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.

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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4 Comments

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4 responses to “Occupation 101

  1. Lots of good information here. I will, however, focus on the sections that have cause for concern.

    Umi Perkins states,

    “This underscores the quite central point that the law of occupation applies only to recognized sovereign states.”

    I disagree. The law of occupation would apply to States, all States, whether recognized or not. The issue therein is whether recognition is a requisite criterion of statehood. I argue that it is not.

    If an entity was required to have international recognition before it could become a State, then in essence, statehood would be dependent on the approval of an external entity. How could you say a State is independent if its entire existence is dependent on the approval of existing States. Philosophically, it begs the question, how the very first State became a State if statehood requires recognition from other States?

    In my opinion, recognition is simply evidence that other States regard an entity as a State. The lack of recognition does not actually preclude an entity from being a State.

    So, I believe Umi is mistaken when he comments that the law of occupation “should not have applied before” Palestine was recognized as a State by the United Nations (UN).

    Palestine was recognized as a State long before the United Nations ever existed and long before the United Nations had afforded it recognition. Again, recognition is not a requisite criterion of statehood – to imply such, here, is to say that the UN has State-making capacity, which it does not.

    NECESSITY

    Umi states,

    “Keanu Sai has used the “doctrine of necessity” as a justification for forming the Acting Government of the Hawaiian Kingdom[.]”

    This is a misnomer. The doctrine of necessity is a justification for a wrongful act/violation and is not used to give extra legal right to an action.

    Here, Umi reiterates the well-rehearsed statement made by Keanu Sai that he has used the doctrine of necessity to establish the acting government. Basically, you can’t use the doctrine of necessity for anything – it is a justification.

    In essence, the doctrine of necessity is an excuse. It’s saying, “yes, I committed a violation, judge, and this is the reason why.”

    Furthermore, Keanu Sai has never been put on trial for creating the acting government. If he did, then he could consider the doctrine of necessity. At that point, he would fail justification through the doctrine because he would not prevail upon the requisite criteria. The very first criterion is the “ONLY MEANS of safeguarding an interest of the State.” Establishing an acting government is not the ONLY MEANS of safeguarding Hawaiian sovereignty – this is evidenced by numerous endeavors to perpetuate Hawaiian sovereignty.

    DEBELLATIO

    Umi states,

    “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.”

    The Monroe Doctrine 1823 applied to the colonization of the “American continents” by “European powers.” The Monroe Doctrine was not a statement of US policy with regard to the conquest of non-European territories.

    The US expressed its policy with regard to the prohibition of conquest/deballatio in the Kellogg-Briand Pact 1928. In essence, the US outlawed deballatio in 1928, which post-dates any possible conquests by the US in the latter part of the 19th century (i.e. 1893-1898).

    Since there is no retroactive application of international law unless otherwise specified, the US could have conquered a territory prior to the entering into force of the Kellogg-Briand Pact.

    The US, however, has never claimed its acquisition of the Hawaiian Islands was through conquest, so any debellatio argument can end there.

    END OF OCCUPATION

    I would have liked to have further consideration regarding the end of an occupation. Umi quotes Benvenisti when he states,

    “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.”

    1) Loss of Effective Control

    The US has been in control of the Hawaiian Islands since 1900. If anything, the US’s effective control has become much more prevalent.

    2) Exercise of Authority

    The US has most-certainly continued to exercise its authority and even more so in the last 115 years.

    3) Consent of the Former Sovereign

    I believe more research has to be done in this area. We know that in 1897, Queen Lili’uokalani’s letter of protest was submitting with the Anti-Annexation Petitions, however, it is not clear what her position on the issue was from 1898-1917 (her passing).

    Furthermore, in the absence of the former sovereign, who then has the authority to consent or protest? I would argue that in the absence of the former sovereign and in the absence of former government officials, the Hawaiian people would have that authority.

    One could make the argument that participation in US governance by Hawaiians was a form of consent. This argument can also be applied to continued participation in US governance today.

    If numerous Hawaiians actively protested the Republic of Hawai’i government by refusing to take the oath and refusing to participate in its governance and they did not do the same for the US government, then could it be seen that they consented to be governed by the US?

    4) Referendum

    1959 was the year the Hawaii Statehood Admissions Act was passed, having followed a statehood plebiscite/referendum. The Act was internationally recognized by the UN, which removed the Hawaiian Islands from its list of non-self-governing territories.

    Indeed, the referendum ballot did not provide the option for independence and it would seem as though independence is a UN Charter Chapter XII requirement (Art. 76(b)).

    Perhaps a case can be made there to place the Hawaiian Islands back on the list of non-self-governing territories, however, given its current political status (and considering the recent court ruling against the citizenship rights of nationals of US territories), I don’t think many people (even Hawaiians for that matter) would want to diminish their rights or their political status.

    In my opinion, if there ever was a belligerent occupation of the Hawaiian Islands by the United States, then it had ended a long time ago.

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    • umi

      This post is for students, so when I quote Keanu Sai it doesnʻt necessarily connote agreement. Also, while there are some reasonable critiques here, your critique of recognition is completely off base. There was no “first sovereign” – the system was created at Westphalia in 1648 with the simultaneous recognition of several states at once.

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  2. umi

    The list of non-self governing territories is not for occupied states – Hawaiʻi was placed on it based on an erroneous history.

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