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Home EJIL Analysis Prolonged Occupation or Illegal Occupant?  

Prolonged Occupation or Illegal Occupant?  

Published on May 16, 2018        Author: 
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An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. Benvenisti; O. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.

Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.

While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible. Otherwise, the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be.   

The four parts of the proposed test are:

(i) An Occupying Power cannot annex any of the Occupied Territory

In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant: A. Gross: The Writing on the Wall (2017), at 8.  

Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016. The United Nations General Assembly unanimously affirmed this principle in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.

Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.” Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem, there are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.

Israel’s predominant reply-arguments are that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances: S. Korman, The Right of Conquest (1996), pp. 259-60. And, as the 2016 commentary of the International Committee of the Red Cross states, in para. 324, the legal status of occupation does not require the existence of a prior legitimate sovereign over the territory in question.

(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.

Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis. While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposive conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. (As  UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted, the occupying powers committed to return the governance of Iraq to its people “as soon as possible.”) Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.

The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary. As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation (2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.

(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation

The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else: A. Gross, The Writing on the Wall (2017), at pp. 26-29. The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities. 

The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United Nations, B’Tselem, the Association for Civil Rights in Israel and Badil, the Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources; Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise; and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalem and Gaza also endure distressing living conditions occasioned by the occupation.

(iv) The Occupying Power must act in good faith

The principle of good faith is a cardinal rule of treaty interpretation in the international legal system and has become an integral part of virtually all legal relationships in modern international law. The principle requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle also prohibits states from participating in acts that would defeat the object and purpose of the obligation or engaging in any abuse of rights that would mask an illegal act or the evasion of the undertaking.

Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.

Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.

Namibia Advisory Opinion

In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfil its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, notwithstanding that the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.

The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.

Conclusion

A determination that Israel – or any occupying power whose administration of the occupation has breached one or more of the fundamental principles – has become an illegal occupant would elevate the duty on the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.

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3 Responses

  1. Orna Ben-Naftali

    This has been the essential argument of our “Illegal Occupation” article published in the early 2000s. Perhaps now, the time has come to think what role has law played in this extremely legalized regime and what does this role tell us about law. In The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory (which just came out in CUP), we (Orna Ben-Naftali, Michael Sfard and Hedi Viterbo) attempt to address that question.

  2. John R Morss

    Many thanks for this extremely helpful analysis. There is a sense perhaps that the obligations of occupier (viz to return the territory to ‘the people'((some cans of worms therein notwithstanding)) ratchet up with each year that passes.
    (And the idea of E Jerusalem as terra nullius is …? extraordinary at least!)

  3. Palestine’s “prolonged occupation” or serial colonisation?

    Mr Lynk is trying to create general principles about “Prolonged Occupation ” as a means to deal with Israel and what he sees as the “Palestine problem”. Prolonged occupation leading to annexation, he says, differs from colonisation or licit defensive occupation. He postulates four criteria to declare “prolonged occupation” illegal:
    • An occupier cannot annex;
    • Occupation must end soon;
    • Occupier must act for interests of the occupied people;
    • Occupier must act in good faith.

    There are general principles and they can be applied but not at the expense of oversimplifying the Palestine Arab problems of the West Bank or Judea /Samaria.

    No occupation by an alien culture however can be expected to be without problems of civility. Nor does hardly any government. A civility deficit cannot be the criterion. No army will leave soon based on a partisan list of offences. Nor would recourse to arms help a civility deficit at all. Forbidding annexation assumes the occupier has no inherent interests or rights there. That is seldom the case or the claim.
    But occupation, whether military, humanitarian or otherwise, does not override Human Rights.
    Whether occupations are ended soon or not, the Human and Property Rights involved cannot be ignored. Some rights are hereditary. No army or political organization such as the United Nations can abrogate them.
    But when Mr Lynk turns to the interests of the occupied people and acting in good faith, he is on more solid ground, not for constructing artificial international laws as an excuse for war or sanction, but for arriving at solutions to international problems. Let me give some examples.

