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

by Solon Solomon

[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.

http://opiniojuris.org/2012/07/24/guest-post-the-dynamic-law-of-occupation-two-recent-cases-from-the-middle-east/

2 Responses

  1. I find Mr. Solomon’s argument puzzling.

    What he advocates under the title of a “dynamic” interpretation of the law of occupation is nothing other than its abolition. He would have us believe that in cases of prolonged occupation, the protections of the law ‘expand’ (so to speak) to accomodate factual changes, and extend to protect the population of the occupying power, which has been trasferred into the occupied territory in contravention of art 49(6) of GC IV. That is an absurd result. It is an interpretation that lacks any support in the text of the treaty, and runs contrary to its object and purpose, which is to preserve the character of the occupied territory and the fundamental rights of the protected population. If Mr. Solomon’s interpretation were correct, all an occupying power need do to legitimise their illegal activities is prolong the occupation for a sufficient duration. This means nothing more than ‘the passage of time absolves us of our legal obligations’. Such a “dynamic” interpretation clearly cannot be correct. The approach of the Supreme Court of Israel is clearly superior.
     
    The Demopoulos decision of the ECtHR does not support Mr. Solomon’s contention either. The decision was controversial – but, in my view, correct. However, it does not stand for the proposition that what was illegal has been made legal by the passage of time. The finding of the court was that restitution may not be possible in every case – because to order restitution in every case would lead to manifest injustice by displacing large numbers of innocent people. Rather, the aggrieved persons must seek alternative remedies that are available to them. The meaning of this is clear – the illegal acts have not been excused or abolished, but the nature of the remedy must be context-sensitive and have regard to the realities and fatual circumstances on the ground. The law is not interpreted in a vacuum. That seems to me like a very common sense approach. This is not a “dynamic” interpretation of the law of occupation within Mr. Solomon’s understanding. De jure, there has been no change to the status of the territory or its inhabitants. All that has changed is the appropriate remedy for the breach of the law.

  2. Without quibbling over the broader analysis, with which I disagree, I was struck by the following sentence: “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.”

    I presume that the reference to “League of Nations Charter provision” here means the articles of the Palestine Mandate. I must admit I find the reference puzzling, since the Mandate was not a provision in the Charter.

    But more importantly, I can find no reference in the linked ICJ opinion in which the court pronounces the Mandate “fulfilled” from the moment the 1947 partition plan was launched.

    I think you are mistaking a discussion in then-Judge Elaraby’s (now Secretary General of the Arab League) concurring opinion for the opinion of the court. Like the court’s opinion, Judge Elaraby’s opinion noted the existence of the Mandate while carefully omitting any reference to its substance or text. Thus, in direct contradiction of the terms of the Mandate, Elaraby claimed that the Mandate established that the “future of the Palestinian people” was a “sacred trust of civilization,” while ignoring that the Mandate quite specifically endorsed the rights of self-determination of the Jewish people in Palestine while rejecting those of any other population. Similarly, in direct contradiction to the language of General Assembly Resolution 181 which offered the 1947 partition plan as a “recommendation,” Elaraby described the GA resolution as having actually carried out a partition of the territory. Elaraby, however did not discuss whether the 1947 resolution “fulfilled” the Mandate or its “cause,” or, indeed, any of the Mandate’s specific commands, such as to “secure the establishment of the Jewish national home” (article 2) or “encourage … close settlement by Jews on the land” (article 6) or to “cooperate” with the Jewish Agency in matters that affect “the interests of the Jewish population in Palestine” (article 4) or to include provisions of law facilitating “the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine” (article 7). Elaraby did not discuss these matters for the obvious reason that he did not want to acknowledge the content of the Palestine Mandate in the first place.

    It would have been more straightforward and accurate for you simply to say that the ICJ opined that the West Bank is “occupied,” although its analysis of the issue was circular: “The territories [of the West Bank] were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power” (paragraph 78).

    In fairness one would also have to note that, as the ICJ recorded, Israel does not accept that the law of belligerent occupation applies de jure to the West Bank, and since Israel was not a party to the ICJ case, the ICJ’s opinion creates no obligation for Israel to change its legal position.

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