In its 2025 advisory opinion on the Obligations of Israel in relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in relation to the Occupied Palestinian Territory (UNRWA advisory opinion), the International Court of Justice (ICJ) found that Israel’s act of blocking UNRWA’s activities entailed obligations under International Human Rights Law (IHRL), International Humanitarian Law (IHL), and the UN Charter. The opinion needs to be contextualised in the backdrop of the 2024 advisory opinion, here the Court did not state that Gaza was occupied, as observed by Judge Iwasawa in that case, “ while the Court makes clear that Israel continues to be bound by certain obligations under the law of occupation, it does not take a position as to whether Gaza remained occupied within the meaning of the law of occupation after 2005…” But the events in the said case were prior to October 7th, 2023; the UNRWA advisory opinion concerns events post October 7th, 2023, during which Israel had an extensive military presence in Gaza.
On the threshold of occupation, the Court appears to have endorsed the functional approach, thereby stating that, “Israel’s obligations under the law of occupation have also increased significantly, commensurate with the increase in its effective control over the territory.” However, the functional approach leaves gaps in terms of threshold, protection, and accountability. In this post, I argue that the extraterritorial application of IHRL in the situation of functional occupation could fill this void.
Functional Approach in OPT
The functional approach to occupation was first articulated by Aeyal Gross and subsequently endorsed by the ICRC in the 32nd International Conference of the Red Cross and Red Crescent. Accordingly, it was stated that despite the lack of physical presence, effective control for the purpose of occupation means the continued application of norms. In other words, the responsibility would be split according to the level of control exercised. The approach meant that the traditional ‘boots on the ground’ approach under the Hague Regulation was not strictly interpreted. According to the traditional approach, territory is occupied if it is “actually placed under the authority” of another State (art. 42(1)). Although the 1949 Geneva Conventions refer to partial occupation, this pertains only to the geographical extent, not to legal obligations. According to Sean Watts, the strict reading of the law of occupation may create uncertainty in situations like, a) Occupying power extinguishing its obligation, by merely dialing back its activities below the legal threshold that established the occupation in the first place and b) where a belligerent has nonconsensual physical presence and influence but exercises insufficient authority to activate the law of belligerent occupation. In these scenarios, occupation requires flexibility, and functional occupation provides this.
Situations such as the Turkish occupation of northern Syria may trigger the application of the functional approach, where Turkey exercised control via Turkish border provinces of Gaziantep and Hatay to varying degrees; authorities exercised control through Syrian armed groups rather than direct administration. Moreover, Turkey has established local councils in the occupied area that are overseen by Turkish provincial authorities. The European Court of Human Rights (ECtHR) in Chiragov and Others v. Armenia (2015) acknowledged Armenia’s effective control’ through political, economic and military support. Yutaka Arai-Takahashi argues that belligerent occupation, defined by ‘effective control’, does not require direct military rule. The court applied the ‘high integration test’ to find that Armenia had effective control. In these situations where occupation is premised on ‘degree of control’, functional occupation could be applied.
Although the Israeli government rejects the law of occupation due to the non-application of IHL, the Israeli Court appears to have contradicted this stance. For instance, in Jaber Al- Bassiouni Ahmed v. Prime Minister, the HCJ observed, “the State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the entirety of the law of belligerent occupation in international law.” But the court also noted that very limited obligations continued to apply with respect to medicine, clothing and other essentials.
In doing so, it allowed Israel to regulate the supply of fuel and food and to accept the limited humanitarian duties. This position appears contrary, as on the one hand, the Court rejects Israel as an occupying power, yet accepts its limited obligations. The functional approach would’ve clarified Israel’s limited obligation as an occupying power, to the extent of its control. Also, the naval blockade and raid of the flotilla resulted in the death of nine passengers; here, Israel rejected the application of the laws of occupation and instead employed the language of siege and naval blockade to evade the obligations under the Geneva Conventions. As Tatjana Grote opines, “[B]y mirroring the factual situation on the ground in a more nuanced manner, this approach allows to close critical gaps in legal protection.”
Extraterritorial Application of Human Rights
Philipp Janig, while commenting on the extraterritorial application of human rights, observes, “exact territorial reach is subject to significant debate, and the practice of different human rights treaty bodies is not necessarily consistent.” Therefore, various models have been suggested for the extraterritorial application of human rights. Jurisdictional models, like the personal, are premised on control over individuals; the functional model of jurisdiction is control over the State’s activities that affect the enjoyment of human rights. In each of these scenarios, ‘effective control’ is the yardstick. In Mozer v Moldova and Russia, effective control was interpreted to include ‘willingness to provide additional military support, provision of subsidised natural gas, provision of pensions or financial aid to residents, granting them citizenship and issuing them passports…’
The extraterritorial application of human rights means they apply in situations of armed conflict. This, according to Prof. Theodor Meron, signals a trend towards the humanisation of IHL, a trend also echoed by the ICJ; for instance, in the Legality of the Threat or Use of Nuclear Weapons, the ICJ acknowledged the application of the ICCPR during war, with the Article 4 exception. In the Wall Advisory Opinion, the extraterritorial application of human rights was extended to the situation of belligerent occupation, even though IHL was lex specialis. In the subsequent Armed Activities case, the ICJ abandoned the lex specialis rule in favour of complementarity. As the ICJ observed in the said case, “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration”. This position was further buttressed by the European Court of Human Rights (ECtHR) in Ukraine and the Netherlands v. Russia (9th July, 2025), here the Court favoured the interpretation of the Convention ‘in light of the rules set out in Article 31 § 3 of the 1969 Vienna Convention on the Law of Treaties…including IHL.’ These developments marked the convergence of IHL and IHRL.
