[Jean Galbraith is an Assistant Professor of Law at the University of Pennsylvania Law School]

President Trump has reportedly made a decision about whether or not to end the Iran deal – although he won’t yet say what he’s decided.  The Iran deal, more formally known as the Joint Comprehensive Plan of Action (JCPOA), is a political commitment rather than an agreement that is binding as a matter of international law.  President Trump can thus abandon the Iran deal without violating international law, although there will be plenty of other repercussions from such a step.

But abandonment will nonetheless raise at least one interesting legal question.  If the United States ends the Iran deal, can it thereby trigger the re-imposition of Security Council sanctions against Iran?

First, a bit of background (discussed more here).  Prior to the JCPOA, the Security Council had imposed various sanctions against Iran – sanctions which all countries were legally obligated to enact.  The core bargain in the Iran deal involved the lifting of sanctions, including these Security Council sanctions, in exchange for Iran’s commitments not to develop nuclear weapons and its acceptance of a monitoring regime.  But what would happen if Iran failed to honor its commitments?  In that case, would there be the votes on the Security Council to re-impose sanctions or instead might Russia or China veto such a resolution?  In order to address this concern, negotiators included innovative provisions in the JCPOA and in Security Council Resolution 2231, which was passed in July of 2015 to help implement the JCPOA.  These provisions have been referred to as the “snapback” provisions, and I have called them “trigger termination” provisions.

Summarizing a bit, Resolution 2231 provided that the pre-existing Security Council resolutions imposing sanctions on Iran are terminated, but they can be reinstated at any time during the next 10 years by any single P5 country (including the United States) or by Germany, under certain conditions.  Specifically, the country seeking reinstatement must notify the Security Council “of an issue that [it] believes constitutes significant non-performance of commitments under the JCPOA.”  If the Security Council does not pass any resolutions on this issue in the 30 days following notification, then the prior resolutions imposing sanctions are automatically reinstated.  These resolutions would not apply retroactively to contracts signed prior to their reinstatement.

If President Trump simply ends the Iran deal without trying to trigger the snapback provision, then he can only re-impose U.S. sanctions.  (He could try to persuade other countries to re-impose sanctions, but his ability to do that in practice will likely be fairly low.)  But what if instead of or in addition to announcing an “end” to the deal, President Trump states that Iran is not complying with the deal and attempts to trigger the snapback provision?  Will this be effective as a matter of law, even if President Trump’s claim of Iranian non-compliance looks like a pretext?

In a comment I wrote in the October 2015 issue of the American Journal of International Law (draft version here), I addressed the issue of a pretextual snapback.  I wrote as follows:

Resolution 2231’s trigger termination has some protections against arbitrar[y use], but not very strong ones.  The activator can be a single state – any one of the P5 [including the United States], Germany, or theoretically Iran.  The standard is that this state must ‘believe’ that there is ‘significant non-performance of commitments under the JCPOA.’  While ‘significant non-performance of commitments under the JCPOA’ is a reasonably clear criterion, the fact that the activator is only required to ‘believe’ this nonperformance to have occurred makes the standard a fairly flexible one.  But although flexible, it is not a grant of total discretion.  It must require a good faith belief in significant nonperformance, for otherwise it would be meaningless.  Indeed, if such a good faith belief is demonstrably absent, other states would have grounds for considering that the trigger termination has not been properly activated.  In that case, they could presumably treat Resolution 2231 as continuing in force and thereby have a legal basis for declining to reinstitute the prior sanctions.

If President Trump tries to trigger the snapback provision now, other countries will have reasonable grounds for disputing the legal effectiveness of such a trigger.  Of course, if the United States walks away from the Iran deal and re-imposes its own sanctions, Iran may then cease its implementation of the deal and ramp up its pursuit of nuclear weapons.  After that point, the United States will have good faith grounds to believe in Iran’s significant non-performance – but if Iranian non-compliance is clearly due to U.S. non-compliance, states might raise other arguments for doubting the legal ability of the United States to trigger the snapback.

In closing, my thanks to the editors of the Opinio Juris blog for letting me contribute this guest post.

[Heather Cohen is a Legal & Policy Associate with the International Corporate Accountability Roundtable (ICAR), which harnesses the collective power of progressive organizations to push governments to create and enforce rules over corporations that promote human rights and reduce inequality.]

Can corporations be held accountable in the United States for violations of international law? This question is back before the Supreme Court of the United States (SCOTUS) this fall. On October 11, 2017, SCOTUS will hear oral arguments in Jesner v. Arab Bank, PLC on the question of whether corporations can be held liable under the Alien Tort Statute (ATS). In the case, the plaintiffs, victims of terrorism in Israel, allege that Arab Bank knowingly and willfully used its U.S. branch to provide financial services to the terrorist organizations that harmed them and their family members.

On August 21, Arab Bank filed its respondent brief in the proceedings, arguing that corporations should not be held liable for violations of international law under the ATS. This argument is inconsistent with the intent of the drafters of the Constitution who enacted the law, as well as with the legal interpretation that has followed.

An analysis of the language and historical context of the ATS demonstrates that the drafters of the Constitution intended for the ATS to be applied broadly to both individuals and legal persons, such as corporations. By placing no categorical limits on who can be sued under the legislation, it is clear that corporations can and should be held liable for violations of international law under the ATS.

The Enactment of the ATS and its Application to Legal Persons

The ATS was passed by the First Congress in 1789 to demonstrate the commitment of the new country to upholding the “law of nations,” thereby granting the United States legitimacy on the world stage. Its enactment was spurred by two incidents of offences against foreign ambassadors, but the law would also provide merchants plagued by piracy with a legal avenue to obtain remedy for the harm and losses suffered.

In passing the ATS, the First Congress chose not to limit who can be sued under the legislation:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

By choosing not to exclude any particular class of defendant, the ATS places no limitation on who can be sued. This is made even more clear by the contrasting restriction on who can sue, i.e. only “aliens.”

Historical context suggests that the First Congress intended the law to hold both legal persons as well as natural ones accountable. Courts have held legal persons liable for their abuses as far back as the 1600s. A number of piracy cases provide a clear example of this. For instance, in 1666, Thomas Skinner sued the East India Company for “robbing him of a ship and goods of great value.” The U.K. House of Lords ruled in favor of Mr. Skinner and held that the company owed him compensation. Even where piracy was not committed by corporations, courts have imputed corporate form to the ships themselves. Similarly, early American courts held that ships, as entities, could be ordered to pay damages for piracy. They reasoned that it made financial sense to direct judgment against a captured ship, which had substantial value, while pirates were unlikely to pay the compensation ordered.

These piracy cases demonstrate that courts during the era of the drafters of the Constitution were not only familiar with the concept of liability for legal persons, but that they regularly imposed it for violations of international law. In light of this familiarity, the fact that the First Congress did not limit the language of the ATS suggests that it intended for legal persons, such as corporations, to be sued under the statute.

A Modern Interpretation of the ATS

This interpretation has been supported by courts in subsequent decisions. For example, the D.C. Court of Appeals, in Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 48 (D.C. Cir. 2011), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013) held that “[t]he notion that corporations could be held liable for their torts… would NOT have been surprising to the First Congress that enacted the ATS” [emphasis added]. For decades, corporations have been sued under the ATS “without any indication that the issue [of their liability] was in controversy, whether in ruling that ATS cases could proceed or that they could not on other grounds.”

