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The Occupying Power According to the International Humanitarian Law: Case Study in Gaza Strip

Conflict in Gaza Strip involving Israel and Palestine has continuously attracted international concerns. Under the strict authority of Israel, humanitarian issues materialize in the strip as Gaza’s inhabitants undergo crises including energy and subsistence while Israel fails to fulfill the basic needs of the people. In 2007, Jaber Al-Bassiouni Ahmed with his associates sought legal remedy to the Supreme Court of Israel to clarify their rights inhabiting the Gaza Strip. The purpose of this article is to explain whether international humanitarian law could be implemented to the occupying power of Israel in Gaza Strip and elucidate the limitation of the occupying power regarded by the law. Achieving this explanation requires a qualitative legal approach. It emphasizes on documents scrutiny using the perspectives of primary, secondary, and tertiary laws. The research result shows that under the regime of international humanitarian law, “alien occupation” is the key to regulate the Gaza Strip against the regime of the occupying power by Israel. The one-year rule in the Case of Gaza Strip indicates that Israel held the occupying power of the territory as not only did Israel act as a controller but also it participated in the physical activities to regulate the lives of Gaza residents in addition to the limitation of the functions of Palestinian Authority posed by Israel.


A. INTRODUCTION
It is common that International Humanitarian Law ("IHL") applies in times of international armed conflict. 1 It also applies during the occupation by the opposing party whether in whole, in part or in peace. 2 The occupation of Israel over the conflicting territory of Gaza Strip materializes humanitarian issue, calling for an international intervention to solve the disputes. As such, IHL plays an especially important role in the case of Gaza Strip that is under the control of the Israel authority. Whether this law can be practically applied to "occupation" issue is still uncertain as there is no normative definition of it. In other words, the word "occupation" seems abstract in the eye of legal language.
However, article 42 of the Hague Regulations mentions that "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in apposition to assert itself". This implies that a territory can be considered an occupation when the hostile party establishes its occupying power. Occupying power is an authorized presence in the occupied territory while having its rights and obligations towards the civilians' welfare as mentioned in the Fourth Geneva Convention. 3 In practice, however, a hostile army entering its opponent's territory do not automatically become an occupying power. The occupant must meet the requirements of effective control test, as an example, whether there is a military presence and the establishment of temporary administration by the occupant. 4 Since the advent of Arab-Israeli wars of 1967, Israel had occupied the Palestinian territory of Gaza Strip ever since its victory against the Arab nations. Israel then established a military administration that further brought the occupying power presence for the people who lived in the strip. Since 1993, the representative of Palestinian people, called the Palestinian Liberation Organization, had engaged diplomatic measures with the government of Israel for transitioning the Gaza Strip region from the occupied territory to become an independent territory. During the occupation period, the Israeli armed forces had controlled all the civilian aspects in Gaza Strip, most notably, by conducting arbitrary arrests, limiting the gasoline distribution, and controlling the Gaza Power Plant ("GPP") which supplied the electricity for around 1,8 million people who resided there. On 18 December 2003, the Prime Minister of Israel Ariel Sharon granted the request from Palestinian Liberation Organization and announced the withdrawal of Israeli military presence in the Gaza Strip.
Such withdrawal was not entirely pure since one of the articles of the disengagement plans mentioned that Israel shall own exclusivity towards the air space of Gaza strip, monitor the external perimeter of the strip and exercise the maritime security surrounding the Gaza's coastline. The Israeli forces were able to impose night curfew for Gaza's residents, close the public school and disperse the community organization within the Gaza Strip. This paper will explain whether international humanitarian law could be implemented to the occupying power of Israel in Gaza Strip and elucidate the limitation of the occupying power regarded by the law.

B. INTERNATIONAL HUMANITARIAN LAW
Essentially, International Law only regulates relation between countries. It does not regulate armed conflicts occurring between countries within the territory of a country and between the rulers of colonial territories and kingdoms. 5 Law of armed conflict (Humanitarian Law) occurs when an event has turned into an armed conflict. 6 IHL recognizes two types of armed conflictinternational and non-international armed conflicts.

International Armed Conflict
Article 2 of the Geneva Conventions 1949 (Common Article 2) elucidates the application of the Geneva conventions if the armed conflict that occurs is international. International Armed Conflict (IAC) depicted in the Geneva conventions is applied when there is an armed conflict between two or more countries even though one of the countries in conflict does not recognize the state of the conflict happening. 7 The implementation of the IAC also applies in the case of the occupation of part or

Non-International Armed Conflict
The significant difference between noninternational armed conflict and the international one relies on the key parties legally involved in the conflict. 12 In the non-international armed conflict, the parties involved in the conflict are between state and other non-state parties (non-state entity) while in the international armed conflict, the parties embroiled in the conflict are between countries. 13 Other non-state parties involved in the non-international armed conflicts are included in an Organized Armed Groups. 14 The concept of Organized Armed Groups has not been clearly explained in the practice of noninternational conflicts. 15 Non-international armed conflict does not only occur between the state and armed groups but also between armed groups within a country. 16

Padjadjaran Journal of International Law
Volume 4, Number 2, June 2020 of non-international armed conflict include Article 3 of the general requirements of the 1949 Geneva Convention. This implies that protection is carried out following the principle of non-discrimination against every hors de combat, civilian population and non-combatants in any non-international armed conflict that occurs in the conflict area of a party to the convention and binds the parties to the conflict. 17 However, an armed conflict, originally non-international, may become an international armed conflict when foreign countries perform an intervention to support organized armed groups or the conflict involves the stated and the organized armed groups. 18 A non-international armed conflict can be classified as international one if: 19 a. Countries in which its territory sparking armed conflict recognize the rebels as belligerent of warring parties. b. One or more foreign countries assist one of the armed forces in conflict. c. The two foreign countries intervene with the armed forces and assist each other in conflict.

