Occupation 101

Eyal Benvenisti (2012, 1) states that “the law of occupation is intimately related to the law of sovereignty, and to a large extent serves as its mirror image.” This underscores the quite central point that the law of occupation applies only to recognized sovereign states. This has been an area of some confusion for me (and I suspect others), since Israel’s presence in Palestine (Gaza and the West Bank) has been called “occupation” for many years. This term would apply now, since Palestine received recognition from the majority of UN members, in both the General Assembly and UNESCO. But it should not have applied before such recognition. The seeming milestone of recognition has passed almost unnoticed. This is a cause for concern over the effectiveness of the law of occupation, and indeed of recognition itself. There is one caveat: it some hold that full recognition of a state that is seceding must be recognized by the state it is seceding from (i.e., Israel must recognize Palestine).

Human rights law professor Eval Benvenisti

Some premises of the law of occupation:

Occupation is considered “a state of exception for international law.” As Giorgio Agamben notes, the sovereign is that for which a state of exception exists in terms of the law, i.e., the sovereign is “he” to whom the law does not apply.

Giorgio Agamben

Because the law of occupation begins to apply once a law has already been broken (the first law of nations – that law of non-intervention), occupation thus fills a “governance gap” providing some type of governance where the occupied government is overthrown.

Temporary allegiance: “inhabitants are under [the occupant’s] sway and have to render obedience to his commands.”

The bases of the law of occupation include the Hague regulations, Geneva Convention IV, and customary international law.

The working definition of occupation involves the occupier (or “occupant”) having “effective control” and “boots on the ground”- that is, it actually controls the territory, rather than merely claiming to control it. Occupation is thus a “de facto regime” – a regime “in fact,” but not “in law” (de jure).

The Occupant has no title to territory, but this “does not release it from its obligations and responsibilities under international law” (Benvenisti, 2012). The occupant is also “responsible for local public institutions such as the local police, which [it] directs and controls,” in other words, it is responsible for maintaining order during the occupation.

While some have questioned the relevance and effectiveness of the law of occupation, according to Benvenisti:

Despite … the evolution of new normative frameworks such as the law on self-determination or human rights law, the law of occupation has retained its relevance and significance (Benvenisti, 2012, 19).

Origins of the concept

Occupation was “conceived as a temporary regime existing until the conclusion of a peace agreement between the enemy sides” (Benvenisti, 2012, 20). It is thus the “mirror image of the concept of sovereignty” (Benvenisti, 2012, 21). According to eighteenth century international legal theorist Emmerich de Vattel, there is “no difference between [an] occupant and a conqueror who may treat the territory gained as under its sovereignty”(Benvenisti, 2012, 23).

Characterization of Occupation

Occupation begins: “once control is established” – i.e., there is no delay between the beginning of occupation and the responsibilities afforded to the occupant, he is immediately responsible (Benvenisti, 2012, 55).

Occupation ends when: 1) there is a loss of effective control, 2) the occupant can no longer exercise authority, 3) the consent of the sovereign is granted through a peace treaty, or 4) there is a transfer of authority to a government endorsed by the occupied population through internationally-recognized referendum.

Occupation is by definition military in nature, and rather than granting unlimited powers on the occupier, places obligations on them – to administer a temporary government, provide services, etc. This obligation begins immediately. At first, the law of occupation granted very few protections to the residents of an occupied state, and even allowed for punishment of those who defy the occupying government’s dictates. This is problematic for those who currently deny the validity of the State of Hawaiʻi and its government apparatus. But the law evolved over time to grant further rights and protections to the occupied.

GENEVA CONVENTION

In the (proposed) 1899 Hague Regulations, the basic premise of the law of occupation was stated:

The country invaded submits to the law of the invader; that is a fact; that is might; but we should not legalize the exercise of this power in advance, and admit that might makes right (Beernaert in Benvenisti, 2012, 90).

In the fourth Geneva Convention (GCIV) (which was crafted to with the “aim of imposing on occupants ʻa heavy burden”) (Benvenisti, 2012, 97), the norm was codified that the occupant (occupier) must take three considerations into account: “itʻs own security interests, the interests of the ousted government, and those of the local population, which may be different from the interest of their legitimate government” (Benvenisti, 2012, 69).

