This post is a way for me to sort out my ideas and understandings of the concept of occupation. It is also for my students in the course Protest under Occupation in the Matsunaga Institute for Peace and Conflict Resolution, to clarify the very dense readings in Benvenisti’s The International Law of Occupation and other readings.
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).
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.
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.