Israel, the West Bank and International Law

Allan Gerson

• Publisher: Routledge
• Year: 2012
• Topic: Law
• eBook ISBN:
  9781136277603
• Subtopic: Middle Eastern History
• Index: Law

Synthesizing primary and technical data, this book focuses on the legal and political aspects of Israeli administration in the West Bank and the international attempt to resolve the dispute over the territories. The author assesses the present situation and provides guidelines for future action.

Chapter I

War, Conquered Territory and Military Occupation in the Contemporary International Legal System

The twentieth century has been witness to an unprecedented quest by the international community to save succeeding generations from the scourge of war. Beginning with limitations on the right to wage war in the Hague Convention of 1907,¹ followed by the further limitations and controls of the Covenant of the League of Nations in 1919,² and the Kellogg- Briand Pact of 1928,³ a sustained effort has been made to constrain war by means of an international normative system founded on juridical agreement and based on collective supranational policing arrangements. The establishment of the United Nations and the promulgation of its Charter,⁴ and the effort, spanning more than two decades, of United Nations committees to define ‘aggression’,⁵ mark the latest milestones in this movement. It has been to little avail.⁶ War remains a fact of international life. Even the advent of nuclear weapons has not provided an adequate deterrent, as some of its proponents have claimed.⁷ Conventional warfare, even among the Superpowers, appears to remain an ‘acceptable’ risk in foreign policy planning.⁸

With the continuing viability of conventional interstate warfare, recurrence of its almost invariable by-products, conquered territory and military occupation, becomes nearly inevitable. Indeed, territorial gain, either as a means to increased security or greater protection of nationals, or simply for imperial expansion, will often prove the chief lure to war. Regardless, however, of any initial territorial ambitions, upon termination of hostilities⁹ one state will usually find itself in control of territory formerly under the jurisdiction or control of another. This is a natural consequence of the fact that the effective prosecution of war requires operations upon the territory of an antagonist or its allies.

This chapter addresses itself to the international law framework as it relates to various aspects of conquered territory. It studies the rules for administration of such territory and their effect in furthering a peaceful reconciliation between the belligerents. Particular emphasis is placed on institutional reform by occupying powers and the limitations imposed thereon. Although international law has been incapable of preventing resort to war, it can prove effective in regulating its aftermath, military occupation, especially when it is of the type termed ‘belligerent occupation’.

A. Invasion, Belligerent Occupation, and Post-Surrender Occupation Distinguished

Occupation of enemy territory can be functionally subdivided into three classes of control: invasion; belligerent occupation; and post-surrender occupation. In the treatment of occupation in international law, the same distinctions are generally, although not always clearly, drawn.¹⁰

1. Invasion

Invasion refers to occupation of foreign territory during the course of on-going war, and where effective and continuing control over held areas has not yet been established. The enemy government’s administration remains in a state of disorganization, with no new military administrative structure on behalf of the occupying power to replace it. Martial law governs. Few restrictions are imposed by international law on the invader’s powers other than avoidance of unnecessary civilian injuries in achieving immediate military objectives.¹¹

2. Belligerent Occupation

By contrast, under belligerent occupation, effective military control over held areas has been achieved, although the enemy has not surrendered and continues to retain control over substantial portions of his territory.¹² Usually fighting will have been brought to a close by means of a cease-fire or armistice—a contractual arrangement which not only results in cessation of all hostilities but which also contains significant political and economic provisions. Although the antagonists during the course of belligerent occupation do not necessarily relinquish their pre-war goals, the dominant characteristic of this period is that attention is shifted to a non-military resolution of differences. The longer the period of adherence to a cease-fire arrangement, or the more detailed the armistice agreement, the more likely that the antagonists will become strongly committed not only to achieving their pre-war objectives by non-military means, but to making genuine peace as well. Signs of commencement of a peace-making process can be found in radical changes of the antagonists’ perspectives relative to strategic priorities, ideological goals, or relations with allies. The most important sign, however, will usually be a willingness to negotiate a binding treaty of peace whereby all major outstanding differences between the parties can be resolved and paths laid for assumption of pacific relations. It is because belligerent occupation is usually characterized by a mutual desire on the part of the antagonists to abandon the military pursuit of their goals that international law can prove effective in the regulation of this phase of military control.

Almost invariably, after commencement of belligerent occupation friction will arise relative to the scope of the occupant’s legitimate administrative authority over the held areas. Unlike an invader, the belligerent occupant, upon cessation of active hostilities and establishment of effective control, must assume governmental functions. It will want to monitor movement and activities of the population to ensure the security of its forces. Health and sanitation standards will need to be enforced to prevent potential military and civilian casualties. Welfare, educational, commercial, and other systems of social life must continue to function smoothly, if for no other reason than to create stability and to minimize challenges to the occupant’s rule.