First Geneva Convention, 1864

The norms of GCIV were formed in the context of the Franco-Prussian war of 1870-71, which created an expectation that during occupation the occupying military and the civilian population could be kept at a distance from each other and even co-exist relatively harmoniously (Benvenisti, 2012, 70). As for changes to law, they were to be kept at an absolute minimum, but were allowable for the purpose of making occupation practicable and functional on the ground. Benvenisti (2012, 90) notes that the rule that changes to law are only when “absolutely necessary … has no meaning” because the occupant is never absolutely prevented from complying to local law.

Article 43 of the GCIV was a mandate to “restore and ensure public order and civil life” – this came to be seen as an “incomplete instruction to the occupant” because of the conflicts of interest between occupant and the ousted government (Benvenisti, 2012, 71).

Changes to the law of occupation also continued as human rights became more of a concern to the international community. As this occurred, actual occupants began to seek to avoid the responsibilities of occupation by “purport[ing] to annex or establish[ing] puppet states or governments, rely[ing] on ʻinvitations’ from indigenous governments [the Soviet/Russian formula]” and other means (Benvenisti, 2012, 72).

But as is often pointed out, these means are not legitimate as GCIV states “the benefits [or applicability] of the [Geneva] Convention shall not be affected … by any annexation … of the whole or part of the occupied territory.” In short, the occupant retained the duty to fulfill its obligations under the law of occupation (GCIV in Benvenisti, 2012, 73).

As with all legal documents and doctrines, however, it is “impossible to read the drafting history of the GCIV without paying close attention to the diverse concerns of the different state representatives” (Benvenisti, 2012, 98). That is to say, it is contingent on the conditions of the time and context in which it was crafted.

HUMAN RIGHTS

As it developed in the twentieth century, the human rights regime came to decenter the law of occupation’s emphasis on the agency of states as the only actors. People came to play a role in international law, under which previously only states were subjects. In the occupation of Iraq, for example, Amnesty International pushed for changes in Iraqi law – normally in contravention of the law of occupation – for the purpose of the protection of human rights. Occupation was in this case seen as an opportunity to improve conditions for the citizens of the occupied state (a rare, but quite possible scenario). Sharia law was in this case seen as “incompatible” with GCIV rights (Benvenisti, 2012, 103).

NECESSITY

Keanu Sai has used the “doctrine of necessity” as a justification for forming the Acting Government of the Hawaiian Kingdom; the necessity of an “organ” to speak on behalf of the occupied state, in other words, necessitated the creation of a “government” whose legitimacy would otherwise be highly questionable. Benvenisti notes this doctrine as a “recognized justification for legislation by the occupant,” but noted that it does not apply to the civil and criminal laws of the occupied state: “the penal laws of the occupied territory shall remain in force,” (Benvenisti, 2012, 96) ostensibly to prevent draconian trials and execution of resisters against the occupation. However, it is also recognized that the occupant would be “prevented from respecting the laws in force” in the rare case that they “conflicted with its obligations under international law, especially [the GCIV] (brackets original)” (Benvenisti, 2012, 102).

DEBELLATIO

Sai also notes that Debellatio, or conquest, while seen as a legitimate form for the transfer of sovereignty, was essentially outlawed in the Americas – by the United States and some of the recognized sovereigns in South America – because they feared their former colonial overlords would re-conquer them. This, in his view, was the purpose of the 1823 Monroe Doctrine. As Jay Sexton notes in his book  The Monroe Doctrine, “American statesmen exploited fears of foreign intervention in order to mobilize political support” (Sexton, 2011, 12). Sexton also notes how the Tyler Doctrine (actually proclaimed in 1842 by secretary of state Daniel Webster) “effectively extended the 1823 message  [the Monroe Doctrine] to Hawaiʻi” (Sexton, 2011, 112). As a result, the United States does not recognize debellatio – conquest – as a legitimate form of transferring sovereignty. This quells any argument that even though there was no conquest of the Hawaiian Kingdom, “there would be.”

MANAGEMENT OF NATURAL RESOURCES

The occupant is allowed to collect taxes, “as far as is possible, in accordance with the rules of assessment and incidence in force … to defray the expenses of the administration of the occupied territory” (Benvenisti, 2012, 81). In other words, the occupant should not, as was seen in the film The Last Emperor, make the occupied “pay for its own occupation” as the Japanese ambassador says to the Emperor of Manchuria (Manchukuo). The occupant is also bound by the general rules regarding property of usufruct – the use of land without destroying it (Benvenisti, 2012, 77). This is relevant to the U.S. presence in Hawaiʻi as evidenced by the more than one hundred Superfund sites at Pearl Harbor alone.

