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Hijacking the laws of occupation

By Amb. Alan Baker
web posted September 11, 2017

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.

  • The 1974 Turkish occupation of Northern Cyprus has been accompanied by extensive settlement activity by over 200,000 settlers on land owned by former Greek Cypriot residents. They are in fact the majority of the population of Northern Cyprus. The international community has never recognized Turkey’s claims vis-à-vis Northern Cyprus. Apart from one major General Assembly resolution from 1983 calling for an end to the “occupation,” the international community remains silent regarding both the occupation and related settlement activities in Northern Cyprus, and further resolutions have been few and far-between.
  • The 1975 Moroccan occupation and annexation of Western Sahara has not been recognized by the international community. Several General Assembly resolutions have deplored the continued occupation of the territory by Morocco. Morocco has settled hundreds of thousands of settlers in the area, doubling the local population. But no international resolution has made reference to this settlement policy.

    During a 2016 visit to Sahrawi refugee camps in southern Algeria, former UN Secretary-General Ban Ki-moon described Morocco’s presence in Western Sahara as an “occupation.” This resulted in the expulsion by Morocco of the civilian component of the United Nations Mission for the Referendum in Western Sahara (MINURSO). Only after the UN Secretary-General expressed regret over a “misunderstanding” in his use of the word “occupation” to describe Morocco’s annexation of Western Sahara, was the situation remedied.

  • The Indonesian 1975 occupation and annexation of East Timor was condemned by UN General Assembly resolution 3485 (XXX) of 1975 and Security Council resolution 384 (1975), which strongly deplored the military intervention of the armed forces of Indonesia in Portuguese Timor and called upon the Government of Indonesia to desist from further violation of the territorial integrity and to withdraw its armed forces from the territory.

    However, these resolutions made no mention of “occupation.” Nor was there any international reference to the transfer of over 100,000 Indonesian settlers (20 percent of the population) into the territory.

  • The 1978 Vietnamese occupation of Cambodia lasted for 10 years, during which hundreds of thousands of people were transferred into the territory. While the General Assembly, in resolutions adopted between 1979 and 1989, deplored “foreign armed intervention and occupation,” no mention was made regarding the transfer of settlers.

  • The 2004 Syrian occupation of Lebanese territory was dealt with in Security Council resolution 1559 (2004) calling for “all remaining foreign forces to withdraw from Lebanon.” This resolution and others dealing with the Syrian presence in Lebanon made no mention of occupation or of the settlement of thousands of Syrians in the territory.

  • The 1992-1994 Armenian occupation and annexation of the Azerbaijan area of Nagorno-Karabakh involved extensive movement of Armenian settlers into the territory. While General Assembly resolution 62/243 of 2008 entitled “The situation in the occupied territories of Azerbaijan” and various Security Council resolutions acknowledged the fact that this is an occupation, no mention is made of the settlement activity.

  • The 2002 seizure by Russia of Abkhazia and South Ossetia from Georgia and the subsequent organized migration of settlers into Abkhazia amounting to some 4 percent of its population has not given rise to any significant international resolutions regarding the Russian actions.

  • The 2014 Russian seizure, occupation and annexation of Crimea from the Ukraine was condemned by General Assembly resolution 68/262 (2014) but without any mention neither of occupation, nor the extensive settlement of over 100,000 Russians in the area.

“Occupation,” “Belligerent Occupation,” and “Occupied Territory”

The classical rules of occupation are set out in the international law of armed conflict and specifically in the 1907 Hague Regulations and the 1949 Fourth Geneva Convention.

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:

… References to “unlawful occupation” can be misguiding, as they confuse the issue of the lawfulness of the resort to the use of force with that of the rules of conduct to be applied once armed force has been used, and therefore also obscure the fundamental distinction between jus ad bellum and jus in bello.

He goes on to state:

Recent occupations have demonstrated that even when States consent to be bound by occupation law in the course of their military operations abroad, they sometimes take a self-serving approach to its application. Some States have even taken the view that occupation law cannot cope with the political, humanitarian and legal challenges created by contemporary occupation; they argue that these situations are very different from classical occupation and should be governed by rules that are more specific than those contained in occupation law at present.

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:

Finally, a majority of the experts declared that the difficulties associated with assessing an occupation were largely due to the pejorative connotation of ‘occupation.’ Some participants felt that there was a need to replace the term with one that was less “offensive,” with a view to making IHL rules more acceptable for States concerned about the political consequences of being perceived to be occupying a foreign territory. In this regard, the necessity of dissociating the label from the related legal framework was underlined. In fact, some of the States who seemed to be most apprehensive about being associated with the concept of occupation per se expressed much less concern about the substantial provisions of occupation law. In this respect, it appeared to some experts (though not all) of the utmost importance to change the existing terminology in order to make sure that the protection afforded by occupation law would not be affected by the pejorative connotation of occupation. Concepts such as effective control or extraterritorial administrative responsibilities were proposed as potential alternatives.

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:

  • On the one hand, the substantive humanitarian requirements inherent in occupation law, dealing with the manner in which a power fulfills its international obligations in controlling the territory. These requirements are applicable irrespective of conflicting views on the political status of the territory.

The task of monitoring this should be the only task of the International Committee of the Red Cross (ICRC), without political value-judgments.

  • On the other hand, the political, legal, and historical status of the territory in dispute should be dealt with through the appropriate negotiating forum. This cannot and should not be a factor in supervising the humanitarian implementation of international obligations.

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.

Israeli Practice

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.

Conclusion

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. ESR

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.

 

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