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Rethinking Occupation: The Functional Approach

[Aeyal Gross is a Professor at Tel-Aviv University, Faculty of Law.] This is the first post of our Symposium on the Functional Approach to the Law of Occupation. Questions regarding the existence of an occupation, and especially its end, came to the fore in 2004-2005 with Israeli pronouncements about the end of its occupation of Gaza, and UN, US, and UK statements about the end of the occupation in Iraq. In the years that followed, I found myself at various events where the question of whether Iraq or Gaza were still "occupied territories" was discussed, at times seemingly ad absurdum. Seated at a conference on “Occupations and Withdrawals” at the University of Glasgow in 2006 and listening to the discussions around me as to whether those territories were still occupied and whether “boots on the ground” are required for an occupation to exist, I felt I was attending a real life enactment of Felix Cohen’s “Heaven of Legal Concepts,” where legal concepts are “thingified” in a way that Cohen characterizes as “transcendental nonsense.”  [See: Transcendental Nonsense and the Functional Approach (1935)]. Some of the discourse on the existence (or absence) of "occupation" was, I thought, an example of legal analysis ignoring practical questions of value or positive fact. Instead, discussions took refuge in "legal problems" that, according to Cohen, can always be answered by manipulating legal concepts in certain approved ways that bar the way to "intelligent investigation of social facts and social policy." While Israel had removed its settlers and permanent military presence from Gaza, and while the Security Council had proclaimed that the occupation of Iraq was over, the occupying powers continued to exercise extensive control over the daily life of the people residing in these territories. Some of my international law colleagues argued that these territories are no longer occupied, while others disagreed. Listening to this debate,  I began to think that "occupation" should be included in the category Cohen calls “magic solving words” – words that  are actually incapable of solving anything if we remain within the binary on/off framework of the traditional international law of occupation. Article 42 of the Hague Regulations determines that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army” and that “[t]he occupation extends only to the territory where such authority has been established and can be exercised.” The discussions of Gaza and Iraq illustrated to me that by relinquishing some of the control or by transforming it, occupants may attempt to absolve themselves of their responsibility by claiming that the territory is no longer occupied within the framework set out in Article 42. Reflecting upon Cohen’s insights, I recalled that, in his legal realist suggestion, norms should not follow from abstract concepts but rather the opposite. For instance, rather than saying that a labor union can be sued because it is “a person” or “a quasi-corporation,” it should be said that a labor union is “a person” or “quasi-corporation” because it can be sued. Whereas the first approach is one coined in “transcendental” terms by asserting something that sounds like a proposition but cannot be confirmed or refuted by positive evidence or ethical argument, the latter avoids this circularity. To follow Cohen, then, we can address the “thingification” of occupation. As is well known, it is by virtue of the determination that the situation is or is not one of occupation that parties are assigned rights and obligations under international law. But an alternative to reliance on “heavenly legal concepts” and “transcendental nonsense” is  a “functional approach” that, in Cohen’s words, “represents an assault upon all dogmas and devices that cannot be translated into terms of actual experience” and from which “all sorts of empirical decisions are supposed to flow.”  “If the functionalists are correct,” argued Cohen, “the meaning of a definition is found in its consequences.” To apply Cohen’s approach to the law of occupation, then, when we ask whether there is an occupation we should consider whether the liabilities and duties of an occupier should be attached to certain acts. This is an ethical question that cannot be answered in purely legal terms since that would make it circular. Rather, we should consider the ethical character of the legal question and the conflicting human values in every controversy. This approach will prevent occupiers from relinquishing responsibility when control is transformed, and will ensure that as long as an occupying party continues to exercise some degree of control, it will continue to be held accountable. In the functional approach, legal decisions are not “products of logical parthenogenesis born of pre-existing legal principles but are social events with social causes and consequences. Law and legal institutions should thus be appraised in terms of some standards of human values.”