It has been fifty years since Israel won the Six-Day war. Fifty years since Israel looked towards its borders and believed that its destruction was imminent. It has been fifty years since Jerusalem came under full Israeli control and was proclaimed the Jewish state’s eternal capital. And now, it has been fifty years since the West Bank and the Gaza Strip became subject to Israeli occupation. Celebrations and ceremonies marking Jerusalem’s reunification began inside the walls of the Old City on 21 May 2017. Prime Minister Benjamin Netanyahu announced, ‘we did not conquer Jerusalem, we liberated it’.1 At a later event, held in the Knesset to mark the fiftieth anniversary of the Six-Day war, the Prime Minister declared, ‘[i]t is important to remember that the Israel Defense Forces did not take control over another country’s sovereign territory. The international community did not recognize the Jordanians who occupied [the West Bank]’.2 In Tel Aviv’s Rabin Square, a week after the jubilee ceremonies commenced, huge crowds gathered under the banner of ‘Two States—One Hope.’ Palestinian President Mahmoud Abbas sent a message that read, ‘[n]ow the time has come for the State of Israel to recognize our state and end the occupation’.3 Zehava Galon, head of the progressive, social-democratic party Meretz, affirmed that, ‘the Israeli public supports compromise, an end to the occupation and says yes to two states for two people’.4 It is, of course, possible to separate the events of June 1967 from the subsequent decisions that facilitated and perpetuated the occupation of the Palestinian territories. A half century later, however, two opposing interpretations of Israel’s status within the West Bank and Gaza featured during a week of both pageantry and protest. The first saw Israel’s presence within the Palestinian territories as something other than a formal occupation. The second viewed Israel’s control of the West Bank and Gaza Strip as a (perhaps the) quintessential case of belligerent occupation. Aeyal Gross’ vital new book, The Writing on the Wall: Rethinking the International Law of Occupation is set amongst the indeterminacy that accompanies these competing conceptions of legal status. Gross, a Professor at Tel Aviv University’s Buchmann Faculty of Law, questions much of the orthodoxy accompanying international law’s application to territory under the control of a foreign military. Traditionally, this is viewed as a binary determination. Territory is or is not occupied. Adam Roberts, for example, has argued that the meaning of occupation is often obvious. Disagreement regarding the purpose and application of the occupation framework, Roberts argues, occurs at the margins.5Writing on the Wall rejects this premise. Instead, Gross purports that indeterminacy is a core component of occupation law (53). Numerous examples illuminate Gross’ demonstration of the gap that exists between the reality of occupation and international law’s neat compartmentalisation of occupation and sovereignty. Within this gap, the indeterminacy identified by Gross enables the misuse of international law.6 Gross provides a rich account of law’s faciliatory potential, both in the context of Israel’s occupation of the West Bank and Gaza and other contemporary occupations. The existing or manufactured indeterminacy, Gross explains, ‘paves the way for using and abusing the international law of occupation to legitimize the illegitimate, partly through the creation of a “pick and choose” regime concerning the laws that apply in “borderline” situations’ (53–54). In rejecting a binary conception of occupation, Gross advocates for normative engagement.7 The resulting framework, proposed throughout Writing on the Wall, is both detailed and, in the case of Israel’s occupation of the Palestinian territories, urgent. Gross identifies three fundamental principles that provide normative content to the legal framework that regulates occupation: the non-acquisition of sovereignty; the management of territory for the benefit of the local population; and the assurance that an occupation remains temporary. These principles are broadly acknowledged as fundamental components of the law of occupation. Gross builds upon their formal prevalence by emphasising their normative purpose. This influences the proposed legal treatment of occupation. It allows for the evaluation of an occupation’s legal character. In turn, Gross suggests, that this facilitates assessments of legality and better aligns legal responses with the particular form an occupation has assumed. Writing on the Wall demonstrates that both benevolent and advantageous engagements with the law of occupation minimizes this normative content. Adherence to the identified principles, Gross argues, is essential to prevent an occupation becoming