Of Straw Men, the United Nations and Illegal Occupation: A Rejoinder to David Hughes

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In volume 31:3 of EJIL, David Hughes provides an interesting reply to my article in the same volume, in which I critically examine the commitment of the United Nations (UN) to the international rule of law by examining its management of the occupied Palestinian territory (OPT) since 1967.

I argue that by merely documenting the host of Israeli violations of international humanitarian law (IHL) and international human rights law (IHRL) over Israel’s 53-year ‘temporary’ occupation of the OPT without definitively addressing the legality of the regime giving rise to those violations themselves, the UN has failed to discharge its functions in accordance with international law. I posit that based on the UN record itself the occupation is illegal for its systematic violation of three jus cogens norms – the prohibition on the acquisition of territory through the threat or use of force, the obligation to respect self-determination of peoples, and the obligation to refrain from imposing alien regimes inimical to humankind, including of racial discrimination. It is therefore curious, I argue, for the UN to require the enfeebled Palestinians to negotiate the end of the occupation, itself an internationally wrongful act, rather than require that it be terminated unconditionally and forthwith by the bad faith occupying power in accordance with the law of state responsibility. It is the inconsistency of what I call the UN’s “negotiations condition” with relevant international law that is the focus of my inquiry.

In reply, Hughes “contemplate[s] whether an occupation’s legal status can or should affect the requirement that an occupying power must withdraw from the territory it controls”. He argues that “the duty to terminate an occupation is a positive legal duty that exists regardless of an occupation’s legal status” and suggests that “the negotiation process cannot be completely uncoupled from the withdrawal requirement”. He therefore indicates a preference to ground calls to terminate occupation “in the principle of temporality and the international consensus prohibiting the acquisition of territory by force” (abstract).

There is much in Hughes’s reply with which I agree. In particular, his restatement of the key principles underpinning the law of belligerent occupation – viz. the inadmissibility of territorial conquest and the temporary nature of occupation as a regime – are accurately put. Likewise, his prime assertion that international law imposes a positive obligation on an occupying power to terminate its occupation is uncontroversial.

Unfortunately, however, Hughes’s intervention suffers from two key problems. First, it purports to reply to a claim that I have not actually made, thereby resting itself upon something of a straw man argument. Second, it conversely fails to engage with the central claim that I have in fact made, thereby blurring the overall argument I advance. I shall briefly take each of these in turn.

On What I Do Not Claim

Hughes’s main critique is inaccurate in that it ascribes to me a claim that I do not in fact make. Hughes asserts that I claim “that it is necessary to declare that an occupation has become illegal to move beyond the tension that exists between the requirements of state responsibility and a political preference for negotiations” (abstract); he says that I predicate “the termination requirement on a formal legal finding” of illegality (p. 1092). For this, he partially quotes me as writing that “nothing within the ‘conventional IHL/IHRL paradigm expressly compels’” the end of occupation (pp. 1088; 1092). This gives one the false impression that I hold the view that a determination of an occupation’s illegality is a necessary prerequisite for the duty that it be terminated.

In fact, I actually say something qualitatively different, as follows: “Although occupation is meant to end under international law, nothing in the conventional IHL/IHRL paradigm expressly compels this result” (p. 1064; although this complete quote is paraphrased by Hughes once at p. 1094, it is his partial quotation of me that animates his argument throughout). It should be apparent from this that I take as a given that an occupying power has an obligation to withdraw from territory occupied. This obligation of course derives from the jus ad bellum, a corollary of which prohibits the acquisition of territory through the threat or use of force. At the same time, I note that nothing in the law governing IHL/IHRL compels the end of occupation. This later observation is in fact an accurate statement of both of these discrete subsets of international law, neither of which expressly prescribe a specific temporal limit on occupation as such, despite the temporary nature of the regime. Indeed, this is duly acknowledged by Hughes himself when he states, in respect of the jus in bello, that “neither the Hague Regulations nor the Fourth Geneva Convention ascribe a firm durational limit” on occupation (p. 1093).

As noted, I quite agree with Hughes’s assertion that an occupying power has a positive obligation to end its occupation. I differ with him, however, as to where this obligation is located within prevailing international law. While, like him and others (e.g. O. Ben-Naftali, K. Michaeli, A. Gross), I would like it to be grounded in a purposive reading of the jus in bello – and indeed believe teleological interpretations of IHL can make such conclusions plausible de lege ferenda – it is in fact only found in the jus ad bellum, de lege lata. Despite the obvious tension that prolonged occupations place upon the fundamental distinction between these two subsets of international law, to suggest that international law as it presently stands results in the collapse of this fundamental distinction under the weight of occupation as a legal regime seems an assertion without solid conventional legal basis, and one that risks unintended consequences far greater in scope than those that impact situations of occupation as such. The most one can point to in this regard, as Hughes impliedly does, is to art. 47 of the Fourth Geneva Convention which affirms that protected persons in occupied territory may not be deprived of the benefits of the convention by any annexation by the occupying power of the territory occupied. While this clearly limits the effect of annexation on the rights afforded the protected population, it does not on its face affirm the positive illegality of annexation simpliciter of an occupied territory. For that, one must necessarily have recourse to the jus ad bellum. In this sense, it does not seem to be correct to characterize the fact that neither IHL nor IHRL, as currently exists in both treaty and custom, prescribes specific temporal limits on occupation as merely an “interpretive view” or “choice”, as argued by Hughes (p. 1093). Basic rules of treaty interpretation and customary international law formulation simply do not admit of any other view. At any rate – and this is the crucial point here – reading prevailing international law in toto as it applies to occupied territory is enough to ground the claim that an occupying power has a positive duty to end its occupation based in the jus ad bellum alone.

