I received two responses from Juan-Pedro Schaerer, ICRC Head of Delegation, Israel and the Occupied Territories, in the comments. The first one:
While this article provides a summary of an important expert's workshop, the author ignores essential facts used by the ICRC when applying of the Law of Occupation to Gaza.
The ICRC closely monitors developments in the Gaza Strip, since facts on the ground are crucial to determining whether the elements of effective control required for occupation continue to be met. While it cannot be said that the Gaza Strip is a "classic" situation of occupation, Israel has not entirely relinquished its effective control over the Strip. This control includes amongst other the almost total control over the borders of the Gaza Strip (except for the border with Egypt), the control over the airspace and the entire coast line, the control over who can move out of the Gaza Strip, the control of the population register, control over all the items that can be imported and exported from the Strip and the control over a no-go zone along the Gaza fence inside the Gaza Strip. These facts and others allow ICRC to determine that Israel exercises effective control and therefore remains bound by the law of occupation in the case of Gaza.
This article ignores such essential facts and concludes in a facile way that the ICRC is hypocritical, biased and politically-motivated. The ICRC has no doubt that much of the hardship caused to the 1.7 million people living in Gaza would be reduced if international humanitarian law was fully understood and respected. ICRC works in a neutral and impartial way to promote a better understanding of international humanitarian law, and to alleviate the suffering caused by those who fail to respect it.
Schaerer Juan Pedro
ICRC Head of Delegation Israel and the Occupied Territories
And a second one, after I commented:
In response to your comments and for the purpose of clarification, I wish to emphasize that the ICRC does not maintain that Israel has retained all elements of authority and governmental functions in Gaza. Rather, our position is that even after the withdrawal of its forces in 2005 Israel continues to exercise effective control over certain key elements of authority in Gaza and therefore remains bound by obligations under the law of occupation within the territorial and functional limits of the competences it has retained. This reflects a functional approach to the law of occupation that emanates from the underlying purpose and rationale of that body of law. In simplified terms it means that to the extent that an occupying power retains control of key functions and authorities in the occupied territory it also remains bound by the relevant provisions of the law of occupation. Where there is control there is responsibility. For an elaboration on this see T. Ferraro, Determining the beginning and end of an occupation under international humanitarian law, 94 IRRC 133, 159 (aviliable online here:)
Professor Abraham (Avi) Bell, of the University of San Diego School of Law and at Bar-Ilan University, an expert on international law who has written extensively on this very issue, graciously offered to comment on Schaerer's responses. His answer is much better than the one I planned to write. (Emphasis mine.)
The argument first used by Mr. Schaerer was taken near verbatim from one invented by Gisha, a political pro-Palestinian NGO. It is not an argument that has any basis in general international law.
Mr. Schaerer’s argument consisted of a list of factual assertions, some of which are obviously correct but irrelevant (yes, Israel controls Israel’s own land borders with Gaza), and some of which are obviously both false and irrelevant (no, Israel does not “control … all the items that can be imported and exported from the Strip” – Gaza imports and exports goods through its land borders with Egypt).
None of the factual assertions relate to the generally understood legal criteria for effective control as understood in international law, as ICRC officials would readily acknowledge if Israel were not in the dock.
Is there any other case in recorded history where the “facts” offered by Mr. Schaerer have been interpreted as sufficient “effective control” to create a belligerent occupation notwithstanding the absence of (1) boots on the ground and (2) any administration by the purported “occupier”?
The answer, of course, is no.
It is curious that Mr. Schaerer didn’t even try to analyze how the generally applicable test for belligerent occupation would apply to Israel and Gaza. Instead, he said that a set of irrelevant facts “allow ICRC to determine that Israel exercises effective control.” Well, sure. ICRC is “allowed” to make any determination it wants. It is “allowed” to determine Spain occupies Portugal, if it wants.
