The Functional Approach as Lex Lata

The Advisory Opinion on the Israeli occupation of the Occupied Palestinian Territory rendered by the International Court of Justice (ICJ) found that Israel’s continued presence in the Occupied Palestinian Territory (OPT) is unlawful. In this post, I address the Advisory Opinion’s take on the question of whether occupation exists, in particular through its approach to the question of the status of Gaza.

The ICJ noted in its opinion that Gaza is “an integral part” of the territory occupied by Israel in 1967, but also mentioned that under the “disengagement plan,” Israel withdrew its army and removed the settlements from the Gaza Strip in 2005 (para. 88). However, the ICJ pointed to reports addressing Israel’s continued control of the airspace and territorial waters of Gaza, land crossing and borders, supply of civilian infrastructure and other elements of life in Gaza (para. 89). Thus, the Court asks whether the Israeli withdrawal of its physical military presence on the ground affects its obligations under the law of occupation in that area. This is its answer:

“Where a State has placed territory under its effective control, it might be in a position to maintain that control and to continue exercising its authority despite the absence of a physical military presence on the ground. Physical military presence in the occupied territory is not indispensable for the exercise by a State of effective control, as long as the State in question has the capacity to enforce its authority, including by making its physical presence felt within a reasonable time” (para. 91).

“The foregoing analysis indicates that, for the purpose of determining whether a territory remains occupied under international law, the decisive criterion is not whether the occupying Power retains its physical military presence in the territory at all times but rather whether its authority “has been established and can be exercised” (Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907). (para. 92)

“Where an occupying Power, having previously established its authority in the occupied territory, later withdraws its physical presence in part or in whole, it 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).

“Based on the information before it, the Court considers that Israel remained capable of exercising, and continued to exercise, certain key elements of authority over the Gaza Strip, including control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone, despite the withdrawal of its military presence in 2005” (para. 93).

“In light of the above, the Court is of the view that Israel’s withdrawal from the Gaza Strip has not entirely released it of its obligations under the law of occupation. Israel’s obligations have remained commensurate with the degree of its effective control over the Gaza Strip” (para. 94).

I argue that in this answer, the ICJ has adopted the functional approach to occupation – an approach I have developed in my work since shortly after the disengagement (for a more detailed recent discussion see here.) The ICJ’s Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favor of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, we can see the Opinion as rejecting a more restrictive approach to the question of whether occupation exists in a territory or not, a view that did appear in some recent case law discussed below, in favor of a more flexible approach to the question, which was taken in some of the most important cases on occupation, but was threatened by the restrictive cases. I will further argue that the adoption of the functional approach aligns with a normative approach to the question of the existence of occupation, one that goes beyond what I call a “merely factual” approach. I developed the distinctions between a “merely factual” and a “normative” approach to occupation, and between a “conceptualist” and a “functional” approach to occupation in my book The Writing on the Wall, where I argued that adopting a normative and functional approach is necessary in order to develop the law of occupation in a way that creates accountability. In another post, I addressed the way in which the ICJ’s ruling that Israel’s continued presence in the OPT is unlawful helps develop the law of occupation in the normative direction, rejecting the idea that occupation is a “merely factual” situation that cannot be held to be illegal.  In this post, I focus on the significance of the Court’s development of the law of occupation in the functional direction.

The Functional Approach as an Alternative to Conceptualism

I developed the functional approach as a response to the debates regarding whether occupation ended (or did not end) in Gaza and Iraq in 2004-2005. Later, this approach was partly adopted by the ICRC (as also detailed here).

As I have recounted before, for me, the post-disengagement discussion on whether Gaza is occupied or not, and the parallel discussion regarding Iraq, echoed Felix Cohen’s idea of legal concepts which are “thingified” as “transcendental nonsense” – “magic solving words” which do not really solve the problem. Arguing whether a situation falls or does not fall into the legal category of “occupation” ignores that norms should not follow from abstract concepts, but rather the opposite. In Cohen’s words, the meaning of a definition is found in its consequences. Accordingly, instead of a circular argument about whether a situation falls into the category of occupation or not, we should ask whether or not liability – in this case of the occupier – should be attached to certain acts. This correlates with the ICJ’s approach in the Advisory Opinion, that “Israel’s obligations have remained commensurate with the degree of its effective control over the Gaza Strip.” This answer, while anchored in an approach that occupation still exists in Gaza, considers Israel’s obligations under the law of occupation as deriving from the actual use of power over certain functions of government. This approach allows us to consider how obligations follow from the exercise of power and control, in a situation where occupiers may have relinquished some control, but still continue to exercise much power over the territory. It aims to ensure that powers exercising control, even in scenarios that do not look like “classic” occupation, are prevented from avoiding responsibility and accountability for their actions, by denying, transforming, or relinquishing some of the control. As I have shown in previous work, in the context of Gaza post-disengagement, this has implications for duties regarding issues such as the supply of electricity and food security, but also duties for bodily damage and death inflicted upon Palestinians in Gaza.

