Wednesday, April 29, 2020

By Daled Amos

The fringe group If Not Now has found a new way to draw attention to itself this week:

Their argument is presented in a bulleted list:
o Israel controls Gaza's air and coastline, and six of Gaza's seven land crossings. --
This is according to Gisha. We will discuss the issue of "control" below.

o Israel reserves the right to enter Gaza at will with its military and maintains a no-go buffer zone within the Gaza territory. --
It's not immediately clear what the source is, but we can all agree that Israel reserves the right to defend itself against Hamas terror attacks.

o Israel controls Electricity: At certain points during the blockade, Gaza had electricity for only 4 hours a day  --
 but this is based on a Haaretz article from 2 years ago, that specifically says the reason is a temporary lack of diesel fuel

o Israel controls Water Supply: Less than 4% of water in Gaza is drinkable at this point --
"At this point"? But the Oxfam article used as the source, though undated, is from June 2017 according to the HTML code.

o Israel controls the Internet: the internet in Gaza is only available when electricity is available --
this is from Al-Monitor, which doesn't sink to accusing Israel of diabolical "control of the Internet" 
Their tweet includes a map from Gisha detailing the Israeli blockade of Gazan fishing -- up to 2016.

Also, note If Not Now hedges its bet by claiming that Israel is either occupying Gaza or exercising control.

Their basic argument seems to come from Gisha, which has a position paper from 2011 with an executive summary here, where they make their case, also heavily stressing that Israel has "control":
In 2007, Gisha published “Disengaged Occupiers: The Legal Status of Gaza”, a position paper in which it argued that the law of occupation continues to apply to all Israeli actions toward the Gaza Strip due to the significant control it still exercises over Gaza. “Scale of Control: Israel's Continued Responsibility in the Gaza Strip” updates our previous legal analysis and adapts it to reflect the changes on the  round and in the patterns of control exercised over the Gaza Strip by the various actors  since 2007, including as a result of the Hamas movement’s takeover of internal  control in Gaza.

This position paper illustrates how despite recent developments, Israel continues to control Gaza’s airspace and territorial waters, the Palestinian population registry and passage of goods and people to and from Gaza. Israel still collects customs and value added tax for goods entering the Gaza Strip and maintains some physical presence in the Strip. Israel also controls Gaza’s infrastructure by virtue of its control over supply of electricity and other inputs to the system. [emphasis added]
The thing is, the European Court of Human Rights refuted this argument in 2015.

Marko Milanovic, who writes "EJIL:Talk!: Blog of the European Journal of Int'l Law" wrote a post in 2015 'European Court Decides Israel Is Not Occupying Gaza.' The case is Azerbaijan's claim that Gulistan is occupied by Armenia. In order to address the issues involved, the court defines what constitutes occupation.

And that is where things get interesting.

Milanovic quotes from the court decision in CASE OF SARGSYAN v. AZERBAIJAN, which notes that occupation requires foreign troops "with boots on the ground."
Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation[2], that is, occupation is not conceivable without “boots on the ground”, therefore forces exercising naval or air control through a naval or air blockade do not suffice. [emphasis added]
The source for that "widespread expert opinion" requiring the physical presence of foreign troops -- in refutation of If Not Now -- is The International Red Cross (ICRC):
2Most experts consulted by the ICRC in the context of the project on occupation and other forms of administration of foreign territory agreed that “boots on the ground” are needed for the establishment of occupation – see T. Ferraro, “Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory” (Geneva: ICRC, 2012), at pp. 10, 17 and 33; see also E. Benvenisti, cited avove [sic], at pp. 43 et seq.; V. Koutroulis, Le début et la fin de l’application du droit de l’occupation (Paris: Éditions Pedone, 2010), at pp. 35-41. [emphasis added]
In its decision, the European Court, indicates that w/o the presence of troops, there is neither occupation nor "effective control," refuting both of If Not Now's own myths:
144. The Court notes that under international law (in particular Article 42 of the 1907 Hague Regulations) a territory is considered occupied when it is actually placed under the authority of a hostile army, “actual authority” being widely considered as translating to effective control and requiring such elements as presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign (see paragraph 94 above). On the basis of all the material before it and having regard to the above establishment of facts, the Court finds that Gulistan is not occupied by or under the effective control of foreign forces as this would require a presence of foreign troops in Gulistan. [emphasis added]
Milanovic puts it all together:
See what I meant? Replace “Gulistan” with “Gaza”, and there you have it!...I also very much doubt that the judges were really aware of the implications a categorical statement such as the one made here will have on the whole Gaza debate. If they were, I imagine that they would have avoided it like the plague.
A key part of the decision is that it not only decides that a physical presence is necessary, with boots on the ground, but it also directly refutes both If Not Now and Gisha by making clear that "forces exercising naval or air control through a naval or air blockade do not suffice."

