The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Prosecutor of the International Criminal Court last week found no jurisdiction over Israel's naval interdiction of vessels seeking to break the Gaza blockade. But she did issue a long obiter pronouncement – albeit non-binding, tentative, and discounted with multiple disclaimers – that it would be "reasonable" to conclude Israel occupies Gaza.
Normally such a tentative statement would not warrant further examination. But even with all the qualifications, the prosecutor's argument is not reasonable. It is absurd and unprecedented. It embodies principles that have never and can never be applied to other situations. This post will discuss the doctrinal and judicial flaws with the OTP's analysis. A subsequent post will examine state practice, the insignificance of the alleged powers the OTP claims Israel exercises.
An occupation is traditionally defined as a power exercising "effective control" over the territory in a way that displaces the prior government. The occupying power is expected to provide law and order, essential services, and all the basic functions of government – and is thus required to have the kind of control that allows for that. As the ICJ has put it, occupation requires a territory to be "actually placed under the authority of the hostile army." There has never been a finding of a such "remote" occupation, lasting nine years after the end of physical occupation and in the presence of a distinct and hostile local government. Indeed, even puppet governments are not considered occupation by the puppet master.
The Prosecutor's argument lack support in, and contrary to, state practice or judicial precedent. Its sole legal basis is a throw-away dicta in an opinion by the International Criminal Tribunal for Yugoslavia. That dicta itself was supported by a reference to a not very supportive statement in U.S. Army Field Manuals, that an occupying power need not have actual garrisons in occupied territory, but can merely send troops in. Even if that is true – and it is not the majority view – the occupying power still needs to exercise general governmental control over the territory. As the same field manual says, occupation involves "taking firm possession of enemy territory for the purpose of holding it."
Indeed, the same ICTY case says that even if troops are not physically present the prior government "must have been rendered incapable of functioning publicly" and the occupying authorities must have "established a temporary administration over the territory." None of this remotely resembles Gaza. In short, the basic condition of occupation is the substitution of the authority of the occupying power for that of the local authority. But there is no suggestion that Gazan authorities have been "substituted." Whatever lack of control they may have given Israel's military and geographic superiority, they maintain daily authority on the ground.
Amazingly, the Prosecutor's decision directly contradicts recent precedent from the International Court of Justice. In the case of Armed activities on the territory of the Congo (Uganda v. Congo) (2005), the Court considered the extent of Uganda's occupation of the Congo. While Uganda troops ran one province, they put an allied militia in charge of another province. While they supported that militia, and their troops could enter the province, the Court concluded that without the soldiers actually there, it did not amount to an occupation. The Ugandan situation involved far greater control than with Gaza. There, the territory was held by an co-belligerent. In Gaza, it is held by an openly hostile one. Uganda controlled local elections, and removed local officials. Ugandan troops controlled the airport. And even that, in the view of the ICJ – the leading decision on what constitutes occupation – was not enough.
Most oddly, the Prosecutor did not distinguish or discuss Uganda v. Congo at all. That is a glaring omission. On the other hand, the prosecutor astonishingly relies on the view of "the international community" that Gaza is occupied. This view is derived from two U.N. General Assembly resolutions that call Gaza part of "Occupied Palestinian Territories" without explaining how this comports with customary international law definitions of occupation.
This is perhaps the most surprising part of the Prosecutor's memo. The G.A. is an explicitly political body. Occupation is a legal status with a legal definition established by treaty and custom. Deferring to a political body to determine a legal question effectively turns the ICC into an adjunct of world opinion – a political popularity contest rather than an arbiter of impartial and general norms.