Are You Occupied With "Occupation"?

Avinoam Sharon's Why Is Israel’s Presence in the Territories Still Called “Occupation”?

Executive Summary

* When an armed force holds territory beyond its own national borders, the term “occupation” readily comes to mind. However, not all the factual situations that we commonly think of as “occupation” fall within the limited scope of the term “occupation” as defined in international law. Not every situation we refer to as “occupation” is subject to the international legal regime that regulates occupation and imposes obligations upon the occupier.

* The term “occupation” is often employed politically, without regard for its general or legal meaning. The use of the term “occupation” in political rhetoric reduces complex situations of competing claims and rights to predefined categories of right and wrong. The term “occupation” is also employed in the context of the Israeli-Palestinian conflict to advance the argument that Israel bears ultimate responsibility for the welfare of the Palestinians, while limiting or denying Israel’s right to defend itself against Palestinian terror, and relieving the Palestinian side of responsibility for its own actions and their consequences. The term is also employed as part of a general assault upon Israel’s legitimacy, in the context of a geopolitical narrative that has little to do with Israel’s status as an occupier under international law.

* Iraq was occupied by the Coalition forces from the spring of 2003 until June 28, 2004, at which time authority was handed over to the Iraqi Interim Government. At that point, Coalition forces remained in Iraq, but Iraq was no longer deemed occupied. If handing over authority to a Coalition-appointed interim government ended the occupation of Iraq, would the same not hold true for the establishment of the Palestinian Authority and Israel?

* Under the Interim Agreement between Israel and the Palestine Liberation Organization of September 28, 1995, it would seem that at least those areas placed under the effective control of the Palestinian Authority, and from which Israel had actually withdrawn its military forces, could no longer be termed “occupied” by Israel. Moreover, since the continued presence of Israeli troops in the area was agreed to and regulated by the Agreement, that presence should no longer be viewed as an occupation.

* The withdrawal of all Israeli military personnel and any Israeli civilian presence in the Gaza Strip, and the subsequent ouster of the Palestinian Authority and the takeover of the area by a Hamas government, surely would constitute a clear end of the Israeli occupation of Gaza. Nevertheless, even though Gaza is no longer under the authority of a hostile army, and despite an absence of the effective control necessary for providing the governmental services required of an occupying power, it is nevertheless argued that Israel remains the occupying power in Gaza.

and here is the whole section to which many of my commentors relate:

The Israeli Occupation – 1967 22

Occupation in the Absence of Prior Sovereignty

In June 1967, in the aftermath of the Six-Day War, Israeli military forces held territories beyond its pre-war borders.23 These territories comprised the Sinai Peninsula, Gaza Strip, Golan Heights, and the West Bank. Under customary law, the Israeli military presence in the Sinai Peninsula and the Golan Heights clearly constituted occupation in the legal sense.24 The Sinai Peninsula had been under Egyptian sovereignty and the Golan Heights had been under Syrian sovereignty.25 The situation was not as clear in regard to the Gaza Strip, over which Egypt did not claim sovereignty and which it held under a military government,26 and the West Bank, over which the Jordanian assertion of sovereignty did not gain international recognition.27 The status of these two areas has been the source of much debate both in Israel and in the international community.

Upon the assumption of control of the territories, Israel had to make a decision as to the applicable law. There were several reasons for Israel not to wish to view the captured territories as occupied, and therefore subject to the provisions of the Fourth Geneva Convention. From a legal standpoint, Israel took the view that in the absence of a prior sovereign, Israel’s control of the West Bank and Gaza did not fall within the definition of “occupation” inasmuch as a fundamental premise of the law of occupation – a prior legitimate sovereign – was lacking.28

Israel’s argument concerning the de jure application of the law of occupation did not, however, deter it from declaring its intention to act in accordance with customary international law and the humanitarian provisions of the Fourth Geneva Convention, or from adhering to those rules in practice.29 This intention seems consistent with the view of Blum:

The conclusion to be drawn from all this is that whenever, for one reason or another, there is no concurrence of a normal “legitimate sovereign” with that of a “belligerent occupant” of the territory, only that part of the law of occupation applies which is intended to safeguard the humanitarian rights of the population.30

