In association with the International Commission of Jurists

Symposia

15 May

[Allison Stanger is Russell J. Leng '60 Professor of International Politics and Economics and Chair of the Political Science Department at Middlebury College. She is the author of One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy.] This is the first day of our book symposium on Laura Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Related posts can be found below. Laura Dickinson has written a compelling and thoughtful inquiry into the larger implications of the “profound shift in the way the US government projects its power overseas.” Her focus on the enormous threat that contracting poses to public values highlights an important consequence of this transformation that has too often gone unacknowledged.  Her discussion of the four potential mechanisms of accountability and control frames that core challenge in a highly fruitful way.  While Professor Dickinson is well aware of the potential obstacles to effective functioning of these mechanisms, I wanted to use my post to highlight one that is all too easy to overlook: the impact of excessive contracting on governance and public values themselves. Decades of privatization mean that the business of government is increasingly in private hands, both in our foreign policy activities abroad and in domestic operations at home.  The basic pattern is striking.  In 2000, the Department of Defense spent $133.4 billion on contracts.  By 2010, that figure had grown to $367.8 billion, an almost three-fold increase.  In 2000, the State Department spent $1.3 billion on contracts and $102.5 million on grants. By 2010, contract spending had grown to $8.1 billion and grant spending had grown to $1.4 billion. In 2000, USAID spent $19.3 million on grants and $535.8 million on contracts.  By 2010, those figures had climbed to $8.9 billion and $5.6 billion, respectively. These explosive growth patterns are not confined to the national security realm.  For example, in 2000, the Department of Health and Human Services expended $4.1 billion on contracts. That figure had risen to $19.1 billion in 2010, a 366 percent increase.[1]  Contracts and contractors were also essential to both the Troubled Asset Relief Program [TARP] and the stimulus package. The operative rule of thumb for Republican and Democratic administrations alike has been to turn execution over to the private sector whenever possible. This shift in and of itself does not disastrous consequences make.  But when it is combined with general public distrust of government, Pandora’s box opens.  One additional statistic speaks volumes on this transformation. The number of people on the federal government payroll today is roughly the same as it was in 1966, yet the federal budget in that same time period has more than tripled in real terms.  Contractors, in part, fill that enormous gap. The result is that our government is today but a shadow of its former self.  It is big in terms of the amount of money it spends but small in terms of the number of people it employs to oversee that spending.  Government has effectively been hollowed out. There are obviously consequences for public values in this transformation.  As Professor Dickinson summarizes on page 10 of her book, “One of the core points of this book is that these public values ought to govern even when those acting are not governmental employees or representatives.”  One might legitimately ask, is this a realistic aspiration when government’s default option is to privatize whenever possible, often outsourcing oversight as well as implementation?  It is surely more challenging to uphold public values when government’s actions themselves undermine the public’s faith in the very legitimacy of public sector activity.  Moreover, do we really want to treat public servants and private employees as functional equivalents, or do we instead lose something very dear in blurring that line?  Who is to ensure that the public interest is upheld under such arrangements?
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15 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the first post in our discussion of Professor Dickinson's book. Links to the related posts can be found below. I want to thank Opinio Juris for offering me the opportunity to post on some of the central ideas contained in my recent book, Outsourcing War and Peace: Preserving Public Values in an Era of Privatized Foreign Affairs. The book starts from the observation that, over the past two decades, the United States has dramatically changed the way in which it projects its power overseas by outsourcing foreign affairs functions to an arguably unprecedented degree.  At the high point of the combined conflicts Iraq and Afghanistan, the U.S. Government had hired roughly 260,000 contractors—more contractors than troops—to do everything from support tasks, such as delivering meals to soldiers, cleaning their latrines, and maintaining battlefield weapons systems, to more combat-related functions, such as guarding bases, diplomats, and convoys.  At times, contractors even conducted interrogations.  And contractors continue to play a significant role in operating the drones that have become a central tool in our efforts to combat terrorism. All of this contracting poses an enormous threat to what we might call public values.  These values include the core value of human dignity as embodied in international human rights law, as well as the values embedded in international humanitarian law, such as the idea that the use of force is limited even during armed conflict.  In addition, other core values include transparency, democratic participation in decision-making, and accountability (sometimes referred to as the values of global administrative law).
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14 May

This week Opinio Juris is hosting a discussion on Laura Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Professor Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC. Her book addresses issues related to the increasing privatization of foreign policy functions of...

