April 2012

Occupation Law Symposium: Response by Matthew Saul

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)] This is the third 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. Thank you to all of my fellow symposium participants for a very interesting set of posts. This symposium has clearly raised a number of very important issues. One point that I find particularly interesting is the scope for there to be a difference in the significance of the functional approach in the context of the establishment of an occupation and in the context of a reduction of an extant occupation. In this respect, I agree with Sari Bashi that the level of control over territory that is necessary for the commencement of the law of occupation is not the same as for its continuation. However, I think it is also important to recognize that there is likely to be a difference in the nature of the governance space that will surround the occupied functions in the two contexts. In the establishment context, the governance space that is left unregulated by the law of occupation (by limiting the application of the law of occupation to the functions undertaken by the external power) has a character that has been created by the target state and its people. In contrast, in the disengagement context, the governance space that is to be left unregulated can be expected to have been affected by the prior, more extensive occupation. Indeed, there is a risk that the scope for the level of regulation of the law of occupation to be reduced in line with a reduction in the direct control of the occupiers will encourage an occupier to exert more influence on domestic politics in the period when it is in full control of the territory. This would be as a means of ensuring that when it reduces control – and thereby benefits from a reduction in obligations and an improvement in the way in which its involvement is projected – matters will still develop across the whole of the territory in accordance with its preferences. One way to address the scope for the functional approach to be exploited by occupiers could be for some criteria to be posited as to the sort of conditions that must prevail in the space created by a partial disengagement for the functional approach to be activated. In this respect, Aeyal Gross recognizes that there is an issue, when he suggests that ‘the functional approach must not mean that occupiers are relieved of their duties when there is no one else exercising them, or when the occupier’s behavior prevents a legitimate sovereign from exercising them.’ The two aspects highlighted by Aeyal could serve as criteria for determining when it is appropriate to adopt the functional approach in the context of disengagement, but both could benefit from more detail. For instance, should there be a quality threshold in terms of the exercise of certain functions in the space left by disengagement?

Responsibility without Control; Control without Responsibility

[Sari Bashi is Executive Director at Gisha - Legal Center for Freedom of Movement.] This is the second 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. It has been a pleasure to read all the contributions and Kevin's thoughtful introduction. I want to respond to Valentina Azarov's and Pnina Sharvit Baruch's posts, which in some ways are mirror images of each other. I enjoyed them both but respectfully express reservations about each. Valentina's post appears to undermine accountability by imposing on Israel responsibilities that it cannot fulfill; Pnina's post appears to undermine accountability by exempting Israel from responsibilities that only it can fulfill. I'm not sure what it means to say, as Valentina does, that an occupier maintains "an overarching responsibility to manage daily affairs in the occupied territory", while at the same time insisting that the occupier is not responsible for "defaults made by the local authorities". If the occupying power is responsible for managing daily affairs in the occupied territory, either it must do so directly or it must take responsibility for the actions of the local authorities managing those affairs. Otherwise, it is not clear what the meaning of responsibility is. I don't believe that the law of occupation requires Israel to step in to correct actions of the Palestinian Authority in the West Bank or the Hamas government in Gaza. If, as Matthew Saul suggests, the sovereignty interest protected by Article 43 of the Hague Regulations is the right of the people to self-determination, forcing the occupier to interfere would seem contrary to the purpose of Article 43 (notwithstanding the important questions that Matthew raises about the quality of the autonomous space being protected). Similarly, imposing responsibility for areas outside the control of the occupier would also seem to violate an entrenched principle of jus in bello, which adopts a neutral stance to the fact of conflict but seeks to regulate the way in which it is waged, including regulation of the administration of captured territory.  My understanding of state practice and the case law is that the law of occupation does not require the occupier to deepen its control in order to manage the territory. We might imagine a situation in which, in order to provide for the needs of the civilian population, an occupier decides to conquer a neighboring seaport, claiming it must do so to restore access to commercial trade and civilian transportation routes cut off by the armed conflict. Certainly IHL would not require an occupant to do so in the name of fulfilling its obligations under Article 43 of the Hague Regulations! To say that Article 43 requires occupiers to fulfill obligations beyond their control is to dilute the nature of the responsibility imposed by IHL.

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).

Is the Gaza Strip Still Occupied by Israel?

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General's Office] This is the fifth 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. I am very thankful for the opportunity to participate in this symposium in one of the leading blogs on international law. The question I will refer to is whether Israel is under the duty to provide for the wellbeing of the residents of the Gaza Strip? This is the practical question. The legal answer stems from the determination of whether the Gaza Strip is still occupied by Israel. A quick analysis of the law leads to a sound conclusion that the Gaza Strip does not fall into the definition of being occupied by Israel, as will be shown below. There are no existing rules in international law imposing post-occupation obligations, nor human rights' obligations regarding areas and persons outside a state's control. These are at best de lege ferenda. This does not necessarily mean that Israel has no legal obligations towards the population of the Gaza Strip, but that to the extent that there are any such legal obligations, they are limited in nature and do not include the duty to actively ensure normal life for the civilian population, as would be required by the law of belligerent occupation (article 43 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land of 1907). The basic formulation for when a territory is considered to be subject to belligerent occupation is found in Article 42 of the Hague Regulations, which states that:

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

It is commonly agreed that, at its core, territory will be considered occupied when it is under the “effective control” of the foreign army. By necessary implication, therefore, occupation does not extend to territory where such authority is no longer established and cannot any longer be exercised.

The Functional Approach to the Occupation of the Gaza Strip and the Right to Self-Determination

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)] This is the fourth 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. Many thanks to Opinio Juris for inviting me to participate in this symposium. In this post I will seek to contribute to the debate, by considering the argument for a functional approach to the law of occupation from the perspective of the right to self-determination. First, I will comment on why I think it is necessary to address the right to self-determination in the process of interpreting the law of occupation. Geneva Law was created to supplement rather than replace the Hague Law of occupation. As such, there is a basis (following the Vienna Convention on the Law of Treaties) for interpretation of any aspect of the law of occupation to include consideration of both the preservation of sovereign rights (a core rationale of Hague Law) and the protection of civilians (a core rationale of Geneva Law). However, given that both Hague Law and Geneva Law were created before the emergence of the legal right to self-determination, it might be seen as strange to suggest that the right to self-determination should also be considered.  In this respect, a central part of my reasoning is that there is a significant overlap between the right of a people to freely determine their political status and freely pursue their economic, social and cultural development and the right of a sovereign to freely choose and develop its political, social, economic and cultural systems. This overlap entails that application of the law of occupation (particularly provisions such as Article 43 Hague Law, which requires the occupant to take measures ‘to restore, and ensure, as far as possible, public order and safety’ but also stresses that it should do so ‘while respecting, unless absolutely prevented, the laws in force in the country’) is not only a means of helping to preserve meaning in sovereign rights in adverse circumstances, but also a means of preserving meaning in the right to self-determination. On this basis, I think it is reasonable for interpretation of the provisions related to whether and how the law of occupation continues to apply in the Gaza Strip – Article 42 Hague law (‘Territory is considered occupied when it is actually placed under the authority of the hostile army’) and Article 6 Geneva law (‘[the Occupying Power will be bound] to the extent that such Power exercises the functions of government in such territory’) – to include consideration of the implications for the right of the Palestinian people to self-determination.