Academic

Six Papers on Occupation

By Lawrence Solum

Here are six papers from the Israel Law Review on Occupation:

Grant T. Harris (Cleary Gottlieb Steen & Hamilton LLP), Human Rights, Israel, and the Political Realities of Occupation (Israel Law Review, Vol. 41, pp. 87-174, 2008):

Various political realities influence the Israeli occupation of the West Bank and the Gaza Strip and, more generally, the vitality of the international law of occupation. The law of occupation-though ill-suited to modern international relations and ill-equipped for prolonged occupation-has been almost universally invoked as applicable to the Occupied Palestinian Territory (OPT). At the same time, international human rights law is increasingly viewed as applicable to occupation. This creates a dilemma for Israel because international humanitarian law and international human rights law contain conflicting prescriptions and policy goals with respect to the administration of occupied territory. In many instances, occupants seek United Nations Security Council action in order to reconcile this tension and to secure legal and political cover for their actions. By acting under Chapter VII of the United Nations Charter, the Security Council can create a select legal patchwork applicable to a particular occupation. This use of Chapter VII resolutions by the Security Council to create international law by fiat is an important trend in modern occupation. Yet geopolitics determines access to-and the content of-such resolutions, and the sensitive political context of the OPT currently makes this avenue unavailable to Israel. For the same reason, opponents of the Israeli occupation are unable to secure Security Council action to clarify and enforce Israeli legal obligations in the OPT. This Article considers these issues from the perspectives of both Israel and Palestinians in order to examine why the relative gain and loss in each case is not immediately clear. This Article also discusses how the legality of Israeli conduct in the OPT may be gauged in light of the conflicting international legal obligations imposed by human rights law and the law of occupation. A broader exploration of the impact of these phenomena reveals that these political realities serve to increase the influence of the Security Council while further undercutting the utility and relevance of the international law of occupation.

Martti Koskenniemi (University of Helsinki - Faculty of Law), Occupied Zone - 'A Zone of Reasonableness'? (Israel Law Review, Vol. 41, pp. 13-40, 2008):

The vocabulary of "reasonableness" invokes a wide margin of discretion that is often needed to temper the excessive rigour of legal rules and to deal with the inevitable problems of over- and under-inclusion associated with application of formal law to individual cases. The acceptability of the use of discretion by a law-applying institution such as the Israeli High Court of Justice is based on the assumption that its preferences and moral sensibilities are broadly reflective of the preferences and sensibilities of the community in which it exercises its jurisdiction. When jurisdiction is exercised in conditions of occupation, however, such consensus cannot be easily presumed. On the contrary, recourse to moral pathos by an institution of the occupying power will appear to normalize its jurisdiction and add an element of hypocrisy to the felt illegitimacy of its possessing jurisdiction in the first place. Moreover, it will undermine the moral and political significance of the fact of the occupation, even diminishing the urgency of bringing it to an end.

Yael Ronen (Minerva Center, Faculty of Law, Hebrew University of Jerusalem), Illegal Occupation and its Consequences (Israel Law Review, Vol. 41, pp. 201-245, 2008):

This Article explores the grounds and consequences of illegal occupation. It proposes that an occupation may be considered illegal if it is involves the violation of a peremptory norm of international law that operates erga omnes, and is related to territorial status. Accordingly, illegal occupations are primarily those achieved through violation of the prohibition on the use of force and of the right to self-determination, or maintained in violation of the right to self-determination. This examination forms the basis for a systematic analysis of specific occupations that have been declared illegal by U.N. organs. The second part of the Article addresses the consequences of an occupation's illegality, in view of the political and legal objectives of determining such illegality. It considers the international responsibility for an illegal occupation; the obligation of non-recognition and the law applicable to an illegal occupation; and the right to self-defense. The Article concludes by commenting on the role of "illegal occupation" as a category under international law.

Rotem Giladi (University of Michigan at Ann Arbor), The Jus Ad Bellum/Jus in Bello Distinction and the Law of Occupation (Israel Law Review, Vol. 41, pp. 246-301, 2008):

This is a preliminary inquiry into the application to occupation law of the distinction between jus in bello (or IHL) and jus ad bellum. Under current doctrine, the two are mutually exclusive: the former applies irrespective of the "nature or origin of the armed conflict or the causes espoused by the Parties." I argue that occupation law, although generally considered part of IHL, is intrinsically less susceptible to a strict application of the distinction.