Since its passage in 1789, the ATS has remained the law of the United States for more than two hundred years, without ever being limited, narrowed, or amended by Congress. In contrast, Congress has made it abundantly clear when it does mean to exclude a particular class of defendants, namely corporations, from liability. For instance, the Torture Victim Protection Act (TVPA) explicitly excludes suits against corporations. While one can argue that failure to amend the ATS does not necessarily mean acceptance, one cannot negate the fact that both times that the issue of corporate liability under the ATS has come before SCOTUS, the U.S. Government has argued in favor of it. The Government has made it clear that it supports the original words and meaning of the ATS.

Arab Bank’s Interpretation of the ATS

Faced with this evidence of the intent of the drafters of the Constitution, all Arab Bank can do is endeavor to chip away at little pieces of it by attempting to undermine the piracy cases raised by the petitioners and their amici. In Arab Bank’s brief, it attacks the British case by claiming that the East India Company functioned more like a sovereign than a corporation, and that the case was ultimately vacated by King Charles II.

While it is beyond the scope of this blog to offer an analysis of the differences between the East India Company and the modern day corporation, the broad power and scope of today’s multinational corporations suggest that these differences may be much smaller than they initially appear. For example, one often cited variance is the power the East India Company had to “operate its own courts and establish its own law.” However, modern corporations likewise operate their own courts through grievance mechanisms, such as that offered by Barrick Gold in response to sexual violence at its mine in Papua New Guinea. In any event, what is relevant is that “the East India Company was on any number of occasions judged by English courts to be a legal person subject to both English common and civil law.”

Also problematic with Arab Bank’s critique of the British case is the weight that it places on the intervention of the monarchy, namely, the decision by King Charles II to vacate the case. This decision is simply emblematic of the politics and the central role the Monarch played at the time. Using this political dynamic to criticize the case is unpersuasive.

To undermine the American piracy cases, Arab Bank argues that a ship is not a corporation and that holding a ship liable for the acts committed by the people operating it is not equivalent to accepting the concept of corporate liability. However, this argument is purely a matter of semantics and ignores the very basic concept of corporate liability, which is to hold a legal entity liable for the acts of individuals operating within it. This is exactly what the court did when imposing liability on the ships in these piracy cases.

Conclusion

If SCOTUS rules that corporations cannot be held liable under the ATS, it will be overturning hundreds of years of legal tradition, as well as undermining the chosen words and understanding of the drafters of the Constitution. Such a ruling would similarly undercut the legal interpretation adopted by numerous courts and policymakers following the First Congress. Furthermore, Arab Bank’s arguments are not convincing and fail to undermine the evidence that the ATS was intended to apply to both legal and non-legal persons.

Will SCOTUS respect the wishes of the drafters of the Constitution by holding Arab Bank liable for providing financial services to terrorist organizations? Those of us who believe in the underlying principles of this Nation certainly hope so.

[Riccardo Labianco is a PhD candidate at SOAS, University of London. His research focuses on state-to-state military assistance in times of conflict.]

On 10th July 2017, the High Court of Justice (HCJ) delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested judicial review of that choice, in light of the violations of international humanitarian law (IHL) committed by SA in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review. This decision was based on the fact that the UK government was the only actor able to assess the absence of a clear risk of IHL violations that could be committed with the transferred arms, due to its inside knowledge of the Saudi administration and its engagement with it. As shown below, the absence of a clear risk of IHL violations must be assessed before authorising any arms export.

Two aspects of the judgment are analysed here. First, the HCJ’s interpretation of the “Consolidated Criteria for Arms Export”, a piece of EU legislation incorporated in the UK legal system. Second, the choice to consider the UK’s “privileged position” within the Saudi administration as an essential element for the lawfulness of the arms transfers.

[The following is a response from Anne Peters, the Editor-in-Chief of the Journal of the History of International Law]

Dear readers,

The JHIL received this letter and had agreed towards the authors in writing to publish it in the JHIL as soon as possible.

Publication in JHIL does not imply any agreement or endorsement by the editors or by the academic advisory board of the opinions expressed in an article.

The selection of articles for the journal occurs through double blind peer review on the basis of their academic quality. In the case of the article on the Jamestown Massacre, the editors were able to obtain only one peer review report.

The editor-in-chief acknowledges that there were flaws in the review process and apologizes for this.

The JHIL has recently amended the selection and review procedure in order to strengthen the process.

The new authors’ guidelines containing the description of the review process can be found on the Journal’s website.

Anne Peters

[This letter was sent to the editors of the Journal of the History of International Law on 29 August 2017. I am a signatory, not the letter’s author.]

Dear Editors,

We are writing to express our grave concern about the publication of an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention’ in the latest issue of the Journal of the History of International Law. We find the decision to publish this article strange to understand to the extent that it combines dubious anachronisms and legal framings, problematic application of legal doctrine, selective presentation of facts and quotations, and outright contradictions and falsehoods. Notably, it is difficult, if not outright impossible, to reconcile the different parts of the argument with each other as well as with the conclusions of the article. For even if one was to ignore issues of historical accuracy and legal argumentation and accept the author’s arguments, this does not support in any way the conclusion that ‘Jamestown was radically disproportionate to any violence committed by the English, before or after 1622’ (p. 48), or that ‘a sense of self-respect, or at least … a sense of self-preservation’ (ibid) was the core or the motive of settlers’ actions and attitudes post-1622. After all, the article repeatedly emphasises the distinction between (genocidal) intent and motive only to collapse the two when it comes to justifying the acts of English settlers. In other words, this is a piece of work that fails in relation to its own terms as well as in relation to general standards of academic argumentation and rigour.

Since the said article is of considerable length and there are significant problems on virtually every page, we will only focus on a limited number of issues while emphasising that our enumeration is not exhaustive. To begin with, it is notable that even though the author argues that the Powhatan targeted the settlers indiscriminately and without respect for the distinction between ‘combatants and non-combatants’ (p.1), he also goes to great lengths to argue that no armed conflict (or ‘war’ in his own words) was taking place anyway. In any event, the existence, or not, of an armed conflict is doctrinally irrelevant for the finding of the crime of genocide. A review process exhibiting minimal familiarity both with international humanitarian law and the law of genocide would have pointed out these argumentative discontinuities. We find it impossible to find an explanation of what brings together combatants, the absence of armed conflict and the potential perpetration of genocide, since legal doctrine does not. We suspect that the author’s intention to portray the Powhatan as barbarians who embarked on senseless violence out of the blue might shed light on the structure of the article to the extent that international law fails to do so.

Moreover, we are surprised that the peer review process did not challenge the fact that at least the first part of the article is grounded on the argument that no other ‘single massacre’ (p. 5) claimed so many lives as the events in Jamestown. Since the ‘ratio of deaths per incident’ is a criterion as such unknown to international law, and hardly defensible from a moral or political perspective, this is an argumentative move worthy of serious scrutiny. The fact that this arbitrary criterion is clearly linked to an effort to ignore, underplay and eventually justify the prolonged, systematic and (alas) mostly successful process of exterminating Native Americans, dispossessing them of their land, and destroying their society and culture, should have raised even more questions. Indeed, even though Bennett focuses on English settlers, he fails to situate the events within a broader historical context of empire and colonisation as a process that did not simply encompass occasional, unconnected outbreaks of mass violence, but was specifically premised on continuous expansionism to the detriment of the existing occupiers of the land that culminated in their dispossession. The word ‘empire’ does appear twice in the article, but only in order to describe the political relations between the Powhatan and other Native Americans (p. 14, p. 17). Even if one disagrees with our assessment of imperialism and colonisation as articulated above, it would still be difficult to contest the prima facie relevance of this historical context to the discussed topic…

[Aeyal Gross is Professor of Law at the Tel-Aviv University Law School and Visiting Reader in Law at SOAS, University of London. In Fall 2017, he will be a Fernand Braudel Senior Fellow at the European University Institute. This post is the final post of the symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Nothing could be more rewarding for authors than to have experts on the topics discussed in their books sharing ideas, concerns, and critiques. I am thus deeply grateful to the four contributors who devoted time and thought to comment on my book as well as to the editors of Opinio Juris. In this brief reply, I cannot do justice to all the contributors’ comments but will try to address some of them.

