Cross-posted from Opinio Juris.
This is the third post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post.
By far one of the most challenging questions for the international law of belligerent occupation pertains to the termination of occupation. The law states that “occupation comes to an end when an occupant withdraws from a territory, or is driven out of it” (Oppenheim, International Law (1952) 436). According to Sir Adam Roberts, an occupation ends either through a complete withdrawal of troops, through the conclusion of a treaty permitting the continued presence of some troops, or through a treaty that transfers sovereignty back to the displaced sovereign, without withdrawal of troops. In his seminal work on the law of occupation, Arai-Takahashi’s discussion of termination makes no mention of the possibility of a gradated or phased application of the law. Sir Roberts holds that,
the question of when an occupation can be said to have begun, or ended, is sometimes easy to answer but is by no means always so. Even when it can be answered with confidence, there may still be many gradations between direct foreign military control on the one hand and complete independence and freedom from foreign military forces on the other. (260)
Similarly, in an article on the termination of occupation, Benvenisti notes that “unilateral withdrawals can be events as painful as other situations of political transition in which the protection of individual rights is particularly important”, underscoring that “the determination whether such control exists or not at the relevant times and in the relevant place will be based on a case by case analysis.”
Whilst the law of occupation does not explicitly provide for a “transitional” legal framework that regulates the process of termination, the simplicity of the above mentioned criteria for termination falls short of answering more demanding practical questions, such as: What duties does an occupying power have during the transition to restoration of lawful sovereignty? How can occupation law be applied to situations in which an occupying power has partially retreated but continues to exercise governmental functions?
Israel’s so-called “disengagement” from the Gaza Strip in 2005 and Hamas’ takeover of certain government functions in 2007 are a practical case-in-point that allows, and indeed requires, that these quandaries be addressed. Notwithstanding the varying views on the scope and extent of Israel’s obligations vis-à-vis the civilian population of the Gaza Strip, the vigorous academic debate concerning the current status of the Gaza Strip has arrived at an overwhelming consensus over the fact that the Gaza Strip remains occupied territory. The unanswered questions have largely concerned the extent of Israel’s control over life in the Gaza Strip – the facts about Israel’s current control, both actual and potential, and specifically about the intention and end objective of Israel’s so-called ‘disengagement plan’.
Shared Responsibility and Phased Application of the Law of Occupation
Despite the ancient character of some of international humanitarian law’s regulatory mechanisms, the unequivocal intention of its drafters was to ensure the protection of the civilian population, taking account of the changing realities of war. Therefore, to answer the question whether the law of occupation is a binary law, or whether its application can phase out in a gradated fashion, it should also be asked which approach reflects the intrinsic object and purpose of the law to ensure, at all times, the utmost protection of the civilian population. If the law of occupation were to apply not in a holistic, but in a gradated fashion, throughout transition from a full regime of occupation to effective handover, in order to be operational it should be able to clearly define: Who decides what set of obligations bind the occupying power at any given point during the transition? How often and in what manner would these obligations be reviewed, and who is to review them? Otherwise, the fragmentation of the law of occupation, through the application of different sets of obligations at different points in time would turn the law from a “set menu”, intended to restrain and control the occupier, into dishes at a buffet from which the occupier can pick and choose as it likes.
Articles 2 and 6 of the 1949 Fourth Geneva Convention, the provisions regulating the application of the law of occupation provide important indications of this holistic approach. Article 2(2) holds, “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Pictet’s commentary affirms the application of the legal framework of the law of occupation en bloc, as set out in this provision, regardless of the type of occupation and/or the extent of the occupier’s control over the territory. Benvenisti suggests that the rationale for this inclusive definition of occupation is “that at the heart of all occupations exists a potential – if not an inherent – conflict of interest between occupant and occupied.”
A secondary question that is only asked once a positive determination on the application of the law can be made, is regulated by Article 6(3), which functions as a “pressure valve” that regulates the intensity and scope of the occupier’s obligations. It states,
In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
The test set out in Article 6 requires the cumulative fulfilment of the following criteria: (1) a year has passed since military operations have come to an end; and (2) the occupier continues to exercise some functions of government in the occupied territory. When these requirements are fulfilled, the occupier’s obligations towards the occupied population are “downgraded” to a partial set of obligations, limited to the provisions enumerated in the article. As such, unless the requirements set out in Article 6 are fulfilled, the law of occupation continues to apply in its entirety throughout the occupation, from its very beginning to its effective end. Contrary to the interpretation of Article 6 by the ICJ in its Opinion on Israel’s construction of a Wall in the occupied Palestinian territory – an approach that was criticised by a number of publicists (see in particular Ben-Naftali) – the term “military operations” refers to the operations that led to the beginning of the occupation, as well as those undertaken regularly for its maintenance. Pictet’s Commentary makes it clear that “general close of military operations” means “when the last shot has been fired” and “the final end of all fighting between all those concerned”. Since Israel has not ceased its military operations in the occupied Palestinian territory, which it continues to mount with the purpose of maintaining its effective control over the territory, the application of Article 6 is not triggered, and Israel’s responsibility vis-à-vis the whole of the Palestinian territory continues to be regulated by the whole of the law of occupation.
