Framing Prolonged Occupation

[David Hughes is the Alex Trebek Postdoctoral Fellow at the University of Ottawa, Faculty of Law.]

Late last month, Ireland formally declared that Israel’s policies in the West Bank amounted to “de facto annexation.” The Dáil Éireann, the lower house and principal legislative chamber of the Irish Oireachtas (“parliament”), debated a motion that had been tabled by the main opposition party, Sinn Féin, but that would be adopted the following day with cross-party support. Ireland’s Minister for Foreign Affairs and Minister for Defense Simon Coveney from the center-right Fine Gael party told the Dáil that

the scale, pace and strategic nature of Israel’s actions on settlement expansion and the intent behind them have brought us to a point where we need to be honest about what is actually happening on the ground. We need to call it out for what it is. It is de facto annexation. This is not something that I or this House say lightly. We are the first E.U. member state to do so, but it reflects the huge concern we have about the intent of the actions and, of course, their impact.

Though the motion was motivated by the recent conflict in Gaza, the parliamentary exchange accentuated the structural causes of the occupation. The motion recalled Israel’s assumed control of the territories in 1967. It denounced the illegality of settlements, land appropriation, the consequences of the separation wall, and the forced displacement of Palestinian communities. International law informed much of the debate. Often this assumed a familiar tenor, found and repeated in the litany of denunciations periodically issued by foreign ministries, U.N. organs, and NGOs in response to Israel’s occupation policies. But the Dáil motion’s purposeful use of “de facto annexation” to describe Israeli activities is notable.

This is not simply because the Dáil’s framing made Ireland the first state to declare that Israel has annexed territory otherwise understood as occupied. The conceptual shift that informed the Irish pronouncement finds its antecedents in the International Court of Justice’s Wall Opinion which described the construction of a separation barrier as amounting to a fait accompli that threatened permanence and would thus constitute de facto annexation. More recently, in March, 400 European Parliamentarians urged E.U. governments to push President Biden to resist the “rapidly progressing de facto annexation” that had been facilitated by the previous U.S. Administration. These choices to frame Israel’s actions in the West Bank as annexation reflect mounting dissatisfaction with how we talk about the conflict and conceptualize Israel’s seemingly permanent control of Palestinian lives and land. The significance of the Dáil’s motion vests in its recognition that how we describe this form of control matters.

This is because one of the many tragedies of prolonged occupation is that it allows the world to forget. Today, recent events in the Middle East command the international community’s attention. But the legal framework applied to regulate occupation has become a placeholder, a tolerable status quo, in the absence of a durable solution. When the most recent episode of violence ends, a form of normality will return. The law of occupation is intended to recognize exceptional situations but this tolerable normality that blankets prolonged occupation resigns the international community to merely manage the features of the occupation but fail to fundamentally address their causes. Emphasizing annexation enables the international community to advance a bright-line rule—the prohibition of the acquisition of territory by force—that has motivated many of the most decisive international interventions into instances of prolonged or permanent foreign control. To disrupt a status quo that can facilitate indefinite occupation, this amended framework is better positioned to unambiguously reflect that international law discounts permanence and demands termination.

Beyond the Law of Occupation

The Fourth Geneva Convention was intended to supplement the 1907 Hague Regulations by offering a modern articulation of the rights, obligations, and protections that extend to both an occupying power and an occupied population. However, almost immediately upon adoption, scholars began identifying inconsistencies between the form that modern occupations assumed and how international law conceptualized instances of foreign control. These inconsistencies were most pronounced in relation to prolonged occupation. Writing thirty years ago and motivated by the then “exceptional duration” of Israel’s occupation of the Palestinian Territories, Adam Roberts asked “to what extent are international rules formally applicable, and practically relevant, to a prolonged military occupation?”

Attempts to reconcile the law of occupation with the realities of prolonged occupation have traditionally divided between management and illegality. The management approach is most prevalent. The manager accepts that an occupation’s character does not affect the application of the law of occupation. As I have written elsewhere, the manager attempts to more effectively interpret the law of occupation to mitigate the results but not the cause of prolonged occupation. This has, by default or by design, served to entrench features of an occupation regime. Dissatisfaction with the resulting regime prompts the illegality approach. This reflects not only that the law of occupation fails to adequately conceptualize the realities of many forms of occupation but also a sense that an occupying power is using the guise of occupation to mask an iniquitous form of control that threatens quasi-permanence. The illegality approach identifies the normative purpose of the occupation framework and declares that if the occupation becomes something other than temporary control that preserves sovereign entitlement and protects humanitarian interests it surrenders formal legitimacy and becomes legally wrongful.