Eliav Lieblich addresses the normative/functional approach to occupation developed in my book and points to its potential for creating new ambiguities. Rather than limit the application of this approach to a “full” post-occupation stage, after states remove “boots on the ground” while retaining some form of control, Lieblich considers the option of states exercising control over some government functions in other states without a previous “traditional” occupation stage.

In a way, this question returns to a more fundamental one: should the beginning and end of occupation be viewed as symmetric for all purposes, including for a functional analysis of occupation? I address this question in my book and argue that dismantling an occupation is different from establishing one. One response to Lieblich, then, could be that the remnants of an occupation that never ended may possibly signal that the law of occupation continues to apply functionally, even when the remaining degree of control might have been insufficient to establish the occupation and apply the laws that govern it. Another answer, however, backed by some of the decisions of the Ethiopia Eritrea Claims Commission (EECC), support the notion that the law of occupation could be triggered based on partial or functional occupation and not only following a “full” occupation.

The question of what might be the triggering standards for functional occupation is also raised by Kristen Boon. Boon asks how to avoid a standard that is either too high (imposing positive obligations on states simply holding territories within their sphere of influence) or too low (permitting states to operate just short of the “boots on the ground” standard or taking advantage of new forms of technology while depriving individuals of the humanitarian protections they are legally owed). Finding a “one size fits all answer” may be hard, but one guiding principle should be whether the perceived occupier exercises some power over the territory with its actions preventing exercise of authority by other powers, especially the authorities of the occupied party. As I note in the book, Judge Kooijmans’s separate opinion in the Armed Activities (DRC v Uganda) case, which views states as occupiers when their actions preclude the functioning of local government, seems to be a step in the right direction (see pp. 74 and 129). Combined with the EECC approach mentioned above, we can consider that the responsibilities of occupation exist when power – not just influence – is exercised. From this perspective, continued Israeli control of the airways and waterways of Gaza in a way that does not allow the local population and its government to exercise control, seems like a clear case of occupation functionally continuing.

Whatever the answers we choose to Lieblich’s and Boon’s questions, they seemingly highlight two significant issues. The first is that, once we stop thinking of occupation in on/off terms, we realize that a continuum exists between occupation and other forms of control. The second is that, given occupation’s indeterminacy, the functional approach presented in my book attempts to replace a “pick and choose approach” with one that creates accountability, without claiming this to be a panacea to all the problems of the law of occupation. No such panaceas are available in law (or in life …).

Lieblich further ponders whether the functional approach does not ultimately collapse into some extra-territorial variation of human rights implementation. Although this is a valid question, it is pertinent to insist on the special protections that the law of occupation makes available (including the special status of protected persons) that are lost in a human rights analysis. In the last chapter of the book, I show how a human rights analysis often undermines the special protections accorded within the law of occupation. In this light, shifting the focus to the extra-territorial application of human rights law does not appear to be an alternative to the solution offered by the functional approach.

Finally, Lieblich mentions that the functional approach, which I began to develop in my work in 2007, has recently been endorsed by the ICRC. The need for this approach arose after the 2005 Gaza disengagement, growing out of both my academic research and my NGO work. I first presented it at the closing plenary lecture of a 2007 conference organized by the Minerva Centres for Human Rights at the Tel-Aviv and Hebrew Universities together with the ICRC, to mark the fortieth anniversary of the Israeli occupation of the Occupied Palestinian Territory, and first published about it in 2012, in a post that opened a symposium on the topic in this blog. As Lieblich notes, the ICRC adopted a variation of what was suggested in my work and the work of the Gisha NGO, on whose board I serve, and eventually backed the functional approach in its 2016 updated commentary on the Geneva Conventions, as documented here. The ICRC model, however, is a somewhat narrower version of the view developed in my book. It considers the functional approach relevant to “specific and exceptional cases,” whereas my analysis throughout the book shows that, given the indeterminacy of many situations where occupation and sovereignty are mixed, we need to rely on it regularly (see p. 133, n. 350). The Gaza situation and the analysis it required led me to a deeper understanding of how indeterminacy, control, and functions are always relevant to the understanding of occupation, be it in Berlin, Iraq, or Ethiopia-Eritrea.

While Lieblich’s comment considers the actual framework of the law of occupation, Valentina Azarova points to the connection between the law of occupation and other regimes of international law. Specifically, Azarova notes the role of jus ad bellum in the prohibition of annexation and shows how this prohibition should be seen as deriving from jus ad bellum rather than, as my analysis might imply, from the law of occupation itself. The law of occupation, she argues, depends for its proper function on the operation of other rules of international law, such as jus ad bellum, yet notes that an unlawful annexation maintained through occupation exposes the limit of the jus in bello/jus ad bellum distinction. Indeed, occupation highlights the complexities of the relationship between them, as Iris Canor noted. Azarova’s comments require me to reconsider the relationship between the law on the use of force (jus ad bellum) and occupation, a question I admittedly scarcely addressed in the book.

Going back to the law of occupation itself, Diana Buttu points to its limited role in giving any remedy to Palestinians. She argues that, despite very small legal victories (or, in her usage, “victories”), Israeli courts have legitimized Israel’s actions and prevented any scrutiny of the big picture, focusing instead on localized practices. Indeed, part of my reason for writing Illegal Occupation with Orna Ben-Naftali and Keren Michaeli in 2005 was to take back the discussion to the big picture— the illegality of the occupation itself. I find Buttu’s reservations about my statement that “only insisting on the normative content can save the benevolent reading of this body of international law… and prevent a return of colonialism” (252) intriguing, when she notes how, in the case of Israel, we are not facing a return of colonialism since it never left. Whereas I was alluding to the return of a colonialism that has been rendered illegal but might be brought back in the guise of a legally structured occupation, Buttu seems to be referring to this specific territorial context, pointing to the continuity of colonialism/occupation in Israel/Palestine (and beyond). How is this particular continuity an instance of a general continuity between the law of colonialism and the law of occupation? These questions need a broader scope than the one considered in my book. In his recent book on the Israeli occupation, Gershon Shafir touches on this relationship in the Israeli-Palestinian context from a historical political perspective, but further legal historical work seems warranted on this issue.

Coming from a very different perspective, and that is an understatement, Eugene Kontorovich questions the value of the normative approach from several perspectives, mainly that of gaps of enforcement in the law of occupation. Violations of the law of occupation by countries other than Israel have, in Kontorovich’s argument, gone unnoticed by the international community. But even if, for the sake of the argument, we agreed that Israel is treated as an exception, the enforcement gaps he addresses remain relevant to Israel too. He has counted about five hundred UN General Assembly resolutions dealing with Israel and very few regarding other occupations. These resolutions, however, remain unenforced and, moreover, since for the most they are not backed by the Security Council, are not even binding. How do these conditions affect Kontorovich’s suggestion that, before building a normative regime of occupation, it might make sense to bolster the existing one? I would argue that, without endorsing a normative approach, much of the criticism of Israel, at least at the legal level, not only lacks concrete enforcement but remains focused on specific issues, thus validating the bigger picture of this occupation rather than pointing to it as intrinsically illegal and illegitimate. The normative approach, then, which could help us to evade this vicious cycle, would prove vital for breaking the current impasse.

