International law has developed a body of law, within the laws of war, to regulate “occupation.” These laws have, however, failed to address and regulate the growing phenomenon of “prolonged occupation,” the most notable example of which continues unabated in the Occupied Palestinian Territories (OPT). The reality of prolonged occupation demands that international law redefine its moral compass, which is often determined by military necessity.
Occupation is not prohibited ab initio under international law, which does not sanction but rather regulates this institution. The fact that international law does not prohibit occupation should, however, be called into question, if not resisted. Occupation is a question of power, rather than law, and, therefore, placing it in an extra-legal domain would make solid political sense. Moreover, since the threat and use of force are outlawed in international law, and occupation is the result of the use of force and is not a recognized exception to prohibitions against the use of force, how can the result of this illegal conduct be legal? Historically, all occupations have resulted from the use of force. Under all legal systems, including international law, illegal conduct is penalized, even more so when it yields illegal results.
If occupation is not sanctioned altogether, then international law must at the very least respond to the changing dynamics of modern day occupation and draw a line between temporary (legal) and prolonged (illegal) occupation. It goes against the spirit of international human rights and humanitarian law for prolonged occupations, such as the Israeli occupation of the Palestinian Territories which has facilitated heinous crimes against the Palestinian people, to be defined as “legal” under international law.
The legality of “occupation” cannot simply rest on whether the occupying power complies with the laws of occupation. Pursuant to the Regulations of the Hague Conventions of 1907, one of the founding documents on the law of occupation, a territory is deemed occupied when it comes under the authority of a foreign military force. The law of occupation extends only to the territory where the occupying force has established its authority and where that authority can in fact be exercised. This definition captures the occupying forces’ ability to occupy a territory and then retain control over the same, and implies that this authority will continue to be exercised in the immediate to near-term future. Occupation thus serves military and/or security objectives, and the occupying power derives its rights and obligations solely from its effective control over occupied territories.
The drafters of the Hague Regulations – and subsequently the Geneva Conventions – conferred rights and imposed obligations on foreign powers that occupied territories during hostilities, a concept known as “belligerent occupation.” The occupying power “administers” the occupied territories during the period of occupation and has a number of obligations, including: restoring public order and safety, respecting, to the extent possible, existing laws, respecting the religion of the occupied territory and allowing for free worship, and refraining from interfering in judicial cases involving occupied persons. In light of these onerous obligations, occupation is a costly project for an occupying country. Yet, somewhere, there lays a cost – benefit calculus in favor of adhering to the law of occupation.
Some claim that the Israeli occupation of the OPT retains some features of belligerent occupation, including a formal system of control exercised by an external force, which is of a nationality different from that of the occupied population, and that is prohibited from annexing the territory. The Israeli version of belligerent occupation is, however, extremely remarkable for a number of reasons:
(1) The undefined status of the West Bank and Gaza: Gaza is often described as self-governed and the West Bank as occupied territory. There are persistent questions about whether either or both territories are capable of self-determination;
(2) The blurred distinction between a state of war and state of peace in the OPT compounded by the threat to Israel’s security; and
(3) The schizophrenia of the Israeli approach towards the OPT.
The Israeli occupation of the OPT makes it clear that the drafters of the Hague Conventions did not envisage prolonged occupation, and suggests that belligerent occupation may be out-dated and irrelevant in practice. This raises a number of questions. To what extent can the traditional law of occupation apply in cases of prolonged occupation? After what point in time does it become illegal for the occupying power to remain in and “administer” the occupied territories? At what point does prolonged occupation become synonymous with annexation?
Occupation is a deviation from an international system based on the equal sovereignty of states. In the OPT, occupation has created a system based on the inequality of states, one of which lacks any semblance of sovereignty. While it is unlikely that the international legal system will outlaw prolonged occupation any time soon, it is important that rules be developed to distinguish what is legal from what is illegal.
Establishing the line between temporary and prolonged occupation need not, however, be a herculean task. Rather, the solution may be as simple as agreeing on a timeframe for when a situation of temporary occupation becomes one of prolonged occupation. While some may question the usefulness of this distinction, it provides at least a first step in defining prolonged occupation as a prohibited activity under international law.
* Sarah Khatib holds a specialist Master of Laws (LLM) in International Law from the School of Oriental and African Studies, University of London in which she focused on Dispute Resolution, Public International Law, and Transitional Justice in Post – Conflict Societies. She also holds an Honours of Law (LLB) degree from the University of Sheffield. She is currently an attorney at law at a top – tier law firm in Amman, Jordan and is a member of the Jordanian Bar Association.