Wednesday, October 09, 2013

A couple of years ago, the International Committee of the Red Cross put a bunch of international law scholar in a room and they all discussed "Occupation and Other Forms of Administration of Foreign Territory."

One very interesting part of the resulting publication is that the experts didn't only discuss what factors make a territory legally occupied, but also what factors are necessary to end occupation.

While there was rarely consensus across the board, some parts of the discussions are most enlightening.

As far as the definition of occupation is concerned, there was near unanimity that it has three components:

The experts discussed the cumulative constitutive elements of the notion of effective control over a foreign territory, which underpins the definition of occupation set out in Article 42 of the Hague Regulations of 1907.

The presence of foreign forces: this criterion was considered to be the only way to establish and exert firm control over a foreign territory. It was identified as a prerequisite for the establishment of an occupation, notably because it makes the link between the notion of effective control and the ability to fulfil the obligations incumbent upon the occupying power. It was also agreed that occupation could not be established or maintained solely through the exercise of power from beyond the boundaries of the occupied
territory; a certain number of foreign “boots on the ground” were required.

The exercise of authority over the occupied territory: the experts agreed that, once enemy foreign forces were present, it was their ability to exert authority in the foreign territory that mattered, not the actual and concrete exercise of such authority. Using a test based on the ability to exert authority would prevent any attempt by the occupant to evade its duties under occupation law by deliberately not exercising authority or by installing a puppet government. It was also agreed that occupation law did not require authority to be exercised exclusively by the occupying power. It allows for authority to be shared by the occupant and the occupied government, provided the former continues to bear ultimate
and overall responsibility for the occupied territory.

The non-consensual nature of belligerent occupation: absence of consent from the State whose territory is subject to the foreign forces’ presence was identified as a precondition for the existence of a state of belligerent occupation. For occupation law to be inapplicable, this consent should be genuine, valid and explicit. The experts felt that because occupation law does not provide for any criteria for evaluating it, consent should be interpreted in the light of current public international law. Eventually, the existence
of a presumption of absence of consent when foreign forces intervened in a failed State was approved.

These are pretty much what every serious legal scholar agrees are the criteria for occupation.

What about the end of occupation? At what point is occupation over?

A large majority of the experts expressed the view that the criteria for establishing the end of an occupation should mirror the ones used to determine its beginning. In other words, the criteria should be the same as those for the beginning of occupation but in the reverse order. Therefore, the physical presence of foreign forces, their ability to exert their authority over the territory concerned and the continuing absence of the territorial authorities’ consent to the foreign forces’ presence would be the preconditions that would have to be cumulatively fulfilled in order to conclude that the occupation had not ended. Should one of those criteria be unmet, it would result in the termination of the state of occupation. The concept of ‘classic’ occupation was the basis of the discussions on the criteria for determining the existence of a state of occupation, in particular its termination, for the purposes of IHL.
The reason is pretty clear:
...some of the experts emphasized the point that an occupation could not be said to exist when the foreign forces had withdrawn completely from the territory concerned. According to them, one could not then support the continued application of occupation law and claim that the foreign forces still bore responsibilities under this body of law, because those troops would not be in a position to fulfil the related obligations. This would totally contradict the principle of effectiveness that pervades IHL, occupation law in particular. The absence of foreign troops should not serve only as an indicator for assessing the end of occupation but should be maintained as a prerequisite for determining the end of occupation as well.24 A participant pointed out that one should not build arguments for artificially maintaining the framework of occupation law, especially when this might require the foreign forces to re-invade an area they had left. In other words, it was underscored that occupation law could never oblige foreign forces to re-occupy territory from which they had completely withdrawn.
Being humanitarians, some were uncomfortable with the idea that a foreign army can just choose to leave and leave the territory to fend for itself. They came up with the concept of "residual responsibilities":
One expert added that once foreign troops had left a territory they had been occupying, the occupation law framework vanished and new legal bases should be elaborated for the residual responsibilities that could still be borne by the former occupant.