C. THE CORE FUNDAMENTAL PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW
In addition, International Humanitarian Law establishes several key principles as follows: As stated above, it is clearly observed that the Principle of Differentiation has held the status as a binding general legal principle. In practice, this Principle mandates each fighting party at all times to be able to distinguish between combatants and civilians as well as between military and civilian objects. 25

The Principle of Proportionality
An attack is an act of violence against an opponent offensively or defensively. 26 In committing to acts of violence, each fighting party is obliged to adhere to this Principle. This Principle has been stated in Article 57, Paragraph 2, Point a (3)  shall be that the attack on which may be expected to cause the least danger to civilian lives to civilian objects." As explained above, every attack carried out by a belligerent in a military operation must be preceded by actions to ensure that the attack will not cause civilian casualties in the form of loss of life, injury, or damage and civilian objects that is excessive compared to a direct benefit military may obtain from the attack.
The Principle also serves as a key consideration by the International Court of Justice when providing an opinion regarding the legitimacy of the threat or use of nuclear weapons. It was stated by Judge Higgin's opinion in the Nuclear Weapons Advisory Opinion as follows: 28 " Although provisions in international law is available regarding military occupation, the scope of the occupation is still problematic. According to Michel Veuthey, military occupation is a juridical concept that cannot be implemented or debated in contemporary armed conflicts, including guerrilla warfare. 33

Occupation Definition and Scope
The development of international instruments further results in an international convention describing occupation. The 1907 Hague Regulations, the successor to the 1899 Hague Regulations, dictating that the occupation applies during wartime, where there is a direct control by the opposing country in the territory the occupy. 34 As stated in Article 42, an area is considered occupied when there is military power set in the territory of the opposing country. 35 The Geneva Convention explicates the scope of occupation in armed conflict. As dictated in Article 2 of the Convention, occupation applies in international armed conflicts whether the territory is occupied only partially or completely. 36 Occupation also occurs when there no matches the occupied territories. 37 The determination of occupation in international armed conflicts is an element of the conditio sine qua non. 38  in determining the end of the occupation is the change of governmental power in the region. 48 The occupying power is bound by the law of occupation if it is still able to carry out government functions in the long run. 49 The final determination of an occupation is a de facto and nonsubstantial action. As was the case of the Iraqi occupation on July 13, 2003, the Coalition Provisional Authority (CPA) enacted Regulation No. 6 outlining the establishment of a power council in Iraqi. However, the board only serves as an advisory board. 50

Types of Occupation
Adam Roberts classifies occupation into three types: (a) Wartime Occupation; (b) Peacetime Occupation; (c) Occupation in Other Forms. 51 a. Wartime Occupation The most common type of occupation is belligerent occupation. It is also called occupatio bellica, meaning that the occupation in the territory of the opponent. 52 According Von Glahn, international law only recognizes belligerent occupation -the occupation of the opponent's territory in part or whole during the period of war, governed by the Hague Regulations and the Geneva Convention IV. 53 It has several characteristics such as (a) committed by belligerents, (b) in the territory of the opposing country, (c) in times of armed conflict, and (d) prior to a ceasefire agreement. 54

Mohamad Afdha Lardo
The Occupying Power According to the International Humanitarian Law: Case Study in Gaza Strip warring parties. This occupation is commonly referred to as mixed occupation or mixta-bellica pacifica.
The final type is one-year occupation after a military operation. This occupation applies in the context of an international armed conflict even though there is no resistance in the occupied territory. 55 A territory is still included in the context of one-year occupation after a military operation as long as the occupying power remains in the territory. 56 Some occupations continue for some time after the end of resistance and invasion. 57 51, 52, 53, 59, 61 to 77, 143." This implies that Geneva Convention can be applied on occupied territories that do not take effect one-year rule after the end of military operations by the occupying power. However, during the one-year rule the occupying power has an applicable administration function and is obliged to abide by the 43 Articles listed out in the Article above. 59

b. Peacetime Occupation
It is arduous to determine the dividing line between war and peacetime. Most of the armed conflicts occurring between countries are carried out in the absence of a formal declaration of war. Since 1945, especially when the UN applied the phrase "use of force" instead of "war". Although IHL is applied during wartime, it is possible to apply IHL during the period of occupation, without resistance in the region. 60 This is an implication of a peacetime occupation or is referred to as Pacific Occupation or Occupatio Pacifica.

c. Occupation in Other Forms
It is so-called Occupation in Other Forms because such occupation in a territory is still disputed and thus, the UN or other international bodies occupy it.