    When Germany occupied Alsace-Lorraine in 1871, it tried to create what it called Reichsland, imperial territory, tied to Prussia. The Prussian administration tried to change the population by encouraging emigration of natives and implanting Germans. It changed the administrative institutions to German ones. However, after WW1, it was returned to France without a formal referendum.
    The question of who was the occupier, whether French occupying German territory or vice versa or whether Alsatians and Lorrainers had the right to independence was liable to make the Alsace-Lorraine question insoluble.
    How was it resolved?
    In 1910 the Lorrainer, Robert Schuman, architect of European Community system and Europe’s longest peace, wrote his D Jur on the juridical concepts behind occupation but in the restrained and theoretical terms necessary to gain a distinction of summa cum laude from a German university. He had been an undergraduate at different German universities. He was taught by professors who were the German delegates at The Hague peace conferences. They had taken opposite positions on several issues relative to international law.
    Schuman was later active in resolving three crucial occupation problems of Europe that could have led to further war. The Community solution was also crucial for ending the Soviet occupation of central and eastern Europe. At the height of the Cold War, he even foretold that the Soviet Union would crumble before the turn of the century. With it, Soviet “occupation” would end. He gave speeches about preparing to receive the central and eastern parts of Europe in the Community system.
    As a post-WW1 French deputy, Schuman was the chef de file for bringing together the main French and German codes in the provinces so that the natives benefited from the best aspects of both, for example, German social insurance the French lacked or religious freedom. This was considered the greatest work of legislative unification of modern times in any country. (C Pennera: Schuman, la Jeunesse d’un grand Européen, p127, D H Price: Schuman, Jalonneur de la Paix mondiale, p59)
    At the start of WW2, Alsace and Lorraine were re-occupied by the Nazis but the problem was definitively solved by Schuman’s post WW2 efforts. France’s post-WW2 Gaullist policy was to separate the Ruhr and move French borders to the Rhine. Schuman took a different tack. His policy and legal understanding created a permanent solution.
    The Saar also was an area alternatively occupied by both French and Germans. This too was solved by Schuman’s understanding of occupation law.

    Palestine
    With this understanding we may turn to Mr Lynk’s comments about Palestine. It should be remembered that French lower and appeal courts threw out a case on east Jerusalem by Palestinian Arab activists trying to apply the Geneva conventions against Israel. The complainants have to be signatories, and the latter have to be States.

    Which Occupation?
    One Arab declared to the press that Israeli occupation was illegal because, he said, his ancestors had been given the land by Saladin. The problem with that argument is that Saladin was a Kurd from Tikrit. A twelfth-century, foreign invader won’t cut it. It puts his claim on shaky, legal ground.
    Military conquest provides no long-lasting legality. Subsequent prolonged occupation provides not an atom of sovereignty to the occupier. Once the army leaves the natives can reclaim their property and re-establish their laws. Anyone “given” property by a foreign military invader is automatically suspect.
    The Arab in question would have to explain legalities under various subsequent changes of military occupation, whether Kurdish, European Crusaders, the Ottoman Turks or the British.
    Murdering an owner or killing him in battle does not change property rights of the surviving family. Identifying oneself with the murdering group (especially a foreign one) generally excludes anyone from a property claim. Many armies also displaced and slaughtered Jews there. The Crusader Europeans were involved in a mere score of battles in the area. They claimed they were trying to recuperate religious access to sites. This does not grant later believers deeds of ownership. The sites themselves are often mythical inventions. Muslim ones too.

    Which expulsion?
    Many families of Christians and Jews had been living in Judea/Samaria/ West Bank and Jerusalem centuries before the Crusades and before the Arab-Muslim invasion. They were expelled or forced to flee especially in the post 1947/8 period. Many still do not feel safe to return to such areas and their homes, even under “prolonged Israeli occupation” – but not because of the Israelis.

    Property rights.
    When some Britons bought property in Turkish-occupied northern Cyprus, the Greek families of the original owners reasserted their property rights in both European and UK Courts. The occupant has no right to sell a house there to a British would-be buyer.
    The families of those Jews chased from their properties in Poland during WW2 have a right to reclaim them.
    How far does this principle go in Law? Independent Israel was occupied by the Roman Pompey around 61 BCE. Then it was further occupied militarily by the Constantinopolitan Roman Empire. All this while Jews expelled abroad claimed their ancestral property and other Jews lived in parts of the land proving the claims. Parthians and Persians came and went.
    The Jewish claims were repeated frequently orally and in writings. Archaeological finds, such as royal seals, are evidence of property ownership dating continuously from more than 3000 years. The League of Nations rightly recognised these claims and interests. The UN confirmed them. For the best part of a century before the 1948 war, Jerusalem, capital of Mandate Palestine, had maintained a largely Jewish majority despite its afflictions.