NATIONALS OF THE OCCUPYING POWER

My own understanding of the law of occupation is that it strictly prohibits the “overwhelming” of the nationals of the occupied state with settlers from the occupying state, as was done by Russia to Estonia and other Baltic states. Benvenisti treads very lightly here, noting only that settlement need only avoid “impinging on the rights” of the citizens of the occupied state. It is possible (though I donʻt mean to hastily accuse him) that his status as an Israeli influences this light treatment of settlers, and he does mention Israel, the West Bank and Gaza in the very short section on this topic (Benvenisti, 2012, 106-107).

THE MEANINGS OF OCCUPATION

At the summer land institute at Cornell University, I was exposed to multiple meanings of occupation. Out of respect for the participants, who are planning to publish their papers, I will not discuss the specifics of their papers but only give general impressions from the institute. Occupation comes from the Latin word occupare, meaning to seize or capture (thanks to Camilo Ehrlichman for bringing up this etymology). This made the title of my talk, “Occupied minds: was Hawai’i ceded or seized?” apropos to the theme of the institute.

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I still hold to a fairly strict legal definition of occupation – Benvenisti holds that it is:

“the effective control of a power [occupant]
… over a territory to which that power
has no sovereign title, without the volition
of the sovereign of that territory.” – Eyal
Benvenisti, The International Law of
Occupation (2012, 3).

But this week opened my mind to the ways in which occupation takes plural forms and can be disguised as other “legitimate” activities. The group visited the site of a highly controversial gas storage facility at Seneca Lake in the finger lake region of New York near Ithaca and Rochester. Just as we stood observing the site from the road, about a dozen cars honked their horns in support thinking we may be preparing for an action against the company. Both sides in this struggle have pointed to science and economics in support of their claims, in ways that reminded me of the Mauna kea struggle – in fact one protest group calls itself We Are Seneca Lake.

Protesters blocking access to the site of underground gas storage in the finger lakes region of New York

In their case, this slogan was quite literal – the lake is the drinking water source for 100,000 people in the finger lakes region, and as the body is 65-70% water, those citizens are quite literally made of Seneca Lake water. Even I drank a couple of glasses and was thus partly made of the lake.

Screen shot 2011-12-31 at 1.19.08 AM
In my talk, I tried to recognize the Cayuga nation, on whose traditional lands Cornell lies. But I neglected to ask what the native nation(s) of the Seneca lake region thought of the gas storage issue. One participant – from UH actually – quietly proposed that the movement might constitute “settler activism.” I found this troubling and it made me immediately think of Kahea: the Hawaiian- Environmental Alliance, whose mission I find relevant to this issue and perhaps the most important of all the nonprofits in Hawaii; to heal the insane rift between environmentalists and Kanaka Maoli.

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Structural Constraints: A lecture on Structures and Institutions for Political Science 110

This may be quite basic for many, but it covers government institutions mainly in the US.

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From a Native Daughter: “in our way of speaking, land is inherent to the people; it is like our bodies and our parents”

umi:

I’m going to be having a short Mauna Kea series of posts, starting with this one.

Originally posted on Sacred Mauna Kea:

808urban

“This is how private property land tenure entered Hawai’i. The common people, driven from their birthright, received less than one percent of the land. They starved, while huge haole-owned sugar plantations thrived.

And what had the historians said? They had said that the Americans “liberated” the Hawaiians from an oppressive “feudal” system. By inventing a feudal past, the historians justify – and become complicituous in – massive American theft.

Is there “evidence” –  as historians call it – for traditional Hawaiian concepts of land use? The evidence is in the sayings of my people and in the words they wrote more than a century ago, much of which has been translated. Historians however, have chosen to ignore any references here to shared land use. But there is incontrevertible evidence in the very structure of the Hawaiian language. If the historians had bothered to learn our language (as any…

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The Meanings of Occupation

At the summer land institute at Cornell University, I was exposed to multiple meanings of occupation. Out of respect for the participants, who are planning to publish their papers, I will not discuss the specifics of their papers but only give general impressions from the institute. Occupation comes from the Latin word occupare, meaning to seize or capture (thanks to Camilo Ehrlichman for bringing up this etymology). This made the title of my talk, “Occupied minds: was Hawai’i ceded or seized?” apropos to the theme of the institute.

