Symposium on Occupation Law: Rethinking the Regulation of Occupation in International Law: A Review of Gross’ ‘The Writing on the Wall’

[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 the law of occupation in redressing contemporary realities of foreign territorial control. The book, informed by Gross’ deep involvement in the international practice he documents, addresses a key question that has been posed by civil society about Israel’s occupation: has occupation law become so implicated in Israeli actions aimed at maintaining prolonged rule over Palestinian territory, that the law is now part of the problem? Gross exposes the manipulative application of this special legal regime, and interrogates the structures and political orientation of the law. The book complements the classic works on the law of occupation – including by Benvenisti, Dinstein, and Arai-Takahashi – and provides the ground work for a “rethinking” that may open up transformative possibilities.

Gross claims that occupation law is based on the presumption that occupying states are precluded from dressing up outlawed forms of conquest and exploitation in the “new clothes of the legal and temporary institution of occupation” (p. 21), but that the law of occupation nonetheless lacks the normative safeguards necessary to effectively disincentivize and regulate such actions. Though occupation law was intended as a merely “neutral” standard based on a “factual” approach to the determination and regulation of situations of occupation, Gross maintains that “occupation is not only a fact but a norm.” Its normative content consists of three “prongs”: “non-acquisition of sovereignty,” “management of the territory for the benefit of the local population,” and “temporariness.” (pp. 23-34) Unless occupying states adhere to these premises, foreign territorial control “can, under the cloak of temporariness, lead to […] continued rule by the conquering country, this time in the garb of legitimacy.” (p. 23)

Gross couples this “normative” shift with a “functional” approach to the assessment of the extent of an occupier’s responsibility, which moves beyond the binary question of whether or not an occupation exists and occupation law applies (Chapter 2). Instead, the book is structured by Gross’s distinction between what he dubs the “jus ad occupation” and the “jus in occupation”: the former considers whether an occupation exists and is legal, and the latter regulates the norms concerning the occupier’s conduct. (p. 4)

Limiting my comments to Gross’ framing of the “jus ad occupation” – Chapters 1, 2, and parts of 3 – I offer two reflections intended to further the project of “rethinking” the law of occupation in light of the need to better regulate contemporary situations of occupation in international law. The first pertains to Gross’ “normative approach” and its presuppositions about the regulatory reach and remedial nature of occupation law and its relationality to other bodies of international law. My second point queries whether the “functional approach” Gross advocates can redress the problem of occupation law’s indeterminacy.

The remedial limits of occupation law

Gross’s premise is that if occupation law is to address contemporary abuses, it must be based on a “normative approach.” He adduces support for this approach by arguing that, as an exclusionary legal category, occupation “differs in its nature and legal consequences from conquest” (quoting Graber, p. 29). Gross notes the importance of turning to “other regimes” of international law – on acquisition of territory by force and self-determination of people – if we are to reckon with the limits of occupation law. Indeed, I would argue that occupation law is integrally reliant on other bodies of law to regulate certain consequences outside its scope and to enable its own proper function.

Take for instance the provision in Article 47 of Geneva Convention IV that protected persons shall not be deprived of the benefits of the convention, including through an attempt to annex the occupied territory or change its government. The provision precludes occupiers from opting out of their obligations under occupation law, and maintains the objective applicability of occupation law, irrespective of the occupying state’s positions and actions. But what Article 47 is not, despite having sometimes been misconstrued as such, is a prohibition of annexation internal to IHL. (Its purpose, according to the ICRC’s commentary, “is to safeguard human beings and not to protect the political institutions and government machinery of the State as such.”) The consequence of an occupation that pursues annexation is, rather, an issue of the jus ad bellum: the law on the interstate use of force and its prohibition on the acquisition of territory through force against the territorial integrity and political independence of another state (enshrined in Art 2(4) of the UN Charter), which arguably includes the territorial integrity of an internationally recognised self-determining people. Annexation is a situation that violates the absolute prohibition of territorial acquisition (Jennings 1963). While IHL can function as an indicator for violations of the jus ad bellum – for instance, an occupying power’s changes to local laws may violate IHL, and that violation may also be evidence of unlawful intent to claim sovereignty over the territory – violations of IHL cannot in themselves substantiate a breach of the jus ad bellum prohibition of annexation (or territorial acquisition by force).

