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Binary Law Meets Complex Reality: The Occupation of Gaza Debate

Published online by Cambridge University Press:  19 March 2012

Yuval Shany
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Abstract

The debate surrounding the legal status of Gaza after Israel's disengagement in September 2005 exemplifies some of the chronic limits and deficiencies that international humanitarian law in general and the law of occupation in particular suffer from: (a) binary application—the law operates within clear-cut dichotomies and struggles with recognizing ambiguous situations; (b) varying realities—prevalent tensions between “legal reality” and the actual conditions “on the ground” cause the characterization of conflicts to be based upon different law-based and fact-based perceptions of reality: (c) inconsistent legal and policy approaches—parties to a conflict attempt to simultaneously advance different legal and political goals, which leads to a state of affairs that encourages the application of IHL in a selective and inconsistent manner; (d) chronic gaps between law as it is and law as it should be—lex lata may bring about unsatisfactory outcomes—hence, parties and commentators often attempt to modify existing laws through radical reinterpretations. Focusing on the recent debate over the status of Gaza, this Article illustrates how these four fundamental tensions hamper the application of the law of occupation in factually complicated situations.

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Articles
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Israel Law Review , Volume 41 , Issue 1-2: Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context , 2008 , pp. 68 - 86
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, art. 42, 205 Consol. T. S. 277 (1907) [hereinafter Hague Regulations].

2 See, e.g., United States v. Wilhelm List (United Nations Military Tribunal at Nuremberg, decided Feb. 19, 1908), case available in 15 Int'l L. Rep. 632 (1948) or United Nations War Commission, Law Report of Trial of War Criminals 38, 55–56 (1949) [hereinafter List].

3 Although most of the scholarly discussion presented here predates the takeover of Gaza by the Hamas in June 2007, this does not detract from the strength of the general observations I offer on the problematic nature of applying the law of occupation to the situation in Gaza. Quite to the contrary—the more complex the situation is, the more apparent are the structural limits and deficiencies of the law that seeks to regulate it.

4 Government of Israel, Decision of June 6, 2004 on the Revised Disengagement Plan, available at http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents+Revised+Disengagement+Plan+6-June-2004.htm (last visited Feb. 20, 2008). The disengagement plan was designed to “dispel the claims regarding Israel's responsibility for the Palestinians in the Gaza Strip.” Id.

5 IDF Spokesperson Office, Declaration Regarding End of Military Rule in Gaza Strip, Sept. 12, 2005Google Scholar, available at http://dover.idf.il/IDF/console/article_page.aspx?doc_id=45427[in Hebrew] (last visited on April 16, 2008).

6 PLO Negotiation Affairs Department, The Israel ‘Disengagement’ Plan: Gaza Still Occupied, Sept. 2005Google Scholar, available at http://www.nad-plo.org/inner.php?view=disengagement_Fact_GAZA%20STILL%20OCCUPIED (last visited Feb 20,2008).

7 This is also the position taken by Prof. John Dugard, the UN Special Rapporteur for the Occupied Palestinian Territories. Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, Implementation of G.A. Res. 60/251 of Mar. 15, 2006, ¶ 6, U.N. Doc. A/HRC/4/17 (2007):

Statements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate. Even before the commencement of “Operation Summer Rains,” following the capture of Corporal Gilad Shalit, Gaza remained under the effective control of Israel. This control was manifested in a number of ways. Israel retained control of Gaza's air space, sea space and external borders, and the border crossings of Rafah (for persons) and Karni (for goods) were ultimately under Israeli control and remained closed for lengthy periods. In effect, following Israel's withdrawal, Gaza became a sealed off, imprisoned, and occupied territory.”

8 Gisha, , Disengaged Occupiers: The Legal Status of Gaza 49–55 (2007)Google Scholar, available at http://www.gisha.org/UserFiles/File/Report%20for%20the%20website.pdf (last visited Feb. 20, 2008). See also Stephanopoulos, Nicholas, Israel's Legal Obligations to Gaza after the Pullout, 31 Yale J. Int'l L. 524 (2006)Google Scholar.

