Symposium on Occupation Law: The Necessary Non-Normativity and Temporal Indeterminacy of Occupation Law

[Eugene Kontorovich is a Professor at Northwestern University Pritzker School of Law. 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).]

Prof. Gross’s excellent book The Writing on the Wall: Rethinking the International Law of Occupation presents a normative synthesis of international humanitarian and international human rights law design to provide an occupation law regime acutely focused on protected persons and the ensuring that the temporariness of the occupation. Gross’s honest embrace of a normative regime allows him to be quite acute in his analysis of practice and case law that does not support his vision. Thus the book includes incisive analyses of international court decisions regarding northern Cyprus and Nagorno-Karabakh, and a valuable discussion about the applicability of occupation law to Western Sahara and East Timor. He points out many interesting incoherencies and tensions in occupation law in these contexts. His account of the legal treatment of these various situations, and his very detailed discussion of the case law of the Israeli High Court, are invaluable for any student of international humanitarian law.

First, it is worth pointing out a basic challenge of any normative account of IHL.

The non-normativity of what he calls the “factual” approach to the law of occupation is deeply embedded in the essential non-normativity of international humanitarian law itself. IHL treats aggressors and victims the same. There are strong reasons for that non-normativity. Among them, IHL is primarily treaty-based, and requires initial state consent for its rules. States have highly diverse normative commitments. One can, of course, have a state sign up for one thing only to learn it has signed up for another, but such moves, while they may be immediately gratifying, will not encourage states to support any further development of IHL.

A central part of IHL’s neutrality is its prospectivity. IHL norms are agreed on in advance of conflicts to which they apply. This prospectivity is why in the Fourth Geneva Convention, Art. 6 exempts occupying powers from certain restrictions in prolonged occupations. When the conventions were adopted, the Allied Powers were engaged in preexisting occupations of Germany and Japan. In the drafting of the conventions, the U.S. expressed concern that the new norms would apply to its existing occupations. Art. 6 was in part a concession to this concern.

Gross sees Art. 6 in its traditional interpretation as “incongruent with the purpose and practice of the normative regime of occupation.” This may be true, but it is fully consistent with the intent of the Drafting Conference and their understanding of the functions of occupation law, which did not apparently include making long-term occupation more difficult. Indeed, assuming the Fourth Convention represents some step towards Gross’s normative vision compared to prior law, Art. 6 shows the difficulty of shoehorning existing situations into old norms.

This leads to a difficulty. Gross’s normative vision of occupation law is a response to certain situations, which in his view the “factual” approach occupation law has not dealt with satisfactorily. Most prominent among these is the Israeli-Palestinian conflict. But a normative reinterpretation of existing law cannot expect buy-in from existing participants, as it is clear from the outset who it benefits. To put it differently, what does the normative vision offer currently affected states?

This problem is exacerbated by the great “enforcement gap” in the international law of occupation. One of the great virtues of Gross’s book is that while it focuses on the Israeli-Palestinian case, it does not give short shrift to historic or ongoing occupations, including some that have received almost no academic attention, such as East Timor and Nagorno-Karabakh.

Yet the enforcement of occupation law by the international community almost entirely exempts these situations. For example, the U.N. General Assembly has reminded Israel in critical resolution of the country’s obligations under the Geneva Conventions about 500 times since 1967—as opposed to twice for the other prolonged occupation situations. Even in recent weeks, reports of a new Armenian settlement being built in Karabakh, and massive Russian settlement activity in Crimea – which challenge both a formalist and certainly the normative regime of occupation law – have gone entirely unremarked by the international community.

This suggests a few things. First, before building a normative regime of occupation, it may make sense to actually bolster the existing formal one. Second, the practical outcome of a normative regime is known in advance. It will not likely have any more effect on existing occupations than the formal one, with the possible exception of Israel. From Gross’s normative approach, this may be better than nothing, but from a positivist approach, it is hard to see why Israel or its allies would endorse such a development, and indeed it might weaken their commitment to the basic black-letter Geneva Convention regime.

Gross’s normative model is based on ensuring that occupations remain temporary, and do not become a shell for conquest. He argues that occupation law should be much more informed in its particulars by the systemic principles of international law – self-determination and the prohibition on conquest in particular.