Under the circumstances, one might reasonably ask why Israel insisted upon making the distinction between the de jure force of the Fourth Geneva Convention and its de facto application. There would appear to have been a number of political considerations that argued in favor of making the distinction, and arguing against the automatic application of the Fourth Geneva Convention. First, as Shamgar points out:

[A]utomatic application of the Fourth Convention would create unintentionally a change in the political status quo by according to Egypt and Jordan, which had occupied the Gaza Strip and the West Bank respectively in consequence of the invasion of 1948, the standing of an ousted sovereign whose reversionary rights have to be respected and safeguarded. Since the whole idea of the restriction of powers of the military government by the Convention is based upon the assumption that there is a sovereign who was ousted and that he has been a legitimate sovereign, the automatic and unqualified application of the Convention could have enhanced the legal rights of Egypt and Jordan, and this, paradoxically, from the date of the termination of their military government.31

Second, saying that the territories were occupied by Israel “could conceivably be interpreted as a renunciation of sovereign rights by Israel to the areas. After all, one does not ‘occupy’ one’s own territory, and one most certainly is not bound therein by the International Law of Belligerent Occupation.”32 Third, in light of the above, saying the territories were occupied by Israel could be construed as acceptance of the 1949 ceasefire lines as international borders.

Thus, the primary difference of opinion between Israel and the International Committee of the Red Cross (ICRC) concerning the Fourth Geneva Convention centered on the question of formal applicability. Interestingly, the ICRC’s argument for the applicability of the Fourth Geneva Convention did not rely upon a rejection of Israel’s legal interpretation of the definition of “occupation” in customary law. Rather, the position of the ICRC focused entirely on the interpretation of Article 2, which reads:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

As Shamgar explains:

The Article apparently refers to three alternative situations: (a) Peacetime; (b) Cases of armed conflict; (c) Cases of occupation. The first question is whether the first and second paragraphs of Article 2 are concurrent and complimentary or disjunctive, namely, whether the first paragraph lays down the lex generalis in relation to the extent of the application, which impliedly refers not only to all possible forms of an armed conflict but also to all secondary results and developments and inter alia to military occupation, comprising ex abundante cautela the one described expressis verbis in the second paragraph; or whether, alternatively, there is no linkage between the two paragraphs and each has to be read and interpreted separately and independently, the first paragraph dealing with armed conflicts, except military occupation, and only the second paragraph referring to the occupation of territory.

If the paragraphs are independent and not of a cumulative effect, and only the second paragraph defines the extent of the application to occupied territory, the one and only conclusion arising is that the Convention applies merely to the occupation of the territory of a High Contracting Party and not generally to territories held under military occupation. It seems, as a prima facie corollary, that not each and every occupation of territory turns it into territory to which the Convention applies.33

In other words, it was and remains the view of the ICRC that the Fourth Geneva Convention applies to all forms of armed conflict, and the question of whether or not a particular territory is “occupied” in the legal sense is irrelevant to the question of the application of the Convention’s provisions.34

Indeed, there is much to be said in favor of the interpretation advanced by the ICRC. Primarily, the view that the Fourth Geneva Convention applies to all conflicts is consistent with the shift in focus from states to people. If the purpose of the Convention is to protect people, the legal status of the source of the threat to their safety and well-being should not make any difference.

Of course, that statement is far too broad, and it is unlikely that the community of nations would accept a statement of obligation that threatens so severe an infringement of sovereignty. While limiting that broad protection only to persons threatened by a conflict of an international character may appear to resolve the issue of a threat to sovereignty, Israel’s concerns in regard to the question of sovereignty over the West Bank and Gaza demonstrate that the issue is not so easily resolved. It is not, I think, easy to maintain the argument that a state will agree to the automatic assumption of the political obligations imposed under international law toward a belligerent party in a conflict over territory that the state claims as its sovereign territory.