Padjadjaran Journal of International Law
Volume 4, Number 2, June 2020 occupation must be in the territory of the opposing country. This can be exemplified with the case of Indonesian invasion over East Timor on December 7, 1975. Beforehand, Indonesia had no legal ground to the territory. However, the existence of revolutionary government of East Timor sparked the rebellion of the Fretilin guerrillas which was later criticized by the UN General Assembly resolution and set out the right of self-determination of the people of East Timor. 62 When an occupation occurs in an area where the status of sovereignty is still contestable, AP I Article 1 Paragraph 4 explicates that the occupation is applied where the people in the area against colonial domination and alien occupation for the sake of determining their own destiny. 63 According to the Article, occupation law can still be applied although the territory's status is questionable. 64 2) Occupation by the UN or Other International Organization The UN or Other International Organizations may conduct occupations.
Generally, the occupations carried out by the UN reflect the UN efforts to resolve disputes occurring in the territory of the country, either peace enforcement or peacekeeping operations. 65 The enforcement of other UN occupation laws is still debatable because the UN is not bound by the provisions of the convention on the law of war. 66 However, many argue that the occupation law can still be applied to the UN. The illustration can be observed from the case of occupation carried out by South Africa to Namibia. 67 In 1966, the UN rejected South Africa's mandate for Namibian territory and later declared the Namibian territory to have an international status and was under the UN responsibility. 68 There has been much debate by experts regarding the responsibilities of the UN regarding the status of Namibia. Sagay argues that the UN Council for Namibia has full power in the states of a state and as a dejure government. 69 However, some experts are of the opinion that the UN does not have a sovereign role, instead the capacity as an administration role in a region. 70

Facts about the Gaza Strip a. The War of Arab -Israel
Since 1948, around 150,000 Palestinians have resided in the territory and Israel itself has started to occupy it since 1967 following its victory in the Arab-Israeli war. 71 Although there had been a ceasefire agreement between Israel and Arab countries after 1949, but then the conflict recurred in the previously contested areas. 72

Verdict
Israel is not classified as the occupying power of the Gaza Strip because since September 2005, Israel has not had effective control over the strip. This fact can be closely observed that the absence of Israel troops in control of the strip indicates that Israeli was not the occupying power in the territory. In addition, the court ruled that Israel did not have the capability to regulate the lives of the inhabitants residing throughout the strip seeing that the control over it was in the hands of the Hamas Group 100 .

Consideration
The Court stated that since September 2005, Israel had no longer had effective authority over the Gaza Strip. The Israeli military that previously resided in the strip had been removed based on a decree from the Israeli government and there were no Israeli soldiers in the area. Based on the fact, Israel could not be obliged to protect the lives of the citizens or to maintain security in the territory of the strip based on the occupation law. Israel also did not have an effective function to 99 Ibid., para. 12. 100 Ibid.

Padjadjaran Journal of International Law
Volume 4, Number 2, June 2020 (1) Reaffirms the inalienable rights of the Palestinian people in Palestine, including: (a) The right to selfdetermination without external interference; (b) The right to national independence and sovereignty In the case of the Gaza Strip, an example of their practice of selfdetermination was the presence of the PLO as a representative for Palestinians in the region through diplomatic efforts in the Oslo Accords. In addition, the response of the Palestinians in the Gaza Strip is demonstrated through physical resistance such as the Intifada I and II

3) The Scope of Occupation
Rationae Materiae In the legal literature, occupation is generally the control of an area by an occupying power but does not have the title of sovereignty in the area. 110 The Article 42 of the Hague Regulation emanates the concept of occupation and further describes what kind of situation can be categorized as an occupation.
Article 42 further dictates that an area can be considered "occupied" when an armed force from an opposing party occupies the territory of the opposing country. The Article 42 also has become a fundamental article and served as a reference in determining the occupation in IHL. 110 International Comittee of the Red Cross, "Occupation and Other Forms of Administration of Foreign Territory", March 2012, Furthermore, the Article 42 has been used as a jurisprudence reference for judges in determining the status of occupation in an area. However, during the period of occupation of the territory by the state, a criterion is required regarding the level of state control in the territory concerned. 111 Effective control test is one of the methods commonly used in contemporary IHL. It is effective to use it as a way of making legal findings in a case. This method relies more on a practical approach. In the case of an occupation, the effective control test is determined when an occupying power has controlled the area militarily and has established a temporary administrative power. To exemplify, UPDF (Uganda People's Defense Force) occupied several areas of the DRC (Democratic Republic of the Congo) and established administrative power in the occupied territories. In addition, the UPDF regulates political life in the region by overseeing general elections and establishing new provinces in the region. 112 In the case of the Gaza Strip, during the period of occupation, Israel had established administrative power in the strip. Israel was also involved in regulating the lives of residents. This involvement is proven by the existence of several practices https://www.icrc.org/eng/assets/files/publications/icr c-002-4094.pdf, accessed on 25 th of June 2016, p. 7. 111 Naletilic v. Martinovic,para. 217. 112 DRC v. Uganda,