9 Id. at 49-55.

10 Id. at 56-58.

11 Armed Activities in the Territory of the Democratic Republic of Congo (DRC v. Uganda), 2005, I.C.J.7, (Dec. 19) at ¶ 173 [hereinafter Armed Activites]:

In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an “occupying Power” in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government. In that event, any justification given by Uganda for its occupation would be of no relevance; nor would it be relevant whether or not Uganda had established a structured military administration of the territory occupied. (emphasis added Y.S.).

Applying this standard the Court held that only the Ituri region, where Uganda appointed a governor, qualified as occupied territories. Other areas, where Ugandan troops were present but refrained from actually exercising governmental authority (notwithstanding the failure of the central Congolese government to control these areas), were not deemed occupied.

12 See, e.g., International Humanitarian Law Research Initiative, Legal Aspects of Israel's Disengagement Plan under International Humanitarian Law (2004)Google Scholar; Shany, Yuval, Faraway So Close: The Legal Status of Gaza after Israel' Disengagement, 8 Y.B. Int'l Human. L. (forthcoming 2008)Google Scholar; David Kretzmer, Address at the Minerva Conference on 40 Years to the 1967: Hostilities in Occupied Territories (June 7, 2007). For an earlier position running along similar lines, see Benvenisti, Eyal, Responsibility, for the Protection of Human Rights under the Interim Israeli- Palestinian Agreements, 28 Isr. L. Rev. 300, 312–14 (1994)Google Scholar.

13 For other analogies from domestic law, see Ertman, Martha M., Mapping the New Frontiers of Private Ordering: Afterword, 49 Ariz. L. Rev. 695, 700 (2007)Google Scholar (“Public law … tends to work like a conventional light switch, treating parents as either fully on the hook or total strangers to a child and one another.”); Fallon, Richard H. Jr., & Meltzer, Daniel J., Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2049 (2007)Google Scholar (“Jurisdiction is a threshold issue that functions as an on-off switch.”); Lees, Alex, The Jurisdictional Label: Use and Misuse, 58 Stan. L. Rev. 1457, 1493 (2006)Google Scholar (“Limitations periods set up on/off switches of authority.”).

14 For a discussion of the formalist tendencies of binary normative categories see Clarke, Jessica A., Adverse Possession of Identity: Radical Theory, Conventional Practice, 84 Or. L. Rev. 563,600–01 (2005)Google Scholar (“Formalist reasoning includes a preference for bright-line rules over standards. A person is endowed with rights when they ‘vest,’ as though a metaphysical on/off switch were flipped. The grand aspiration of formalism is to achieve clarity on the gapless grid-like classificatory scheme that provides certain answers to all societal disputes.”).

15 Hague Regulations, supra note 1, art. 42. Although the specific term “effective control” does not appear in the text of Article 42, it is well-accepted that the effective control test is implied thereby. For a discussion,see Shany, supra note 12.

16 On the distinction between international standards and rules, see Shany, Yuval, Toward a General Margin of Appreciation Doctrine in International Law?, 16 Eur. J. Int'l L. 907, 914–16 (2005)CrossRefGoogle Scholar.

17 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 51(3), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I] (“Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”).

18 Id. art. 52(2)

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military of advantage.

19 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 (“This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”).

20 For a comparable discussion, see Singer, Joseph William, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 18 (1984)CrossRefGoogle Scholar.

21 Id. at 14 (“Legal doctrine is far more indeterminate than traditional theorists realize it is.”).

22 See, e.g., Carrillo-Suarez, Arturo, Hors de Logique: Contemporary Issues in International Humanitarian Law as Applied to Internal Armed Conflict, 15 Am. U. Int'l L. Rev. 1, 69–74 (1999)Google Scholar.

23 See Benvenisti, Eyal, The International Law of Occupation 7–26 (2nd ed. 2004)Google Scholar; Fox, Gregory H., The Occupation of Iraq, 36 Geo. J. Int'l L. 195, 230–31(2005)Google Scholar.