Kontorovich also notes that assigning a key role to self-determination, as I do in the normative analysis, constitutes a departure from current law and practice, which respect the sovereignty of states and not of peoples. Insistence on the relevance of self-determination first emerged in the 2005 Illegal Occupation article by Ben-Naftali, Michaeli, and myself. It is justified not only by the current understanding of self-determination in international law as a necessary interpretation of the law of occupation but also given the need to deal with occupation in areas where no state had previously been sovereign, such as the Occupied Palestinian Territory or Western Sahara. Taking self-determination out of this equation would imply denying protection to people who are occupied but had previously lacked a state.

Finally, though I do not share Kontorovich’s interpretation of the political context, I will avoid a factual and political argument on his determination that the Israeli occupation is different given the rejection of “numerous … good-faith offers of statehood to the Palestinians,” an issue I deliberately sidestepped in my book. My argument is that this occupation, which entails the constant dispossession of Palestinians, the establishment of a discriminatory apartheid-like regime, and illegal settlements whose existence is central to the dispossession and discrimination, is illegal regardless of who is to “blame” for the lack of an Israeli-Palestinian peace settlement. Had the occupation abided by international law (meaning no settlements and no dispossession of the Palestinian population) and notwithstanding the denial of liberties inherent in any situation of occupation, we would be engaging in an entirely different discussion. The current occupation, now ongoing for fifty years, which denies Palestinians their most basic liberties and dispossesses them daily, often denying their very life, must stop, and this illegal and inexcusably unjust situation must be brought to an end.

[This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

One of the interesting observations Aeyal makes in his important new book The Writing on the Wall, is that new forms of control are radically challenging the law of occupation.   Traditionally, occupation has been understood as a question of fact:  territory will be considered occupied if there are “boots on the ground” that demonstrate effective control.  However, as Aeyal notes throughout the book, the law of occupation is fraught with complex realities.  One of these realities is that new forms of technological and political control are increasingly relevant to the law of occupation.   Citing the 2015 ECHR decisions Chiragov (question of Armenia occupying Nagorno-Karabakh) and Sargsyan (question of Azerbaijan occupying Gulistan), Aeyal argues that adopting restrictive interpretations of the law of occupation results in denying protection of norms in the Geneva Conventions.     The Sargasyan decision is particular explicit in its explanation of what is required to trigger the law of occupation:

“The requirement of actual authority is widely considered to be synonymous to that of effective control. Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation, i.e. occupation is not conceivable without “boots on the ground” therefore forces exercising naval or air control through a naval or air blockade do not suffice.”

Instead, he argues, indirect and remote control, virtual occupation, should trigger the law of occupation to extend the protections afforded to populations.   I agree with his assessment of the problem, and have looked myself at the problematic aspects of the effective control test in the field of the law of responsibility.

Nonetheless, it is difficult to determine what the triggering standards for these other types of control should be.   As I note in my article, in the context of the law of responsibility, it goes to the definition of the state, and the decision made by the drafters of the articles of the law of responsibility was to maintain a high standard resulting in limited exposure, despite the trend of outsourcing many state responsibilities.  In the occupation context, too low a standard places positive obligations on states that may simply hold territories within their spheres of influence, too high a standard permits states to operate just short of the boots on the ground standard, or to take advantage of new forms of technology, while depriving individuals of the humanitarian protections they are owed as a matter of law.

I would be delighted if Aeyal could further elaborate these points.   How should we think about control in the occupation context?  Are there lessons learned from the law of responsibility, such as the development of alternative means of holding states responsible based omissions or the duty to prevent.  And I look forward to continuing this conversation during at International Law Week at Fordham this fall, where Aeyal and I will be speaking on a panel on the law of occupation.

[Eugene Kontorovich is a Professor at Northwestern University Pritzker School of Law. This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Prof. Gross’s excellent book The Writing on the Wall: Rethinking the International Law of Occupation presents a normative synthesis of international humanitarian and international human rights law design to provide an occupation law regime acutely focused on protected persons and the ensuring that the temporariness of the occupation. Gross’s honest embrace of a normative regime allows him to be quite acute in his analysis of practice and case law that does not support his vision. Thus the book includes incisive analyses of international court decisions regarding northern Cyprus and Nagorno-Karabakh, and a valuable discussion about the applicability of occupation law to Western Sahara and East Timor. He points out many interesting incoherencies and tensions in occupation law in these contexts. His account of the legal treatment of these various situations, and his very detailed discussion of the case law of the Israeli High Court, are invaluable for any student of international humanitarian law.

First, it is worth pointing out a basic challenge of any normative account of IHL.

The non-normativity of what he calls the “factual” approach to the law of occupation is deeply embedded in the essential non-normativity of international humanitarian law itself. IHL treats aggressors and victims the same. There are strong reasons for that non-normativity. Among them, IHL is primarily treaty-based, and requires initial state consent for its rules. States have highly diverse normative commitments. One can, of course, have a state sign up for one thing only to learn it has signed up for another, but such moves, while they may be immediately gratifying, will not encourage states to support any further development of IHL.

A central part of IHL’s neutrality is its prospectivity. IHL norms are agreed on in advance of conflicts to which they apply. This prospectivity is why in the Fourth Geneva Convention, Art. 6 exempts occupying powers from certain restrictions in prolonged occupations. When the conventions were adopted, the Allied Powers were engaged in preexisting occupations of Germany and Japan. In the drafting of the conventions, the U.S. expressed concern that the new norms would apply to its existing occupations. Art. 6 was in part a concession to this concern.

Gross sees Art. 6 in its traditional interpretation as “incongruent with the purpose and practice of the normative regime of occupation.” This may be true, but it is fully consistent with the intent of the Drafting Conference and their understanding of the functions of occupation law, which did not apparently include making long-term occupation more difficult. Indeed, assuming the Fourth Convention represents some step towards Gross’s normative vision compared to prior law, Art. 6 shows the difficulty of shoehorning existing situations into old norms.

This leads to a difficulty. Gross’s normative vision of occupation law is a response to certain situations, which in his view the “factual” approach occupation law has not dealt with satisfactorily. Most prominent among these is the Israeli-Palestinian conflict. But a normative reinterpretation of existing law cannot expect buy-in from existing participants, as it is clear from the outset who it benefits. To put it differently, what does the normative vision offer currently affected states?

This problem is exacerbated by the great “enforcement gap” in the international law of occupation. One of the great virtues of Gross’s book is that while it focuses on the Israeli-Palestinian case, it does not give short shrift to historic or ongoing occupations, including some that have received almost no academic attention, such as East Timor and Nagorno-Karabakh.

Yet the enforcement of occupation law by the international community almost entirely exempts these situations. For example, the U.N. General Assembly has reminded Israel in critical resolution of the country’s obligations under the Geneva Conventions about 500 times since 1967—as opposed to twice for the other prolonged occupation situations. Even in recent weeks, reports of a new Armenian settlement being built in Karabakh, and massive Russian settlement activity in Crimea – which challenge both a formalist and certainly the normative regime of occupation law – have gone entirely unremarked by the international community.

This suggests a few things. First, before building a normative regime of occupation, it may make sense to actually bolster the existing formal one. Second, the practical outcome of a normative regime is known in advance. It will not likely have any more effect on existing occupations than the formal one, with the possible exception of Israel. From Gross’s normative approach, this may be better than nothing, but from a positivist approach, it is hard to see why Israel or its allies would endorse such a development, and indeed it might weaken their commitment to the basic black-letter Geneva Convention regime.

Gross’s normative model is based on ensuring that occupations remain temporary, and do not become a shell for conquest. He argues that occupation law should be much more informed in its particulars by the systemic principles of international law – self-determination and the prohibition on conquest in particular.

