Hijacking the laws of occupation
By Amb. Alan Baker
The fact that there are 40 or more ongoing conflict and occupation situations throughout the world, including in Iraq, Afghanistan, Western Sahara, East Timor, East Congo, Nagorno-Karabakh, Northern Cyprus, and the Crimea, is not widely known.
The international community does not appear to be very bothered with these occupation situations. In fact, curiously, these situations are rarely seen by the international community as “occupations.” Nor are the respective parties involved described as “belligerent occupants” or “occupying powers.”
It is rare to find resolutions or agenda items in the highly politicized and partisan UN Human Rights Council that deal with such situations of occupation and transfer of people to establish settlements in the territory they are occupying.
However, the objective criteria for such occupations are evident for all to see, and they clearly fall within the factual definitions of occupations, as set out by the international law of armed conflict and specifically in the 1907 Hague Regulations and the 1949 Fourth Geneva Convention.
Furthermore, it appears that most of these occupation situations involve extensive movements of people from the occupier’s territory into the occupied territory for purposes of settlement.
But there is little or no international discussion as to whether such actions and such situations violate international humanitarian law and the laws of occupation.
But this is not the case regarding Israel.
In fact, from the extent and volume of international attention directed toward Israel and the excessive number of UN resolutions and international declarations, any objective observer might be led to assume that Israel is considered within the international community to be the only “occupying power.”
This singling out of Israel for special international scrutiny and criticism is indicative of a distinct double standard, so much so that one cannot but conclude that the laws of occupation have indeed been “hijacked” for one political purpose – to single out Israel only.
Why this is the case?
Ongoing Situations of Occupation
Examining some examples of recent and ongoing military occupations throughout the world, all of which involve significant situations of invasion, occupation, and movement and settlement of people, is instructive.
“Occupation,” “Belligerent Occupation,” and “Occupied Territory”
They approach a situation of occupation in a simplistic and straightforward manner such that the Hague Regulations define the existence of an occupation when territory comes “under the control of a hostile army” (Hague Regulations, article 42). The Fourth Geneva convention goes further and requires that the territory of a “High Contracting Party comes under partial or total occupation” (Fourth Geneva Convention, article 2).
The nature of occupations, their length, and their component elements have been the subject of several recent ICRC expert meetings and studies. They indicate a difficulty – especially in an era of increasing non-international conflicts and complex historic and legal situations, as well as prolonged or protracted occupations – to conclude any clear and all-embracing formula.
In his introductory section of a 2012 ICRC Report on Expert Meetings on the Subject of Occupation, Dr. Knut Dormann, Head of the Legal Division of the ICRC, stressed:
He goes on to state:
In summarizing the experts’ discussion on the topic of the end of an occupation, the issue of the political connotation given to the term “occupation” was addressed. The report stressed the need to distinguish between politically-influenced terminology and the actual protection required by the international norms:
In light of the evident politicization of the concept of occupation there seems to be an urgent need to draw a clear distinction between, and to de-link, two basic elements inherent in occupations:
The task of monitoring this should be the only task of the International Committee of the Red Cross (ICRC), without political value-judgments.
Political issues regarding the status of the territory, including the outcome of disputes regarding the determination of its sovereignty, should be outside the purview of implementing international humanitarian obligations vis-à-vis the territory and its population.
Israel’s Challenge and Dilemma
Israel has consistently claimed that the simplistic and straightforward definitions of occupation in the 1907 Hague Rules and 1949 Fourth Geneva Convention, may not necessarily be appropriate with regard to the West Bank areas of Judea and Samaria, and the Gaza Strip area, which do not fit within the rubrics set out in the above conventions.
This is all the more evident in situations where the sovereign status is recognized to be legally unclear or non-existent and as such cannot be seen as “territory of a High Contracting Party” as defined by the Fourth Geneva Convention.
The legal questionability of pre-1967 Jordanian sovereignty, as well as Egypt’s self-admitted non-sovereign military administration of the Gaza Strip, give added relevance to the question whether the classic and simplistic concept of belligerent occupation could be legally relevant and applicable to Israel’s unique situation in the territories?
It is well known that prior to 1967, Jordan’s annexation of and claim to sovereignty in the West Bank were not accepted in the international community, except for the UK and Pakistan. Jordan’s claim to east Jerusalem was not accepted by the UK either.
This is especially the case when the territory itself has a long and unique historic and legal background that differentiates it from the simplistic, generally accepted rubric based on the concept of the “ousted sovereign.”
However, the “interpreters” of the conventions, led first and foremost by the International Committee of the Red Cross (ICRC), the main repository and arbiter of the conventions, have given themselves an overly wide and liberal margin in interpreting accepted factual definitions in the international instruments.
Simply speaking, they ignore the actual and unique factual, political, legal, and historic situation of the territory that sets it apart from the simplistic international definitions.
Thus, the use by the international community of the terms “belligerent occupation” and “occupied territory” almost exclusively to refer to Israel’s status in the territories has taken on a distinct politicized connotation that ignores the legal, historic, and political situation on the ground. The terms extend far beyond the simplistic rubrics foreseen in the definitions.