One normative criterion is the occupation law according to Gross that ensures the self-determination of people in the occupied territory. But this seems a large leap from existing practice. International humanitarian law is based on the sovereignty of states, not peoples. Thus Libya returned the Azou strip to Hassan Habre’s Chad, not to its population. Israel has long been asked to turn the Golan Heights over to Assad’s Alawite regime, not to the Druze people (though these demands have become more muted lately, they have not been withdrawn). Iraq returned Kuwait not to the Kuwaiti people but to its monarch. Indeed, the self-determination principle will often contradict the preservation of the status quo principle. In his central example of the Palestinian situation, the creation of a new Palestinian state would be a departure from the pre-war status quo.

Gross correctly notes that the applicability of the law of occupation cannot be defeated by the occupier merely claiming sovereign title. Occupations routinely (but not inevitably) take place in the context of territorial disputes. On the other hand, the occupation cannot be entirely insensitive to considerations of underlying sovereignty. A country retaking its territory in a conflict can hardly be deemed an occupier.

Gross suggests that prolonged prior control by another power, even one lacking sovereignty, is enough to trigger the applicability of occupation law if that territory is retaken. But this can conflict with his normative goal of not giving any lasting weight to the reality created by an occupation. In the context of the Israel-Palestine conflict, it would mean the very borders of a brand-new state were created by the Egyptian/Jordanian occupation that lasted until 1967.

Or consider the following example. Imagine a newly created country occupying the territory of its newly created neighbor in a war that breaks out upon their mutual creation. An imperfect armistice holds for twenty years, after which the state that lost territory in the original conflict manages to retake some of it in a new one – albeit territory over which it had never previously exercised control, and from which all of its nationals had been expelled. Would the new state be considered an occupier?

It is not a hypothetical question, but rather reflects what happened when Azerbaijan managed to retake some previously Armenian-held territory in Karabakh. As far as I know, this has not been treated as an occupation by anyone.

Thus normative criteria such as self-determination cannot avoid the questions of territorial sovereignty. Self-determination does not answer the question of the geographical unit in which it is exercised. Armenians, for example, do not principally have a preexisting sovereignty claim to Nagorno-Karabakh. Rather, they see Armenian control as an exercise of the self-determination of the Karabakh population. Similarly, Russia justifies its occupation not on prior title but on the self-determination of the Crimean population. International law rejects this argument, and regards Armenian control as an occupation, because the standard lines in which self-determination is exercised is the preexisting administrative borders, in which case Azerbaijan, not Karabakh, is the relevant unit.

Another of Gross’s normative goals, in accord with most of the literature, is the vital need for preserving the prior status quo. Gross faults existing occupation law for sometimes being inadequate to that aim. But this is in part, as he recognizes, because the Geneva Convention may not have contemplated decades-long occupations. (This omission may have arisen in part because the norms against conquest were not as clearly defined in 1949 as he would suggest, as witnessed by the vast reapportionment of territories by the Allied Powers after the war, Yugoslavia’s absorption of the sector of the Free State of Trieste that was under its control, and similar examples.)

Certainly some prolonged occupations are the result of colonialist or annexationist aims. But this is not inevitably the case. The Allied occupation of West Berlin lasted forty-five years, and had the then-dominant views about the duration of the Soviet empire been correct, it could have lasted forever. This was not an occupation of choice but of expedience. Similarly, with Israel’s capture of the West Bank, the situation was even more contingent. Jordan only entered the Six Day War half-way through, and the West Bank was entirely outside of Israel’s original war aims.

Israel retained the territory because immediate attempts at a settlement with the Arab states were rejected, as were numerous internationally-backed good-faith offers of statehood to the Palestinians after the end of the Cold War. Indeed, it is these repeated and rejected offers of statehood that prominently distinguish Israel’s situation from any of the others discussed in the book.

This leads us back to the question of temporariness. Maintaining a status quo over many decades is an impossible task, as nothing in the world stands still. Demographics and migrant flows, as Europe’s recent experience has shown, is one of those things. No one can stop the clock at 1967. Of course, Gross’s position is more nuanced, as it would forbid only changes that benefit the occupier. But this itself is a monumental task, as it effectively burdens the occupier.

Limiting one’s trade and movement with an adjacent territory is a high cost. That which burdens the occupier reduces the other side’s incentives to accept an amicable deal. And indeed, one reason the Geneva Convention may not have anticipated prolonged occupations is that its drafters did not conceive of situations where occupation would not promptly lead to annexation, or a peace deal on terms acceptable to both parties.

Thus an alternative normative occupation regime might, for example, terminate all restrictions on the occupier upon the failure of the other side to accept a good faith diplomatic arrangement that would leave them better off than they were before.