One normative criterion is the occupation law according to Gross that ensures the self-determination of people in the occupied territory. But this seems a large leap from existing practice. International humanitarian law is based on the sovereignty of states, not peoples. Thus Libya returned the Azou strip to Hassan Habre’s Chad, not to its population. Israel has long been asked to turn the Golan Heights over to Assad’s Alawite regime, not to the Druze people (though these demands have become more muted lately, they have not been withdrawn). Iraq returned Kuwait not to the Kuwaiti people but to its monarch. Indeed, the self-determination principle will often contradict the preservation of the status quo principle. In his central example of the Palestinian situation, the creation of a new Palestinian state would be a departure from the pre-war status quo.

Gross correctly notes that the applicability of the law of occupation cannot be defeated by the occupier merely claiming sovereign title. Occupations routinely (but not inevitably) take place in the context of territorial disputes. On the other hand, the occupation cannot be entirely insensitive to considerations of underlying sovereignty. A country retaking its territory in a conflict can hardly be deemed an occupier.

Gross suggests that prolonged prior control by another power, even one lacking sovereignty, is enough to trigger the applicability of occupation law if that territory is retaken. But this can conflict with his normative goal of not giving any lasting weight to the reality created by an occupation. In the context of the Israel-Palestine conflict, it would mean the very borders of a brand-new state were created by the Egyptian/Jordanian occupation that lasted until 1967.

Or consider the following example. Imagine a newly created country occupying the territory of its newly created neighbor in a war that breaks out upon their mutual creation. An imperfect armistice holds for twenty years, after which the state that lost territory in the original conflict manages to retake some of it in a new one – albeit territory over which it had never previously exercised control, and from which all of its nationals had been expelled. Would the new state be considered an occupier?

It is not a hypothetical question, but rather reflects what happened when Azerbaijan managed to retake some previously Armenian-held territory in Karabakh. As far as I know, this has not been treated as an occupation by anyone.

Thus normative criteria such as self-determination cannot avoid the questions of territorial sovereignty. Self-determination does not answer the question of the geographical unit in which it is exercised. Armenians, for example, do not principally have a preexisting sovereignty claim to Nagorno-Karabakh. Rather, they see Armenian control as an exercise of the self-determination of the Karabakh population. Similarly, Russia justifies its occupation not on prior title but on the self-determination of the Crimean population. International law rejects this argument, and regards Armenian control as an occupation, because the standard lines in which self-determination is exercised is the preexisting administrative borders, in which case Azerbaijan, not Karabakh, is the relevant unit.

Another of Gross’s normative goals, in accord with most of the literature, is the vital need for preserving the prior status quo. Gross faults existing occupation law for sometimes being inadequate to that aim. But this is in part, as he recognizes, because the Geneva Convention may not have contemplated decades-long occupations. (This omission may have arisen in part because the norms against conquest were not as clearly defined in 1949 as he would suggest, as witnessed by the vast reapportionment of territories by the Allied Powers after the war, Yugoslavia’s absorption of the sector of the Free State of Trieste that was under its control, and similar examples.)

Certainly some prolonged occupations are the result of colonialist or annexationist aims. But this is not inevitably the case. The Allied occupation of West Berlin lasted forty-five years, and had the then-dominant views about the duration of the Soviet empire been correct, it could have lasted forever. This was not an occupation of choice but of expedience. Similarly, with Israel’s capture of the West Bank, the situation was even more contingent. Jordan only entered the Six Day War half-way through, and the West Bank was entirely outside of Israel’s original war aims.

Israel retained the territory because immediate attempts at a settlement with the Arab states were rejected, as were numerous internationally-backed good-faith offers of statehood to the Palestinians after the end of the Cold War. Indeed, it is these repeated and rejected offers of statehood that prominently distinguish Israel’s situation from any of the others discussed in the book.

This leads us back to the question of temporariness. Maintaining a status quo over many decades is an impossible task, as nothing in the world stands still. Demographics and migrant flows, as Europe’s recent experience has shown, is one of those things. No one can stop the clock at 1967. Of course, Gross’s position is more nuanced, as it would forbid only changes that benefit the occupier. But this itself is a monumental task, as it effectively burdens the occupier.

Limiting one’s trade and movement with an adjacent territory is a high cost. That which burdens the occupier reduces the other side’s incentives to accept an amicable deal. And indeed, one reason the Geneva Convention may not have anticipated prolonged occupations is that its drafters did not conceive of situations where occupation would not promptly lead to annexation, or a peace deal on terms acceptable to both parties.

Thus an alternative normative occupation regime might, for example, terminate all restrictions on the occupier upon the failure of the other side to accept a good faith diplomatic arrangement that would leave them better off than they were before.

[Diana Buttu is a lawyer and activist who is currently a law fellow at the University of Windsor Law School. This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

This June, Israel marked 50 years of military occupation of the West Bank, Jerusalem and the Gaza Strip. Far from being a sombre affair, this anniversary was met with wide celebrations by Israeli politicians across the political spectrum. Titling the event “50 years of liberation,” (not occupation), Israeli politicians spoke of the “miracle” (not disaster) of Israel taking over and conquering Palestinian land and vowed never to withdraw: “[I]n any agreement, and even without an agreement, we will maintain security control over the entire territory west of the Jordan River,” said Netanyahu. In August 2017, Netanyahu added that, “We are here to stay, forever. There will be no more uprooting of settlements in the land of Israel.” Not to be outdone, Israel’s opposition leader, Isaac Herzog, chimed in with similar expressions of occupied lands forever remaining in Israel’s hands.

These expressions of joy at having maintained an occupation for half a century were only slightly tempered by statements of the United Nations calling occupation “ugly” and reminding the world that years of living under foreign military rule has had devastating humanitarian and other effects on Palestinians forced to live under or cope with this rule. More tellingly, the United Nations reminds us that, “Neither the occupation, nor its impact, is static of course.” It is this latter sentence that stands out the most, as we try, as lawyers, academics and activists, to ensure that the occupation is temporary and static insofar as it does not lead to a deterioration of living conditions for Palestinians under Israeli military rule.

It is in addressing this struggle – that of the desire by Israel to maintain this occupation so as to facilitate its colonization and attempts by activists to ensure that occupation is temporary – that the role of Israel’s courts, international humanitarian law and international human rights law come to play an important, indeed vital, role. For years, lawyers, trying to alleviate the ravages of Israeli military occupation, have resorted to Israel’s (and later international) courts for redress. Using international humanitarian law, international law and domestic Israeli law arguments, lawyers have fought tirelessly to soften Israel’s blow. Yet despite very small legal “victories” in the Israeli court system, Israel’s courts have not only legitimated Israel’s actions but have prevented an examination of big picture Israeli practices in favor of examinations of discrete, localized practices so as to maintain the fiction that Israeli actions are needed as part of an overall security effort and not as part of a long-term goal of perpetual control and colonization of Palestinian and Syrian lands.

By focusing on the international law of occupation in the context of Israel’s occupation of Palestine, Professor Aeyal Gross thoroughly and thoughtfully outlines the limitations of international humanitarian law, the risks of using an international human rights framework to the Israeli-occupied Palestinian territory, and the limitations (and tricks) of the Israeli Supreme Court in addressing these issues. As Nimer Sultany points out in his review of the Israeli Supreme Court, “Now, one needs to talk about one checkpoint out of the hundreds of check- points rather than the policy of checkpoints; one portion of the wall rather than the wall; and one settlement rather than the project of colonization. The effect of the Court’s rulings is to marginalize the overall picture. It also forces Palestinians and lawyers representing them to de-radicalize their demands.” The resultant effect is that the Court has justified the home demolitions, settlement construction, torture, fuel and electricity cuts and pillaging, among other practices, while pretending that it is implementing international humanitarian law. This is not simply a case of legal interpretation gone awry but the failure to view law in context of the political system implementing these problems.