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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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27 Apr

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General's Office] This is the fourth 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. I am grateful for the opportunity to respond in brief to some of the points made in the excellent contributions of fellow bloggers. At the outset, as a former practitioner, I admit that I prefer functional approaches to the law over rigid dichotomies. From my experience, strict formulas are unsatisfactory when facing complex situations and the situation between Israel and the Palestinians is as complex as they come. As noted in my earlier post, I think it questionable to view the functional approach to occupation offered in some of the posts as reflecting the existing law, as opposed to lege ferenda. However, I set this question aside for present purposes and wish to discuss this concept on its merits. The underlying problem with the concept of "functional occupation" is that it takes a situation which does not possess the most fundamental feature of occupation – effective control – and insists on still calling it occupation. This is done not because the set of rights and obligations pertinent to occupation are suitable to such a situation, but rather in order to "prevent occupiers from relinquishing responsibility when control is transformed" and to ensure that "as long as an occupying party continues to exercise some degree of control, it will continue to be held accountable" (as Gross puts it). In other words the reasoning is not based on finding the suitable categorization of a given situation and applying the relevant rules thereto, but rather on deciding which rules should apply and then terming the situation accordingly. This is a conceptual problem. Even if one believes that certain obligations should be imposed even after effective control has ended, it may well be that the legal basis for imposing them lies beyond the limits of the law of occupation. This is my reading of the Al-Bassiouni judgment given by Israel’s Supreme Court.
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26 Apr

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)] This is the third 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. Thank you to all of my fellow symposium participants for a very interesting set of posts. This symposium has clearly raised a number of very important issues. One point that I find particularly interesting is the scope for there to be a difference in the significance of the functional approach in the context of the establishment of an occupation and in the context of a reduction of an extant occupation. In this respect, I agree with Sari Bashi that the level of control over territory that is necessary for the commencement of the law of occupation is not the same as for its continuation. However, I think it is also important to recognize that there is likely to be a difference in the nature of the governance space that will surround the occupied functions in the two contexts. In the establishment context, the governance space that is left unregulated by the law of occupation (by limiting the application of the law of occupation to the functions undertaken by the external power) has a character that has been created by the target state and its people. In contrast, in the disengagement context, the governance space that is to be left unregulated can be expected to have been affected by the prior, more extensive occupation. Indeed, there is a risk that the scope for the level of regulation of the law of occupation to be reduced in line with a reduction in the direct control of the occupiers will encourage an occupier to exert more influence on domestic politics in the period when it is in full control of the territory. This would be as a means of ensuring that when it reduces control – and thereby benefits from a reduction in obligations and an improvement in the way in which its involvement is projected – matters will still develop across the whole of the territory in accordance with its preferences. One way to address the scope for the functional approach to be exploited by occupiers could be for some criteria to be posited as to the sort of conditions that must prevail in the space created by a partial disengagement for the functional approach to be activated. In this respect, Aeyal Gross recognizes that there is an issue, when he suggests that ‘the functional approach must not mean that occupiers are relieved of their duties when there is no one else exercising them, or when the occupier’s behavior prevents a legitimate sovereign from exercising them.’ The two aspects highlighted by Aeyal could serve as criteria for determining when it is appropriate to adopt the functional approach in the context of disengagement, but both could benefit from more detail. For instance, should there be a quality threshold in terms of the exercise of certain functions in the space left by disengagement?
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26 Apr