Mr. Schaerer’s “clarification” is even more mystifying. He appears to be saying that the ICRC acknowledges that Gaza is not occupied by Israel, but that the ICRC claims that Israel can still be bound by some of the rules of belligerent occupation due to legally insufficient effective control. This is a novel theory that was advanced by Gisha after its earlier arguments that Israel “occupies” Gaza found no support among legal scholars not pre-committed to the Palestinian side. Needless to say, Gisha’s new theory has no basis in the text of any treaties, and it has never been applied against any other country in recorded history. In other words, it is a brand-new anti-Israel theory aimed to create legal duties that restrict the conduct of the Jewish state, but not of any other state in the world.
There are several additional oddities in Mr. Schaerer’s clarification. First, it is a lie. The ICRC continues to treat Gaza as belligerently occupied territory (see, e.g., here.) I cannot find a single public statement of the ICRC that acknowledges that Gaza is not actually belligerently occupied by Israel, but rather that Israel is bound by some laws of occupation under the “functional” theory even though Gaza is not occupied. Even Mr. Schaerer’s fails to acknowledge this openly in his “clarification.” Instead, Schaerer’s characterizes the ICRC position in a disingenuous manner. Schaerer claims that the ICRC restricts itself to asserting that “Israel ... remains bound by obligations under the law of occupation within the territorial and functional limits of the competences it has retained.” This is, of course, a flat-out lie. The ICRC continues to assert that Israel is bound by the law of occupation well beyond any “functional limits of the competences [Israel] has retained.” For instance, the ICRC continues to blame Israel for the failures of Hamas’ health care system in Gaza, the lack of variety of goods exported from Egypt to Gaza, and numerous other “competences” that have nothing to do with Israel.
Second, not only does Mr. Schaerer refuse to acknowledge the nature of the new theory he is advancing, he pretends that it is existing and well-known international law. The disingenuousness of Mr. Schaerer’s claims on this score can be seen by looking at his citation of an article by an ICRC advisor that Mr. Schaerer claims supports the bizarre anti-Israel theory used by the ICRC. The article is written by a senior legal advisor at the ICRC, so it naturally attempts to support the ICRC’s position. But ironically, the article does little more than show just how baseless the ICRC’s anti-Israel position is. Mr. Schaerer claims the article shows that "[w]here there is control there is responsibility" and Israel has "control" according to the ICRC, and it must therefore have responsibility. But the article actually says quite the opposite. According to the article, the general understanding of international law when not distorted to attack the Jewish state is that a state only has control if three ingredients are present at the same time: (1) the armed forces of the occupying state are physically present in a foreign territory without the consent of the local government; (2) the effective local government has been or can be rendered substantially incapable of exerting its powers by virtue of the foreign forces’ unconsented-to presence; and (3) the foreign forces are in a position to exercise authority over the territory concerned (or parts thereof) in lieu of the local government. As it happens, exactly ZERO of these ingredients are present in Gaza. In other words, the article cited as authoritative by Schaerer shows just the opposite of what he claims.
Of course, the article is produced by an ICRC lackey, and it attempts to fabricate a new legal theory that can justify the ICRC’s position against the Jewish state. Thus the article offers for unnamed “specific and exceptional cases” the “functional theory” that Mr. Schaerer uses to try to impose legal duties on Israel to support Hamas’s rule in Gaza. But the article does not even try to claim that there has ever been such a specific and exceptional case in recorded history. In fact, the article introduces its discussion of the “functional theory” by contrasting it with existing law, making it clear that even the article’s author cannot seriously claim that the ICRC’s anti-Israel position reflects international law as it currently stands. Instead, the article offers the “functional theory” as an innovation for which the article cites not a single legal authority nor any legal precedent.
However, I should acknowledge that Mr. Schaerer is right in saying that it is “facile” to accuse the ICRC of hypocrisy. We do not have any clear evidence of the ICRC officials’ motivation in distorting legal standards to create a uniquely harsh anti-Israel standard. The only things that can be clearly demonstrated are that the ICRC is using a harsher standard against Jewish state than it has used against any other country in recorded history, that its anti-Israel standard has no basis in international law as it is currently understood and applied, and that ICRC employees advocate the ICRC’s anti-Israel position by means of falsehoods and disingenuous argumentation. Until an ICRC employee is willing to be more forthcoming, the reasons for the ICRC’s bias against the world’s only Jewish state will remain a mystery.