy really needed to set up its authority as a matter of truth, i.e. take over the working of an occupied territory, for an occupation to start, although it might intentionally chorus from doing so whereas absolutely having the capability to take action, thus leaving the world in chaos (not, maybe, in contrast to the scenario in Gaza at present), or certainly by leaving the working of the territory to the pre-existing native authorities (as with Denmark underneath German occupation throughout World Conflict II).
Then the Court docket says (para 91):
The place a State has positioned territory underneath its efficient management, it may be able to take care of that management and to proceed exercising its authority regardless of the absence of a bodily army presence on the bottom. Bodily army presence within the occupied territory isn’t indispensable for the train by a State of efficient management, so long as the State in query has the capability to implement its authority, together with by making its bodily presence felt inside an inexpensive time (for instance, see United States Army Tribunal, USA v. Wilhelm Checklist and others (Hostage case) (19 February 1948), Trials of Conflict Criminals earlier than the Nuremberg Army Tribunals underneath Management Council Legislation No. 10, Vol. XI, p. 1243; Worldwide Legal Tribunal for the previous Yugoslavia, Prosecutor v. Mladen Naletilić and Vinko Martinović, IT-98-34-T, Trial Chamber, Judgement, 31 March 2003, para. 217).
The Court docket right here is clearly saying that management over an occupied territory may be maintained with out boots on the bottom. However the circumstances that it cites – together with the notion of the occupying energy having the capability to make its presence felt – handled a really particular, and never precisely analogous situation: one the place, because of resistance within the occupied territory, the occupying energy doesn’t bodily management each atom of that territory at each second in time, with out the occupation terminating and resuming with every flux in management. Thus, for instance, when the US and the UK occupied Iraq in 2003, they have been the occupying powers in all of Iraq even supposing their troops weren’t current in each single village or couldn’t cease every kind of rebel exercise. It’s unclear whether or not this method may be utilized to post-disengagement Gaza, taking into account the power and sturdiness of Hamas’ energy within the space (see my outdated put up for a dialogue of this). And it’s unclear whether or not the Court docket is saying right here that Gaza was nonetheless occupied as a result of Israel might re-enter the territory to combat Hamas, because it has now achieved – the Court docket simply doesn’t interact with this straight. To my thoughts, this method is extra related for whether or not Gaza is (wholly or partly) occupied at present, with Israeli troops on the bottom however not in full management of each single sq. metre of Gaza, than as to the query whether or not it was occupied 2005-2023.
Then the Court docket says the next (para 92):
The foregoing evaluation signifies that, for the aim of figuring out whether or not a territory stays occupied underneath worldwide regulation, the decisive criterion isn’t whether or not the occupying Energy retains its bodily army presence within the territory always however relatively whether or not its authority “has been established and may be exercised” (Article 42 of the Laws Respecting the Legal guidelines and Customs of Conflict on Land annexed to the Fourth Hague Conference of 18 October 1907; hereinafter the “Hague Laws”). The place an occupying Energy, having beforehand established its authority within the occupied territory, later withdraws its bodily presence partially or in complete, it could nonetheless bear obligations underneath the regulation of occupation to the extent that it stays able to exercising, and continues to train, parts of its authority rather than the native authorities. (emphasis added)
Be aware the delicate shift in language right here – the Court docket begins this paragraph as an inquiry into whether or not Gaza stays occupied, however then pivots to figuring out whether or not, after a withdrawal, the occupying energy ‘should bear obligations underneath the regulation of occupation.’ That’s, the Court docket might right here be learn as saying both that the occupation continues, if in a distinct, lesser type, or as a substitute as saying that that some obligations underneath the regulation of occupation persist residually even after the occupation has ended.
Lastly, the Court docket holds that (paras 93-94):
Primarily based on the knowledge earlier than it, the Court docket considers that Israel remained able to exercising, and continued to train, sure key parts of authority over the Gaza Strip, together with management of the land, sea and air borders, restrictions on motion of individuals and items, assortment of import and export taxes, and army management over the buffer zone, regardless of the withdrawal of its army presence in 2005. That is much more so since 7 October 2023.
In gentle of the above, the Court docket is of the view that Israel’s withdrawal from the Gaza Strip has not completely launched it of its obligations underneath the regulation of occupation. Israel’s obligations have remained commensurate with the diploma of its efficient management over the Gaza Strip.
(emphasis added)
These concluding paragraphs elevate the Court docket’s analytical ambiguity to the extent of an artwork type. Be aware, first, how the Court docket’s reference to the scenario after 7 October, which it makes regardless of beforehand holding that the scope of the questions earlier than it excludes Israel’s conduct after the Hamas assault (para 81), can solely relate to the truth that Israel at present has an enormous army presence in Gaza, i.e. does have boots on the bottom. To place this otherwise, it’s completely doable to just accept that Israel occupies all or components of Gaza at present with out embracing a practical method (see, in that regard, this skilled opinion by 9 eminent Israeli students, arguing in April this yr that northern Gaza was occupied). Second, the Court docket by no means says that Gaza was occupied after 2005, or whether or not that occupation was at any level interrupted. Fairly, it speaks of Israel not being completely launched of its obligations – which once more might be learn as holding that some such obligations apply residually, even after the occupation has ended. The ‘commensurate with the diploma of its efficient management’ language might equally be learn as saying that the occupation exists, on a practical foundation, or that residual obligations exist functionally although the occupation might have, in some unspecified time in the future, stopped (after which even perhaps resumed).
