The Volokh Conspiracy
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Since Israel withdrew its troops and expelled its civilians from Gaza in 2005, all government functions have been performed by the local Palestinian authorities. The Office of the Prosecutor (OTP) suggests that Israel continues to occupy Gaza because it is still involved in the territory. The Prosecutor overstates the extent of Israel's involvement, but more importantly, its analysis replaces the "effective control" test with something like a "some control" or influence" test, unknown to international law.
Consider the "competencies" rattled off by the Prosecutor to establish the existence of an occupation. Most of the activities described are simply not relevant to the question of effective control. Israel has checkpoints at the Gaza frontier because it is its border—every country controls entry and exit via its border (as does Egypt with Gaza). Similarly the customs and taxes issues are by arrangement with the Palestinian Authority, because goods are unloaded at an Israeli port. Indeed the transfer of customs duty to Gazan authorities proves there are in fact Gazan authorities, that are not Israeli. Nor is Gaza's use of Israeli currency any evidence of occupation. They choose to use the currency, and can use anything else if they wanted to. Several countries use the U.S. dollar and are very dependent on the U.S., but no one has ever suggested this amounts to occupation.
The argument about occasional Israeli military incursions into Gaza is even weaker. Every country reserves the right to enter a neighboring territory when militarily necessary. In an occupation, the right is reserved even when not militarily necessary. Israel does not claim to be exercising rights of belligerent occupation when entering Gaza, but rather rights of self defense. Any time there are two hostile countries near each other, this is liable to happen. Turkey enters Syria when need be. Nor is the ease with which Israel enters relevant; being a stronger power does not make one an occupier.
As for controlling airspace, the Security Council itself has made clear that this does not amount to occupation under the law of war.
Indeed, by the Prosecutor's logic, Gaza occupies Israel. First, it reserves the right to enter Israel when militarily necessary, and exercises this right. Indeed, it digs tunnels directly into Israel: a direct physical occupation of territory. Moreover, it controls parts of life in Israel. It decides, for example, when school will be open in the South, and when it will be closed due to rocket fire. Indeed, Gazan authorities boast that they can shut down Israel's airport whenever they want. Yet this just means Gaza conducts hostilities against Israel not that it is occupying it.
Indeed, by the same logic Egypt could be said to be occupying Gaza, as it controls and seals the border, and engages in incursions into Gaza when necessary. Similarly, the international community does not consider eastern Ukraine occupied by Russia, despite it being controlled by Russian-organized and armed militias, backed by Russian troops.
None of these other situations is treated as an occupation, which demonstrates how the OTP reasoning flies in the face of all international practice. Indeed, the EU has recently taken the position that Western Sahara is not occupied by Morocco, despite the latter's total control, with actual troops, of the former. This would all be worth the OTP's time to mention, but they skip it and any other state practice. (I discuss the EU's Morocco policy here.)
Ironically, the ICC decision comes shortly after Sweden's much-trumpeted decision to recognize a Palestinian state. The Swedes are sticklers for international law, and do not believe in short cuts around the objective Montivedeo criteria for recognizing new states. Thus in explaining their decision, Stockholm said that the Palestinians do have a government, a power exercising control. It likened it to Kosovo and Croatia, where recognition occurred when the government only controlled some of its claimed territory. The Swedes did not specify which territory the Palestinian government controls (or which government), but presumably it would include Gaza and Area A.
Even aside from the issue of whether Palestine qualifies as a state, most of the world recognizes a Palestinian "government" that includes Gaza as well. A government governs, and thus has effective control. So if the Prosector is truly guided by the opinion of the international community, she has a problem, as these views are contradictory. That is the danger in departing from legal tests to political ones.
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