April 2012

Operationalising Functionality: Questioning the Term ‘Functional’

[Valentina Azarov is a Lecturer in International Law and Human Rights, Al-Quds Bard College, Al-Quds University, Palestine (on leave)] This is the fifth response in 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. Those who believe in the progressive development of international law but remain fully aware of the deficiencies of its enforcement, have good reason to view the proposed functional approach to the law of occupation with cautious optimism. However, there must be a further elaboration and concretization of its mechanism or process, lest this approach to operationalising the way the law of occupation is applied contributes to the law’s indeterminacy. This brief response therefore seeks to ask guiding questions and postulate some predicaments in order to elaborate the content of the functional approach, and explain the ways in which it relates to the binary, or on/off, approach. Some basic considerations include: what are the elements and purpose of the protective function of the law of belligerent occupation? How is this function expected to be fulfilled, operationally? The interpretation of the law of occupation I suggest is teleological and genealogical: conscious of the historical context of the law, the manner in which its provisions were drafted and the purpose they were meant to serve. Most contributions to this symposium have shared this interpretation, in that they have taken as a starting point the fact that the law of occupation is charged with the arduous task of tying the hands of the occupier in order to safeguard against abuses of the law.  Given that belligerent occupation is a phenomenon of war, and that it would be unwarranted to assume good faith between enemies in wartime, no commonality of interest should be presumed to exist between the occupier and the occupied population. The law must thus guard against the occupier’s adoption of the ‘pick and choose’ approach, especially in situations where an occupier maintains ‘effective control’ but attempts to limit its scope of influence so as to claim that it has relinquished its responsibility in certain domains. The law of occupation was meant to protect the occupied population against such disingenuous, abusive attempts by the occupier to mask the extent of its continued influence over their lives.