From Factual and Conceptualist to Normative and Functional: The Law of Occupation After the ICJ Advisory Opinion on the Israeli Occupation of the Occupied Palestinian Territory
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From Factual and Conceptualist to Normative and Functional: The Law of Occupation After the ICJ Advisory Opinion on the Israeli Occupation of the Occupied Palestinian Territory
German Yearbook of International Law, Online First : pp. 1–24
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Prof. Dr. Aeyal Gross, Tel Aviv Univesrsity, Faculty of Law / SOAS, University of London Tel Aviv University, Faculty of Law 69978 Tel Aviv, Israel
- Professor at Tel Aviv Univesrsity, Faculty of Law / SOAS, University of London/ For 2024-2026: Visiting Fellow, London School of Economics and Political Science
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Abstract
Abstract: The International Court of Justice’s (ICJ) Advisory Opinion on the Israeli Occupation of the Occupied Palestinian Territory (OPT) issued in July 2024 is a turning point for the law of occupation. This article focuses on two major developments in this decision: first, the ICJ’s holding regarding the legality of Israel’s presence in the territory, which I argue in fact finds the Israeli occupation to be illegal; and second, the ICJ’s holding regarding the status of Gaza, through which I claim the ICJ adopted a functional approach to the question of the existence of occupation. The article points to how the ICJ’s approach to occupation in the Advisory Opinion shifts the law of occupation, as a matter of
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Aeyal Gross\nFrom Factual and Conceptualist to Normative and Functional: The Law of Occupation After the ICJ Advisory Opinion on the Israeli Occupation of the Occupied Palestinian Territory | 1 | ||
| Introduction | 1 | ||
| I. From Factual to Normative | 3 | ||
| A. The Principles of the Law of Occupation | 3 | ||
| B. The ICJ’s Opinion | 4 | ||
| C. Jus ad Bellum or Jus in Bello? | 6 | ||
| D. Occupation v. Conquest | 11 | ||
| II. From Conceptualist to Functional | 14 | ||
| A. The ICJ Advisory Opinion and the Status of Gaza | 14 | ||
| B. The Functional Approach as an Alternative to Conceptualism | 16 | ||
| C. Powers and Responsibilities of Occupiers | 17 | ||
| D. The Functional Approach as Normative | 20 | ||
| E. Lex Ferenda or Lex Lata? | 22 | ||
| Conclusion | 23 |