[Sari Bashi is Executive Director at Gisha - Legal Center for Freedom of Movement.] This is the second 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. It has been a pleasure to read all the contributions and Kevin's thoughtful introduction. I want to respond to Valentina Azarov's and Pnina Sharvit Baruch's posts, which in some ways are mirror images of each other. I enjoyed them both but respectfully express reservations about each. Valentina's post appears to undermine accountability by imposing on Israel responsibilities that it cannot fulfill; Pnina's post appears to undermine accountability by exempting Israel from responsibilities that only it can fulfill. I'm not sure what it means to say, as Valentina does, that an occupier maintains "an overarching responsibility to manage daily affairs in the occupied territory", while at the same time insisting that the occupier is not responsible for "defaults made by the local authorities". If the occupying power is responsible for managing daily affairs in the occupied territory, either it must do so directly or it must take responsibility for the actions of the local authorities managing those affairs. Otherwise, it is not clear what the meaning of responsibility is. I don't believe that the law of occupation requires Israel to step in to correct actions of the Palestinian Authority in the West Bank or the Hamas government in Gaza. If, as Matthew Saul suggests, the sovereignty interest protected by Article 43 of the Hague Regulations is the right of the people to self-determination, forcing the occupier to interfere would seem contrary to the purpose of Article 43 (notwithstanding the important questions that Matthew raises about the quality of the autonomous space being protected). Similarly, imposing responsibility for areas outside the control of the occupier would also seem to violate an entrenched principle of jus in bello, which adopts a neutral stance to the fact of conflict but seeks to regulate the way in which it is waged, including regulation of the administration of captured territory.  My understanding of state practice and the case law is that the law of occupation does not require the occupier to deepen its control in order to manage the territory. We might imagine a situation in which, in order to provide for the needs of the civilian population, an occupier decides to conquer a neighboring seaport, claiming it must do so to restore access to commercial trade and civilian transportation routes cut off by the armed conflict. Certainly IHL would not require an occupant to do so in the name of fulfilling its obligations under Article 43 of the Hague Regulations! To say that Article 43 requires occupiers to fulfill obligations beyond their control is to dilute the nature of the responsibility imposed by IHL.
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26 Apr

[Aeyal Gross is a Professor at Tel-Aviv University, Faculty of Law.] This is the first 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. In her contribution to this symposium, Valentina Azarov asks who would decide, were the law of occupation not to apply in a “holistic” fashion, what set of obligations binds the occupying power at any given point. She expresses a concern that applying different sets of obligations at different points in time might lead to the fragmentation of the law of occupation and turn the law from a “set menu,” intended to restrain and control the occupier, into separate “dishes,” which the occupier could pick and choose as it likes. Azarov then suggests that the “binary” and the “functional” approach may actually be more of the same—alongside the “general” principles of the law of occupation  are “situational” norms, to be reviewed by subject-specific factual tests. Though “overall responsibility” always stays with the occupier, then, what Azarov calls “specific defaults made by the local authorities” may not necessarily be attributed to it. Any approach failing to converge the “binary” and “functional” approaches would, in her words, “disingenuously entrust the occupier, who is in the dominant position vis-à-vis the occupied population and the displaced legitimate sovereign, with the ability to determine the extent of its own obligations, with no scrutiny over its actions.” Azarov, then, worries about the potential risks of a functional approach. Yet, it is precisely my concern over the existence of such a “pick and choose” regime that led me to develop it. As I note in my original post, the question of whether a situation falls into the category of “occupation” is often controversial. When we stay within the binary approach, even if we try to incorporate a functional approach within it, we are forced to remain within the “occupation/ sovereignty” polarity that, in practice, already allows the dominant side to pick and choose, as evident in the Gaza case (addressed in detail in Sari Bashi’s post).
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26 Apr