Indeed, some participants argued that the remaining aspects of occupation (i.e. the competences retained by the former occupying power) would continue to be governed by occupation law even if effective control had been concretely relinquished....
On the other hand:
Two experts nonetheless contested the view that occupation law could provide an adequate legal basis for those residual responsibilities. They drew attention to the fact that occupation law norms were calibrated to take effect only when a certain amount of control had been established over a given foreign territory; this point would be reached only when the criteria identified in the previous working sessions had been met. Therefore, these experts argued, it would not be wise to detach the application of occupation law from the concept of effective control for the purposes of IHL.

The residual responsibilities exercised by the former occupying power should be governed by other bodies of law, such as human rights law or even residual IHL, since occupation law would no longer be applicable. In this regard, one expert warned against the danger of cramming everything into occupation law and underlined the necessity of not stretching this corpus juris beyond its breaking point, as that would ultimately challenge the principle of effectivity on which occupation law was premised. This would particularly be the case if one were to attempt to impose obligations under occupation law on foreign forces that were not in a position to respect them, insofar as this body of law’s positive obligations, to be implemented effectively, usually required the presence of ‘boots on the ground.’
No counter-argument is offered.

Later on, referring to Gaza specifically, the report concludes* (see update 2, it was not a conclusion but part of an appendix:)
...the specific proposition that the rules relating to occupation continued in the situation after September 2005 would appear difficult to sustain granted the traditional rules about occupation with their strong emphasis on the factual basis of a continuing presence on the ground.
In other words, there is near-total consensus view among international legal scholars surveyed in this ICRC document that Gaza cannot possibly be considered occupied by Israel in a legal sense (although the report was careful to state that conclusions like this should not be drawn about specific situations like Gaza, see update 2 below. I am basing this statement on the arguments of occupation given in the document. I would guess that the reason that the ICRC made that disclaimer is specifically for cases like Gaza where they want to make their own legal decisions independent of what international law actually says.)

However, in the ICRC's latest annual report, they write:

[The ICRC] responded rapidly to the needs of people affected by emergencies, including towards year-end in the DRC, Israel and the occupied Palestinian territory (Gaza Strip) and the Philippines.
Just like the UN, the ICRC knows the definition of occupation does not in any way apply to Gaza - yet they still call Gaza occupied!

In the case of the ICRC, it is worse. Because the ICRC acts like it is the ultimate authority on international humanitarian law, so when it says Gaza is occupied - against the legal reasoning of the experts it consulted* - it has gravitas. There is essentially no sane legal argument that Gaza should still be considered occupied (see here for answers to the most significant arguments not addressed in the ICRC document.)

The only conclusion that can be drawn from this is that the ICRC is just as political an organization as the UN is, and it will toe the politically correct line of saying Gaza is occupied even when it knows quite well otherwise. As is so often the case, there is one rule for Israel and one for the rest of the world - even among those who pretend to be the most unbiased observers.

(This ICRC hypocrisy was noted in this short but essential paper by Robbie Sabel at JCPA; I just followed his footnotes to verify that the ICRC indeed comes up with one conclusion and then ignores it when it comes to Israel.)

UPDATE: Juan-Pedro Schaerer, ICRC Head of Delegation Israel and the Occupied Territories, responds in the comments:
While this article provides a summary of an important expert's workshop, the author ignores essential facts used by the ICRC when applying of the Law of Occupation to Gaza.

The ICRC closely monitors developments in the Gaza Strip, since facts on the ground are crucial to determining whether the elements of effective control required for occupation continue to be met. While it cannot be said that the Gaza Strip is a "classic" situation of occupation, Israel has not entirely relinquished its effective control over the Strip. This control includes amongst other the almost total control over the borders of the Gaza Strip (except for the border with Egypt), the control over the airspace and the entire coast line, the control over who can move out of the Gaza Strip, the control of the population register, control over all the items that can be imported and exported from the Strip and the control over a no-go zone along the Gaza fence inside the Gaza Strip. These facts and others allow ICRC to determine that Israel exercises effective control and therefore remains bound by the law of occupation in the case of Gaza.

This article ignores such essential facts and concludes in a facile way that the ICRC is hypocritical, biased and politically-motivated. The ICRC has no doubt that much of the hardship caused to the 1.7 million people living in Gaza would be reduced if international humanitarian law was fully understood and respected. ICRC works in a neutral and impartial way to promote a better understanding of international humanitarian law, and to alleviate the suffering caused by those who fail to respect it.