But Gross’s analysis is not merely a critique of the application (or the non-application) of international humanitarian law by Israel, but also aims to examine the use of these legal frameworks in the context of an ongoing occupation. By arguing for a normative and functional approach to occupation, particularly in light of changing circumstances (such as in Gaza) so as to avoid legitimizing colonialism and conquest, Gross reframes our understanding of international humanitarian law.

Reading the book, however, one cannot help but feel that lawyers, academics and activists are trying to fit a square peg into a round hole, with these same actors going to great lengths to simply try to ameliorate a daily worsening situation in the form of legal redress (hence the growing attempt to try to use international human rights law arguments despite the risks pointed out by Gross). This is, not, of course, the same argument put forth by occupation-apologists, who seem to try to make claims that Israel is entitled to extreme latitudes when dealing with IHL – (the “pick and choose” types highlighted by Gross). Rather, by attempting to pretend that the occupation is temporary or static – when it is both permanent and dynamic – and using legal tools that fit this pretend state of affairs rather than reality, we are left with endless debates about international humanitarian law which Gross so aptly highlights, documents and critiques.

While the book has no shortcomings, an analysis of apartheid and colonialism would serve the reader well. I find myself in disagreement with only one line: Gross mentions that “what makes occupation akin to colonialism is not the length of the occupation per se but the breach of the normative content” adding that “only insisting on the normative content can save the benevolent reading of this body of international law … and prevent a return of colonialism.” Yet, in the case of Israel, we are not facing a return of colonialism: it has never left.

And while, in the context of Israel’s occupation of Palestine, there are no magic formulas that will end Israel’s military rule over Palestinians and their land, one thing is clear: Israel’s military occupation will not end through a legal “knock-out.” Israel’s courts are too entrenched in preserving the occupation – rather than challenging it – and international mechanisms remain far too weak and flawed to have any real impact. Given this reality, we will continue to see lawyers, academics and activists continue to try to fit square pegs into round holes in an attempt to try to address legally an issue that requires a political solution.

[Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.] 

Wars of Words and Tweets

The recent escalation of tensions on the Korean Peninsula provides an opportunity to reflect on the prohibition on the threat of the use of force. In less than a month, virtually every form of threat of force was either expressed or exercised by the United States and North Korea. Pyongyang precipitated the crisis on July 4^th and 28^th, 2017 by test-firing ballistic missiles reportedly capable of reaching the contiguous United States. The initial US response was measured. The White House issued a statement affirming that the US “will take all necessary steps to ensure the security of the American homeland and protect our allies in the region.” The US and South Korea also test-fired missiles, including South Korea’s Hyunmoo-2 missile, in response to the North Korean tests. Then, on August 5^th, acting under Chapter VII, the UN Security Council adopted resolution 2371. The resolution determined that the situation threatened international peace and security and imposed new sanctions on North Korea.

On August 8^th, the war-of-words between the US and North Korea escalated. Echoing President Truman’s warning that Japan would suffer “a rain of ruin” if it failed to surrender, President Trump warned that North Korea would be met with “fire and fury” if it threatened the US. Seemingly undeterred, North Korea announced that it was preparing plans to attack Guam, in response to which President Trump took to twitter to warn that “military solutions are now fully in place, locked and loaded.” The next morning, another Presidential tweet further flexed American military muscle by showcasing the readiness of US Pacific Command’s B-1B bombers based in Guam to execute operations against North Korea.

Meanwhile, in what is either evidence of confusion within the American administration or an exercise of ‘good-cop, bad-cop’ tactics, the US Secretaries of State and Defense issued statements that were less bellicose than the President’s. They expressed Washington’s preference for a diplomatic solution to the crisis and declared that the US was not seeking regime change in North Korea. Shortly thereafter, it was announced that North Korean leader Kim Jong-Un decided to delay plans to strike Guam. The next week, the US and South Korea commenced the annual Ulchi-Freedom Guardian exercises that simulate operations to repel a North Korean attack. Pyongyang condemned these exercises and affirmed that “The Korean Peoples’ army is keeping a high alert, fully ready to contain the enemies. It will take resolute steps the moment even a slight sign of preventive war is spotted.”

The US administration appeared to have interpreted North Korea’s backing down from attacking Guam and the lack of an immediate provocative or forceful response to its joint exercises with South Korea as a conciliatory gesture. President Trump declared that Kim Jong-Un “is starting to respect us,” and Secretary of State Tillerson expressed satisfaction at Pyongyang’s restraint and hinted at the possibility of dialogue with North Korea in the near future. Days later, however, North Korea proved that President Trump’s triumphalism and Secretary Tillerson’s optimism were premature. On Saturday, August 25^th, North Korea test-fired several short-range missiles, and then in the early hours of Tuesday, August 29^th, it test-fired a longer range missile that overflew Hokkaido, prompting the Japanese government to sound air raid sirens and to instruct civilians to seek shelter. Japanese Prime Minister Shinzo Abe called North Korea’s escalation, which is the third time that North Korea fired missile over Japan, a “reckless action [that is] an unprecedented, serious, and grave threat.” Meanwhile, President Trump declared that “threatening and destabilizing actions only increase the North Korean regime’s isolation in the region and among all nations of the world. All options are on the table.”

The Prohibition on the Threat of Force

Unlike the prohibition on the use of force, the threat of force is an undertheorized area of jus ad bellum. Despite the efforts of some scholars who have written in this area (see notably here), the content of the prohibition on the threat of force is ambiguous. Both the definition of threats of force and the threshold separating legal and illegal threats remain uncertain. Even the few judicial statements on the matter have left many questions unanswered. As is well known, the International Court of Justice (ICJ) reflected on threats of force on a few occasions, most notably in the Nicaragua Case and in the Advisory Opinion on the Threat and Use of Nuclear Weapons. In both instances, the Court linked the legality of threats of force to the legality of the actual use of force. As it explained in the Nuclear Weapons Opinion: “The notions of ‘threat’ and ‘use’ of force … stand together in the sense that if the use of force itself in a given case is illegal … the threat to use such force will likewise be illegal.”

While this formulation offers some guidance on the content of the prohibition on threats of force, it is insufficiently developed to enable a thorough legal evaluation of the infinite variety of threatening behavior that occurs in inter-state relations. For instance, should threats of force involving weapons of mass destruction be subjected to the same legal standards as threats to use conventional weapons? Does the form of threat matter? In other words, is a physical threat, in the form of, for example, military maneuvers, more serious than a threatening statement, or in the case of North Korea, a photograph or video threatening an attack against the US? How do the principles of necessity and proportionality, which govern the use of force, apply to threats of force? Can force be threatened to preempt armed attacks, or to deter less grave uses of force that do not amount to armed attacks? Can threats be wielded to achieve legally permissible policy objectives that enjoy the support of the international community, such as the denuclearization of North Korea? (For an insightful discussion by James Green and Francis Grimal see: here)

These are some of the issues that are unanswered by existing judicial consideration of the prohibition on threats of force. One possible approach to examine these issues and to reflect on the legality of threats, such as those recently exchanged between the US and North Korea, is to construct an escalating scale that includes three levels of threats: (1) non-coercive threats, (2) demonstrations of force, and (3) prohibited threats of force.

An Escalating Scale of Threats

Non-Coercive Threats

This category is legally unproblematic. Not every hostile statement, menacing act, or antagonistic policy constitutes a prohibited threat of force. It is widely recognized that Article 2(4) of the UN Charter prohibits threats of armed force. This means that the non-coercive tools of diplomacy employed by states to affect the policies of their adversaries, or even their allies, such as political and economic pressure or diplomatic censure, broadcasting propaganda, unilateral or multilateral sanctions, trade, travel, and arms embargoes, are not affected by the prohibition on threats of force.

