Guest Post: The Dynamic Law of Occupation: Two Recent Cases from the Middle East

[Solon Solomon is a Former Member of the Knesset (Israeli Parliament) Legal Department in charge of international and constitutional issues]

Traditionally, the law of occupation envisions the continuation and preservation of the status quo ante. Yet, in cases of prolonged occupations, it has been conceded that the occupying power can alter legal or factual reality if this is for the betterment of the local occupied population’s life.

The question is though if in such instances, alongside a dynamic interpretation of the law of occupation, the factual and normative status quo can be subject to a change in order to meet the needs not of the local population but of the occupying power. One way to reach an affirmative answer is to broadly interpret existing notions in the law of occupation, such as that of “military necessity.” This is the path traditionally chosen by Israel’s Supreme Court which has consistently ruled that “military necessity” covers also the wider security needs of the occupying power’s civilians.

Alternatively, someone can opt to render a dynamic note to the law of occupation and interpret it accordingly. No longer does occupation remain a static, historical fact, but it adapts to the advent of time. The question is if such adaptation is only factual or also legal. Two recent examples from the two classical prolonged occupations in the Middle East bring to the frontline this de facto and de jure transformation the law of occupation undergoes or aspires to undergo.

The first case refers to the Turkish Northern Cyprus occupation. Recently, the Cypriot cabinet approved a land swap between Turkish Cypriot property lying in the State of Cyprus and Greek-Cypriot owned property, lying in the island’s occupied part.

While the particular decision was declared by Cyprus’ Attorney-General as not setting a precedent, the particular land swap should be examined in light also of the European Court of Human Rights’ Demopoulos and others v. Turkey judgment.

There, the Court ruled that the domestic mechanisms provided by the occupying Northern Cyprus Turkish regime are a legitimate remedy which should be exhausted by the Greek Cypriots before they turn to the Court. At the same time, the Court reiterated its stance that the Turkish occupation of Northern Cyprus can not be acknowledged as legal, yet the case should be perceived under its historical and political context and this reality as well as the passage of time must

inform the Court’s interpretation and application of the Convention, which cannot, if it is to be coherent and meaningful, be either static or blind to concrete factual circumstances.

The Court inter alia notes (at para. 116) that

… Some thirty-five years after the applicants, or their predecessors in title, left their property, it would risk being arbitrary and injudicious for it [the Court] to attempt to impose an obligation on the Respondent State [Turkey] to effect restitution in all cases….It cannot be within this Court’s task in interpreting and applying the provisions of the Convention to impose an unconditional obligation on a Government to embark on the forcible eviction and re-housing of potentially large numbers of men, women and children even with the aim of vindicating the rights of victims of violations of the Convention.

In Demopoulos, the Court endorses a dynamic interpretation of the law of occupation, taking into account the fact that Turkish settlers have settled in the Greek Cypriots’ houses and properties. The lapsing time in prolonged occupations is important for the factual configuration of the occupation. Institutions are being created by the occupying power, but still the question is whether this new factual reality should be acknowledged by the occupied population or by third parties. In tandem with the Demopoulos rationale, the recent land swap agreement answers this question in positive. The facts time creates in prolonged occupations can be ultimately be in favor also of the occupying power.

With dynamic interpretation being able to de facto influence the law of occupation, the question is whether also de jure such dynamic interpretation can bear the same results. To put it otherwise-the question is if the lapsing of time in prolonged occupations can lead to the interpretational endorsement of dynamic legal arrangements, namely arrangements that will take into account also the occupying power’s population interests and rights. On this aspect, the recent conclusions of the report on the legality of Israeli outposts in the West Bank, broadly known as the Levi Report, are noteworthy.

The Report has already been discussed here by Sari Bashi and has been highly – and correctly – criticised. Yet, at the same time, the interpretational dynamic dualism it introduces to the law of occupation has been left uncommented.

On one hand, the Report is highly adverse to any dynamic interpretation of the law of occupation and to any attempts to depart from the historical context surrounding Israeli presence in the West Bank. The Report’s conclusion that there is no Israeli occupation is based on a League of Nations Charter provision which albeit incorporated in the U.N. Charter, has been pronounced by the International Court of Justice as having fulfilled its cause the moment the 1947 Partition Plan was launched. Apparently, the advent of time changed the legal and factual parameters vis a vis regional actors, mainly Israel and the Palestinians. The Levi Report refuses to adhere to such a de jure dynamic interpretation of the law of occupation.

The same is true also regarding article 49(6) of the IV Geneva Convention that is read according to its historical and teleological context and in total disregard of the interpretational evolution it has underwent through the advent of time. Thus its application in the case of the Israeli settlements is denied, albeit such approach has been consistently rejected by the international community’s political and judicial organs.

On the other hand, the Committee’s aspiration to grant legal rights to the Israeli settlers in the West Bank constitutes in essence an attempt to de jure dynamically interpret the law of occupation. The main problematic that the Report presents is this – if the lapse of time can change factual parameters in favour of the occupying power and its interests, why can’t the same be true also regarding the legal framework? In other words, why should the law of occupation be subject only to a de facto but not also a de jure dynamic interpretation? To this question no satisfactory answer has been provided by the Report’s critics.

It can be held that the main driving force behind such a distinction between the de jure and de facto dynamic interpretation of the law of occupation lies in the needs and rights of the local occupied population. A balance between the interests of the occupying power and the rights of the local population, as the de facto dynamic interpretation of the law of occupation endorses, takes these rights into account. On the contrary, by negating the occupation status itself, the de jure law of occupation dynamic interpretation ends up ignoring the very presence of the occupied population, in essence the very presence of other fellow human beings. In that sense, it can not be condoned.

This is plausible, but still leaves open the task of dynamic interpretation’s hermeneutical delineation. In light of an evolving law of occupation, where the occupier ceases to remain passive, but aspires also to configure the legal and factual reality for his benefit, it would be useful if ultimately the de facto and de jure limits of dynamic interpretation were systematically set by jurisprudence and theory.