Symposium on Occupation Law: Control and the Law of Occupation

[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).]

One of the interesting observations Aeyal makes in his important new book The Writing on the Wall, is that new forms of control are radically challenging the law of occupation.   Traditionally, occupation has been understood as a question of fact:  territory will be considered occupied if there are “boots on the ground” that demonstrate effective control.  However, as Aeyal notes throughout the book, the law of occupation is fraught with complex realities.  One of these realities is that new forms of technological and political control are increasingly relevant to the law of occupation.   Citing the 2015 ECHR decisions Chiragov (question of Armenia occupying Nagorno-Karabakh) and Sargsyan (question of Azerbaijan occupying Gulistan), Aeyal argues that adopting restrictive interpretations of the law of occupation results in denying protection of norms in the Geneva Conventions.     The Sargasyan decision is particular explicit in its explanation of what is required to trigger the law of occupation:

“The requirement of actual authority is widely considered to be synonymous to that of effective control. Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation, i.e. occupation is not conceivable without “boots on the ground” therefore forces exercising naval or air control through a naval or air blockade do not suffice.”

Instead, he argues, indirect and remote control, virtual occupation, should trigger the law of occupation to extend the protections afforded to populations.   I agree with his assessment of the problem, and have looked myself at the problematic aspects of the effective control test in the field of the law of responsibility.

Nonetheless, it is difficult to determine what the triggering standards for these other types of control should be.   As I note in my article, in the context of the law of responsibility, it goes to the definition of the state, and the decision made by the drafters of the articles of the law of responsibility was to maintain a high standard resulting in limited exposure, despite the trend of outsourcing many state responsibilities.  In the occupation context, too low a standard places positive obligations on states that may simply hold territories within their spheres of influence, too high a standard permits states to operate just short of the boots on the ground standard, or to take advantage of new forms of technology, while depriving individuals of the humanitarian protections they are owed as a matter of law.

I would be delighted if Aeyal could further elaborate these points.   How should we think about control in the occupation context?  Are there lessons learned from the law of responsibility, such as the development of alternative means of holding states responsible based omissions or the duty to prevent.  And I look forward to continuing this conversation during at International Law Week at Fordham this fall, where Aeyal and I will be speaking on a panel on the law of occupation.