In cases like this, where the occupying power has withdrawn its forces from all or parts of the occupied territory but has maintained key elements of an occupying power’s authority – in this case, after the 2005 redeployment of Israeli forces – this retention of authority can amount to effective control. In such cases, occupation law – or at least the provisions relevant to the powers the occupant continues to exercise – remains in force.[179]Footnote 179 includes several sources. One of them is "Determining the beginning and end of an occupation under international humanitarian law" by Tristan Ferraro, published in the International Review of the Red Cross in 2012, after Israel withdrew from Gaza.
That article says quite clearly that the physical presence of the hostile army is one of the necessary criteria in determining whether a territory is occupied. In other words, it completely contradicts Amnesty.
Ferraro creates a legal test for determining whether a situation qualifies as an occupation for the purposes of international humanitarian law.
In light of what has been discussed above, one may infer the following test for the purposes of determining the existence of a state of occupation within the meaning of IHL. The effective-control test consists of three cumulative conditions:
– the armed forces of a state are physically present in a foreign territory without the consent of the effective local government in place at the time of the invasion;
– the effective local government in place at the time of the invasion has been or can be rendered substantially or completely incapable of exerting its powers by virtue of the foreign forces’ unconsented-to presence;
– the foreign forces are in a position to exercise authority over the territory concerned (or parts thereof) in lieu of the local government.
Not one of these were true before November 2023.
Ferraro adds, "If any of these conditions ceases to exist, the occupation should be considered to have ended."
He also addresses the claim that Israel is engaged in "effective control" because Israel controls most of the borders and airspace of Gaza:
Occupation and its related element of effective control cannot – in principle – be established and maintained solely by exercising power from beyond the boundaries of the occupied territory. The test of effective control cannot include the potential ability of one of the parties to the armed conflict to project power through its forces positioned outside the ‘occupied territory’ without stretching the concept of occupation so much that it makes any assignment of responsibilities under occupation law meaningless. Otherwise, any state capable of invading the territory of its weaker neighbours by virtue of its military superiority, and of imposing its will there, would be said to be in ‘effective control’ of that territory and considered an occupant for the purposes of IHL. Such an interpretation would be unreasonable.
Amnesty does not only rely on Ferraro, of course. Their main arguments come from the the ICJ advisory opinion issued earlier this year, "Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem," which makes up a completely new international law just for Israel, where "occupation" is not a binary of yes or no, but where Israel is considered to be an occupier for specific obligations and not for others.
As is often the case, this is a sui generis law made just for Israel.
And it also contradicts previous ICJ rulings!
Ferraro quotes the ICJ on DRC vs. Uganda (2005):
In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as the result of an intervention, is an ‘occupying Power’ in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government.The ICJ requires physical presence as well as substituting Israel's authority over the Palestinian or Hamas government in Gaza, neithr of which happened.
Furthermore, the ICJ said in DRC vs. Congo:
In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as the result of an intervention, is an occupying power in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government.
Those criteria are consistent in ICJ rulings....before it looked at Gaza. In all other cases, physical presence was one criterion for occupation. In all other cases, the occupier must have substituted its own authority for the local authorities. In all other cases, occupation law was considered all or nothing, not partial.
Amnesty's acceptance of the 2024 ICJ ruling also contradicts Amnesty's previous claims that Israel is fully occupying Gaza.
The irony is that Israel still ensured that Gaza would get food, medicine, vaccines and everything else that humanitarian law requires even under occupation.
But the legal precedents before 2024 are clear: Israel did not occupy Gaza, and those that claim it did are making up new international laws just for Israel.