Exploring its pedigree, meaning, and rationale, the paper notes the distinction's scant, soft Conventional expression and brief history, but also its fundamental character and the broad scope attributed to it under contemporary IHL. Although the distinction sometimes fulfill important humanitarian functions in occupied territories, occupation law-in regulating overnance of territory-differs from ordinary IHL norms; this and other differences render the strict application of the distinction to occupation law, whose key norms often depend on jus ad bellum references to the "nature, origin and causes" of armed conflict, impossible. The last part of the Paper calls for a more nuanced approach to the application of the distinction to occupation law and identifies some of its contours. Such an approach can enhance the efficacy of occupation law and facilitate fulfillment of the two different functions of occupation law: protection of individuals and the maintenance of international peace and security. The Paper concludes with preliminary observations on the roles and powers, under both jus ad bellum and jus in bello, of the Security Council with regard to occupied territories.

Noemi Gal-Or (Kwantlen Polytechnic University), Suspending Sovereignty: Reassessing the Interlocking of Occupation, Failed and Fragile State, Responsibility to Protect, and International Trusteeship (Lessons from Lebanon) (Israel Law Review, Vol. 41, pp. 302-330, 2008):

This Paper argues that the traditional international legal discourse on occupation fails to reflect the condition of international relations, and their governability by international law, at the turn of the 21st century. This Paper suggests re-conceptualizing the concept of occupation by linking it to the discourse of failed and fragile states and the responsibility to protect. A contemporaneous understanding of occupation needs to reflect its transforming relationship to sovereignty. Occupation represents a state of interference with the external aspect of sovereignty, which ultimately infringes also on the state of internal sovereignty. In contemporary world politics, occupation arises also from a chain of successive situations interfering with sovereignty wherein internal sovereignty becomes "vitiated" ("failed and fragile state"), and creates a condition conducive to interference with external sovereignty. The outcome of this order of impingements on sovereignty represents a state wherein sovereignty was suspended.

The condition of suspended sovereignty triggers the new norm of the responsibility to protect. This Paper submits that re-vitalization of the concepts of leasehold and trusteeship offers an elegant, perhaps face-saving outlet, hence potentially constructive approach to empower the failed and fragile state in re-establishing its sovereign plenary control over its territory and ending an occupation-like situation.

The analysis of the Lebanese situation is an example of the arguments raised in this Paper and does not fit the traditional post World War II (WWII) occupation legal mould for neither belligerent nor non-belligerent occupation. The complex inter-state relationship linking Lebanon-Syria-Iran-Israel, and which is intricately interlaced in a state-to-non-state actor (NSA) web as played out in the relationship between Israel-South Lebanon Army on the one hand, and between Iran, Syria and Lebanon-Hezbollah on the other hand, serve to illustrate the new 21st century conditions. These conditions press for an updating of the traditional understanding of occupation.

Tristan Ferraro, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities (Israel Law Review, Vol. 41, pp. 331-357, 2008):

A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporary forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power.

Yuval Shany (Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology), Binary Law Meets Complex Reality: The Occupation of Gaza Debate (Israel Law Review, Vol. 41, pp. 68-86, 2008):

The debate surrounding the legal status of Gaza after Israel's disengagement in September 2005 exemplifies some of the chronic limits and deficiencies that international humanitarian law in general and the law of occupation in particular suffer from: (a) binary application-the law operates within clear-cut dichotomies and struggles with recognizing ambiguous situations; (b) varying realities-prevalent tensions between "legal reality" and the actual conditions "on the ground" cause the characterization of conflicts to be based upon different law-based and fact-based perceptions of reality; (c) inconsistent legal and policy approaches-parties to a conflict attempt to simultaneously advance different legal and political goals, which leads to a state of affairs that encourages the application of IHL in a selective and inconsistent manner; (d) chronic gaps between law as it is and law as it should be-lex lata may bring about unsatisfactory outcomes-hence, parties and commentators often attempt to modify existing laws through radical reinterpretations. Focusing on the recent debate over the status of Gaza, this Article illustrates how these four fundamental tensions hamper the application of the law of occupation in factually complicated situations.

Full post as published by Legal Theory Blog on November 06, 2008 (boomark / email).