Demonstrations of Force

Demonstrations of force have many forms. These include troop movements, mobilization, and troop concentrations or constructing military bases, including in areas bordering an adversary; putting the armed forces on heightened alert; conducting military exercises, including using live ammunition; increasing defense budgets; developing weapons systems and conducting tests of conventional and/or unconventional weapons.

Demonstrations of force are the most challenging category of threats of force. In addition to jus ad bellum, these activities are governed, inter alia, by arms control agreements, environmental law, the law of the sea, and bilateral peace treaties. Thus, while the latest North Korean missile test of August 29^th 2017 that overflew Japan was not a prohibited threat of force, which is discussed below, it violated the sovereignty of Japan over its maritime and territorial airspace. Also, in some cases such as North Korea, there are Security Council resolutions that prohibit demonstrations of force such as nuclear detonations and missile tests. Determining the legality of demonstrations of force is also challenging given the endless purposes that they serve. These include: demonstrating a WMD first or second strike capability, signaling the credibility of conventional and unconventional deterrents, showcasing force-projection abilities, reinforcing a commitment to a mutual defense treaty, displaying force readiness, rejecting certain policies of adversaries (think of US naval operations in the South China Sea to challenge China’s claims in the area), and training for offensive and defensive operations.

Further complicating discussions on the legality of demonstrations of force is the ambiguity of the political message that these threats are intended to signal. Whatever their form, all demonstrations of force include an element of political messaging. Whether they are routine exercises or exceptional maunvers, demonstrations of force send signals to specific adversaries or to general domestic or foreign audiences, or some combination thereof. Ultimately, whatever the content and political context of that signal, the purpose of demonstrations of force is to affect and shape the policy, preferences, and perceptions of the target state or audience. Demonstrations of force are not merely tools of self-defense and deterrence, but are also an exercise of political influence. As Thomas Schelling put it: “It is latent violence that can influence someone’s choice – violence that can still be withheld or inflicted, or that a victim believes can be withheld or inflicted. The threat of pain tries to structure someone’s motives.”

Given the ubiquity of demonstrations of force in international relations and the general tolerance of such behavior by states, it appears that these forms of threats are not proscribed by international law. (See contra Marco Roscini) Even if they occur in the context of a protracted conflict or a hostile relationship, as long as demonstrations of force do not rise to the level of prohibited threats of force such as ultimatums, which are discussed next, it appears that these practices are generally permissible. This is supported by the brief discussion in the Nicaragua Case on a series of acts and statements that constitute demonstrations of force. Although the Court did not use the label ‘demonstrations of force’, it examined the legality of US military exercises with the Honduran army close to the Nicaraguan border and US naval maneuvers involving thousands of troops, which led the Nicaraguan government to put its armed forces on alert. The ICJ also examined what it termed “the militarization of Nicaragua” through increasing arms purchases. The Court found that neither of these demonstrations of force constituted impermissible threats of force. The US exercises and maneuvers, which took place amidst a hostile relationship between Washington and the Sandinistas, did not violate of the prohibition on the threat of force, and Nicaragua’s arms-buildup was not illegal because there are no general rules “whereby the level of armaments of a sovereign State can be limited.”

Prohibited Threats of Force

A prohibited threat of force is a clear act or an unambiguous statement that communicates an intention to use armed force unless a specific demand, that is impermissible under international law, is met. (See Oscar Schachter here p.1625) This definition of a prohibited threat of force is akin to ultimatums, which were a widely wielded instrument in the pre-Charter era. (See here)

Defining prohibited threats of force in this manner is supported by the observations of the ICJ in its Nuclear Weapons Advisory Opinion. The Court stated that “whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, paragraph 4, of the Charter depends upon various factors.” It is noteworthy that the Court used the term “signaled intention to use force” and later in the same paragraph, the phrases “stated readiness” and “declared readiness” to use force, to describe threats falling within the ambit of Article 2(4). This suggests that the ICJ sought to exclude implicit threats, ambiguous signals, and menacing behavior that is intended to relay political messages without amounting to a clear and unambiguous sign of an intention to use force, which are hallmarks of demonstrations of force. Moreover, the phrase “whether a signalled intention to use force if certain events occur” indicates that not only should there be a signaled, stated, or declared readiness to use force, but that this threat should be accompanied with a specific demand which if not fulfilled would lead to the use of force. Finally, by requiring that this demand be impermissible under international law, the aforementioned definition allows for threats of force in situations where the actual use of force would be lawful, such as self-defense against an armed attack or against an occupation or to enforce a Chapter VII Security Council resolution. (See Dino Kritsiotis here)

Determining the legality of threats of force will always depend on their political context and strategic circumstances. This is because the threshold between permissible demonstrations of force and prohibited threats is not a bright-line. States rarely issue unequivocal ultimatums of the kind made by George Bush against Saddam Hussein on the eve of the invasion of Iraq. More often, states express positions or adopt physical postures that, in combination with other statements or policies, could constitute a prohibited threat, even if the determination to use force remains ambiguous or equivocal. One example of this is US National Security Adviser H.R. McMaster’s threat of “preventive war” against North Korea if it develops the capacity to deliver nuclear weapons to the US. Although not phrased as a clear ultimatum – “relinquish your nuclear weapons, or else” – explicitly threatening preventive war to denuclearize North Korea, which if executed would constitute an illegal use of force, potentially amounts to a prohibited threat of force. 

Conclusion

Viewed on this escalating scale of threats, it appears that the recent war of words, tweets, videos, missile tests, and military maneuvers between the US and North Korea did not, for the most part, involve prohibited threats of force. These acts and statements appear to be demonstrations of force that each party used to communicate political messages to its adversary and to affect its strategic calculus. Finally, I should note that it is not my intention to extoll the value of demonstrations of force as a tool of statecraft or to underestimate the dangers of this practice, especially in a context that involves nuclear weapons and unpredictable leaders. Nonetheless, we do live in an anarchic international system in which violence is pervasive and where threats of force perform an important, if regrettable, function in inter-state relations, and it appears that international law reflects this unfortunate reality.

“The supreme art of war is to subdue the enemy without fighting” – Sun Tzu

[Valentina Azarova, Post-Doctoral Fellow, Center for Global Public Law, Koç University Law School, Istanbul; legal adviser, Global Legal Action Network (GLAN).This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

The Writing on the Wall is a valuable response to growing frustration with the inadequacies of the law of occupation in redressing contemporary realities of foreign territorial control. The book, informed by Gross’ deep involvement in the international practice he documents, addresses a key question that has been posed by civil society about Israel’s occupation: has occupation law become so implicated in Israeli actions aimed at maintaining prolonged rule over Palestinian territory, that the law is now part of the problem? Gross exposes the manipulative application of this special legal regime, and interrogates the structures and political orientation of the law. The book complements the classic works on the law of occupation – including by Benvenisti, Dinstein, and Arai-Takahashi – and provides the ground work for a “rethinking” that may open up transformative possibilities.