24 In the words of one author, some areas of the law are better servedby a “dimmer switch” approach, which allows for factoring in nuanced situations, than by an “on-off” switch approach which opts for all of nothing. Ertman, supra note 13, at 700.

25 While international criminal courts fill some of this institutional vacuum, the exercise of their own jurisdiction is legally circumscribed and depends to a considerable extent on the political cooperation of the states involved. See e.g., Van Schaack, Beth, The Civil Enforcement of Human Rights Norms in Domestic Courts, 6 ILSA J. Int'l & Comp. L. 295, 295 (2000)Google Scholar (“International institutions, by necessity and by design, are capable of addressing only a limited number of perpetrators and conflicts.”).

26 For a comparable discussion under U.S. constitutional law, see Tyler, Amanda L., Is Suspension a Political Question?, 59 Stan. L. Rev. 333,386–387 (2006)Google Scholar (“Indeed, because the ramifications of a valid suspension [of due process safeguards by Congress] are so dramatic, the on/off switch that it embodies requires [an] independent guardian.”)

27 It is perhaps not surprising that the few national and international courts that have discussed the manner of application of the effective control test have issued incompatible decisions. See Armed Activities. supra note 11, at ¶ 177 (employing an “actual display of authority” standard); List, supra note 2, at 55-56; HCJ 102/82 Tsemel v. The Minister of Defense [1983] IsrSC 37(3) 365, 373-74 (both cases employ a “potential effective control” standard).

28 One could argue, in this context, that the act of siege over a certain territory does not render that territory occupied land.

29 See, e.g., Sadat, Leila Nadya, Enemy Combatants afrer Hamdan v. Rumsfeld: Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror, 75 Geo. Wash. L. Rev. 1200, 1216, n.74 (2007)Google Scholar, (“The question remains, of course, whether Iraq is still “occupied” for purposes of the Geneva Conventions' application”).

30 See, e.g., Weissbrodt, David & Bergquist, Amy, Extraordinary Rendition: A Human Rights Analysis, 19 Harv. Hum. Rts. J. 123, 150, n.243 (2006)Google Scholar.

31 See, e.g., McGurk, Brett H., Revisiting the Law of Nation-Building: Iraq in Transition, 45 Va. J. Int'l L. 451, 454–455 (2005)Google Scholar (“[in Kosovo] occupation law conveniently was bypassed”).

32 A.P., , Ethiopia PM Makes Landmark Visit to Somalia, Where his Troops are Protecting the Government, Int'l Her. Trib., June 5,2007Google Scholar, available at http://www.iht.com/articles/ap/2007/06/05/africa/AF-GEN-Somalia-Ethiopia.php.

33 A.P., , Trans-Dniester Separatists in Eastern Moldova Hold Presidential Elections, Int'l Her. Trib., Dec. 10, 2006Google Scholar, available at http://www.iht.com/articles/ap/2006/12/10/europe/EU_GEN_Moldova_Trans_Dniester_Separatists.php.

34 See Benvenisti, supra note 12.

35 See, e.g., Malanczuk, Peter, Some Basic Aspects of the Agreements Between Israel and the PLO from the Perspective of International Law, 7 Eur. J. Int'l L. 485, 487 (1996)CrossRefGoogle Scholar; Bell, Christine, Human Rights and Peace Agreements 190 (2000)Google Scholar (“[The Oslo Agreements devolve power and remove some Israeli forces but do not end occupation.”).

36 See, e.g., Interim Agreement on the West Bank and the Gaza Strip (Israel-PLO), Sept. 28, 1995, art. X-XI, 36 I.L.M. 551 (1997) [hereinafter Interim Agreement].

37 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 47, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

38 See, e.g., Gisha, supra note 8, at 87.

39 See, e.g., Sabel, Robbie, Book Review: The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements by Geoffrey R. Watson, 95 Am. J. Int'l L. 248, 251 (2001)CrossRefGoogle Scholar (“It would not seem to be reasonable, as some lawyers argue, to refer to ‘the PA serving as the ‘long arm’ of Israel's occupation administration.’”).

