49 Winter 2025 in hostilities” does not “regain protection from being made the object of attack in the time period between instances of taking a direct part in hostilities.”33 Irrespective of the continuing disagreement on these and other issues related to direct participation in hostilities, “mere sympathy or moral support for a party’s cause” or “independent journalism or public advocacy (such as opinion journalists who write columns supporting or criticizing a State’s war effort)”34 do not qualify as direct participation in hostilities. A fortiori, publishing, or otherwise disseminating information that reveals a party’s conduct that violates IHL or that might be embarrassing may not be considered an activity depriving the respective journalist of protection against direct attack either, even if the enemy uses that information for propaganda or strategic purposes. 4.2 Other Activities Depriving Journalists of Certain Protections Afforded to Civilians A civilian, and thus a journalist, may lose certain protections afforded to civilians according to Article 4 of the 1949 Geneva Convention IV (GC IV).35 Whereas Article 4(1) GC IV applies to civilians in the territory of a party to the conflict, Article 4(2) GC IV applies to civilians in occupied territory. Since Gaza is not an integral part of the territory of the State of Israel, it could, however, be considered to be under the military occupation of the IDF, if the arguments provided by the International Court of Justice (ICJ) were convincing. In its Advisory Opinion of July 19, 2024,36 the ICJ held that the Gaza Strip is “an integral part of the territory that was occupied by Israel in 1967,”37 and that despite the withdrawal of the IDF from Gaza in 2005, Israel continues to be an occupying power. The Court starts from the wording of Article 42 of the 1907 Hague Regulations,38 which requires that the territory “is actually placed under the authority of the hostile army” and then holds that “a State occupies territory that is not its own when, and to the extent that, it exercises effective control over it.”39 Being satisfied with an exercise of effective control, the Court concludes that the decisive criterion is not whether the occupying Power retains its physical military presence in the territory at all times but rather whether its authority “has been established and can be exercised” … Where an occupying Power, having previously established its authority in the occupied territory, later withdraws its 34. Ibid., at ¶ 5.8.3.2. 35. Fourth Geneva Convention, 1949, 75 U.N.T.S. 287. 36. Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, 2004 I.C.J. 136 (July 9). 37. Ibid., at ¶ 88. 38. Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, art. 42, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539. 39. ICJ Advisory Opinion, supra note 36, at ¶ 90. 40. Ibid., at ¶ 92, quoting Article 42 of the 1907 Hague Regulations. 41. Ibid., at ¶ 93. physical presence in part or in whole, it may still bear obligations under the law of occupation to the extent that it remains capable of exercising, and continues to exercise, elements of its authority in place of the local government.40 Accordingly, the Court considers that Israel remained capable of exercising, and continues to exercise, certain key elements of authority over the Gaza Strip, including control of the land, sea and air borders, restrictions on movement of people and goods, collection of import and export taxes, and military control over the buffer zone, despite the withdrawal of its military presence in 2005. This is even more so since 7 October 2023.41 The present author does not share these findings. The replacement of “military authority” by “effective control” appears as a prestidigitation rather than a sound interpretation. The distinction between military occupation and siege is blurred. An exercise of effective control from outside the respective territory will make it impossible for the controlling State to act as an “administrator and usufructuary” (Article 55 of the 1907 Hague Regulations) and to “restore, and ensure, as far as possible, public order and safety” (Article 43 of the 1907 Hague Regulations), or to comply with the other
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