The mounting conditions that prompted pivots to a management or an illegality approach reflect the sense that the law of occupation inadequately conceptualizes contemporary conditions. As successive Israeli Governments verged rightward and iterated their commitment to frustrate Palestinian statehood, additional articulations have been advanced in a similar vein. Increasing appeals to the concepts of settler colonialism and apartheid now structure strands of the academic literature, legal analysis, and popular discourse about the conflict. Effectively, these hold that the form of control that Israel now exercises within the Palestinian territories constitutes the type of hierarchical domination described by Albert Memmi and that amounts to a means of reducing or dispossessing the indigenous population.

The desire to supplant the law of occupation with a framework that purportedly offers a more accurate representation of reality often tells of the user’s political or discursive objective. But it also reflects the incompleteness of the law of occupation. Neither the relevant doctrine nor the leading treatises on this body of law provide firm guidance on precisely when an occupation’s termination is required. The lack of prescribed specificity within this body of law is in part due to the fact that the concept of prolonged occupation was not envisioned when the law of occupation was written as a means of rejecting conquest and the sovereign claims that followed debellatio. So here, the law of occupation, as with various areas of IHL, presents in open-textured ways that fail to provide desired specificity (take the principle of proportionality as another example). To protect against aggravating the resulting indeterminacy, we can emphasize the norms and principles that inform this body of law. But the ways that we communicate these norms and principles can affect international law’s persuasive capacity.

Framing in International Law

The ways in which legal argument is presented can affect how actors perceive or respond to a particular phenomenon. Social scientists have shown that framing can influence the ways that individuals and groups deliberate by affecting the importance that they assign to certain beliefs. The process of issue framing occurs when an argument is constructed to emphasize a particular consideration that is intended to move the recipient. The effectiveness of this argument, termed the framing effect, is realized when by “describing an issue or event, a speaker’s emphasis on a subset of potentially relevant considerations causes individuals to focus on these considerations when constructing their opinions.” It follows, as politicians, trial lawyers, and marketing executives have long recognized, that an argument’s form dictates its reception.

This extends to international legal appeals. Anne van Aaken and Jan-Philip Elm have documented how experimental evidence demonstrates the salience of issue framing to advance an international legal argument. We see that states are more likely to act within the international sphere when efforts to induce action appeal to a broadly held belief or value. This manifestation of the framing effect is observed in relation to efforts to combat human trafficking. Volha Charnysh, Paulette Lloyd, and Beth Simmons demonstrate that within the General Assembly, consensus formation made binding agreements more likely when the issue of trafficking was framed as a common threat linked to transnational crime as opposed to a human rights issue. Overall, we see repeatedly in practice and in social science literature that often the most effective means of motivating a consensus-based response is not by convincing actors to alter their position or adopt new values but by activating the preexisting positions that those states firmly hold. In conclusion, I suggest that an array of state practice demonstrates that the international community is most animated when responding to instances where annexation threatens the norm prohibiting the acquisition of territory by force. Accordingly, arguments regarding Israel’s nearly 54-year “temporary” occupation as now amounting to de facto annexation advances a norm that has more effectively compelled states to push for territorial withdrawal. This framing may now be better positioned to motivate the international community to abandon their passivity towards prolonged occupation and push for the conditions that can lead to a just resolution to the conflict.

From Occupation to Annexation

Appeals to first principles, foundations of the post-War order that receive unambiguous and uncontroversial legal endorsement, carry persuasive weight. Former U.N. Secretary-General Javier Pérez de Cuéllar contended that for international law to more effectively govern interstate relations, it must keep pace with change, evoke shared understandings, and derive from the morality of international behavior. The international community becomes most animated when it understands that a state’s activities amount to annexation, that they constitute territorial acquisition.