The lex specialis of occupation is an inherently interactive body of law that presupposes the concurrent application of the jus ad bellum in situations of occupation to protect against transformative acts. That is, occupation law not only exists within a broader normative environment, but depends for its proper function on the operation of other international law, like the jus ad bellum, to determine the legality of the purpose of the continued use of force to maintain the occupation. It is hard to see how occupation law’s restrictions could serve their intended purpose where the occupier pursues the acquisition of the occupied territory without incurring the consequences for such a breach of the jus ad bellum. The contemporary absolute prohibition on the acquisition of territory by force provides an existential backbone for occupation law. It also enables the vigorous application of the third state responsibility of non-recognition as lawful of an unlawful situation of annexation and its perquisites.

Such an unlawful situation maintained through occupation exposes the limits of the classic axiomatic distinction between jus in bello and jus ad bellum. The consequences of the jus ad bellum is triggered by an occupier’s actions having the intent or effect of annexation or regime change (Giladi and Sloane). Gross does not explicitly discuss the necessity of applying jus ad bellum to respond to such unlawful situations. But the substantiation of this exception could encourage a rethinking of how contemporary occupations are and should be regulated in international law (including through more diligent application of the jus ad bellum), and pre-empt claims that one is making merely aspirational arguments about occupation law.

Gross examines the abusive application of IHRL in time of occupation, arguing that the ”righting” of occupation law through IHRL has permitted occupiers to justify abuses against protected persons in the name of “balancing” their human rights against those of the occupier’s own nationals whom it unlawfully transferred into the occupied territory (Chapter 5). Just as the IHL of occupation law must be predicated on respect for and compliance with the jus ad bellum, as its backbone, the application of IHRL in time of occupation must be predicated on the full implementation of IHL. Here too, it should be noted, another body of law is also highly relevant: the concurrently applicable law on the self-determination of peoples, which places limits on the scope of the occupier’s human rights protection mandate. In this regard, as Carcano affirms, self-determination law interplays with and reinforces the conservationist premise of occupation law.

The effects of an obligation to withdraw

Gross argues that to “reinforce accountability – rather than allow a ‘pick and choose’ situation where the powerful [occupier] chooses the norms convenient for its control” (p. 130) – a “functional approach” is needed to determine the scope of the occupier’s responsibility, based on the extent of its actual control over different domains of life in the occupied territory. His logic seems indisputable: “duties follow from the existence of control, regardless of whether the situation is conceptualized as falling into the category of occupation or of sovereignty” (p. 130).

But a fully adequate assessment of responsibility must necessarily judge not only whether control is being exercised, but also the purpose of that control and its effect on the population under occupation. Such a judgment would need to factor in the legality of the occupier’s casus belli under the jus ad bellum, as well as the obligation to demonstrate a good faith effort to withdraw from the territory for occupiers that violate the jus ad bellum. Gross remarks that the indeterminacy of Israel’s control over Palestinian territory is disguised by a “cherry picked” law of occupation (Chapter 3). To expose this subterfuge and remedy its effects, it is surely necessary to identify the jus ad bellum consequences of Israel’s underlying intent to annex Palestinian territory (as evidenced by e.g. unclassified official Israeli government documents unearthed by Akevot), and its consequent obligation to withdraw from the territory.

A full assessment of the occupier’s responsibility must also address the manner and structures through which it exercises control over the territory. In cases where the genuine local authorities of the occupied territory exercise control over certain domains of life, international law is likely to prohibit an occupier from (re-)asserting its control by ousting local authorities. (p. 133) Yet, when the occupier has wrongfully delegated such authority to de facto authorities such as secessionist movements that depend on the occupying state’s support to further their claims (and who seldom have the best interests of the local population in mind), the occupier may be legally obligated to re-assert and re-centralise control over life in the territory. An occupier whose actions attract an obligation to withdraw is precluded from invoking “security needs” to perpetuate the occupation, and is limited to adopting only necessary measures of protection of the local population pending withdrawal (by analogy, Kretzmer argues the occupier owes only pragmatic minimal obligations to settlers pending their removal).

IHL, quite simply, was never intended to redress exploitative (or colonial) occupations, and has been widely criticised for its plasticity. To call the bluff of an occupation that has become an unlawful territorial situation (Milano) or illegal territorial regime (Ronen), the jus ad bellum must be diligently applied and enforced. Yet, an overreliance on “conflict management” law (IHL and IHRL) in the regulation of occupation has come at the cost of the application of “conflict resolution and prevention” law, and its critical component the jus ad bellum. Scholars and practitioners afflicted with IHL tunnel vision risk rendering occupation law into disrepute. As we take up Gross’s challenge of rethinking the law of occupation, we should not neglect the lex specialis’s integral interaction with the other bodies of law, and seek to better understand the apparent reluctance to apply the jus ad bellum to contemporary predicaments.