In association with the International Commission of Jurists

Author: Valentina Azarova

23 Jan

[Valentina Azarova is an international law practitioner and academic currently Visiting Academic at the Manchester International Law Centre, University of Manchester, and Legal Advisor to the Global Legal Action Network (GLAN). This is the second part of a two-part post. The first can be found here.] The first part of this post discusses the ways in which the Yemen conflict has animated a body of ongoing legal challenges...

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23 Jan

[Valentina Azarova is an international law practitioner and academic currently Visiting Academic at the Manchester International Law Centre, University of Manchester, and Legal Advisor to the Global Legal Action Network (GLAN). She is co-author of an expert opinion on legality of arms transfers in the Yemen context, and has advised a number of domestic cases in this area.] Domestic licensing procedures...

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29 Aug

[Valentina Azarova, Post-Doctoral Fellow, Center for Global Public Law, Koç University Law School, Istanbul; legal adviser, Global Legal Action Network (GLAN).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).] The Writing on the Wall is a valuable response to growing frustration with the inadequacies of...

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26 Jan

[Valentina Azarova is a Research Fellow in the Institute of Law, Birzeit University. She has assisted and advised in the suits filed by Al-Haq against foreign corporations for involvement in abuses in occupied Palestinian territory and is a member of the legal committee, Global Legal Action Network (GLAN)]. On 19 January 2016, Human Rights Watch (HRW) released Occupation, Inc.: How Settlement...

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27 Apr

[Valentina Azarov is a Lecturer in International Law and Human Rights, Al-Quds Bard College, Al-Quds University, Palestine (on leave)] This is the fifth response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post. Those who believe in the progressive development of international law but remain fully aware of the deficiencies of its enforcement, have good reason to view the proposed functional approach to the law of occupation with cautious optimism. However, there must be a further elaboration and concretization of its mechanism or process, lest this approach to operationalising the way the law of occupation is applied contributes to the law’s indeterminacy. This brief response therefore seeks to ask guiding questions and postulate some predicaments in order to elaborate the content of the functional approach, and explain the ways in which it relates to the binary, or on/off, approach. Some basic considerations include: what are the elements and purpose of the protective function of the law of belligerent occupation? How is this function expected to be fulfilled, operationally? The interpretation of the law of occupation I suggest is teleological and genealogical: conscious of the historical context of the law, the manner in which its provisions were drafted and the purpose they were meant to serve. Most contributions to this symposium have shared this interpretation, in that they have taken as a starting point the fact that the law of occupation is charged with the arduous task of tying the hands of the occupier in order to safeguard against abuses of the law.  Given that belligerent occupation is a phenomenon of war, and that it would be unwarranted to assume good faith between enemies in wartime, no commonality of interest should be presumed to exist between the occupier and the occupied population. The law must thus guard against the occupier’s adoption of the ‘pick and choose’ approach, especially in situations where an occupier maintains ‘effective control’ but attempts to limit its scope of influence so as to claim that it has relinquished its responsibility in certain domains. The law of occupation was meant to protect the occupied population against such disingenuous, abusive attempts by the occupier to mask the extent of its continued influence over their lives.
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24 Apr

[Valentina Azarov is a Lecturer in International Law and Human Rights, Al-Quds Bard College, Al-Quds University, Palestine (on leave)] This is the third post of our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post. By far one of the most challenging questions for the international law of belligerent occupation pertains to the termination of occupation. The law states that “occupation comes to an end when an occupant withdraws from a territory, or is driven out of it” (Oppenheim, International Law (1952) 436). According to Sir Adam Roberts, an occupation ends either through a complete withdrawal of troops, through the conclusion of a treaty permitting the continued presence of some troops, or through a treaty that transfers sovereignty back to the displaced sovereign, without withdrawal of troops. In his seminal work on the law of occupation, Arai-Takahashi’s discussion of termination makes no mention of the possibility of a gradated or phased application of the law. Sir Roberts holds that,
the question of when an occupation can be said to have begun, or ended, is sometimes easy to answer but is by no means always so. Even when it can be answered with confidence, there may still be many gradations between direct foreign military control on the one hand and complete independence and freedom from foreign military forces on the other. (260)
Similarly, in an article on the termination of occupation, Benvenisti notes that “unilateral withdrawals can be events as painful as other situations of political transition in which the protection of individual rights is particularly important”, underscoring that “the determination whether such control exists or not at the relevant times and in the relevant place will be based on a case by case analysis.” Whilst the law of occupation does not explicitly provide for a "transitional" legal framework that regulates the process of termination, the simplicity of the above mentioned criteria for termination falls short of answering more demanding practical questions, such as: What duties does an occupying power have during the transition to restoration of lawful sovereignty? How can occupation law be applied to situations in which an occupying power has partially retreated but continues to exercise governmental functions?
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