Consider the following example: when Iraq invaded Kuwait in 1990, the Security Council immediately imposed sanctions. While the delegates from Canada and Zaire referenced the illegality of the invasion and occupation of Kuwait, the ten states that sponsored Resolution 661 repeatedly held that sanctions were a direct response to Iraqi aggression and the use of force. When, days later, Iraq formally annexed Kuwait, the Security Council passed Resolution 662. Though this again noted the Council’s determination to end the occupation, it made clear that the action of annexation had no legal validity, was considered null and void, and that all states were obliged to deny recognition of Iraq’s territorial claim. More tellingly, during the Council debate, participating states repeatedly emphasized the illegality of the annexation. The United States, Ethiopia, Malaysia, and Finland separately recalled historical acts of annexation, in the Rhineland, the Sudetenland, and the Polish corridor to caution against repeating past acquiesces to territorial acquisition. The Chinese representative conveyed what was the unanimous position of states, that “annexation of a sovereign state constitutes a gross violation of the U.N. Charter and the basic norms governing international relations, and therefore cannot be allowed.” Similarly, when the Security Council authorized members to “use all necessary means” to ensure Iraq’s withdrawal from Kuwait, the Canadian Foreign Minister linked the Council’s vote to the purposes of the United Nations itself: “to prevent, or to reverse, the most blatant and dangerous of international offences – the acquisition of force of another country’s territory…”

Not every instance of imposed foreign control evokes as extensive a reaction. Equally, it would be naive to suggest that simply framing a prolonged or illegal occupation, as annexation would invoke the same sentiment that motivated the international response to Iraq’s invasion of Kuwait. Clearly, political and strategic calculations affect determinations. In relation to Israel’s control of the Palestinian territories, it may be assumed that a conceptual shift from occupation to annexation would be resisted by Israel’s allies, by states that remain deeply invested in the negotiation process, or by those whose own conduct may, in turn, be implicated. Political realities cannot be discounted when assessing international law’s effectiveness. However, such political realities may also be understood as evidencing the effectiveness of advancing a de facto annexation framework. David Kretzmer and Yaël Ronen have recently shown, that Israel’s reluctance to formally annex the West Bank has, at least in part, been due to a fear that such action would antagonize the international community, especially the Western democracies whose support Israel otherwise relies upon to block formal criticisms within international fora.

This reluctance is warranted. The prohibition on the acquisition of territory by force has repeatedly proven to be perhaps the most consequential international norm of the post-War legal order. Israel’s de jure annexations of East Jerusalem and the Golan Heights were forcefully denounced and denied recognition by the international community. Years later, when the Trump Administration signaled its openness to Israel’s sovereign pronouncements, the international response was decisive. The General Assembly—with opposition from only nine states—adopted a resolution denouncing the Trump Administration’s recognition of Israel’s claim to Jerusalem. The resolution began by reaffirming the inadmissibility of the acquisition of territory by force. When every other member of the Security Council firmly rejected the U.S. recognition of Israel’s claim to the Golan, each member grounded their denunciation in the non-acquisition principle and emphasized the central place that this norm assumed within their respective foreign policies. Finally, when amidst a series of recurring election cycles, Israeli officials set a deadline to begin annexing large swaths of the West Bank in accordance with the so-called Trump Peace Plan, Israel’s ambitions were rejected by the European Union, U.N. officials, and numerous states. These denunciations were forceful. They carried the threat of sanctions and the promise of non-recognition. By emphasizing that Israel’s proposed policy amounted to an unacceptable departure from the status quo, that it openly amounted to annexation, the international response went beyond the familiar criticisms of the occupation that are habitually advanced by many of the same actors.

The international community has long found solace in the status quo. While a durable resolution remains elusive, observers have become resigned to a form of normality that tolerates the concept of indefinite occupation. No prospect for withdrawal but no threat to the normative structure of the international order. Israel too has welcomed this deferral. The recent coalition agreement between disparate parties from all sectors of Israel’s political map is premised on avoiding engaging with decisive issues, like the conflict or occupation, that would instantly fracture the fragile nascent government. This effectively continues a trend of obfuscation and deferral that began when the Likud achieved electoral dominance and accelerated settlement expansion in 1977, it continued when Yitzhak Shamir said he would prolong autonomy talks for a decade so Israel could settle a half a million people in the West Bank, and it occurred when Ariel Sharon’s cabinet accepted the Bush-era Road Map for Peace but peppered the resolution with reservations to preclude its implementation. The dissatisfaction that results from this status quo is understandable and the international community’s acquiescence of prolonged occupation should be challenged. As new frames are offered to conceptualized Israel’s control of the Palestinian territories, and as these vie for discursive dominance, it is worth recalling what the Irish motion implicitly recognized—that state practice shows that it is not the legal regime of occupation that motivates the international community’s calls for unconditional withdrawal. It is an enduring commitment to the principle prohibiting the acquisition of territory by force. As international attention inevitably ebbs following a return to the normality of occupation, we would be wise to advance and frame legal arguments that reflect this preference.