Another quandary ensues from the local authorities having been fully entrusted with the majority of tasks pertaining to the management of daily life in the occupied territory. Does the occupier remain fully responsible for ensuring the proper functioning of daily life in those domains? Whilst the general principles of the law of occupation continue to apply, in every instance of the application of these guiding norms, a specific norm, consisting of a factual test, is applied to determine the extent of the occupier’s obligations in the specific domain of daily life.
It seems worth considering that if the law of occupation is understood as consisting of both general and specific norms, the seeming sharp distinction between a “binary approach” and a “functional approach” to its application may mask the fact that these approaches are actually the same. Such a consideration starts by understanding the law of occupation as a body of law that consists of two sets of norms: general or basic principles of the law of occupation (e.g. the occupant does not acquire sovereignty over the territory; the occupier must take measures to restore and ensure, as far as possible, public order and safety; and the occupier is prohibited from undertaking permanent changes in the occupied territory); and situational, thematic norms or rules (e.g. rules on internment, humanitarian assistance, medical and religious personnel, education and political life). In deciding on the extent of the occupier’s responsibility in a particular situation, the latter set of norms is the one that is subject to review by what can be referred to as a subject-specific, factual test – a test that examines the extent of control and authority and thereby determines the nature of the obligation.
Importantly, the application of the subject-specific factual test does not completely exempt the occupier from responsibility under either set of norms – responsibility is different from the specific content of the obligation, which is determined by the occupier’s de facto ability to control specific domains of daily life. Accordingly, in cases where the local authorities in the occupied territory administer some domains of daily life, the occupier’s obligations are checked against the level of control it has in those domains to determine the extent of its defaults versus those of the local authorities. Whilst the occupier remains charged with an overall responsibility for ensuring ‘normal life’ in the occupied territory, specific defaults made by the local authorities are not directly attributable to the occupier.
Take, for instance, the example of an occupier’s responsibilities in the field of education. If the occupier does not have full control over the functioning of the education system in the occupied territory, in terms of the way schools are administered, curricula set and teachers hired, then the occupier cannot be held liable for defaults made by the local authorities. However, notwithstanding its limited control, the occupier remains fully charged with its responsibility to ensure the enjoyment of the right to education by the occupied population as per Article 50 of the Fourth Geneva Convention, especially in so far as it may be affected by other measures undertaken by the occupier, for instance, those that restrict the freedom of movement in the occupied territory. Importantly, the occupier remains charged, at all times, with an overarching responsibility to manage daily affairs in the occupied territory.
A Holistic Protective Legal Framework
The categorical or holistic application of the law of occupation can be substantiated through a teleological interpretation of the provisions of international humanitarian law, in accordance with the object and purpose of the legal framework (see, Article 31(1) of the 1969 Vienna Convention of the Law of Treaties). According to this approach, the law of occupation starts to apply upon identification of a certain set of facts. The Geneva Conventions expanded the definition of control beyond that found in Article 42 of the Hague Regulations, because the object and purpose of the Conventions was to create a minimum and essential set of rules for the protection of civilians, that would apply to a wide range of possible situations. The Conventions responded to the view that limiting the scope of protection of the law of occupation to situations in which government functions are under the sole control of the occupier improperly excludes factual situations in which civilians are in need of protection, which might have been said to not yet amount to occupation. Effective control can exist in more ways than control over government functions; for instance, preventing governmental functions from being effectively exercised without taking over their exercise may also create obligations under the law of occupation.
In his article on the history of the law of occupation, Benvenisti recalls that although nations constructed the law of occupation in order to ensure their stability and security, their territorial integrity and protect their sovereignty, the protective purpose of this regime always favoured the occupied population, which had regularly been subjected to unbearable living conditions by a relentless occupier. The law of occupation is, therefore, sceptical of the occupier’s intentions, and ties its hands to ensure that it does not abuse its position of power vis-à-vis the occupied territory and population. In examining the application of the law of occupation with an indigenous government in post, Sir Roberts states that, in such situations of shared responsibility, “occupants often seek to buttress any claims that the situation is not one of occupation at all”. The law gives the occupier no discretion to determine the extent of its responsibility, and denies it the ability to modify its responsibilities simply by delegating the administration of certain tasks to local authorities.
