Is Gaza occupied?

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Is Gaza occupied?

Post by Zoya on Thu Aug 20, 2015 3:31 am

On June 16, 2015 the Grand Chamber of  the European Court of Human Rights delivered its judgment in the case Sargsyan v. Azerbaijan regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan. 

The Court made the following observations under the heading ‘relevant international law’:

Article 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter “the 1907 Hague Regulations”) defines belligerent occupation as follows:

“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a state exercises actual authority over the territory, or part of the territory, of an enemy state. The requirement of actual authority is widely considered to be synonymous to that of effective control.

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, i.e. 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.

In one of the footnotes, the Court stated the following:  

Most 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, Occupation and other Forms of Administration of Foreign Territory (Geneva, ICRC, 2012), at 10, 17 and 33; see also E. Benvenisti, cited above, at p. 43ff; V. Koutroulis, Le debut et la fin de l’application du droit de l’occupation (Paris: Editions Pedone, 2010) at pp. 35-41. https://www.icrc.org/eng/assets/files/publications/icrc-002-4094.pdf

Legal analysis of the ruling and its applicability to Gaza can be found in European Court Decides that Israel Is Not Occupying Gaza
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Zoya
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