But the extraterritorial application of human rights raises certain concerns, as the full range of human rights must be guaranteed in situations of partial occupation, or human rights courts may ignore IHL rules due to a lack of expertise. The ICJ in the UNRWA advisory opinion favoured the extraterritorial application of human rights; accordingly, it stated, ‘the principle that a State’s human rights obligations extend to acts taken by that State in the exercise of its jurisdiction outside its own territory, particularly in occupied territories, applies also with respect to CEDAW, the CAT and the CRPD.’
According to Prof. Marko Milanovic, the Court’s interpretation has opened the gate for a non-spatial concept of jurisdiction endorsed by human rights bodies in treaties like CEDAW and CRPD, which do not explicitly provide for the same and instead expand positive human rights obligations in terms of a duty to respect, protect, and fulfil. Thus, the Court acknowledged a wide application of IHRL to the situation of functional occupation. The next section discusses the advantages of IHRL in situations of functional occupation.
Functional Approach: IHRL as Gap Filler
The conceptual link between the functional occupation and the extraterritorial application of human rights is that both are premised on the degree of control, even if the control over the territory is partial. Functional occupation, albeit partial, triggers obligations under IHL to the extent of the occupying power’s control. Whereas the extraterritorial human rights obligations arise when States exercise authority or control abroad. Therefore, in a situation where the legal threshold for occupation is contested due to its partial nature, the extraterritorial application of human rights fills the gap.
Firstly, because of the partial nature of the occupation (functional approach), one of the challenges is the remote possibility of prosecuting war crimes committed by Israeli officials for jurisdictional reasons, even if impunity for the grave breaches is waived. However, the daily conduct of Israel in the Occupied Palestinian Territory (OPT) doesn’t reach the threshold of war crimes but would plausibly constitute a breach of human rights obligations. IHRL would certainly be capable of addressing this conundrum. For instance, with respect to freedom of movement, restrictions on movement may be permitted for security reasons or justified as a matter of military necessity under IHL, whereas disproportionate restrictions on freedom of movement may be challenged under the ICCPR. Therefore, as Keren Greenblatt argues, “the drafters designed the Fourth Geneva Convention to protect the civilian population in a short, temporary state of occupation, and did not provide adequate means to hold the occupant accountable for violations that may not rise to the level of grave breaches of the Convention.”
Secondly, in cases of prolonged and functional nature of the occupation, there is a shift from a situation of armed conflict of grave nature to a situation of intermittent oppression; this may be justified on security grounds provided under the Geneva Convention. The Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War under Art. 64 provides the authority to the occupying power to suspend the penal law, “…where they constitute a threat to its security or an obstacle to the application of the present Convention…” Applying a human rights framework limits Israel’s ability to derogate from human rights, as the requirements of proportionality, non-discrimination, and necessity must be met. For example, in the context of nationality, while IHL locates non-discrimination in the Fourth Geneva Convention as the fundamental basis for the application of rights, it is confined to the protected persons within the scope of the Convention. Applying the minimum protection standards as per the IHL to a population of one national and a higher standard of protection as per the national law would not violate IHL. Whereas human rights provide discrimination on the grounds of nationality, which goes beyond the IHL standards.
Third, certain breaches of international law may not have an equivalent in IHL, especially in prolonged-occupation scenarios, as the ICJ stated in the Wall Advisory Opinion: Israel’s construction of the wall violated a plethora of human rights obligations that had no parallel in IHL. For instance, reference is made to Article 17(1) of the ICCPR: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Therefore, IHRL provides more comprehensive protection vis-à-vis privacy; hence, house searches and surveillance may not violate IHL but would be contrary to IHRL, as Yuval Shany aptly puts it, “[T]he instability of existing law and practice relating to co-application caused by the aforementioned two tensions is at the root of efforts to move beyond the lex specialis framework.”
Conclusion
Traditionally, for an occupation to exist, the territory is placed under the authority of the hostile army. However, in modern practice, the nature of the occupation has changed to the extent that States occupy territory without having boots on the ground. In such scenarios, the functional approach to occupation assumes significance. The ICJ has embraced this approach, thereby relaxing the threshold for occupation based on the degree of effective control; however, the functional approach leaves gaps in terms of the threshold, protection, and accountability. Given the widespread acceptance of the extraterritorial application of human rights rooted in effective control, these gaps could be addressed through the IHRL framework in terms of a higher degree of protection, broader availability of rights, and heightened scrutiny in the context of rights derogation.
Author
Mr. Atul Alexander is Assistant Professor of Law at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.
Acknowledgement
The central arguments in this write-up were presented at the workshop organised by Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa on “Balancing Contradicting Human Rights Obligations in Armed Conflicts and Counter-Terrorism”, held in Prague. The author would like to thank Adv. Ido Rosenzweig and Prof. Marko Milanović for their valuable comments on the paper during the workshop. The author is also grateful to the anonymous reviewers and ASIANSIL Voices for their insightful comments and guidance.
Photo credit: Freepik
