ICRC shows again how inconsistent its definition of "occupation" is

Yesterday's post about the Red Crescent-branded ambulances being part of the Hamas terror convoy brought a reaction from Juan-Pedro Schaerer, ICRC Head of delegation for Israel and the Occupied Territories, on Twitter.

these ambulances do not belong to the PRCS [Palestinian Red Cross Society]

I asked:

So Hamas is misusing the Red Crescent symbol? Is anything being done to go after them?

He responded:

not so simple responsibility for authorising use of RC emblems rests with State & use regulated by domestic law... As far as I remenber there is no law in #Palestine for the protection of the emblem (see here.) 

He appears to be right. In previous cases of the Red Cross complaining about the misuse of its symbol, it was the national Red Cross societies that lodged the complaints, not the ICRC. Even so, since the PA Red Crescent is not likely to lodge its own complaint, it would seem to behoove the ICRC to publicly dissociate itself from Hamas' use of these ambulances with their logo.

Schaerer also implies that these Hamas ambulances, by not being authorized, would lose their protection in any military campaign. I asked him if he would agree, but he has not yet answered.

The document he referred me to, however, has a very interesting section on how the Red Cross/Red Crescent symbol should be used in occupied territories.

Last month, I pointed out that the ICRC's definition of Gaza as being "occupied" made no sense and contradicted even the defintions of the international legal scholars gathered by the ICRC itself. The same Juan-Pedro Schaerer responded by saying that the ICRC uses a "functional theory" of occupation, a position that is patently absurd.

Briefly, the "functional theory" states that occupation law applies even when the occupation is only partial, and it applies to those areas that it is possible to be applied. So the definition of "occupation" is no longer "boots on the ground" and "effective control" of the area, but...something else that is not very well defined. Needless to say, this "functional theory" is only applied to Israel. And needless to say, this vague theory allows people to twist international law against Israel because now organizations like the ICRC can define what parts of Gaza Israel is responsible for and what parts aren't.

This Red Cross document shows, again, how that theory makes no sense.

It says:

If the competent body of the Occupied State is still functioning, it should be allowed by the Occupying Power to continue granting official recognition and the authorization to display the emblem. If it is no longer functioning and cannot grant official recognition, the Occupying Power has to substitute itself for the authorities of the Occupied State and issue the documents granting recognition and the right to display the emblem, to civilian hospitals (in particular, new ones), and to civilian medical units, personnel and transports.103 The Occupying Power is ultimately responsible for ensuring that recognition and authorization to display the emblem are properly granted,104 and for issuing identity cards and armlets to the staff of civilian hospitals.105 The Occupying Power should grant official recognition and authorization to display the emblem only to the hospitals, staff and medical transports that fulfil the conditions laid down in Articles 18, 20 and 21 of GC IV.106

The note 104 says:

"the distinctive emblem should not be affixed without the consent of the competent authority of this Party (which may also be an adverse Party for that matter, particularly in the case of occupied territory)."

The document makes it appear that Israel would be "ultimately responsible" for the proper use of the symbol if is is considered the occupying power of Gaza. This is just one absurdity with the unique "functional theory " of occupation put forth by the ICRC in regards to Israel.

Schaerer answered with the same "functional" definition:

Israel continues to be bound by occ.law Gaza but since the control exercised today is limited, so are the responsibilities.

I don't know how that jives with being "ultimately responsible." That wording appears to me to blow apart the "functional theory" because if Israel is the occupier, as ICRC claims, then it is "ultimately responsible" no matter whether the occupation is traditional or "functional." Obviously in this case Israel cannot be considered responsible, which means it cannot be considered the occupier.

I responded

P. 45 says occupier is "ultimately responsible" for use of symbol. You are saying Israel isn't, but is still occupier?

He didn't answer that either.

One additional point: The ICRC considers Israel responsible for the hospitals in Gaza by insisting that their being stocked with medicines (for example) is a responsibility under occupation law. So according to this theory, the hospitals are under Israeli effective control but the ambulances are not?