It may appear inconsistent to argue that the jus ad bellum imposes a positive duty to end occupation, but not then rely on a failure of the occupying power to discharge that duty as the basis to require termination forthwith and unconditionally in line with the law of state responsibility. The appearance of this inconsistency points up the main problem in the relevant law, being one of time. We know that the normative starting point is that occupation, as such, does not represent an illegal state of affairs. We also know that occupation is meant to be temporary. But what we do not know is exactly what events must transpire in order to render an occupation not otherwise tainted by an initial violation of the jus ad bellum illegal, such that the obligation to terminate it is vested with specific temporal and material requirements? How much time must elapse, and under what conditions, before an occupation can be said to be internationally wrongful thereby requiring its unconditional and immediate termination? Taking the view that it is enough to rest on the positive obligation of an occupying power to terminate its occupation logically means that an occupation that lasts one day would result in an internationally wrongful act if it were not vacated by the occupying power in furtherance of its positive duty to terminate on the second day. But this can’t stand to reason. For it would necessarily upset the normative starting point that occupation is not, in itself, illegal. Enter the normative importance of the occupying power’s obligations to respect the jus cogens norms prohibiting territorial conquest, requiring respect for self-determination of peoples, and prohibiting the imposition of regimes inimical to human kind. It is the legality of an occupation as measured through the systematic violation of these norms that triggers specific obligations under the law of state responsibility to end occupation forthwith and unconditionally, rather than at some unknown period of time in the future, subject to equally unknown, onerous and/or unreasonable conditions imposed by a bad faith occupant.

On What I Do Claim

Alas, the question of whether a positive obligation to terminate occupation exists in international law is not the fundamental issue my article is concerned with. I nowhere claim that an occupation’s legal status affects the requirement that it be brought to an end. What I do claim, however, is that based on state practice as epitomized by and at the UN, an occupation’s legal status does indeed affect when and how said occupation must come to an end. And that is a wholly distinct question.

The issue of when and how an occupation must come to an end, viz. the material and temporal terms according to which it must be terminated, is most poignantly highlighted by Israel’s 53-year ‘temporary’ occupation of the OPT. Despite the UN’s copious documentation of the systematic violation by Israel of the jus cogens norms of erga omnes character prohibiting territorial conquest, requiring respect for the right of peoples to self-determination, and prohibiting the imposition of alien regimes inimical to humankind, including of racial discrimination, the UN has consistently held the view that the only way for the protected population to break free from its bondage is to negotiate. I therefore ask a few simple questions: by what rationale can it be said that the regime of force maintaining such situation be regarded as legal? And if it isn’t legal, how can its end be made contingent on negotiations in view of the requirements of the law of state responsibility?

Hughes takes the view that “international law’s most persuasive contribution to the process of terminating a prolonged occupation comes not from a determination of illegality but from an iteration of the view that termination is the corollary of temporariness, that it is a positive legal duty and not merely a means of remedying a legal wrong” (p. 1089). But the legality of Israel’s regime of occupation is put in issue not because of any arbitrary or esoteric preference on my part for use of “illegality” as a controlling legal determinant. Rather, it is put in issue because state practice as evinced by and at the UN has demonstrated it to be the principal determinant shaping the actual temporal and material terms under which other occupations have been brought to an end.

My article cites South Africa’s occupation of Namibia, the Soviet Union’s occupation of Afghanistan and Iraq’s occupation of Kuwait as the most prescient examples demonstrating that where the UN has declared an occupation to be illegal its termination – that is to say to when and how it will be terminated – has not been made subject to negotiation. Hughes disputes this as a representation of relevant UN practice by citing the fact that Turkey’s occupation of Northern Cyprus and Morocco’s occupation of Western Sahara are both the subject of political negotiations despite also being “prolonged occupations, subject to illegality determinations” (p. 1098). The problem with this is that neither of these occupations has ever in fact been determined to be illegal by the UN. Neither does Hughes’s invocation of the ICJ’s consideration of Libya’s boundary dispute with Chad suffice to disturb the state practice I have relied on. By its own terms, that case did not concern an illegal occupation as such, but rather the validity, applicability and content of a border treaty between the two parties (see in particular paras. 75-76 of the ruling).

For all of Hughes’s concern with the effectiveness of my approach (p. 1088), it is hard to see how his view offers anything more effective in the circumstances. If international law’s most persuasive contribution to terminating Israel’s 53-year ‘temporary’ occupation of the OPT comes not from a determination of its illegality but merely from an iteration of the view that termination is the corollary of temporariness, and a negotiated withdrawal is required, then how does one account for the copious statements and resolutions of the UN affirming these very principles in respect of the OPT without success? How does taking such a position result in any better situation than has existed over the course of the past five decades, where the UN has repeatedly affirmed Palestinian subjectivity and rights only to a point under the IHL/IHRL paradigm, but with implementation left subject to the whims of what the UN’s own record demonstrates is an occupying power operating in bad faith and with whom the immeasurably weaker and exhausted protected population is meant to negotiate? As noted by Hughes himself, “constant calls for negotiations assume a fanciful posture” because they “preference an infinitely more powerful occupant whose conduct throughout a half-century of occupation exhibits a preference for permanence not resolution” (p. 1098). It seems to me, therefore, that international law offers a more robust set of tools that have yet to be tried toward bringing Israel’s illegal occupation of the OPT to an end. To be sure, I do not hold the view, as suggested by Hughes, that “the occupation’s conclusion can be achieved by maximizing international law’s influence” (p. 1099). Would that it were the case that the law, on its own, could affect such results. Rather, to paraphrase Richard Falk, I hold the view that the full application of international law, even in the absence of prospects for compliance, can help alter the political climate in ways that make resolving conflict in a just manner more probable.

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