The Functional Approach as Lex Lata: The ICJ Advisory Opinion and the Status of Gaza

Ayeal Gross (author)

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Title	The Functional Approach as Lex Lata
Subtitle	The ICJ Advisory Opinion and the Status of Gaza
Contributor	Ayeal Gross (author)
DOI	https://doi.org/10.59704/133f2ff82e19d7f9
Landing page	https://verfassungsblog.de/the-functional-approach-as-lex-lata/
License	https://creativecommons.org/licenses/by-sa/4.0/
Publisher	Verfassungsblog
Published on	2025-09-09
Long abstract	The ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, the Opinion as rejects a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach.
Language	English (Original)

The ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, the Opinion as rejects a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach.