Occupation in the meaning of the Hague Regulations exists when the territory is brought under the effective control of a party to an international conflict by means of that party’s military presence. Control is considered effective in the meaning of the Hague Regulations when the occupant exerts control over the government functions.7
11.2.1 Control over the government functions
The external security of the Gaza Strip
The possibility for the Palestinian authority of the Gaza Strip to manage its external security is non-existent. It is completely dependent on the Israeli military forces for the guarding of the external land parameter.8The guarding of the external land parameter is implemented by deploying Israeli armed forces on the territory of the Gaza Strip.9Israel has full control over the air- space of the Gaza Strip, as well as over the territorial waters.10 Israel has armed military forces present and active in the territorial waters, in the airspace and on the territory of the Gaza Strip.11This is sufficient evidence that the external security of the Gaza Strip is under the control of Israel. Ironically enough, Israel can be seen as the biggest external threat to the population of the Gaza Strip.
Control over the border crossings of the Gaza Strip
Israel maintains an exceptionally high level of control over the border crossings of the Gaza Strip. Israel controls all border crossings between Israel and the
6 Paragraph 6.4; paragraph 7.4; see also paragraphs 3.7 and 4.3.2. 7 Paragraph 6.3.
8 Paragraph 8.4.1; paragraph 8.4.2. 9 Paragraph 9.3.
10 Paragraph 8.4.1.
Gaza strip.12It uses this control actively by closing down crossings for large periods of time. Movement of persons and goods is completely under the control of Israel through the control over the crossings and the control over the population register.13Israel retains some influence on the Rafah crossing, which is hard to reconcile with the territorial sovereignty of the Gaza Strip.14 However, the border between the Gaza Strip and Egypt is no longer under the direct control of Israel.
Together with the fact that there are no operational airports and seaports available for the movement of persons and goods from the Gaza Strip to other states,15it can be concluded that Israel has control over the border crossings of the Gaza Strip.
Legislation and administration
Israel maintains control over the population register. This is a very important part of the administration, since it is directly connected to the issuance of identity documents which are also used as travel documents.16In addition to that, Israel’s continued control over the monetary system of the Gaza Strip gives Israel the power to enact legislation in the Gaza Strip on monetary affairs, regardless of the opinion of the authorities of the Gaza Strip.17 Israel also maintains considerable control on the tax and customs regime in the Gaza Strip.18Thus, it can be concluded that Israel does not control all aspects of the administration and legislation of the Gaza Strip, but it does control some important aspects of it.
Providing basic facilities for the population
Sewage networks, telecommunication networks, water supplies and electricity supplies are under the control of Israel.19In addition, through its control over the external parameter of the Gaza Strip, Israel controls the basic food and medical supplies for the Gaza Strip.20Israel threatens to use, and indeed uses, this control to influence the authorities and population of the Gaza Strip.21 Thus, it is clear that the basic facilities for the population are under the Israeli control. 12 Paragraph 8.4.2; paragraph 9.3. 13 Paragraph 9.3; paragraph 9.4. 14 Paragraph 8.4.2; paragraph 9.3. 15 Paragraph 8.3. 16 Paragraph 9.4. 17 Paragraph 8.4.3 ; paragraph 9.4. 18 Paragraph 8.4.3; paragraph 9.4. 19 Paragraph 9.4. 20 Paragraph 9.3. 21 Paragraph 9.3; paragraph 9.4.
The development of the economic system
Without the active cooperation of Israel, the economy of the Gaza Strip cannot develop sufficiently. With the active opposition of Israel, the economy of the Gaza Strip will not develop at all. Israel controls all aspects of import and export of the Gaza Strip,22it controls the fishing in the territorial waters of the Gaza Strip23 and it controls the flow of workers to Israel and the West Bank including East-Jerusalem.24Thus Israel controls all possibilities for the development of the economy of the Gaza Strip.
11.2.2 The military aspect; the enforcement of the control over the Gaza Strip Israel must be capable to enforce its control over all the above mentioned government functions for that control to be effective. For this, it is necessary that it has enough military capability in and around the Gaza Strip to launch military actions or pose a sufficient military threat. In my view there is no doubt that Israel has enough military forces deployed around the Gaza Strip to enforce its control when necessary. The fact that Israeli armed forces are present in the territorial waters, the air space and the border areas of Gaza Strip territory strengthens my opinion.25Furthermore, military actions in the Gaza Strip take place on a daily basis; in the border areas of the Gaza Strip as well as in its residential areas.26 The military threat that Israel poses to the population in the Gaza Strip by the presence and actions of the armed forces in and around the Gaza Strip must be deemed sufficient by any standard.
11.2.3 Conclusion: the Gaza Strip is occupied in the meaning of the Hague Regulations
Based on the findings in the previous two paragraphs, it is without doubt that Israel has effective control over the government functions of the Gaza Strip and has sufficient means to enforce this effective control when necessary. The fact that Israel does not control all government functions is irrelevant, since the functions which are under Israeli control are some of the most vital to a developing territory and are sufficient to enforce its will upon the occupied
22 Paragraph 8.4.3; paragraph 9.3; paragraph 9.4. 23 Paragraph 8.4.1; paragraph 8.4.2; paragraph 9.2. 24 Paragraph 8.4.2; paragraph 9.3.
25 Paragraph 8.4.1; paragraph 9.2; paragraph 9.3. 26 Paragraph 9.2.
territory. The fact that there no longer is an official Israeli military government in the Gaza Strip is also irrelevant.27
11.3 ASSESSMENT OF THE SITUATION FROM THE VIEWPOINT OF THEFOURTH