a guise for a disingenuous or illegal regime (35). The common conception of occupation, which Gross terms the ‘benevolent interpretation’, views occupation as a neutral or de facto occurrence. Despite the prevalence of this understanding, limiting occupation to a factual event, devoid of normative content, ‘may actually legitimize new forms of what should be considered illegal—including new forms of conquest, colonialism, and apartheid—by dressing them up in the new clothes of the legal and temporary institution of occupation’ (20–21). Gross argues that this result is unavoidable unless international law abandons an exclusive conceptualization of occupation as fact and instead embraces its normative content. Throughout its five chapters, Writing on the Wall rejects the benevolent reading of occupation law. It instead favours a critical interpretation, acknowledging that occupation regimes may harness the ‘cloak of temporality’ and the ‘stamp of international legality’ to become permanent or indefinite (21). In chapter one, Gross describes the legal regulation of occupation and the normative content conveyed through The Hague Regulations and the Fourth Geneva Convention (17–23). Through a close reading of treaty sources, case law, and academic literature, Gross details the occupation framework’s normative prescriptions (ie the fact that occupation does not confer title to the occupying power, trusteeship obligations, and temporariness) (23–35). Gross argues throughout his book that adherence to these norms is essential to protect against permanence. Here, however, Gross recognises that the occupation framework’s conservationist character is often in tension with the objectives envisaged by an occupying state (35–38). Given the diversity of objectives that accompany occupation and the incompatibility of law’s conservationist orientation with the transformative purposes of many occupations, Gross rejects a singular or factual application of international law. Instead, a normative approach is presented as imperative to prevent the equation of occupation with conquest, colonialism, or apartheid. In chapter two, Gross explores the prevalence and influence of indeterminacy within instances of occupation. This references many contemporary occupations and ongoing scholarly debates concerning the formal commencement and termination of occupation. Gross identifies indeterminacy as a core component of occupation and as a means of control (53). International law is presented as existing between a binary conception of sovereignty-occupation and a reality that often fails to neatly distinguish between the assumed dichotomy. Gross’ lengthy consideration of legal engagements within situations of occupation—from Northern Cyprus to East Timor—illustrates indeterminacy’s centrality (123). Several amendments are proposed to ensure that the law of occupation protects individuals and communities subject to foreign rule (130–31). Drawing upon legal realism, Gross offers a functional approach to occupation that prioritises assessments of experience and consequence above rigid formality to better respond to the challenges posed by indeterminacy.8 Chapter three maintains Gross’ focus on indeterminacy. It closely explores Israel’s occupation of the Palestinian territories to illustrate how uncertainty perpetuates control and facilitates what Gross terms a ‘pick and choose’ approach. A rich case study critically examines the relationship between international law, occupation, and Israel’s policy throughout the occupied territories since 1967. This explores crucial junctures throughout the occupation’s history—Israel’s initial decision to partially apply the Fourth Geneva Convention, the establishment and expansion of the settlement enterprise, the Oslo Accords, and the disengagement from Gaza. Gross illustrates how the indeterminacy that followed these events facilitated a strategic approach to the law of occupation that has allowed Israel to act as both a sovereign and an occupying power within the Palestinian territories. Where the initial chapters of Writing on the Wall address occupation’s nature, existence, and cause (termed jus ad occupation), chapter four explores the limits of international humanitarian law during an occupation (Gross terms this jus in occupation) (12–14). Gross asks whether appeals to international law can efficaciously safeguard the interests of those subject to occupation (265). The chapter critiques IHL’s reliance upon the doctrine of proportionality. It contrasts the jurisprudence of the International Court of Justice with that of Israel’s High Court of Justice. Focusing on both courts’ treatment of Israel’s construction of the West Bank barrier, Gross demonstrates the ephemeral nature of judicial relief. The resulting concessions gained through