40 Revised Disengagement Plan, supra note 4, preamble (“The State of Israel has come to the conclusion that there is currently no reliable Palestinian partner with which it can make progress in a two-sided peace process.”).

41 For a discussion of desuetude, see Glennon, Michael J., How International Rules Die, 93 Geo. L.J. 939, 960 (2005)Google Scholar.

42 For support of the continued validity of the Oslo Accords, see, e.g., Watson, Geoffrey R., The “Wall” Decisions in Legal and Political Context, 99 Am. J. Int'l L. 6, 23 (2005)CrossRefGoogle Scholar. For support of the opposite position, see, e.g., Levi, Gidon, Oslo is Dead, Ha'aretz, June 16, 2002Google Scholar, at B1. It may be noted that Israeli Courts are still referring on occasion to the Oslo Accords, as if they are still valid. See e.g., HCJ 7015/02 Ajuri v. The IDF West Bank Military Commander [2002] IsrSC 56(6) 352, 369; Mis. Civ. P.(Jer) 1008/06, Elon Moreh College Association v. The State of Israel [April 3,2006] (unpublished).

43 See, e.g., Benvenisti, Eyal, Water Conflicts during the Occupation of Iraq, 97 Am. J. Int'l L. 860, 861 (2003)CrossRefGoogle Scholar (“the identification of an area as “occupied” is a factual matter.”).

44 Indeed in Armed Activities, the question of whether the territory in question is occupied and from what date depended on an interpretation of a public declaration issued by the President of the DRC. Armed Activities, supra note 11, at ¶ 49-54. Another legal mechanism for negating the conditions of occupation may be a UN Security Council Resolution under Chapter VII of the UN Charter. See U.N. S.C. Res. 1546, U.N. Doc. S/RES/1546 (2004) (proclaiming the end of occupation in Iraq).

45 See e.g., Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A), at ¶ 57 (1995) (preliminary objections) (an occupier remains responsible for acts taken by a “puppet” government acting on its behalf).

46 The Hague Regulations, supra note. 1, art. 43.

47 Id.

48 Fourth Geneva Convention, supra note 37, art. 6.

49 R (Al-Skeini) v. Secretary of State for Defence, [2005] EWCA Civ 1609, at para. 124 (per Brooke LJ). This judgment was affirmed by the House of Lords in R (Al-Skeini) v. Secretary of State for Defence, [2007] UKHL 26.

50 Arguably, it was the very failure of the U.K. to meet up with its responsibilities under the law of occupation that created the conditions of lawlessness in which human rights norms were deemed inapplicable. Hence, the Court's position appears to run contrary to the ex injuria jus non oritur principle.

51 For the seminal work on the utopian tendencies of certain international legal arguments, see Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument 2 (1989)Google Scholar.

52 Interim Agreement, supra note 36, art. X (4), XVII (4).

53 For a discussion, see Fox, supra note 23, at 228-40.

54 See, e.g., McDonald, Neil & Sullivan, Scott, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror,” 44 Harv. Int'l L.J. 301 (2003)Google Scholar.

55 See. e.g., MacCormick, Neil, Natural Law and the Separation of Law and Morals, in Natural Law Theory: Contemporary Essays 105, 113 (George, Robert P. ed., 1992)Google Scholar.

56 Armed Activities, supra note 11.

57 See, e.g., Ajuri v. The IDF West Bank Military Commander, supra note 42, at 382 (war against terror warrants a “dynamic interpretation” of the Geneva Conventions).

58 Banković v. Belgium, 2001-XII Eur. Ct. H.R. 333.

59 European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950,213 U.N.T.S. 222.

60 See, e.g., the comment offered by the U.N. Committee on Economic, Social and Cultural Rights with relation to the Application of the Covenant on Economic, Social and Cultural Rights by Israel in the Occupied Territories. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, ¶ 6, U.N. Doc. E/C.12/1/Add.27 (Dec. 4, 1998).

61 R (Al-Skeini) v. Secretary of State for Defence, supra note 49.