The ICRC’s Position on a Functional Approach to Occupation

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It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).

Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.

Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.

With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’

Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:

In principle, the effective-control test is equally applicable when establishing the end of occupation, meaning that the criteria to be met should generally mirror those used to determine the beginning of occupation, only in reverse. Thus, if any of the three conditions listed above ceases to exist, an occupation should be considered to have ended.

The ICRC considers, however, that in some specific and rather exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) but retain key elements of authority or other important governmental functions usually performed by an occupying power – the law of occupation may continue to apply within the territorial and functional limits of such competences. Indeed, despite the lack of the physical presence of foreign forces in the territory concerned, the retained authority may amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions of this body of norms. This is referred to as the “functional approach” to the application of occupation law. This test will apply to the extent that the foreign forces still exercise, within all or part of the territory, governmental functions acquired when the occupation was undoubtedly established and ongoing.

The functional approach described above permits a more precise delineation of the legal framework applicable to situations in which it is difficult to determine, with certainty, whether an occupation has ended or not.

It may be argued that technological and military developments have made it possible to assert effective control over a foreign territory (or parts thereof) without a continuous foreign military presence in the concerned area. In such situations, it is important to take into account the extent of authority retained by the foreign forces rather than to focus exclusively on the means by which it is actually exercised. It should also be recognized that, in these circumstances, the geographical contiguity between belligerent States could facilitate the remote exercise of effective control. For instance, it may permit an occupying power that has relocated its troops outside the territory to reassert its full authority in a reasonably short period of time. The continued application of the relevant provisions of the law of occupation is all the more important in this scenario as these were specifically designed to regulate the sharing of authority – and the resulting assignment of responsibilities – between the belligerent States concerned.


While Gaza is not specifically mentioned, it is clearly the main point of reference for this discussion. My understanding is that the gist of this position was communicated privately to the Israeli government before, but this is the first time I think that the ICRC has made its legal analysis public. What I find so interesting here is that the official ICRC position is an almost verbatim reproduction of the analysis from Tristan Ferraro’s article (at p. 157) – which, remember, was written in his personal capacity, and moreover did not purport to reflect consensus from the participants of the expert meetings on occupation. Tristan’s analysis was condensed somewhat and rephrased in the ICRC’s own voice (‘The ICRC considers…’), but basically this was a copy/paste job. This is not the only example of an academic article ostensibly written by a legal advisor in their personal capacity evolving into the official position of the organization. I also imagine that both the ostensibly personal position and the now official one were extensively vetted inside the ICRC, i.e. that it does not simply reflect the fact that a particular person was in charge of a particular portfolio. But nonetheless this easy progression from academic article to official organizational position is at the very least noteworthy.

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Archibold Nyarango says

November 19, 2015

Thanks for your informative post, Prof. Milanovic.

It came at a time when I've just been reading the Katanga Trial judgement and I noted that in determining the type of armed conflict at the time the alleged crimes occurred, the court had to decide if Uganda was in military occupation of Ituri. The trial chamber majority applied various criteria to determine the existence of military occupation including whether 'the occupying power has...the capacity to send troops within a reasonable time to make the authority of the occupying power felt'[para.1180].

While this particular criterion was not the determinative issue in the court finding the existence of such occupation, its interesting to note how closely the ICRC and ICC positions seem to track each other.

Jordan says

November 20, 2015

"capacity to send troops" seems to be strangely overly broad and necessarily inconsistent with an effective control test that has been part of C.I.L. Are the ICC Judges just "making it up"?

Jordan says

November 20, 2015

France has the "capacity to send troops" into Syria. Is France, therefore, an occupying power of Syria? The U.S. was admittedly an occupying power over parts of Afghanistan, has combat troops engaging in combat in parts of Afghanistan, and has the "capacity to send troops" anywhere in Afghanistan. Is the U.S. an occupying power over the territory of Afghanistan? The U.K. had been an occupying power over parts of Iraq and has the "capacity to send troops" into Iraq. Is the U.K. an occupying power of Iraq?

Heikor says

November 20, 2015

A difference between the cases could lie in the fact that Gaza was occupied before and Syria was not. For Gazans nothing changed at all. They were still sitting in the cage. More or less. The capacity just tells us that Israel has not lost its power. There is an effectiv blockade anyway.

Steve Ratner says

November 20, 2015

Marko --

Thanks for a perceptive post. The ICRC does this all the time, e.g., its views on procedural safeguards for detainees began as an IRRC article by the lawyer charged with that issue. It makes a lot of sense from their perspective. The piece gets published, states can react, and the ICRC can adjust -- or not -- its position without being accused of making something public too soon.

But it's not just the ICRC. Government lawyers often write pieces in their personal capacity that are very close to the past -- or future -- official government position. Indeed, they almost never write pieces that are opposed to that position. The recent AJIL piece by the two top US lawyers at the Kampala ICC conference is another example -- personal capacity, USG position.

Whether the piece is reflecting and justifying a past position or a precursor of a future one, the academic format offers a chance for views to get out to the relevant audience without being "cleared" by everyone in the bureaucracy. And this has a great advantage when such clearance can be very slow.

I don't think we should be too surprised or disturbed by all of this. We know from a person's institutional affiliation that the piece will reflect government legal positions in some sense -- though government lawyers can also write pieces on issues on which they do not work professionally and for which the government may not even have a view, e.g., theoretical pieces. Those disclaimers are basically another way of saying "There is the possibility of a tiny sliver of light between my view and the future or past official policy of my government." It would be interesting for readers to send in examples of pieces written by government lawyers expounding legal views that were later changed dramatically by their government.

Marko Milanovic says

November 21, 2015

Thanks a lot for that comment Steve, very helpful. The one example that readily comes to mind of a government dramatically departing from the views earlier expressed academically by one of their legal advisors is the issue whether the rule on fundamental guarantees for persons detained in armed conflict in Art. 75 AP I reflects customary law. If I recall correctly, while acting legal advisor at State, Michael Matheson wrote in the AJIL that the US agreed that Art 75 was reflective of custom. Then the lawyers of the George W. Bush administration repudiated that position, while the Obama administration returned to it.

It's also interesting to trace (when that's possible) the impact of academic writing more generally on official positions adopted by states and organizations. For example, I think it was Aeyal Gross who first used the term 'functional approach to occupation' (see e.g. here: ).

Similarly, in the challenges report (p. 9) the ICRC now adopts a position on the termination of international armed conflicts: 'Bearing in mind that the threshold for the existence of an IAC is fairly low, and that it would be impractical to treat every lull in the fighting as the end of it and each resumption as the start of a new one, the ICRC is of the opinion that hostilities must end with a degree of stability and permanence for an IAC to be deemed terminated.' That position is an almost word for word reproduction of my own discussion in an article I recently published in the IRRC (, at 171): 'Because the IAC threshold is relatively easy to satisfy, however, and because it would be both impractical and would open the door to abuse to treat every lull in the fighting as an end to an IAC and each resumption of combat as the start of a new one, hostilities must end with a degree of stability and permanence in order for the IAC to be terminated.' I just find it entertaining if nothing else how that 'the ICRC is of the opinion' found its way into that sentence (I at least had nothing to do with it!).

Jordan says

November 21, 2015

Please see page 13 -- re: "when the last shot has been fired" and "the final end of all fighting" -- --- also re: NIAC Nonsense, the Afghan War, and Combatant Immunity.

Jordan says

November 22, 2015

a newer version of NIAC Nonsense dated 11-22-15 will be up on SSRN late Monday or soon thereafter. Note that it is a draft. Supportive citations welcomed.