[Elizabeth Samson, Esq. is a Visiting Fellow at the Hudson Institute] This is our sixth 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. I am very pleased to contribute to this symposium and to offer an analysis of international occupation law that may bring a new understanding to the discussion of this most challenging issue. In determining the legitimacy of Israel’s actions with respect to Gaza since Israeli disengagement from the territory in 2005, two questions must be addressed:
  • Do Israel’s actions after disengagement rise to the level of occupation under international law with respect to the legal requirements for “effective control”?; and
  • Are the Israeli actions that do not rise to the level of occupation permissible, are they relevant to maintaining Israeli security, and are, therefore, justifiable?
Brief Conclusion: In analyzing the requirements for the international law of occupation, as well as international legal precedent, and testing the various instances that allege Israeli “effective control” over Gaza after disengagement against the standards for “effective control,” the conclusion that I have reached is that pursuant to occupation law and legal precedent, Israeli action does not constitute “effective control” and does not rise to the level required for international occupation law to apply. While there is no question that Israel is, indeed, involved in certain aspects of life in Gaza, those actions do not rise to the level of occupation, and are necessary to maintain Israeli security in the face of the rocket attacks and general security threats emanating from Gaza.  Furthermore, while certain Israeli actions may frustrate life in Gaza (i.e. restrictions on movement, control of borders) those actions in no way are an exercise of occupation and are permissible acts that any state may undertake in relation to the territories near it. International Occupation Law and “Effective Control” (For a complete and thorough analysis click here for my American University International Law Review article – “Is Gaza Occupied?”) International occupation law determines the exercise of authority in a territory by combining three requirements for “effective control” (a term of art with no definite source in international law):
  • the territory is “actually placed under the authority of the hostile army[,]” and “authority has been established and can be exercised” (Hague Regulations, Art. 42);
  • the state in power “exercises the functions of government in such territory” (Fourth Geneva Convention, Art. 6); and
  • the occupier’s authority is “to the exclusion of the established government” (U.S. v. List).
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25 Apr

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General's Office] This is the fifth 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. I am very thankful for the opportunity to participate in this symposium in one of the leading blogs on international law. The question I will refer to is whether Israel is under the duty to provide for the wellbeing of the residents of the Gaza Strip? This is the practical question. The legal answer stems from the determination of whether the Gaza Strip is still occupied by Israel. A quick analysis of the law leads to a sound conclusion that the Gaza Strip does not fall into the definition of being occupied by Israel, as will be shown below. There are no existing rules in international law imposing post-occupation obligations, nor human rights' obligations regarding areas and persons outside a state's control. These are at best de lege ferenda. This does not necessarily mean that Israel has no legal obligations towards the population of the Gaza Strip, but that to the extent that there are any such legal obligations, they are limited in nature and do not include the duty to actively ensure normal life for the civilian population, as would be required by the law of belligerent occupation (article 43 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land of 1907). The basic formulation for when a territory is considered to be subject to belligerent occupation is found in Article 42 of the Hague Regulations, which states that:
Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
It is commonly agreed that, at its core, territory will be considered occupied when it is under the “effective control” of the foreign army. By necessary implication, therefore, occupation does not extend to territory where such authority is no longer established and cannot any longer be exercised.
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25 Apr

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)] This is the fourth 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. Many thanks to Opinio Juris for inviting me to participate in this symposium. In this post I will seek to contribute to the debate, by considering the argument for a functional approach to the law of occupation from the perspective of the right to self-determination. First, I will comment on why I think it is necessary to address the right to self-determination in the process of interpreting the law of occupation. Geneva Law was created to supplement rather than replace the Hague Law of occupation. As such, there is a basis (following the Vienna Convention on the Law of Treaties) for interpretation of any aspect of the law of occupation to include consideration of both the preservation of sovereign rights (a core rationale of Hague Law) and the protection of civilians (a core rationale of Geneva Law). However, given that both Hague Law and Geneva Law were created before the emergence of the legal right to self-determination, it might be seen as strange to suggest that the right to self-determination should also be considered.  In this respect, a central part of my reasoning is that there is a significant overlap between the right of a people to freely determine their political status and freely pursue their economic, social and cultural development and the right of a sovereign to freely choose and develop its political, social, economic and cultural systems. This overlap entails that application of the law of occupation (particularly provisions such as Article 43 Hague Law, which requires the occupant to take measures ‘to restore, and ensure, as far as possible, public order and safety’ but also stresses that it should do so ‘while respecting, unless absolutely prevented, the laws in force in the country’) is not only a means of helping to preserve meaning in sovereign rights in adverse circumstances, but also a means of preserving meaning in the right to self-determination. On this basis, I think it is reasonable for interpretation of the provisions related to whether and how the law of occupation continues to apply in the Gaza Strip – Article 42 Hague law (‘Territory is considered occupied when it is actually placed under the authority of the hostile army’) and Article 6 Geneva law (‘[the Occupying Power will be bound] to the extent that such Power exercises the functions of government in such territory’) – to include consideration of the implications for the right of the Palestinian people to self-determination.
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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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