Operationalising Functionality: Questioning the Term ‘Functional’

[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.

Bashi recalls that the law of occupation allocates responsibility to the occupier “commensurate with the nature and extent of its control.” We must then ask how this control is to be determined and how it can be ensured that this category is not abused by disingenuous occupiers. In this regard, I recalled, in my initial contribution to this symposium, the distinction between the legal effects of diminishing some control (e.g. in the domain of education), and those of eliminating all responsibility for the occupied territory with the effective termination of the occupation. While an occupier remains at all times responsible for obligations of respect in the domain of education, for example, its obligation to provide specific types of support is based on the extent of its control. For as long as the occupation persists, at no stage or phase of the occupation can the occupier exonerate itself of responsibility for the occupied population as a whole, even if, in practice, it would not be expected to intervene, more than it has at any given time, in the daily affairs that are administered by the local authorities of the occupied territory.

Israel has relieved itself of some control over the territory it occupies, by delegating authority to the Palestinian Authority, and allowing for authority to be exercised by the Hamas authorities in the Gaza Strip. These actions do not, however, absolve Israel, as the occupier, of responsibility. The fact of occupation may continue even if the occupier withdraws its “boots on the ground” from the occupied territory, resulting in a situation of remote/potential control; in this situation, the occupier’s obligations continue. Therefore, although practically speaking, as Bashi notes, the ICRC or UN agencies operating in the occupied Palestinian territory might turn to the Palestinian Authority to demand the fulfillment of certain obligations towards the occupied population, the ultimate responsibility for the functioning of daily affairs in the occupied territory is left with Israel, who continues to wield, either actually or potentially, power there. Israel’s relationship vis-à-vis the Palestinian Authority is one of underlying control and in some regards even micromanagement over many domains of daily life.

Importantly, this understanding of the protective function of the law assumes that given the temporariness of the fact of occupation, and the exceptionality of this regime, the invading army should withdraw from the foreign territory on the first possible occasion. Before such time, the law makes sure to account for the concrete relations of power and space between the occupier, the occupied population and the displaced legitimate sovereign, as Bhuta puts it, in order to ensure that neither the political order in the occupied territory, nor the allegiance or nationalist nexus of the occupied population are altered. While delimiting the occupier’s scope of activity, the law of occupation maintains the occupier’s ultimate responsibility over the territory. As such, the law of occupation imposes maximum responsibility by assuming that an occupied is assumed to be wielding, actually or potentially, maximum control, regardless of the occupation’s duration, until that occupier undertakes its complete and effective termination.

Emphasising the importance of avoiding the occupier’s ‘pick and choose’ approach to the law, Gross recalls the Ethiopia-Eritrea Claims Tribunal 2005 Aerial Bombardment decision. The decision upholds “the position that responsibility actually follows from the exercise of power, implying that the responsibility of an occupier is as great as its power”, an approach that, as he mentions, takes “a position that differentiates between obligations on the basis not of a formalist on/off definition of occupation but rather on the capacity and power exercised by the occupying power.”  It should be noted, however, that the facts of this case differ considerably from the case of Israel in the Gaza Strip. The Aerial Bombardment case concerns the “Eritrean sub-zobas in which Ethiopian armed forces were present only for limited periods, particularly in areas where the troops were passing through on their way to other locations” (paragraph 57 of the Partial Award, 28 April 2004). It therefore contemplated the extent of the obligations that applied to a transitory military presence on foreign territory. The tribunal asks whether the military force in the case amounts to an occupier, and thus applies the test for the onset of belligerent occupation.  Siegrist discusses the Aerial Bombardment decision, and the ICTY’s judgment in Naletilic about varied degrees of control by invading armies, in the context of the ‘functional beginning of occupation’ – the way “the provisions on occupation would become applicable in a progressive manner and in correspondence to the contacts between the local population and the invading troops.”

While these cases are relevant to determine an occupier’s obligations at the onset of an occupation, we are asking whether Israel, which has for a number of decades been a fully-fledged occupier of the Gaza Strip, remains an occupier there after having transferred control in certain domains, voluntarily or not, to local authorities.  These cases are not necessarily helpful or relevant to the case of Israel’s pretension to diminish its responsibility at a certain point, even though it has continued to impose, forcefully, aspects of its control of the territory, in ways that were unchanged throughout its occupation and even after it purported to have ended the occupation.

A logical response to this quandary is that the binary, on/off test for the determination of the responsibilities of a fully-fledged, established occupier is in fact the most functional approach to the application of the law of occupation. While this polarity may seem formalistic and antithetical to a functionalist approach, it is actually a practical necessity. It is needed to safeguard the essential object and purpose of the international law of belligerent occupation: the protection of the civilian population; to maintain the exceptional and temporal elements of the regime of occupation; and to constrain the occupier so as to remain in the occupied territory no longer than is absolutely necessary for its military advantage.

A law made to protect civilian populations in vulnerable situations, is a law that should take a strong stance vis-à-vis the power-wielding actor, the occupier. This protective function of the law of occupation cannot be overemphasized: the law was established for this vital purpose, with the intention to ensure that it is not abused by occupiers. State practice and the many instances of disingenuous occupiers attest to the need to reinforce the law’s protective purpose and ensure its accurate and adequate application. Accordingly, the functional approach should account for genuine diminutions in control and responsibility but also ensure that an occupier is held accountable in case of violations, whilst accounting only for genuine diminutions in control and responsibility. This approach would appropriately begin with the realization that the occupation switch is still on in the Gaza Strip, where Israel continues to exercise many of the same forms of control over life as it did before its ‘disengagement’, albeit today some of this control takes the form of remote or potential control.