This means that the period of termination, which is the transitional phase between occupation and its complete end, cannot be governed by a different regime of international law, one that places less demanding, more lenient obligations and duties on the occupier. The law of occupation abhors a protection vacuum, including in situations where the occupier relinquishes, or pretends to relinquish, actual authority over certain domains of daily life. Nothing in the law of occupation can be found to support or countenance the occupier’s predictable desire to evade as much responsibility as possible, whilst maintaining the monopoly of power in the foreign territory. Accordingly, the arrangement that is most responsive to fostering accountability toward the civilian population, is, incontrovertibly, that which favours the protection of the civilian population, and which ensures that regardless of the manner or extent of the occupier’s functions in the territory, the law of occupation continues to apply until such point when the legitimate sovereign is able to exercise effective control over the whole of its territory to the exclusion of any other power.
Further, it should be recalled that a determination about the end of occupation, which requires the fulfilment of a very high evidential threshold concerning the handover of control back to the legitimate sovereign, is a categorical determination. In other words, if an invading army has ceased to operate in an area previously under its military occupation, and has undertaken an effective and genuine handover to the legitimate sovereign, only then is it no longer seen as the occupying power in that territory. If the invading army proceeds to re-enter the previously-occupied territory following the effective end of the occupation, its invasion would no longer be considered part of its activities in administration of the occupied territory, but would now be governed by the law on the use of force (jus ad bellum), under Article 2(4) of the UN Charter, and may even in some cases amount to acts (and crimes) of aggression. In other cases, such acts could also amount to interventions in the internal affairs of another state, under Article 2(7) of the UN Charter.
Pretense of Withdrawal: Israel’s Continued ‘Effective Control’ over the Gaza Strip
Al-Haq’s rejoinder correctly points out the scope of Israel’s continued control over daily life in the Gaza Strip – both physical, military control, and administrative and legislative, remote control – the extent of which is often underestimated, primarily due to factual misconceptions. In this vein, Baruch-Sharvit’s paper appears to be based, in the main, on an erroneous understanding of the facts at hand – namely, that Israel relinquished control over most aspects of daily life. It dismisses or downplays the facts about Israel’s continued actual control and, most importantly, Israel’s potential control, through its ultimate ability to reinstate its control over any domain of daily life, whenever it so wishes. Dinstein’s views on the “disengagement”, presented in his latest manuscript on The International Law of Belligerent Occupation, where he dedicates a chapter to the termination of occupation, respond to these claims most accurately and explicitly by denoting three issues that affirm Israel’s continued position as an occupier of the Gaza Strip: the integrality of the territory of the West Bank and the Gaza Strip; the continued control by Israel over core ingredients of the administration of life in the Gaza Strip; and Israel’s insistence on its ability to “retake militarily” any part of the Gaza Strip, substantiating its continued ability ‘to make its authority felt’, as it has done on a regular basis till this day.
Moreover, it is erroneous to refer to Israel’s so-called “disengagement” from the Gaza Strip as the beginning of a phased withdrawal – the Israeli government has not thus far expressed an intention to continue withdrawing or relinquishing control in any of the other aspects of daily life that it continues to control (e.g. movement of persons and goods, provision of electricity and gas, control over land, sea and air, control over the population registry and taxation). The core ingredients of Israel’s “disengagement plan” have already been executed, indicating that the “plan was never intended to result in an effective, complete handover to the Palestinian sovereign. The implementation of the “plan” pretends that Israel has relinquished substantial control through a partial “withdrawal” from the Gaza Strip, coupled with a nebulous intention to undertake a complete handover at some point in the indefinite future. Darcy and Reynolds, in their comprehensive analysis of Israel’s continued occupation of the Gaza Strip, underline the importance of the law’s presumption of a positive determination of occupation, favouring the protection of the civilian population. They hold that “In light of prior lack of good faith in the application of international humanitarian law to the Palestinian territories, the ‘disengagement’ bears the hallmark of an attempt by Israel to abrogate its legal responsibilities.” Israeli authorities should be “precluded from unilaterally deciding the extent of their own legal obligations” by situating the Gaza Strip in a position of “legal limbo” which only stands to confirm Israel’s existing “culture of evasion and manipulation”.
As such, the “functional approach” to the application of the law of occupation expressed in Gisha’sposition paper, does not contradict the “binary approach” presented in Al-Haq’s rejoinder. Given the protective purpose of the law of occupation and the temporal character of the occupier’s presence in the occupied territory expressed in the restrictive provisions of the law, the binary approach is in fact, as much as it is in law, the most functional approach. Any other approach would disingenuously entrust the occupier, who is in the dominant position vis-à-vis the occupied population and the displaced legitimate sovereign, with the ability to determine the extent of its own obligations, with no scrutiny over its actions – encouraging thereby the very type of abusive behavior by occupiers against which the law of occupation was intended to safeguard. Since arguably one of the underlying functions of the law of occupation is to bring about the end of the occupation by making the occupier’s continued presence in the occupied territory costly, both financially and politically, the binary approach to the application of the law is the most effective way to realise this protective function.
- April 24, 2012 — In Reluctant Defense of the Law of Occupation
- April 23, 2012 — Rethinking Occupation: The Functional Approach
- April 23, 2012 — Symposium on the Functional Approach to the Law of Occupation