domestic legal challenges at the High Court of Justice are juxtaposed with the ICJ’s advisory opinion and, despite assumed benefits, are shown to confer legitimacy on the occupation regime (337). Chapter five concludes and explores the emerging influence of international human rights law within an occupation (343). Gross challenges the orthodox view that increased reliance upon human rights law protects the interests of an occupied population. Instead, Gross argues, appeals to human rights may dilute the special protections afforded under IHL. This occurs when a human rights discourse creates equivalency between ‘the citizens of the occupying state and the people living under occupation’ (343). Gross identifies similar patterns in the jurisprudence of the Israeli High Court of Justice and the European Court of Human Rights. Referencing their respective treatments of the Palestinian territories and of Northern Cyprus and Iraq, Gross argues that human rights law may expand protections for the occupied population in vertical cases (eg a due process challenge), but narrows protections when regulating a horizontal relationship between the occupied population and citizens of the occupying state (eg West Bank Palestinians and Israeli settlers) (386–90). Few would observe the occupation of the Palestinian territories and conclude that international law functions as it professes and as it must. In acknowledging the need to rethink the relationship between international law and occupation, Writing on the Wall exists amongst a body of critical scholarship. In as early as 1949, the inconsistencies between observed manifestations of occupation and the then newly formulated international law of occupation’s ability to effectively govern prolonged occupation were considered. The crux of the critique provided by Doris Appel Graber was direct. It plainly asserted that the existing legal treatment appeared fragmented, developed within and was influenced by a non-analogous historical period of relative peace, and was not suited to govern the complexity of contemporary occupation.9 Adam Roberts’ defining works on the variability and prolonged nature of occupations noted that an inherent inconsistency existed between international law’s treatment of occupation as constituting a provisional state of affairs and contemporary examples of prolonged occupation.10 Writing over a quarter century ago, Roberts argued that this question had assumed prominence due to the exceptional duration of Israel’s presence within the territory that came under its control in 1967. Roberts correctly predicted that Israel’s occupation of the Palestinian territories would continue.11 The entrenchment of Israel’s presence throughout the West Bank, the massive expansion of settlements and associated infrastructure, have heightened the importance of the fundamental questions concerning the appropriateness of the traditional framework that were first raised in the wake of the Second World War. The critiques offered by Roberts have served as a point of departure for subsequent discussions about the inadequacies of applying international law, traditionally conceived, to modern and complex occupations. Commentators, implicitly accepting the legal framework’s de facto application, recognize that it must better regulate the relationship between the occupier and occupied to successfully balance the protectionist and conservationist objectives conveyed by the law of occupation. They prescribe more law and better enforcement. Aeyal Gross’ The Writing on the Wall: Rethinking the International Law of Occupation differentiates by cautioning against a singular reliance upon law. Gross recognizes that a factual conception of occupation renders international law vulnerable to misuse. Selectively applied, it can (and often has) become a tool or strategy to entrench the interests of an occupying power. Law can perpetuate an occupation’s duration. Gross, however, does not leave readers despondent. His normative focus and the proposed functional approach offers a means of counterbalancing international law’s faciliatory potential. The functional approach provides a viable course. It better facilitates the regulation of a phased or partial withdrawal by an occupying power. It fills the gap created by international law’s binary treatment of occupation, and the approach has been endorsed by the ICRC.12 Still, the efficacy of Gross’ proposal is subject to question. One may ask whether international humanitarian law really provides for a “transitional” legal structure. Would this approach become subject to novel forms of manipulation by an occupying power that insists its foreign presence has terminated but maintains interests in and control of the once “formally” occupied territory? Others have questioned the