Gross claims that occupation law is based on the presumption that occupying states are precluded from dressing up outlawed forms of conquest and exploitation in the “new clothes of the legal and temporary institution of occupation” (p. 21), but that the law of occupation nonetheless lacks the normative safeguards necessary to effectively disincentivize and regulate such actions. Though occupation law was intended as a merely “neutral” standard based on a “factual” approach to the determination and regulation of situations of occupation, Gross maintains that “occupation is not only a fact but a norm.” Its normative content consists of three “prongs”: “non-acquisition of sovereignty,” “management of the territory for the benefit of the local population,” and “temporariness.” (pp. 23-34) Unless occupying states adhere to these premises, foreign territorial control “can, under the cloak of temporariness, lead to […] continued rule by the conquering country, this time in the garb of legitimacy.” (p. 23)

Gross couples this “normative” shift with a “functional” approach to the assessment of the extent of an occupier’s responsibility, which moves beyond the binary question of whether or not an occupation exists and occupation law applies (Chapter 2). Instead, the book is structured by Gross’s distinction between what he dubs the “jus ad occupation” and the “jus in occupation”: the former considers whether an occupation exists and is legal, and the latter regulates the norms concerning the occupier’s conduct. (p. 4)

Limiting my comments to Gross’ framing of the “jus ad occupation” – Chapters 1, 2, and parts of 3 – I offer two reflections intended to further the project of “rethinking” the law of occupation in light of the need to better regulate contemporary situations of occupation in international law. The first pertains to Gross’ “normative approach” and its presuppositions about the regulatory reach and remedial nature of occupation law and its relationality to other bodies of international law. My second point queries whether the “functional approach” Gross advocates can redress the problem of occupation law’s indeterminacy.

The remedial limits of occupation law

Gross’s premise is that if occupation law is to address contemporary abuses, it must be based on a “normative approach.” He adduces support for this approach by arguing that, as an exclusionary legal category, occupation “differs in its nature and legal consequences from conquest” (quoting Graber, p. 29). Gross notes the importance of turning to “other regimes” of international law – on acquisition of territory by force and self-determination of people – if we are to reckon with the limits of occupation law. Indeed, I would argue that occupation law is integrally reliant on other bodies of law to regulate certain consequences outside its scope and to enable its own proper function.

Take for instance the provision in Article 47 of Geneva Convention IV that protected persons shall not be deprived of the benefits of the convention, including through an attempt to annex the occupied territory or change its government. The provision precludes occupiers from opting out of their obligations under occupation law, and maintains the objective applicability of occupation law, irrespective of the occupying state’s positions and actions. But what Article 47 is not, despite having sometimes been misconstrued as such, is a prohibition of annexation internal to IHL. (Its purpose, according to the ICRC’s commentary, “is to safeguard human beings and not to protect the political institutions and government machinery of the State as such.”) The consequence of an occupation that pursues annexation is, rather, an issue of the jus ad bellum: the law on the interstate use of force and its prohibition on the acquisition of territory through force against the territorial integrity and political independence of another state (enshrined in Art 2(4) of the UN Charter), which arguably includes the territorial integrity of an internationally recognised self-determining people. Annexation is a situation that violates the absolute prohibition of territorial acquisition (Jennings 1963). While IHL can function as an indicator for violations of the jus ad bellum – for instance, an occupying power’s changes to local laws may violate IHL, and that violation may also be evidence of unlawful intent to claim sovereignty over the territory – violations of IHL cannot in themselves substantiate a breach of the jus ad bellum prohibition of annexation (or territorial acquisition by force).

The lex specialis of occupation is an inherently interactive body of law that presupposes the concurrent application of the jus ad bellum in situations of occupation to protect against transformative acts. That is, occupation law not only exists within a broader normative environment, but depends for its proper function on the operation of other international law, like the jus ad bellum, to determine the legality of the purpose of the continued use of force to maintain the occupation. It is hard to see how occupation law’s restrictions could serve their intended purpose where the occupier pursues the acquisition of the occupied territory without incurring the consequences for such a breach of the jus ad bellum. The contemporary absolute prohibition on the acquisition of territory by force provides an existential backbone for occupation law. It also enables the vigorous application of the third state responsibility of non-recognition as lawful of an unlawful situation of annexation and its perquisites.

Such an unlawful situation maintained through occupation exposes the limits of the classic axiomatic distinction between jus in bello and jus ad bellum. The consequences of the jus ad bellum is triggered by an occupier’s actions having the intent or effect of annexation or regime change (Giladi and Sloane). Gross does not explicitly discuss the necessity of applying jus ad bellum to respond to such unlawful situations. But the substantiation of this exception could encourage a rethinking of how contemporary occupations are and should be regulated in international law (including through more diligent application of the jus ad bellum), and pre-empt claims that one is making merely aspirational arguments about occupation law.

Gross examines the abusive application of IHRL in time of occupation, arguing that the ”righting” of occupation law through IHRL has permitted occupiers to justify abuses against protected persons in the name of “balancing” their human rights against those of the occupier’s own nationals whom it unlawfully transferred into the occupied territory (Chapter 5). Just as the IHL of occupation law must be predicated on respect for and compliance with the jus ad bellum, as its backbone, the application of IHRL in time of occupation must be predicated on the full implementation of IHL. Here too, it should be noted, another body of law is also highly relevant: the concurrently applicable law on the self-determination of peoples, which places limits on the scope of the occupier’s human rights protection mandate. In this regard, as Carcano affirms, self-determination law interplays with and reinforces the conservationist premise of occupation law.

The effects of an obligation to withdraw

Gross argues that to “reinforce accountability – rather than allow a ‘pick and choose’ situation where the powerful [occupier] chooses the norms convenient for its control” (p. 130) – a “functional approach” is needed to determine the scope of the occupier’s responsibility, based on the extent of its actual control over different domains of life in the occupied territory. His logic seems indisputable: “duties follow from the existence of control, regardless of whether the situation is conceptualized as falling into the category of occupation or of sovereignty” (p. 130).

But a fully adequate assessment of responsibility must necessarily judge not only whether control is being exercised, but also the purpose of that control and its effect on the population under occupation. Such a judgment would need to factor in the legality of the occupier’s casus belli under the jus ad bellum, as well as the obligation to demonstrate a good faith effort to withdraw from the territory for occupiers that violate the jus ad bellum. Gross remarks that the indeterminacy of Israel’s control over Palestinian territory is disguised by a “cherry picked” law of occupation (Chapter 3). To expose this subterfuge and remedy its effects, it is surely necessary to identify the jus ad bellum consequences of Israel’s underlying intent to annex Palestinian territory (as evidenced by e.g. unclassified official Israeli government documents unearthed by Akevot), and its consequent obligation to withdraw from the territory.

A full assessment of the occupier’s responsibility must also address the manner and structures through which it exercises control over the territory. In cases where the genuine local authorities of the occupied territory exercise control over certain domains of life, international law is likely to prohibit an occupier from (re-)asserting its control by ousting local authorities. (p. 133) Yet, when the occupier has wrongfully delegated such authority to de facto authorities such as secessionist movements that depend on the occupying state’s support to further their claims (and who seldom have the best interests of the local population in mind), the occupier may be legally obligated to re-assert and re-centralise control over life in the territory. An occupier whose actions attract an obligation to withdraw is precluded from invoking “security needs” to perpetuate the occupation, and is limited to adopting only necessary measures of protection of the local population pending withdrawal (by analogy, Kretzmer argues the occupier owes only pragmatic minimal obligations to settlers pending their removal).

IHL, quite simply, was never intended to redress exploitative (or colonial) occupations, and has been widely criticised for its plasticity. To call the bluff of an occupation that has become an unlawful territorial situation (Milano) or illegal territorial regime (Ronen), the jus ad bellum must be diligently applied and enforced. Yet, an overreliance on “conflict management” law (IHL and IHRL) in the regulation of occupation has come at the cost of the application of “conflict resolution and prevention” law, and its critical component the jus ad bellum. Scholars and practitioners afflicted with IHL tunnel vision risk rendering occupation law into disrepute. As we take up Gross’s challenge of rethinking the law of occupation, we should not neglect the lex specialis’s integral interaction with the other bodies of law, and seek to better understand the apparent reluctance to apply the jus ad bellum to contemporary predicaments.