A few of this uncertainty is explored within the separate opinions of Decide Iwasawa and Decide Cleveland. Decide Iwasawa’s primary level is that the Court docket has embraced a practical method to the regulation of occupation, however that this doesn’t essentially entail that it has held that Gaza remained occupied (para 8):
Thus, whereas the Court docket makes clear that Israel continues to be certain by sure obligations underneath the regulation of occupation, it doesn’t take a place as as to whether Gaza remained “occupied” inside the that means of the regulation of occupation after 2005. […] The scenario in Gaza has drastically modified since 7 October 2023. Nevertheless, occasions going down after that date are past the temporal scope of the Court docket’s inquiry (para. 1 above).
That is a completely believable studying of the AO, however it’s not the one doable such studying – the Court docket doesn’t expressly say that the regulation of occupation can apply functionally even when the occupation has ceased, which is the implication of Decide Iwasawa’s place.
As for Decide Cleveland, she summarizes the Court docket’s method as follows (para 10):
In any other case the Opinion says little or no about Gaza. In figuring out the relevant regulation in paragraphs 88 to 94, the Court docket observes that after its withdrawal in 2005, Israel continued to train sure key parts of authority with respect to the Gaza Strip, together with “management of the land, sea and air borders, restrictions on motion of individuals and items, assortment of import and export taxes, and army management over the buffer zone” (para. 93). On this regard, it concludes that elements of the regulation of occupation continued to use with respect to the Gaza Strip, commensurate with Israel’s diploma of efficient management (para. 94). Nevertheless, the Court docket doesn’t determine which obligations continued to bind Israel after 2005, nor does it discover any violations of such obligations. The truth is, the Court docket’s dedication that the regulation of occupation continued to use with respect to the Gaza Strip performs no subsequent function within the Court docket’s evaluation. (emphasis added)
Decide Cleveland is herself considerably coy right here – she, just like the Court docket, avoids straight saying on whether or not Gaza remained occupied, however talks in regards to the continued utility of ‘elements’ of the regulation of occupation. Whether or not she reads the AO in the identical means as Decide Iwasawa is troublesome to say (and once more, most likely intentionally so). Decide Cleveland is totally proper when she says that the Court docket’s dedication performs no subsequent function in its evaluation, with one essential exception – the Court docket’s holding that Israel has to withdraw from all occupied Palestinian territories, a time period which it bundles Gaza into with out expressly saying on its standing.
Decide Cleveland can be completely proper in saying that the practical method the Court docket adopted leaves substantial uncertainty, with out additional clarification from the Court docket, as to which obligations Israel was certain to adjust to. She tries to deal with this uncertainty at paragraph 24 of her opinion:
Second, with respect to Israel’s obligations underneath the regulation of occupation concerning Gaza after 2005 (see para. 10 above), it’s clear that Israel didn’t train efficient management over many of the day-to-day authorities administration of the Gaza Strip — a duty which, after 2007, was underneath the management of Hamas. Israel, due to this fact, didn’t typically possess the efficient management vital, for instance, to incur the duty underneath Article 43 of the 1907 Hague Laws to take care of public order inside Gaza. Nonetheless, the Court docket might have discovered that Israel’s management over the ocean and air area of the Gaza Strip, in addition to land crossings (which it shared partially with Egypt (Advisory Opinion, para. 89)), and its extreme restrictions on, for instance, imports of meals, exports, and actions similar to fishing in Gaza’s maritime area (opposite to Israel’s commitments underneath the Oslo Accords), introduced with it, inter alia, elements of the obligation “to ensur[e] the meals and medical provides of the inhabitants” underneath Article 55 of the Fourth Geneva Conference, in addition to the obligation to facilitate humanitarian aid underneath Article 59 of that Conference.
This makes an entire lot of sense to me, whether or not the practical method is seen as one referring to the existence of the occupation itself, or as one referring to residual obligations stemming from an occupation that will have been terminated. I do need to say, although, that it’s regrettable {that a} level of this significance is addressed solely by Decide Cleveland – irrespective of how wonderful her opinion is, the opposite fourteen judges have basically remained silent on this level, and that silence exacerbates the anomaly of the Court docket’s place.
To conclude, it’s clear that the Court docket has endorsed some variant of a practical method to (the regulation of) occupation. Nevertheless it has additionally left many factors unsure. As I’ve defined, the core uncertainty is whether or not the Court docket regards occupation itself as a sliding-scale idea, relatively than as a binary one, which might have implications not simply on the finish but in addition in the beginning of an occupation; or, relatively, whether or not the Court docket believes that sure obligations underneath the regulation of occupation can apply residually, even after an occupation has terminated, to the extent that the occupying energy nonetheless has some measure of management over the territory. Be aware that this sort of residual utility idea – that the regulation of occupation can apply after the occupation has ended – would have some precedent in different components of IHL, e.g. in these guidelines of the Third Geneva Conference defending prisoners of struggle who stay detained even after the worldwide armed battle had ended (see extra right here). However once more, it’s only Decide Iwasawa who expressly endorses the opportunity of such a idea.
Equally, the AO says nothing about which obligations precisely utilized or apply within the post-disengagement Israel-Gaza relationship. Solely Decide Cleveland supplied some ideas on this query. Whereas not central to the ICJ’s AO, these points could be examined earlier than the Worldwide Legal Court docket, because it decides on circumstances now pending earlier than it concerning Gaza, or certainly earlier than the Excessive Court docket of Justice in Israel itself because it offers with Gaza-related litigation.