Moreover, we must bear in mind that to the extent that we are not concerned with the application of customary law, but rather with the construction of a provision of conventional law, care must be taken to respect the intention of the parties. In regard to the second paragraph, the ICRC itself admits: “The wording of the paragraph is not very clear, the text adopted by the Government Experts being more explicit.”35 But more explicit language was not adopted. While the ICRC’s opinion may be persuasive, it is neither definitive nor constitutive. Ultimately, the parties to a convention cannot be expected to assume obligations beyond those originally contemplated by them. In ratifying a convention, a state does not relinquish its sovereign power to the ICRC. Moreover, in the absence of any example of a state actually acting in accordance with the interpretation of the ICRC in this regard, the ICRC’s view, however laudable in theory, is not the view accepted by the community of nations in practice.

A similar view to that of the ICRC is expressed by Bothe: “The unclear status of an occupied territory does not prevent the applicability of the rules of belligerent occupation. The application of humanitarian law cannot be made to depend on such legal niceties as the recognition of legal titles to territory.”36 As high sounding and convincing as these statements may appear at first glance, it is worrisome that anyone might think that a source of conflict, wars and bloodshed can be swept away as “legal niceties.” But even if we ignore the unfortunate choice of words, the statement remains problematic. Its acceptability is largely dependant upon what is meant by the notoriously slippery term “humanitarian law.” If the author’s intention is to say that the humanitarian provisions of the Fourth Geneva Convention should be applied to all conflicts, then the Israeli case provides a supporting precedent for this view. However, if by humanitarian law we mean something broader, e.g., the rules of international law deriving from the Hague and Geneva Conventions, or the international law of armed conflicts, or even the Fourth Geneva Convention in its entirety, then arguably, the “legal niceties” may present a serious stumbling block to the acceptance of a view that might impose international standards and political obligations upon what a state may deem as a purely internal matter.

As opposed to the approach that seeks to broaden the application of the Fourth Geneva Convention by extending it to all de facto situations of occupation, and on that basis argues for the de jure application of the Convention to the territories administered by Israel, others have challenged Israel’s de jure position that it is not an occupier. The basis of this approach is similar to that of the ICRC in that it focuses upon the issue of hostilities and deems the question of sovereignty to be irrelevant, but it differs in a fundamental way. While the view of the ICRC is that the question of sovereignty is irrelevant inasmuch as humanitarian concerns should not be contingent upon whether a situation constitutes an occupation, this approach argues that the question of sovereignty is not relevant to the definition of occupation. The problem with this approach is twofold: First, it seeks to define occupation without regard for its underlying premise. Second, it seeks to redefine a concept of customary law without regard for the actual customs and usages of nations.

Thus, although the commonly accepted view would seem to be that Israel became the belligerent occupant of the West Bank and Gaza in June 1967, maintaining that view seems to require redefining the customary concept of occupation without regard for custom.

As opposed to this, some authors refer to Israel’s presence in the territories as conferring upon Israel a status “no more than,” “no better than,” or “at the very least,”37 that of a belligerent occupant, or not conferring “any status beyond”38 that of a belligerent occupant. This approach is employed in the context of the question whether or not Israel is obligated to apply the Fourth Geneva Convention, and in refutation of a potential Israeli claim to sovereignty. In the former case, it is, in essence, a moral argument that the issue of prior sovereignty should not be relevant to the granting of humanitarian protection to the civilians affected by hostilities or under military rule, and is not unlike the ICRC’s argument. The latter case concerns the premise that sovereignty over territory cannot be acquired by force of arms, and concerns the issue of whether the non-existence of a prior lawful sovereign bestows upon a belligerent party any greater claim to sovereignty vis-à-vis the territory by virtue of the lack of a competing claim. Neither of these approaches concerns the question of whether or not Israel is an “occupier.”

When examined solely in terms of the meaning of the term “occupation” in international law, it would appear that Israel never occupied the West Bank or Gaza. It is another question entirely whether this means that the Fourth Geneva Convention does not automatically apply, or whether this consideration is irrelevant to the application of the Convention. Regardless of the answer to that question, it would appear that the West Bank and the Gaza Strip are erroneously referred to as “occupied territory” as a result of their capture in Six Day War, and their subsequent administration by Israel.