Schaerer Juan Pedro
ICRC Head of Delegation Israel and the Occupied Territories
I responded:

Thanks for your response.

According to the consensus of the report, as well every single other legal analysis I have ever seen (from Amnesty, for example) the notion of effective control means "boots on the ground." The ICRC report allows "indirect effective control" if there is a local militia that answers to the occupant. That's it.

If your argument is that control over airspace, coast and (most) of the borders, etc. constitutes "effective control," then the ICRC is truly pursuing a sui generis definition that applies to Israel, and only Israel. (As the EJIL article I referenced concluded, you can say that the situation is a siege - something that the border with Egypt completely contradicts - but in no way is it an occupation.) Israel couldn't fire a garbageman in Gaza if it wanted, let alone install a new government.

I am not arguing that Israel has no responsibilities under IHL to help the civilians of Gaza. The Israel Supreme Court decision Jaber al-Basyuni Ahmad et al. v. The Prime Minister and the Minister of Defence makes it clear that it does, under LOAC for example. But if the ICRC is defining Gaza as "occupied," and your response proves that it does (I admit I was hoping that it was a mistake,) then you are proving that the ICRC has a different standard for its definition of occupation only in respect to Israel.

I believe that your response proves my point.

UPDATE 2+ (Things in italics in this update were written Saturday night): Mondoweiss' Phan Nguyen writes a lengthy post criticizing this article. Time constraints do not allow me to fully address all the points right now.

I will admit that the wording I used that the ICRC report "concludes" that occupation relies on "boots on the ground" was incorrect; it was an appendix by Professor Adam Roberts. However, contrary to what the Mondoweiss author writes (saying my interpretation is "perhaps the most ridiculous aspect of EOZ quoting Roberts") Roberts makes crystal clear that he is saying that the idea of Gaza being considered occupied after Israel's withdrawal is problematic. Here's the entire paragraph:

Whatever one’s view of the main substantive part of the Supreme Court’s verdict in this case, the specific proposition that the rules relating to occupation continued in the situation after September 2005 (which was only one plank of the petitioners’ case) would appear difficult to sustain granted the traditional rules about occupation with their strong emphasis on the factual basis of a continuing presence on the ground.

I have no clue how the Ngyuyen can read this the opposite way. Perhaps he is the one with the reading comprehension problem, but readers can make up your own minds.

I don't think I characterized the report as being reflective of the ICRC's official views, as Nguyen says. I read the report as being an attempt to determine the laws of occupation, period. (*There was one line I did characterize the report as "ICRC's own legal reasoning" and that was indeed wrong. I placed an asterisk there before Shabbat intending to admit that in this update, but in the rush I forgot. I was most certainly not trying to erase any evidence; I know enough about the Internet to know about cached copies. Sheesh.) I found it hypocritical that the ICRC in practice behaves opposite what most of the experts it gathered say, that there are three criteria to determine occupation and (most of them) agreeing that the same three criteria determine the end of one.

I plan to go into more detail on the sui generis part of the ICRC's thinking based on the second report that was referenced by Schaerer, by Ferraro, in the comments of this post but not in the post itself. I think that Ferraro, an ICRC legal adviser, was bending over backwards to figure out a way to make Israel appear to be occupying Gaza even though most of his paper would seem to argue the opposite; in addition he brings no sources at all to prove his very novel theory.

It is true that sometimes the boundaries of law must be determined by sui generis cases.  But the law must be interpreted dispassionately and not to come to a predetermined conclusion based on how the lawyer feels about the specific case. The arguments about control of borders, airspace, etc. being "effective control" are not merely stretching the boundary a little - they are moving it to places that no objective legal scholar would ever countenance. "Boots on the ground" has been one of the definitions of occupation accepted by all since the 19th century, to throw that away without any solid legal reasoning indicates that the legal arguments are meant to come to a specific conclusion, which is really a travesty of the law.

And this is what the ICRC is doing. More details next week.

My critic doesn't want to get into that argument, of how the law cannot be changed that drastically especially by parties who have an interest in changing it, instead concentrating on minor mistakes I made. In retrospect the term "hypocrisy" was perhaps too harsh but I will return to that in a followup post.

UPDATE 3: Followup post here demolishing Schaerer's comments.

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