Prolonged Occupation and Article 6(3) of the Fourth Geneva Convention: Why the International Court Got It Wrong Substantively and Procedurally

I recently gave a paper on prolonged occupation at a UN Roundtable on Legal Aspects of the Question of Palestine.  In the law of armed conflict, the notion of “prolonged occupation” is absent from the governing international instruments.  It has been little discussed in commentaries, and Adam Roberts cautions that attempting to define the notion of prolonged occupations “is likely to be a pointless quest” (see 84 AJIL 44 (1990) 47)), but Israel’s High Court has employed it in a number of decisions.

The UN meeting in the Hague was perhaps a timely meeting given the outcome of the recent Israeli elections which brought into office a government which includes some ministers who are opposed to the existence of any Palestinian State and others who are opening calling for the annexation of the West Bank.  Despite the urging of President Obama, the guidelines for the new coalition government contain no commitment towards a Palestinian State.  The conclusion of the Oslo Accords and subsequently the Roadmap for Peace masked the reality of Israel’s occupation of Palestine with the figleaf of a negotiated process between ostensible equals which, under the Roadmap, was meant to have led to a comprehensive settlement of the Israel-Palestine conflict ten years ago.  As the outlook of the current Israeli government appears adverse to negotiation, this should put the fact of occupation back on the table.

The Hague Regulations and Fourth Geneva Convention are both silent on the termination of occupation, but Article 6 of the Fourth Geneva Convention provides:

The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.

In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.

Protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention.

For present purposes, only the third paragraph of Article 6 is of any concern.  In the Legal consequences of the construction of a wall advisory opinion (2004), the International Court of Justice ruled that as “the military operations leading to the occupation of the West Bank in 1967 ended a long time ago” only those Articles specified in Article 6(3) remained applicable (para.125).  By extension, the Court presumably would reach the same conclusion in relation to Gaza and East Jerusalem.  This ruling has been widely criticised as erroneous, with the 2012 report of an ICRC Expert Meeting on occupation stating that “the experts agreed that the ICJ’s statement on this Article was incorrect for the purposes of IHL” (p.77).  As Imseis notes:

The problem with the Court’s interpretation of Article 6 is its misguided focus on ‘military operations leading to occupation’.  Article 6 in fact provides that insofar as occupied territories are concerned, application of the Convention ‘shall cease one year after the general close of military operations’, not on the ‘general close of military operations leading to the occupation’, as asserted by the Court. (99 AJIL 102 (2005) 106))

Ben-Naftali makes a similar point, arguing that even a literal reading of the text of Article 6 “should have deduced its inapplicability from its own terms” (38 Israel LR 211 (2005) 214), while Dinstein states that this ruling “poses a danger to the civilian population, inasmuch as it reduces the scope of protection that the population enjoys under the Convention” (The international law of belligerent occupation (2009) 283).

Nor does the substance of this ruling correspond well to official Israeli policy.  For example, in its First Statement to the Sharm el-Sheikh Fact-finding Committee (2000), the Government of Israel stated that since the start of the second intifada:

Israel is engaged in an armed conflict short of war.  This is not a civilian disturbance or a demonstration or a riot.  It is characterised by live-fire attacks on a significant scale, both quantitatively and geographically—around 2,700 such attacks over the entire area of the West Bank and the Gaza Strip.  The attacks are carried out by a well-armed and organised militia, under the command of the Palestinian political establishment, operating from areas outside Israeli control. (para.282)

The notion of an “armed conflict short of war” was devised by the Israel Defense (IDF) Military Advocate General’s Corps to categorise the violence experienced during the second intifada.  It was presumably intended not to correspond to either an international or a non-international armed conflict, and thus is a purported novel classification which introduces ambiguity regarding the applicable law.  In 2003, Finkelstein, then the IDF Military Advocate General, explained that this notion was adopted because:

the scale and intensity of the events justifies the classification as an armed conflict.  On the other hand, war is classically defined as being a conflict between the military organizations of two or more states, a condition not met in our scenario. (1 IDF Law Review 341 (2003) 343-344)

Further, in the Targeted killings case, decided by Israel’s Supreme Court in 2006, the premise of President Emeritus Barak’s opinion was that “between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip…a continuous situation of armed conflict has existed since the first intifada” (para.16).  Relying on the views of Professor Antonio Cassese, he held that the situation amounted to an international armed conflict (para.18)—“the fact that the terrorist organizations and their members do not act in the name of a state does not turn the struggle against them into a purely internal state conflict” (para.21).