Screen Shot 2015-02-02 at 11.44.16 AM

I still hold to a fairly strict legal definition of occupation – Benvenisti holds that it is:

“the effective control of a power [occupant]
… over a territory to which that power
has no sovereign title, without the volition
of the sovereign of that territory.” – Eyal
Benvenisti, The International Law of
Occupation (2012, 3).

But this week opened my mind to the ways in which occupation takes plural forms and can be disguised as other “legitimate” activities. The group visited the site of a highly controversial gas storage facility at Seneca Lake in the finger lake region of New York near Ithaca and Rochester. Just as we stood observing the site from the road, about a dozen cars honked their horns in support thinking we may be preparing for an action against the company. Both sides in this struggle have pointed to science and economics in support of their claims, in ways that reminded me of the Mauna kea struggle – in fact one protest group calls itself We Are Seneca Lake.

Protesters blocking access to the site of underground gas storage in the finger lakes region of New York

In their case, this slogan was quite literal – the lake is the drinking water source for 100,000 people in the finger lakes region, and as the body is 65-70% water, those citizens are quite literally made of Seneca Lake water. Even I drank a couple of glasses and was thus partly made of the lake.

Screen shot 2011-12-31 at 1.19.08 AM
In my talk, I tried to recognize the Cayuga nation, on whose traditional lands Cornell lies. But I neglected to ask what the native nation(s) of the Seneca lake region thought of the gas storage issue. One participant – from UH actually – quietly proposed that the movement might constitute “settler activism.” I found this troubling and it made me immediately think of Kahea: the Hawaiian- Environmental Alliance, whose mission I find relevant to this issue and perhaps the most important of all the nonprofits in Hawaii; to heal the insane rift between environmentalists and Kanaka Maoli.

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Why Radical Academics Often Find it Hard to Write, and What to Do about It

Originally posted on sexism class violence:

blank piece of paperJonathan Neale

This post will be of interest to only some of our readers. But we hope it will be very useful for them.

It is not easy to be both an academic and an activist. The values, the audiences and the constraints are different. Sitting down to write, you can feel yourself pulled in two different ways. The result is often muddled thinking and murky prose. There is too much ranting for an academic audience, and too much gobbledygook for the movement. In many cases, there is no prose at all, only silence, and pages crumpled in the wastebasket or erased on the screen.

The first half of this post offers some advice that can make writing easier, faster and more useful. The second half explains why universities make activists feel stupid, how they do it, and how you can cope.

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WikiReVu of James Haley’s Captive Paradise

James Haley’s Captive Paradise: A History of Hawaiʻi is yet another “outsider history” similar to that of Julia Flynn Siler’s Lost Kingdom. In the Introduction, Haley recounts a meeting with an academic mentor while he ponders returning to a long-abandoned PhD. He says he finds unconscionable both Hawaiʻi’s overthrow and Hawaiians’ treatment of their own people pre-Westernization. His mentor tells him that any history that does not paint Hawaiians as victims will itself be a victim of entrenched anti-colonial methodologies. “This must be what they mean by academic freedom” he muses. Screen Shot 2015-03-09 at 1.25.30 PMWhile it is important to question entrenched paradigms, there are very good reasons why this particular one (anti- and postcolonial methodology) is in use today.

Haley only cites 41 secondary source books in a work that purports to cover Hawaiian history from the time of Cook through statehood. He does include about a dozen more biographies but  could’ve done so much more – I’ve always thought that the sheer number of biographies is one of the few strengths in the field of Hawaiian history and that someone could write a synthetic history by stringing these biographies together into a narrative. Haley seems to make it almost a point of honor not to have consulted any Hawaiian historians or any Hawaiian language sources. He considers this mere “political correctness.” As a Texas historian Hayley is probably the least likely to deal with  issues of Hawaiʻi’s annexation, as Texas was ostensibly annexed by Joint Resolution (I question this, as does Keanu Sai). He has an entire chapter on the great Māhele, but fails to cite a single authority on the topic, choosing to use only general narratives like Kuykendall. He also begins with Cook, repeating one of Daws’s fatal flaws.

