Occupation

Volume 94 Number 885 Spring 2012pre-established broad categories, but for every rule taking into account the degree ofcontrol that the invader exercises in that particular case. This would also avoid thedifficulty identified by Bothe of determining when the invasion phase turns into theoccupation phase. Such an understanding would parallel, for the beginning ofoccupation, the functional concept of end of occupation that is inherently adoptedby all those in scholarly writings, 36 UN documents, 37 and among states whoconsider Gaza still to be occupied by Israel, but (fortunately) do not require Israel tore-enter the Gaza Strip to maintain law and order, 38 to ensure that detainees in Gazaare treated humanely, 39 or to ensure that they are not used (by Palestinians) torender certain points immune from military operations. 40 Pictet’s remark that‘Articles 52, 55, 56 and even some of the provisions of Articles 59 to62 ...presuppose presence of the occupation authorities for a fairly long period’points in the same direction. 41 Under such a functional understanding ofoccupation, an invaded territory could at a certain point in time already beoccupied for the purpose of the applicability of Article 49 (prohibiting deportations),but not yet occupied for the purpose of the applicability of Article 50(on education). On such a sliding scale of obligations according to the degree ofcontrol, obligations to abstain would be applicable as soon as the conduct theyprohibit becomes materially possible (the person benefiting from the prohibition isin the hands of the invading forces), while obligations to provide and to guaranteewould apply only at a later stage. Siegrist distinguishes between those rules wherea significant gap of protection would exist if they were not applicable duringthe invasion phase (Articles 49, 51(2)–(4), 52, 53, 57, and 63 of Convention IV);obligations to provide or respect that are triggered by activities of the OccupyingPower and that therefore, in any event, only apply during the invasion phase if theOccupying Power is able and willing to carry out such activities (Articles 64–75, 54,64(1) and 66, and 78 of Convention IV), for example, to try or intern protectedcivilians; and the obligations to provide or respect due to the mere fact of occupation(Article 43 of the Hague Regulations and Articles 48, 50, 51(1), 55, 56, 58, 59–61,and 62 of Convention IV). 42 Such a sliding scale would also be much more suited36 See, for instance, Solon Solomon, ‘Occupied or not: the question of Gaza’s legal status after the Israelidisengagement’, inCardozo Journal of International and Comparative Law, Vol. 19, 2011, pp. 59–90;Shane Darcy and John Reynolds, ‘An enduring occupation: the status of the Gaza Strip from theperspective of international humanitarian law’,inJournal of Conflict & Security Law, Vol. 15, No. 2, 2010,pp. 211–243; and Mustafa Mari, ‘The Israeli disengagement from the Gaza Strip: an end of theoccupation?’, inYearbook of International Humanitarian Law, Vol. 8, 2005, pp. 356–368.37 See UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict,UN Doc. A/HRC/12/48, 25 September 2009, paras. 273–279; UN Human Rights Council, Report of theinternational fact-finding mission to investigate violations of international law, including internationalhumanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carryinghumanitarian assistance, UN Doc. A/HRC/15/21, 22 September 2010, paras. 63–66.38 As it should under Article 43 of the Hague Regulations.39 As it should under Articles 27 and 76 of GC IV.40 As it should under Article 28 of GC IV. If Gaza is occupied territory, inhabitants of Gaza are necessarilyprotected persons, because every person (not national of the Occupying Power) who finds himself in thatterritory is constructively in the hands of the Occupying Power. See J. S. Pictet, above note 25, p. 47.41 Ibid., p. 60.42 See M. Siegrist, above note 28, pp. 47–77.49