The Binary Approach to Occupation: A Double Bind?

[Aeyal Gross is a Professor at Tel-Aviv University, Faculty of Law.]

This is the first 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.

In her contribution to this symposium, Valentina Azarov asks who would decide, were the law of occupation not to apply in a “holistic” fashion, what set of obligations binds the occupying power at any given point. She expresses a concern that applying different sets of obligations at different points in time might lead to the fragmentation of the law of occupation and turn the law from a “set menu,” intended to restrain and control the occupier, into separate “dishes,” which the occupier could pick and choose as it likes.

Azarov then suggests that the “binary” and the “functional” approach may actually be more of the same—alongside the “general” principles of the law of occupation  are “situational” norms, to be reviewed by subject-specific factual tests. Though “overall responsibility” always stays with the occupier, then, what Azarov calls “specific defaults made by the local authorities” may not necessarily be attributed to it. Any approach failing to converge the “binary” and “functional” approaches would, in her words, “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.”

Azarov, then, worries about the potential risks of a functional approach. Yet, it is precisely my concern over the existence of such a “pick and choose” regime that led me to develop it. As I note in my original post, the question of whether a situation falls into the category of “occupation” is often controversial. When we stay within the binary approach, even if we try to incorporate a functional approach within it, we are forced to remain within the “occupation/ sovereignty” polarity that, in practice, already allows the dominant side to pick and choose, as evident in the Gaza case (addressed in detail in Sari Bashi’s post).

While ostensibly operating within the binary approach, occupiers already “fragment” their rights and duties. In the case of the Israeli occupation, this is apparent not only in the Gaza situation but also in Israel’s longstanding argument that the Hague Regulations applied to the Occupied Palestinian Territory but the Geneva Conventions did not, and to the post-Oslo Accords situation, where Israel remained in overall control but some powers were transferred to the Palestinian Authority. My argument, then, is that the law of occupation is already fragmented, whether we like it or not. The advantage of adopting a functional approach, where responsibility follows the exercise of power, is that we move from a “pick and choose” regime to one of accountability.

Who gets to decide? As usual in law, and particularly in international law, each party “decides” according to its own interpretation. In the absence of an International Supreme Court, no single authority has the power to decide. We often speak of the “fragmentation” of international law, but this is true of each and every legal question. So while the functional approach cannot serve as a panacea for the indeterminacies of law, its strength lies in its potential to develop a form of analysis and critique that will allow commentators, NGOs, courts, and so forth  to scrutinize states’ ‘pick and choose’ from within international law itself. If we were to constrain the functional approach within a binary scheme, however, we would end up returning to the abstract need to decide whether a territory is occupied or not, paving the way for such arguments as that by Pnina Sharvit-Baruch (that Gaza is not occupied), which allow to absolve those exercising power from their responsibilities.

The binary approach is a double edged sword for those who wish to guarantee protection to a civilian population living under occupation, not only because of the far-reaching consequences of deciding that the law of occupation does not apply but also because of the equally far-reaching consequences of finding that it does. Under the binary approach, if Gaza is occupied territory, Israel has not only the obligation to provide for the residents of the territories. It may also, under Article 43 of the Hague Regulations, be under a duty and have the right to exercise authority on the ground (if, for example, hostilities break out between Palestinian factions).  Those who advocate greater protection for the Palestinians through the law of occupation may thus, paradoxically, be making an argument that undermines the exercise of Palestinian self-governance (limited as it is, a point addressed in Matthew Saul’s contribution) and reinforces Israel’s power. One might argue that, given the lack of full and substantive self-determination (which in the Palestinian case must include effective self-government in both the West Bank and Gaza), it is better to characterize the situation as one of occupation in a way that always includes the full scope of duties associated with occupation. I wonder, however, if reinforcing the occupant’s right and duty to intervene is always desirable. A functional approach may help to avoid this double bind (which in a way the Palestinian Authority is confronting today) while still retaining the framework of the law of occupation. Moreover, as I noted in my original post, it would acknowledge that ethical questions about the scope of Israel’s obligations cannot be decided in purely legal terms.