Symposium on Occupation Law: Writing ‘The Writing on the Wall:’ Why and How to Rethink The Law of Occupation

[Aeyal Gross is Professor of Law at the Tel Aviv University Law School. He is also Visiting Reader in Law at SOAS, University of London. In Fall 2017 he will be a Fernand Braudel Senior Fellow at the European University Institute.This post is part of an ongoing symposium on Professor Aeyal Gross’s book  The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

When I started writing on the law of occupation about twelve years ago, the contemporary case law concerning occupied territories was scanty. The Israeli Supreme Court had a very big roster of cases but, other than a few Cyprus related cases from the European Court of Human Rights (ECtHR), not much more was available. In the course of my work on The Writing on the Wall, however, new case law began to emerge. Some of it followed the occupation of Iraq, when UK courts and later the ECtHR made important judicial pronouncements on the application of human rights in occupation. Other cases came from the engagement of the International Court of Justice with Israel in the Occupied Palestinian Territory (OPT) and with Uganda’s occupation of parts of the Democratic Republic of Congo. The ECtHR also revisited the Northern Cyprus question and issued significant decisions concerning occupation (or lack thereof) in Nagorno-Karabakh.

These cases brought up questions that intrigued me in the context of the Israeli-Palestinian case: what is a military occupation? How do we determine that it exists, and how do we know if it has ended? Does this category offer appropriate protection to occupied populations or does it legitimize new forms of dispossession? Does applying human rights in occupation in addition to the traditional framework of international humanitarian law (IHL) help or hinder the protection of occupied populations?

In 2000, when the Second Intifada began, a debate emerged within human rights organizations in Israel. Up until then, human rights groups had usually focused on specific violations of the law of occupation based on a widely shared view stating that international law has nothing to say about the legality of occupation as such. I held, however, that addressing particular violations legitimized continued Israeli control under the cover of occupation as a temporary regime, and that the traditional understanding of occupation in international law as merely a factual situation is partly responsible for this legitimation effect. This debate led me to develop the thesis that the acceptability of occupation as a legal regime rests on several basic norms. Chief among them is the principle that occupation is a temporary deposit and, should the occupier depart from it, occupation is illegal. Orna Ben-Naftali was developing similar ideas at the very same time and, after teaming up with Keren Michaeli, we published our article “Illegal Occupation.” The Writing on the Wall begins from where we left off in that article, focusing on the need to shift from a “merely factual” approach to occupation to what I term a “normative approach.”

In 2005, Israel withdrew its settlers from the Gaza Strip and ended its permanent military presence there. Since Israel retained control over many aspects of life in Gaza, a debate ensued as to whether Gaza was still occupied territory. To me, these discussions seemed like an enactment of Felix Cohen’s “heaven of legal concepts,” where legal concepts are “thingified” in what Cohen characterizes as “transcendental nonsense.” Insofar as we continued to deal with it in the on/off terms of traditional international law, occupation fitted Cohen’s category of “magic solving words,” referring to terms incapable of solving anything. Cohen’s legal realist approach suggests that norms should not follow from abstract concepts but rather the opposite. When applying Cohen’s insights to occupation law, we need to consider whether the liabilities and duties of an occupier should attach to certain acts. The backdrop was thereby set for a functional approach to occupation, which looks at the substance of control rather than at whether there are “boots on the ground.” In the course of the writing, the normative and functional approaches were increasingly revealed as complementary. If occupation is a normative rather than merely a factual framework, it entails duties when the occupant continues to exercise power, even if control no longer takes the form of “boots on the ground,” as in Gaza. The first two chapters of The Writing on the Wall are devoted to the normative and functional approaches and their mutual relationships. The last two chapters consider the application of international humanitarian law and human rights law in situations of occupation, reflecting my critical concern re their legitimizing role and pointing to their nature as double edged swords. Regarding human rights, my discussions in the book developed in the wake of Israeli Supreme Court cases that applied human rights law in the OPT. Reading these cases, I realized that a rights analysis shifts the vertical balance between the rights of the occupied and the security of the occupier to a horizontal balance between both parties’ rights. Applying human rights, then, upsets the balance built into IHL—which ensures special protections to people living under occupation—and widens the justification for limiting their rights. In the Israeli case, the settlers’ security adds a burden unanticipated in international law. For example, to protect settlers from potential violence, Israel’s High Court of Justice allowed the demolition of Palestinians’ houses. While humanitarian law places strict limits on the destruction of civilian property in occupied territories, a human rights analysis allowed to “balance” the property rights of Palestinian owners against the rights of settlers that the occupying army claimed it must protect.

The book offers a critique of the legal framework and a different way of thinking about occupation, without pretending that a normative and functional approach is a panacea to the flaws of the current approach. It considers the application of IHL and human rights law in occupation from a critical perspective, showing they may not only offer protection but also legitimize dispossession and oppression.

The first two chapters of the book look at the occupation framework (what I call jus ad occupation), and the last two look at the application of humanitarian law and human rights in occupation (what I call jus in occupation). In between is Chapter 3, which functions as a bridge and closely examines the Israeli occupation of the OPT and its legal history through the perspective of the book’s different themes. The analysis points out how the official Israeli position created legal indeterminacy as to the OPT’s status, when definitions of it as occupied/not occupied played out against one another. This uncertainty enables a “pick and choose” regime, whereby Israel acts as both occupier and sovereign, while Palestinian residents of the OPT enjoy neither the full rights of protected persons under humanitarian law nor citizenship rights in Israel. This chapter considers how this indeterminacy and the repeated description of the situation as sui generis allowed for control through indeterminacy at different stages of the occupation—after 1967, after the 1993 Oslo agreements, and after the 2005 Gaza disengagement. The chapter aims to explain the complex legal and political mechanisms serving as the building blocks of Israel’s control that, besides creating indeterminacy, include a shift toward a reduction of direct friction meant to render the occupation invisible (through Oslo, the disengagement, the wall, and the privatization of checkpoints). Another major building block is the rise of the proportionality analysis focusing on means-ends tests, which isolates cases rather than enabling a broader context and artificially separates the authority to act from the ways this authority is exercised. I believe that looking at these processes together, as I do in Chapter 3 and more generally in the book, is crucial to understanding the role of law in this occupation, and indeed in occupations in general.

I am grateful to Opinio Juris for devoting a symposium to the book. Its 2012 symposium dealing with the functional approach, which opened with a post where I outlined it, was an important milestone on the way to the book and it is exciting that, in a way, we have now come full circle. I am thankful to the authors of the posts that will follow for engaging with my work and look forward to reading their contributions.