The Functional Approach as Lex Lata
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.