Relentless efforts by Israel to draw a distinction between political and legal issues of status of the territory, on the one hand, and issues of applicability of international humanitarian norms on the other, have not been accepted by the international community. In hundreds of politically generated resolutions and determinations, the international community seems to have created a specific political terminology applicable only to Israel’s situation.
Israel has never denied the fact that it took control of territory in 1967 and is obligated to govern them in accordance with accepted norms.
Indeed, concomitant with its assuming control in June 1967, Israel committed itself, through a series of military proclamations and orders, to conduct itself in accordance with the relevant norms of international law. It committed to observe the provisions of the Fourth Geneva Convention in all matters including property, respecting existing local legislation, and other general provisions.
In the same context, Israel committed itself to apply the humanitarian provisions of the Fourth Geneva Convention vis-à-vis the local population, but without officially acknowledging the formal applicability of the Convention to the territories.
To this end, Israel has endeavored to cooperate with the ICRC’s humanitarian role as set out in the Convention to restore and improve the living conditions of the local Palestinian population with a view to both ensuring respect for their basic rights and offering the prospect of a future political solution to the conflict.
Based on the accepted humanitarian norms applicable to Israel, the Israeli Supreme Court maintains strict supervision of the actions of Israel’s military and other governmental authorities functioning in the territories.
Clearly, if Israel’s governance of the territory does not accord with its international obligations, then there is room for substantive and pragmatic dialogue and criticism. However, such dialogue and criticism should not be hijacked and become a partisan political issue through politically-generated resolutions and determinations by political and even humanitarian bodies such as the ICRC.
Politicization of the Language of International Law of Occupation
Over the years, the international community ignored the legal and historic reasons put forward by Israel to distinguish the situation of the territories and determined that Israel is a “belligerent occupant.”
This has become “lingua franca” throughout the international political system, despite Israel’s insistence on using the less-politically-loaded phrase “disputed territories,” which is devoid of any interpretative doubt or slant.
This terminology has been enhanced by annual politically-generated resolutions in the UN General Assembly and Security Council as well as by determinations by the ICRC, lacking any legal authority, yet nevertheless declaring that the territories are both “occupied” and “Palestinian."
However, there have been no legally binding agreements, resolutions, or declarations determining that the territories are indeed Palestinian, there has never been sovereign Palestinian territory, nor have the territories ever belonged to any Palestinian entity.
Clearly, the repeated use of what is blatantly partisan and political terminology cannot create legitimacy. It thrives through pressure by regional groups carrying a distinct political agenda.
The result of such manipulation has been a generally accepted yet totally flawed international opinion that Israel stole territory that belonged to the Palestinians.
However, what is surprising is the fact that such determinations figure in official positions and statements by the International Red Cross on the status of the territories, including by the ICRC’s President and official ICRC publications such as the 2002 International Review of the Red Cross, Vol. 84, No. 847, entitled “Implementation of the Fourth Geneva convention in the occupied Palestinian territories: history of a multilateral process (1997-2001).
As such they appear to have become accepted terms of art within the ICRC itself, and not only in the United Nations and international community.
This runs counter to the ICRC’s very basic fundamental principles of “impartiality, neutrality, and independence” as required and defined in the Preamble to the Statutes of the International Red Cross and Red Crescent Movement, and reaffirmed in the Article 4 of the ICRC’s own Statutes and statements.
The cumulative effect of such legally flawed assumptions in effect prejudges the central negotiating issue between Israel and the PLO – the permanent status of the territories. That issue constitutes an agreed-upon negotiating issue pursuant to the 1993 Oslo Accords in which the Palestinians themselves agreed to negotiate the permanent status of the territory.
If they themselves are committed to negotiate the permanent status of the territories, there can be neither logic nor justification in assuming that the territories are Palestinian, and hence the term “occupied Palestinian territory” is redundant.
Therefore, the expression “occupied Palestinian territory” which appears in ICRC and UN documentation, as well as in declarations and statements by world leaders and international resolutions and even in the Advisory Opinion of the International Court of Justice of July 9, 2014 regarding Israel’s security barrier, is clearly nothing more than a political term of art that has never emanated from any genuine legal analysis.
During the course of the 50 year period since 1967, factual complexities and legal, political, and military developments in the region, as well as the development and refining of international humanitarian law in the wider international context, have all generated legal uncertainty in the normative context.
In the specific Israeli-Palestinian context and despite the complex history and unique sui generis situation, any evaluation of core principles cannot ignore the fact that there is an ongoing and evolving process that is intended ultimately to determine the final and permanent fate of the territories. This process is pending, with considerable and ongoing international efforts to restore the negotiating process.
The continuing trend in the international community of prejudging the outcome of this negotiating process through politically-generated and influenced determinations as to the attribution of sovereignty, whether by states or international bodies including the ICRC, would appear to run counter to any constitutional necessity of neutrality, impartiality, and independence.
Any claim or determination, even by the ICRC, attempting to designate and assign the territory to one party or to deny the rights and status of any party could only be seen to be a departure from the strict policy of neutrality dictated by the fundamental principles of the Red Cross movement.
Any genuine evaluation of the past, present, and future of the law of belligerent occupation cannot ignore these realities.
Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.