The claim that Article 6(3) has restricted Israel’s responsibilities under the Fourth Geneva Convention has never been invoked before Israeli courts, and its High Court has applied provisions which the operation of Article 6(3) would have rendered inapplicable.

It has also been argued that Article 6(3) of the Fourth Geneva Convention did not survive the adoption of Article 3(b) of 1977 Additional Protocol I which provides, in part, that the application of the Geneva Conventions and Additional Protocol I in occupied territory only ceases “on the termination of the occupation”.  The opinion of the ICRC Expert Meeting on occupation was that:

This was clearly the case for States party to Additional Protocol I, and arguably for all other States if the paragraph was considered to be customary in nature.  In this regard, a majority of the experts took the view that all the provisions of occupation law applied until the termination of an occupation and, consequently, that the rationale behind Article 3 of Additional Protocol I replaced the principle underlying Article 6§3. (pp.77-78)

It is difficult to discern why the International Court felt compelled to make this ruling on the operation of Article 6(3) as it was only mentioned twice during the extensive proceedings.  Documentary annex 2 to the Palestinian written submission was Professor Dugard’s 2002 Report on the violation of human rights in the occupied Arab territories, including Palestine which he submitted to the Human Rights Commission in his capacity as Special Rapporteur.  This dealt with the interpretation of his mandate to investigate violations of international humanitarian and human rights law in occupied territory, which had been challenged by Israel.  Relying on the ICRC commentary to Article 6(3), it had argued that during a prolonged occupation, such as that of Palestine, the law of occupation envisages that “the Occupying Power will not become more bound, but less bound by the legal regime”.  Professor Dugard rejected this interpretation:

Unfortunately the time has not come in the Occupied Palestinian Territory when the application of the Convention is no longer or less justified. The transfer of governmental and administrative powers to the Palestinian Authority in A areas has not diminished the need for the protection of the people of the territories from the Occupying Power for the reasons set out in the present report. This was made clear in the Declaration adopted on 5 December 200 1 by the High Contracting Parties to the Fourth Geneva Convention, which reaffirms the applicability of the Convention to the Occupied Palestinian Territory and reiterates “the need for the full respect for the provision of the said Convention in that Territory” (para. 3).

The only other reference to Article 6(3) was made in the Jordanian written statement, which noted that Article 49 of the Fourth Geneva Convention, which prohibits deportations, population transfers, and settlements in occupied territory, is an article “which is expressly stated by Article 6, paragraph 3, to continue in operation ‘for the duration of the occupation’” (para.5.126).  This was a passing reference.  There was no discussion of whether Article 6(3) had been, or should be given, effect in Palestine.

As there are no parties in advisory proceedings, it might be argued that the audi alteram partem principle does not apply, and that the International Court could rely on the iura novit curia maxim to make any rulings it wishes, whether these have been argued or not.  I am not convinced.

When the PCIJ was drafting its first rules of procedure in 1922, Judge Moore objected in principle to the Court’s advisory competence, arguing that as:

a judicial body [the Court’s] function was to end disputes by deciding them.  The maintenance of the character, reputation and usefulness of such a Court is inextricably bound up with the obligatory force and the effective performance of its decisions or judgments.  The advisory function, as between private parties, is appropriately exercised by private counsel, and, in the case of Governments, by tribunals or law officers duly established for the purpose. [PCIJ, Ser.D.2, 383]

It may be that Judge Moore was influenced by US Supreme Court practice which, in 1793 in relation to the Citizen Genêt affair, had refused to give an advisory opinion to federal political organs on the basis that to do so would be to engage in an executive rather than judicial function.  Although a handful of State supreme courts have the capacity to deliver advisory opinions, most of these courts have the discretion to permit briefs and arguments from interested parties, but they are under no obligation to do so and can give advice without hearing argument—to this extent, the process is arguably not “judicial”.  The Permanent Court took a different approach, assimilating advisory to contentious procedure, which was placed on a statutory basis in the 1929 revision of the Statute.

In the Wall advisory opinion, the ruling on Article 6(3), which was simply not discussed during the proceedings, was unnecessary, and has only attracted criticism from scholars and other experts.  By deciding an unargued point, the International Court departs from its settled practice and, arguably, from the proper exercise of its judicial function.  Perhaps the lesson to be learned from this episode is that of the dangers which may arise when the International Court does so.