Notes:

22. This jump from 1949 to 1967 reflects an apparent lack of developments in the area of occupation during this period. This lack of development does not mean that there were no situations that might have warranted being termed “occupation.” In the context of this study, it is interesting in light of the Egyptian presence in Gaza and the Jordanian presence in the West Bank during this entire period. Indeed, these situations tend to receive little notice, if mentioned at all, in discussions of the subject of occupation, even in the context of the Arab-Israeli conflict. Thus, for example, in his discussion of Occupation after Armistice, Michel Bothe states: “Examples are the German occupation of parts of France after the armistices of 1871 and 1940, the Allied occupation of Italy after the armistice of 1943 and the occupation of Syrian (Golan Heights), Egyptian (Sinai Peninsula) and Jordanian/Palestinian (West Bank) territories by Israel after the ceasefire in 1967 and after the disengagement agreements following the Yom Kippur War in 1973.” Michael Bothe, Occupation after Armistice, in III Encyclopedia of Public International Law, 761 (1992). Indeed, although the Egyptian occupation of Gaza and the Jordanian occupation of the West Bank and East Jerusalem are mentioned (e.g., at p. 1483 and 1489) in Peter Malanczuk’s comprehensive article Israel: Status, Territory and Occupied Territories, we find statements like “The Gaza Strip, which had been administered by Egypt from 1948 to 1967 without raising any claim to title to the territory, has since remained under Israeli military occupation” (p. 1484) (emphasis added), and that the Al-Hammeh region was “then under Syrian administration and now under Israeli occupation” (p. 1485) (emphasis added). Peter Malanczuk, Israel: Status, Territory and Occupied Territories, in II Encyclopedia of Public International Law, 1468 (1992). While it would not seem that the author intends any legal implication by this choice of words, it does appear to reflect the legal community’s lack of interest in examining the legal nature of those “administrations.” The then nine-year-old Egyptian occupation of Gaza and Jordanian occupation of the West Bank also receive no mention in Glahn (1957).

23. I refer to “pre-war borders” bearing in mind that the borders between Israel and the adjacent Arab states did not have the status of recognized international borders, but rather constituted ceasefire lines established between Israel and her neighbors under the 1949 Armistice Agreements between Israel and Egypt, Transjordan, Syria and Lebanon.

24. Farhy, Current Trends in the Areas Administered by Israel, 113 Mil.L.Rev. 47, 50 (1986).

25. The questions related to the legal status of the extension of Israeli law to the Golan under the Golan Heights Law, 1981, and to the transfer of sovereignty over the Golan to Syria as a result of the Franco-British Convention on Certain Points Connected with the Mandates for Syria and the Lebanon, Palestine and Mesopotamia, 1920, go beyond the limited scope of this article. For a discussion of the historical background, see Y. Meron, The Golan Heights, in Meir Shamgar, ed., Military Government in the Territories Administered by Israel 1967-1980 (1982) 85.

26. See Carol Farhi, On the Legal Status of the Gaza Strip, in Shamgar, ibid., 61, 74 ff.

27. See, Malanczuk, supra n. 22, 1490; Blum, supra n. 16, 289-290.

28. Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government – The Initial Stage, in Shamgar, supra note 25, 13, 31 ff.; Blum, supra note 15, 289 ff.

29. Shamgar, supra note 25, 32; Farhy, supra n. 23, 50; Yoram Dinstein, The International Legal Dimensions of the Arab-Israeli Conflict, in Kellerman, Siehr, Einhorn, eds., Israel Among the Nations, 137, 150-51(1998). For a review of the official Israeli position on the application of the Hague Regulations and the Fourth Geneva Convention and the position of the Israeli Supreme Court, see Nissim Bar-Yaakov, The Application of the Law of War to the Administered Territories, 18 Mishpatim 831 (1990) (the article is in Hebrew, however the statements of Israel’s official position are quoted in English).

30. Blum, supra n. 16, 294.

31. Shamgar, supra note 28, 37.

32. David Yahav, ed., Israel, the Intifada and the Rule of Law, (1993) 21.

33. Shamgar, supra note 28, 38.

34. See ICRC Commentary to Geneva Convention IV, 21-22 ; and see, Gerhad von Glahn, Law Among Nations, 7th ed. (1996) 667.

35. ICRC Commentary, 22.

36. Bothe, supra note 22, 764.

37. E.g., Blum, supra note 16, 294.