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The Binary Approach to Occupation: A Double Bind?

[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).

Is the Gaza Strip Still Occupied by Israel?

[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.

The Functional Approach to the Occupation of the Gaza Strip and the Right to Self-Determination

[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.

Disingenuous ‘Disengagement’: Israel’s Occupation of the Gaza Strip and the Protective Function of the Law of Belligerent Occupation

[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?