As Makana Chai noted in her review of Siler’s book, a preferred outsider history, if you must read one, is Sarah Vowell’s Unfamiliar Fishes.

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The Five Most Important Dates in Hawaiian History

I always try to help my students remember things – one way is by selecting the most important facts and dates for each period of history. This is my personal view of which dates are most important and these are obviously debatable, so Iʻve included an alternate 5 dates for those who may find this quite basic:

5. 1848 – the Māhele was the start of private property, a system which continues until today. All titles in Hawaiʻi trace back to this “Domesday Book” – the Buke Mahele listed all lands by name (it was done without maps). Incidentally, 1848 was the year of revolutions in Europe and the year the Communist Manifesto was published.

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Kahuna Nui Hewahewa overseeing the destruction of heiau after the abolition of ʻaikapu, December, 1819. Painting by Brooke Parker

4. 1819 – Some would hold this date, the year of the fall of the kapu system (the ʻaikapu) as the most important date in Hawaiian history. It is in some ways an under-appreciated and dramatic period of the last stand of the Hawaiian religion at the Battle of Kuamoʻo, where Kekuaokalani, guardian of the war god Kū, died in the hail of musket fire. 1819 was also the year of the death of Kamehameha I. In December, a group of missionaries was also boarding a ship in Boston on their way here.

3. 1843 – Two events were occurring simultaneously in this year: the recognition of Hawaiʻi’s sovereignty by Britain, France and the United States, and the notorious Paulet Affair, in which this same sovereignty was threatened and the Kingdom temporarily overthrown. Herman Melville happened to be there, and was not impressed with Hawaiian celebrations when sovereignty was returned in July by Admiral Thomas.

2. 1778 – This scarcely needs explanation. Cook’s arrival may not have been the first foreign contact, but his marine chronometer ensure that it wouldnʻt be the last. Dozens of ships arrived in the next 15 years once Hawaiʻi was no longer a needle in a haystack for Western navigators. They brought cargo, disease, and later Christianity.

1. 1893 – Most cultures have a defining moment – the 1979 revolution in Iran, the 1789 revolution in France. For Hawaiians, it’s still 1893, the overthrow – that date that continually gets revisited, reanalyzed, and for which the question “what if?” is continually asked. The question is, which day is most important? Is it January 17th, when Queen Liliʻuokalani ceded her authority under protest? Or was is January 16th, when the US Marines landed, marking under international law the illegal intervention of the US in the domestic affairs of an allied sovereign state? 1893 is also inextricably linked to 1898, the date of “annexation.”

THE ALTERNATE 5

5. 1909 – Relatively unknown is that the date for land claims was extended for konohiki until a decade after annexation. This date shows that the deadline on land claims – held to be Feb 14, 1848 – was a soft one indeed. It also shows beyond doubt that the land tenure system established in the Kingdom was the same one in the Territory and State, a fact that suggests its architects knew what they were doing.

4. ca. 1350 – Kalaunuiohua nearly did what Kamehameha has become legendary for: uniting the islands. He conquered all the islands, but was captured on the shores of Kauaʻi – adding to Kauaʻi’s claim of being the only island never conquered militarily. He showed it could be done.

3. 1874 – the non-judicial foreclosure law may have contributed more to Hawaiian alienation from land than the Māhele/Kuleana Act or any other single event (see Robert Stauffer’s Kahana: How the Land was Lost). This was also the year Kalākaua defeated Queen Emma in the legislative election for monarch. One canʻt help wondering how history would have gone if the British-focused Emma had taken the throne.

2. 1783 – the conquest of Oʻahu by Kahekili showed his skill as a tactician and politician – his protege Kahahana (still a teenager at the time) was like a wedge which Kahekili could use to get a foothold on Oʻahu. Kamehameha later was able to conquer this large, unified area, rather than battling for each district or island.

1. 1835 – the founding of Ladd and Co. in Koloa, Kauaʻi began the sugar industry, and led to all the changes in Hawaiian government: the Bayonet constitution, overthrow, annexation and even statehood were all responses to tariffs on sugar. More broadly, the wealth generated symbolizes the rise of foreign dominance in Hawaiʻi which continues today.

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