Powers and Responsibilities of Occupiers

The functional approach that rejects an “all or nothing” attitude to occupation goes hand-in-hand with the ICJ’s rejection of the restrictive approach to the existence of occupation in the Advisory Opinion, especially when it rejects the idea of necessity of physical military presence on the ground. The European Court of Human Rights adapted the latter idea in the twin cases regarding Nagorno-Karabakh: Chirgaov v. Armenia, where it held that “physical presence of foreign troops is a sine qua non requirement of occupation” and emphasized the need for “boots on the ground”; and Sargsyan v. Azerbaijan, where it made similar determinations. Alongside the ICJ’s own controversial decision in DRC v Uganda, these cases represent a restrictive understanding of when occupation exists, one which is rejected in the current Opinion in favor of the more flexible approach. The more flexible approach was famously taken by the International Military Tribunal in Nuremberg in the List (“Hostages”) case cited in the Advisory Opinion, but also in some decisions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and of the Eritrea Ethiopia Claims Commission (EECC), as well of the Israeli Supreme Court itself in the Tsemel case on South Lebanon. Notwithstanding significant differences, all of these cases share a flexible interpretation of the law on the existence of occupation, which focuses on the protection of occupied people, even in cases of partial and limited control by the occupiers and regardless of whether an institutionalized occupation regime was established. The Advisory Opinion shifts the pendulum back to this position, rejecting the more restrictive approach taken in the cases cited above, as well as in most of the Israeli Supreme Court’s post disengagement cases on Gaza.

Addressing this case law in detail exceeds the scope of this post. However, I argue here that while List takes an expansive rather than restrictive approach to the question of the existence of occupation, its view that the powers of an occupier are as great as its responsibility does remain confined to a binary all-or-nothing approach to the question of occupation and of the duties of occupiers. In the Advisory Opinion, the Court seems to take the position, found also in EECC decisions, that responsibility follows from the exercise of power. This position then rejects the logic of List, that the powers of an occupier derive from the general responsibilities of the occupier, in favor of a position that the responsibilities of an occupier are as great as its power. Whereas the first position would mean that once a State is considered an occupier, it would have all the powers of an occupier in order to fulfill its responsibilities, the latter position means, as the ICJ in fact held now, that the responsibilities of the occupier would derive from the extent of power it exercises, or in the ICJ’s words, remain commensurate with the degree of its effective control.

This point is critical, as some may wonder how, given the extent of Hamas’ control of Gaza, including its ability to launch a major military attack from the territory, we can say that Israel still exercised some control over it, which amounts to occupation after disengagement and until Oct 7, 2023?

The answer lies in the fact that notwithstanding the expansive degree of Hamas’ control, Israel’s continued control of certain functions has significant impact on the local population. For example, Israel’s control of airspace, waterways and passages affects access to health services needed outside Gaza, food, education, and much more. On the other hand, between 2005-2024, Israel did not exercise policing functions in Gaza, and this has significance for the argument heard over the years and particularly after October 7, that Israel cannot invoke a right to self-defense concerning Gaza, given that it is still occupied territory and thus only law enforcement operations are allowed. (For a detailed discussion see Marco Milanovic’s post here). This argument falls into the same trap of binarism as of those arguing that Gaza was not occupied after the disengagement: if the acceptable position is that the right of States to self-defense is not relevant in territories they occupy, the claim that a law enforcement rather than self-defense standard should prevail in Gaza is hardly persuasive, given the absence, between 2005-2023, of permanent military presence and of an occupation regime engaged in police and law enforcement. Thus, notwithstanding the many complex questions, an armed attack from Gaza on Israel is one that in principle can trigger the right to self-defense – of course, subject to the limits on the exercise of this right in jus ad bellum itself and on the rules on the ways in which force is used, which are anchored in jus in bello and in international criminal law.

In its Opinion, the ICJ, while generally stating it does not address Israel’s actions after October 7, did note in passing that its statement on Israel’s continued ability and actual exercise of control in Gaza is true “even more so” since October 7 2023 (para. 93). The question of the status of Israel as occupier post-October 7 was addressed in an opinion written by a group of Israeli international law scholars (including myself) and another opinion authored by Marco Longabardo. Longabardo’s opinion was submitted to the Israeli Supreme Court within the discussion of a petition dealing with Israel’s humanitarian duties in Gaza. Addressing this situation is beyond the scope of this post, but I do note that the urgency of these opinions is clear given the need to accord Palestinians in Gaza a heightened level of humanitarian protection (especially, but not only, regarding access to food) in accordance with the law of occupation. Clearly, the situation has entered new terrain now, with a new level of horrors that must come to an end.

Lex ferenda or lex lata?

In any event, the ICJ’s Advisory Opinion should remain instructive on an occupier’s duties in situations different than the one we are currently facing, once the Israeli army has “boots on the ground” again in Gaza. Its most important contribution in this context is in affirming that control – which could take the form of “remote control,” partial control, or mixed control involving both local de facto authorities and foreign armies – could all trigger duties under the law of occupation.

In a response submitted to the Israeli Supreme Court on September 12 in the context of the petition regarding Israel’s humanitarian duties, the Israeli government argued that Israel was not an occupier in Gaza, neither before nor after October 7, and that the functional approach contradicts the logics of IHL and specifically of the law of occupation. It argued that the application of the laws of occupation is a “binary” matter, and that the functional approach should be rejected. The ICJ’s statements on the matters in the Advisory Opinion were dismissed in this response as non-binding and obiter dictum, as well as based on lacking legal and factual analysis.

Indeed, as Marco Milanovic has shown, the Advisory Opinion leaves many questions regarding the status of Gaza uncertain. Moreover, the Opinion did not explicitly use the term “functional approach” (but see the Separate Opinion of Judge Iwasawa, who says the Court adopted this approach). However, the Opinion’s importance lies in the fact that contrary to what the Israeli Supreme Court held, and contrary to the attempt of the Israeli government to dismiss the Opinion’s statements on the matter, the Opinion shows that the functional approach, now adopted as lex lata not only by the ICRC but also by the ICJ,  is not merely “lex ferenda” and is applicable in developing accountability of occupiers in diverse situations.