functional approach’s operationalization and practicality. Who, for example, decides how and what aspects of an amended legal framework applies during this transitional phase? Would unconstrained legal fragmentation follow the abandonment of a holistic reading of the law of occupation?13 The indeterminacy that Gross identifies is, perhaps, an unavoidable aspect of an international framework that is forged by consensus and evolved in response to varying historical moments. Gross convinces readers of the need for a normative approach to the enduring challenges that occupation presents. Too often, responses to these challenges conceive of occupation as fact. In accordance with article 42 of The Hague Regulations, an occupation commences upon the establishment of foreign control. Devoid of normative content, law’s relationship with occupation is resigned to the management of occupation. Until normality reverts, it endeavours to improve quotidian experiences but it is constrained from engaging with the causes that create and perpetuate occupation. The normative reading of international law’s relationship with occupation that Writing on the Wall provides compels attention from those interested in law’s ability to affect fraught international scenarios. It should inform legal and diplomatic engagements pertaining to the conduct and management of occupations. And now, after fifty years of Israeli occupation throughout the Palestinian territories, it should structure new thinking and motivate novel forms of normative and legal engagement within this enduring conflict. Footnotes 1 State of Israel, Prime Minister’s Office, PM Netanyahu’s Remarks at the Opening Ceremony Marking the 50th Anniversary of the Reunification of Jerusalem (21 May 2017) <http://www.pmo.gov.il/English/MediaCenter/Speeches/Pages/specch50Jerusalem210517.aspx> accessed 5 June 2017. 2 J Lis, ‘Marking 1967 War’s Anniversary, Netanyahu Pledges to Strengthen the Settlement Enterprise’ Haaretz (Tel Aviv, 6 June 2017) <http://www.haaretz.com/israel-news/.premium-1.794121> accessed 6 June 2017. 3 I Lior, ‘15,000 Rally in Tel Aviv in Support of Two-state Solution’ Haaretz (Tel Aviv, 27 May 2017) <http://www.haaretz.com/israel-news/1.792194> accessed 5 June 2017. 4 Ibid. 5 A Roberts, ‘What is a Military Occupation?’ (1984) 55 BYIL 249, 249–50. 6 Beyond the Israeli context, Gross explores the US/British occupations of Iraq and Afghanistan, the Turkish presence in Northern Cyprus, the Moroccan occupation of Western Sahara, the German occupations of Greece, Yugoslavia, Albania, and Norway, the work of the Eritrea-Ethiopia Claims Commission, the Armenian occupation of parts of the Nagorno-Karabakh region, and the situation in East Timor. 7 This builds upon Gross’ previous work with Orna Ben-Naftali and Keren Michaeli: O Ben-Naftali, AM Gross & K Michaeli, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23 Berkeley J Int’l L 551. 8 This is intended to address situations in which formal distinctions between occupation and sovereignty are blurred by facilitating a shift from, ‘the abstract question as to whether territory is occupied to one assigning responsibilities based on the exercise of power’ (134). Gross first introduced his functional approach in an online symposium hosted by Opinio Juris. See A Gross, ‘Rethinking Occupation: The Functional Approach, Opinio Juris (23 April 2012) <http://www.opiniojuris.org/2012/04 /23/rethinking-occupation-the-functional-approach/> accessed 5 June 2017. 9 See DA Graber, The Development of the Law of Belligerent Occupation 1863–1914: A Historical Survey (Columbia University Press 1949). 10 See Roberts, ‘What is a Military Occupation?’, 249. See also, A Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’ (1990) 84 AJIL 44, 47. 11 Ibid, 44. 12 See ICRC, 32nd International Conference of the Red Cross and Red Crescent, Report, International humanitarian law and the challenges of contemporary armed conflicts, (8–10 December 2015), EN 32IC/15/11. 13 See, eg, V Azarova, ‘Disingenuous “Disengagement”: Israel’s Occupation of the Gaza Strip and the Protective Function of the Law of Belligerent Occupation’, Opinio Juris (24 April 2012) <http://www.opiniojuris.org/2012/04/24/disingenuous-disengagement-israels-occupation-of-the-gaza-strip-and-the-protective-function-of-the-law-of-belligerent-occupation/> accessed 5 June 2017. See also, V Azarova, ‘Operationalising Functionality: Questioning the Term “Functional”’, Opinio Juris (27 April 2012) <http://opiniojuris.org/2012/04/27/operationalising-functionality-questioning-the-term-functional/> accessed 7 January 2018. © The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org
The British Yearbook of International Law – Oxford University Press
Published: Jan 30, 2018
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