Symposium on Occupation Law: The Normative and Functional Approaches to Occupation: A Response to Aeyal Gross

[Eliav Lieblich is Associate Professor at Buchmann Faculty of Law, Tel Aviv University.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).]

Introduction

Living up to its name, Aeyal Gross’s insightful new book engages critically with traditional assumptions of the law of occupation. As in his past work, Gross’s critique here is firmly rooted in traditions of legal realism, critical legal studies (CLS), and – in his constant attacks on binary legal categories – in deconstructive method. In fact, the book can serve as an excellent exposition on critical approaches to law, even for those not specifically concerned with occupation law.

Yet, despite of his critical view of law and its relationship to power, Gross’s thought is not driven by despair or nihilism. Instead, his approach urges jurists to reflect on their work, and to refrain from being passively complicit in the overtaking/perpetuating dynamics of law and power. In this sense, rather than dismissing legal doctrine altogether, as some critical scholars do, Gross analyzes and suggests to reformulate law to reflect what matters to living and breathing human beings, not to legal persons as abstract clusters of rights and duties.

In this comment, I will say a few words about two of the book’s central themes: (1) the normative approach to occupation; and (2) the functional approach to occupation.

The Normative Approach and Per Se Illegality

Gross suggests a normative approach to occupation, which challenges the longstanding view of occupation as a factual, normatively neutral construct. Viewed in the latter way, law only imposes certain limitations on the occupier, while tolerating – and in fact legitimizing – the violations of fundamental rights inherent in the concept of occupation. Accordingly, Gross expands in the book a claim he first formulated together with Ben-Naftali and Michaeli, whereby occupation becomes illegal when it infringes three principles: (1) that the occupier is not the sovereign in the territory; (2) that the occupier is obligated to preserve public order and civilian life in the area; and (3) that occupation must be temporary.

In my view, principles (1) and (3) are interrelated mainly because the perpetuation of occupation blurs the distinction between occupation and annexation. When this distinction is blurred without proceeding to civilian rule, without allowing the political participation of the local population, and without granting them full and equal rights, the distinction between occupation and unlawful regimes such as colonialism, apartheid, or plain military dictatorship collapses.

The distinction between occupation and annexation is not only a temporal one, but also pertains to the nature of the administrative discretion exercised by the occupying power. For this distinction to hold, occupation law must construct the “military commander” – the de facto administrator of the occupied territory – as functionally independent from her state. Her discretion is not one of sovereignty but of trusteeship: it begins and ends with the interests protected by occupation law, while wider state interests must be disregarded. If the commander is made, however, a technical instrument of the occupying state – with no independent discretion whatsoever – again, the distinction between occupation and annexation collapses.

In terms of legal theory, the tension is the following: from the intra-state perspective (at least in dualist states), the military administration in occupied territories is simply an agent of the executive, deriving its power from domestic law. Conversely, from the viewpoint of international law, the military commander draws her power from occupation law. The military administration must somehow operate within this dualism, navigating between its double identity as a state and international organ.

If we examine the situation in Israel-Palestine, this double identity has been brought to a breaking point with the recently passed “Judea and Samaria Settlement Regulation Law.” In this law – the constitutionality of which is now pending in the Israeli Supreme Court – the Israeli legislature directly compels the military commander in the West Bank to seize, in certain situations, private Palestinian lands taken by Jewish settlers, and to legalize these takings. Obviously, this law – beyond compelling the commander to violate Article 49(6) of Geneva Convention IV – suffers from another layer of illegality by disregarding that power to act in the occupied territories derives from international law alone. Therefore, the Israeli parliament cannot override the military commander’s duty to exercise independent discretion while performing her obligations under international law.

The Functional Approach

The functional approach to occupation, expounded in Gross’s book, has its roots in Felix Cohen’s classic critique of the excessive recourse by jurists to abstract legal terms, in detachment from their operation in the real world. Cohen referred to this as “transcendental nonsense” and called to examine law in functional terms, that is, according to its actual influence on people.

Throughout the book, Gross illustrates how the concept of “occupation,” in its formal sense, suffers from this syndrome. By altering the formal designation of a situation from one of occupation to “non-occupation,” states seek to reduce their obligations toward people, although they continue to exercise power over their lives. Conversely, Gross calls not to ask whether a territory is formally “occupied,” but to ask two other questions: (1) what are the facts on the ground; and (2) whether obligations derived from occupation law should apply in these circumstances.