    Which “Palestinians”?
    “Palestinian” property is complicated by other factors. The League of Nations Mandate to UK (Article 7) defined the Jews wanting to live in the land as “Palestinians”. The Arabs refused almost without exception to be called by that name. Official documents of Palestine bore the initials for Land of Israel, aleph yod. Only after 1948 was the name of the country (Palestine = land of the Jews) dropped. It simply became Israel.
    And only thereafter did the Egyptian-organised “liberation” take up the name Palestine. This was aided by the USSR. It funded the “armed struggle”. It educated leaders of the “Palestine Liberation Organisation” in Moscow to join its other liberation movements in the Cold War.
    Changing the meaning of a key word is a powerful tool of disinformation. Lawyers should designate it as fraud. Propagators show their own culpability.

    Which land?
    Geographical fluidity is another evidence of fraud. The original PLO of the early 1960s did not make any claim on the “West Bank”. They targeted only the liberation of the area West of Jerusalem such as Tel Aviv and including all the land to the Mediterranean.
    In its 1964 Charter, promulgated from Jordanian-occupied east Jerusalem, the PLO stated:
    “This Organization does not exercise any territorial sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or in the Himmah Area.”

    After 1967, the area militarily occupied illicitly by Jordanians but recuperated by Jews then became “Palestine” for the PLO.
    The PR term “West Bank” dates from this same factual fluidity. Arab rejectionists saw little political mileage in saying they wished to eradicate Jews from Judea (a term used earlier in UN and League documents). Arabs from Arabia would have zero credibility as owners.
    What was rejected as “Palestine” before 1967 cannot suddenly become a long-standing claim of land sovereignty. Nor can a city that was never an Arab or Ottoman capital suddenly become its long-standing capital by say-so post-1967.

    The geographic shift.
    Unable to take over French-occupied Syria after WW1, the Hashemite Abdullah became “Emir” of the sparsely populated Trans-Jordan. Like his brother Faisal who occupied Iraq as its king, he had been expelled out of Mecca and Arabia by the Wahabis and “king” Saud, who renamed the country after himself.
    In 1920 the UK Foreign Office decided to “postpone or withhold” conditionally the inclusion of the Transjordan area in the Palestine Mandate. Abdullah’s territorial occupation was thus seen as temporary. Abdullah showed that “his” area was still Mandate Land when he invited Jews to colonise and encourage agriculture there. In 1948, renamed as the “Hashemite Kingdom of Trans-Jordan,” it was still not recognised by the UN or the USA but only by UK and Pakistan.
    Besides this dubious legal status, Jordan’s incursions into Israel, its expulsion of Jews, its sniping across cease-fire lines, desecration of synagogues and religious sites make Jordan a signal example of prolonged, illegal occupation.
    The main question that the international community has to tackle is not one of Israel and “prolonged occupation” as an intermediary between colonization and legitimate defence. It is rather one of recuperation of rights for a people like the Jews that have suffered prolonged serial colonization for two thousand years and has at last regained its human rights and freedom.

    Conclusions
    No one today doubts that Robert Schuman helped resolve permanently the trickiest, most enduring and explosive “occupation” issues. He did so fully in the spirit and letter of both national and international law.
    • the Ruhrgebiet, “the problem of the century”,
    • French Rhine borders,
    • Berlin,
    • the Saar,
    • (together with numerous other “occupation” and border disputes resolved by the Community method).
    His understanding of Human Rights and the nature of international law were the main instruments freeing Soviet-occupied Europe (including Russia) from illegal occupation.
    Schuman brought the Convention of Human Rights and Fundamental Freedoms into force as Prime Minister in 1948 (with the proposal for a European Assembly and a Customs Union) and as Foreign Minister in 1949 with the signing of the Council of Europe Statute and the signing of the Convention in 1950.

    Jurists should perhaps best analyse his practice and method about how this was achieved rather than bending the letter of the law and the facts of history to the power politics of the day.