The term "control" is, in any case, a nebulous concept. In that ICRC report which found the majority of legal experts require a physical presence, there is this footnote:
The notion of “effective control” is not found in treaty law; it reflects an idea developed in the legal discourse pertaining to occupation to describe the circumstances and conditions under which one could determine the existence of a state of occupation under IHL. As such, effective control is reached when the three criteria derived from Article 42 of the Hague Regulations of 1907 – and discussed infra in the report – are fulfilled [ (1) foreign forces are physically present in the territory of a State without its consent; (2) the authorities of the latter State lack the capacity to exercise authority in the territory; and (3) the foreign forces have the capacity to exercise authority over the territory]. (p. 17) [emphasis added]
All this is not to say that there are no legal opinions that agree with If Not Now -- the footnote quoting the ICRC indicated a majority opinion, not a unanimous one. And there may be a time that a court of international law decides that "control" without "boots" is enough. The point is that international law is based on precedent, and this legal decision by the European Court of Human Rights provides exactly that.

But another issue remains.

Forget about If Not Now and Gisha -- what about the International Red Cross itself?

In that Gisha report, it says on the bottom of page 29:
Contrary to the Supreme Court of Israel, international organizations such as the UN48 and the International Committee of the Red Cross (ICRC)49 continue to consider Gaza to be occupied territory...
Here is the source Gisha uses for the ICRC:
See for example, a news release issued by the International Committee of the Red Cross (ICRC) which defines the Gaza closure as "collective punishment": Gaza closure, Not Another Year!, INT'L COMMITTEE OF THE RED CROSS, June 14, 2010, at: See also posts on the ICRC website in which Gaza is defined as an occupied territory: "In 2010, the ICRC reminded the Israeli authorities of their responsibilities under IHL towards the people under Israeli occupation and called for an end to the Gaza blockade". The ICRC in Israel and the Occupied Territories, International Committee of the Red Cross, 2010 at: [emphasis added]
This self-contradiction in the ICRC was already noticed in 2013 by Elder of Ziyon, in a post where he pointed out how the ICRC found a consensus of experts that Gaza was not occupied -- yet still claimed that it was. He also links to an earlier post by Marko Milanovic in 2009, making the point that occupation, in fact, does require troops on the ground.

Juan-Pedro Schaerer, ICRC Head of Delegation Israel and the Occupied Territories, responded to Elder of Ziyon's post:
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.
In other words, despite the consensus in the ICRC's own report, they are intent on making a special case out of Gaza.

As Elder of Ziyon notes, it is one thing when the UN mischaracterizes Gaza --
In the case of the ICRC, it is worse. Because the ICRC acts like it is the ultimate authority on international humanitarian law, so when it says Gaza is occupied - against the legal reasoning of the experts it consulted* - it has gravitas.
The issue becomes more interesting in a follow-up post he writes, A legal scholar details ICRC bias against Israel over "occupation" of Gaza, quoting Professor Avi Bell, an expert in international law who has written on the topic.

Prof. Bell notes:
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. [emphasis added]
Rather than Gisha merely using the ICRC as a source in its report, their relationship appears to be symbiotic.

And, like If Not Now, Schaerer is so intent in emphasizing Israeli "control" that he get some details wrong.

Another point to keep in mind is that as mentioned earlier, that footnote in the ICRC report notes that "control" is an abstract idea and not originating in treaty law, which may be why it is anchored in those 3 criteria -- possibly to curb the kind of loose interpretation that the ICRC is using.

Another indication of the weakness of the ICRC's defense of its contradictory position is found in a second clarification that Schaerer sent:
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 (available online here:)
Prof. Bell points out, Schaerer clarification only makes matters worse:
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. [emphasis added]
Schaerer's attempt to defend ICRC's disregard for its own report by claiming a "functional approach" is making a difference without a distinction -- Prof. Bell notes that "I cannot find a single public statement of the ICRC that acknowledges that Gaza is not actually belligerently occupied by Israel."

This novel distinction is apparently only for the benefit of readers of the blog and makes no real practical difference in international law, except for the purpose of singling out Israel.

Despite all its scrambling in an effort to escape from the blatant discrepancy between its own report and its actions, in the end The International Red Cross reveals itself as a biased, as opposed to a neutral, organization.

We have lots of ideas, but we need more resources to be even more effective. Please donate today to help get the message out and to help defend Israel.


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