The functional approach to occupation law emerged directly from practice, and specifically from the attempt to makes sense of the peculiar relations between Israel and Gaza after Israel’s 2005 “disengagement” from the territory. Initially, this question was discussed in binary terms: does the situation qualify as occupation or does it not? Gross was perhaps the first to identify the problem of this binary discourse – including in a symposium in this blog – as on the one hand, Israel maintains control over many aspects of life in Gaza, while on the other, it does not have “boots on the ground” in the territory. Gross argued, since 2007, that Israel’s post-disengagement obligations toward Gaza should not be examined in formal, abstract and binary terms. Instead, we should ask the opposite question: does Israel influence the lives of Gaza’s citizens? Does this influence relate to functions that can be viewed as governmental (such as control of the population register, the air space, and so forth)? If so, whether or not we use the formal term “occupation” to describe the aggregate of these powers, by virtue of its de facto control over government functions in Gaza, Israel is both morally and legally required to administer these functions in accordance with what occupation law requires: namely, to act positively for the benefit of the protected population.

The functional approach has practical implications and can be extremely helpful to counter attempts by states to exercise control without responsibility. It is unsurprising, thus, that it was adopted by the ICRC in its updated commentary on the Geneva Conventions. For instance, during 2014’s Gaza conflict (Operation Protective Edge), some Israeli jurists argued – in a legal opinion that was discussed in the Israeli parliament – that Israel was permitted to cut off water and electricity provided to Gaza because Gaza is not occupied territory. To them, if Gaza is not occupied according to the formal definitions of occupation (no military presence on the ground), then Israel has no positive obligations toward its population (to act in favor of the population), but only negative obligations derived from the laws on the conduct of hostilities (not to inhibit those acting in favor of them).

By contrast, the implementation of the functional approach’s two stages clearly indicates that such a cutoff would be illegal: (1) factually, the Gaza Strip is (almost) entirely dependent on Israel for its electricity supply, partly because Israel alone controlled the territory for almost forty years; (2) the control of electricity supply is a governmental function and, therefore, concerning this specific government function, Israel should be subject to the positive obligations of occupation law. Indeed, it impossible to wield quasi-government powers on the one hand and, on the other, to deny the obligations that flow from them. Twelve other Israeli international jurists (including me) submitted such an opinion reflecting this line of argument concerning this question , in contrast to the legal opinion read in parliament.

Like every legal doctrine, however, the functional approach is not perfect. In a sense, it almost willfully gives rise to new ambiguities. For instance, until now, this approach has been understood to delineate state obligations after removing troops from “fully” occupied territories. Yet, if we take this approach seriously, it is unclear why a previous “full” occupation is needed to begin with. Assume that using peaceful means only – say, through state-run corporations – State A takes over the natural resources of State B. Functionally, isn’t State A now exercising control over a governmental function in B, sens previous occupation or even armed conflict? If so, shouldn’t obligations from occupation law apply? And if this is true, isn’t the connection between the functional approach and IHL rather tenuous? Doesn’t it collapse, at the end of the day, to a close variant of international human rights law, applied extraterritorially?

Furthermore, Gross views indeterminacy as a characteristic feature of occupation. This indeterminacy enables the occupying state to manipulate the status of the territory according to its own interests, while maintaining a façade of legality and legitimacy. The paradigmatic example – analyzed in detail in the book – is Israel’s official attitude toward the West Bank, which recognizes the situation as occupation when this allows exercise of power (for example, the power to enact security legislation), while simultaneously denying the existence of occupation, on purely formal grounds, when occupation law limits state action (for example, by prohibiting the transfer of population to the territory). The functional approach, according to Gross, will make it harder to play this “pick and choose” game. It exposes functional power, and thereby limits the ability to mask wrongful actions with formal indeterminacies.

Yet, we should ask whether indeterminacy is indeed an inherent, rather a historically contingent, situation. Counterintuitively, at the basis of the opportunistic use of indeterminacy is a yearning for legal legitimacy, which, in turn, assumes a domestic and international order that still perceives adherence to law as a virtue. If one discards this notion, resort to indeterminacy to conceal violations of law is unneeded, because law itself becomes unimportant. In other words, if states are not embarrassed by violations of law, they don’t need to manipulate law by taking advantage of its indeterminacies to begin with. They can simply claim that law is irrelevant. In this context, by exposing manipulations of law, critical approaches might be “fighting the last war.” Arguably, we are living in times of post-embarrassment, in which even legal apologetics are abandoned. In such times, indeterminacy might be replaced by utter clarity—an unambiguous admission by (some) states that they simply do not care about international law. Therefore, the next legal fight might not be against the abuse of legal indeterminacy, but rather, against the very clear and straightforward discarding of international obligations altogether.