To accomplish this, the occupant will need an effective civil service apparatus. Rather than attempt to create a wholly new one, he will strive to mitigate manpower costs by establishing a friendly and cooperative local indigenous government, operating as much as possible according to pre-existing procedures. Of course, so far as matters of major policy formulation are concerned, an indigenous occupation regime will be subordinate to the will of the occupying power. In other matters pertaining to municipal administration it may have substantial independence. Depending on the degree of its freedom to act, the indigenous administration may be expected to object strongly to any attempt by the occupying power to reform fundamental laws and institutions. Where such disputes arise international law favors the occupied and requires as one of its cardinal precepts that, in so far as possible, without risking military security or public welfare, the occupant preserve the laws and institutions existing ante bellum. This rule is the necessary corollary of the principle that occupied territory not be annexed but remain an issue for negotiation in anticipated peace discussions.

Turning from disputes surrounding the occupant’s administrative powers to disputes revolving around the ultimate disposition of the held territory, it can safely be said that, under international law, it is the ousted power who retains sovereignty, albeit in a state of abeyance, over the held territory.¹³ Whether it will in fact regain control depends largely on how willing it is to grant concessions to the occupying power in return for all or part of the held territory. In the interim, until a settlement is achieved whereby territory is returned in exchange for promises of a new relationship between the antagonists based on the terms of the peace treaty, the occupying power may retain control over the conquered territories. It may not, however, take actions tending to promote vested interests in favor of indefinite retention. To ensure that this does not occur and that the peace-making process not be thereby thwarted, international law requires a ‘freezing’ of the status quo ante bellum.

3. Post-Surrender Occupation

Post-surrender occupation refers, properly used, to continued occupation of territory subsequent to unconditional surrender of the enemy party and its allies. The de jure termination of the state of war, traditionally by means of a peace treaty, is not a prerequisite.¹⁴ Post-surrender occupation is a rather recent phenomenon. Historically, conquest of enemy territory would be followed by annexation at the end of the war. The Allied occupation of Germany’s Rhineland after World War I provides the first important exception.¹⁵

The fact that the post-surrender occupant often desires strongly, for ideological reasons, to undertake major reform of its defeated adversary’s social, economic, and political institutions, and that, unlike its belligerent occupant counterpart, it is not constrained by the need to refrain from antagonizing its opponent, poses the issue as to what, if any, limits are imposed on the post-surrender occupant’s authority to manage and dispose of held territory. International law, mindful of realistic expectations of compliance with any formulated standard, resolves the issue in favor of granting the post-surrender occupant wide administrative latitude. After all, the enemy has been totally, or almost totally, defeated, and has little or no bargaining power to affect the management and ultimate disposition of the occupied territories. Peace has been established, not by contract, more or less, but by fully successful conquest. Indeed, conquest or the total destruction of the enemy government or state will, more often than not, have been the war aim of the post-surrender occupant. Laws and institutions of the defeated state repugnant to the victor’s sense of justice or inconsistent with its strategic requirements will be changed with little hesitation. Because reversion of control to the defeated government is not realistically possible, reasons that might otherwise exist for preserving the obnoxious laws and institutions of the ousted power to further settlement possibilities lose all vitality.

This rationale was employed to justify ‘denazification’ and other Allied programs after World War II, such as the ‘decartelization’ of German industry and the compulsory surrender of gold, silver, and foreign exchange, which could hardly have been undertaken pursuant to the status quo ante bellum standard regulating belligerent occupation. These measures were justified precisely because they were found to have been undertaken in a post-surrender, rather than a belligerent, occupation context. As such they were outside the scope of the law regulating belligerent occupation.¹⁶ Although there has been some doctrinal confusion, especially in the immediate post-war period, in failing to properly distinguish post-surrender from belligerent occupation contexts, this error in analysis has now been widely realized.¹⁷

B. The Management of Occupied Territory

1. The Hague Convention of 1907 and its Antecedents

The composite rules of law relative to the scope of authority of the occupying power in managing conquered territory find their first codified expression in treaty form in the 1907 Hague Convention No. IV, Respecting the Laws and Customs of War on Land.¹⁸ This convention, along with the Geneva Convention of 1949,¹⁹ continues to provide the operative law of belligerent occupation. Article 42 of the Hague Regulations states that ‘territory is considered occupied [for the purpose of application of the rules of belligerent occupation] when it is placed under the authority of the hostile army’.²⁰ Thus application of the Hague Convention commences only when the ‘invasion’ phase subsides into that of ‘belligerent occupation’.

Although a multilaterally accepted codification of the law relative to the management of occupied territory first occurred in 1907, the concept of uniform national laws on the subject had gained ascendancy by the mid-nineteenth century.²¹ Over a period of time this body of law took on the appearance of customary international law. A movement then arose for codification through multilateral conventions.²² Although early efforts failed to achieve sufficient adherence, they provided the basis for the 1907 Hague Convention which then drafted the internationally ratified Hague Regulations.²³ The next codification of the law of belligerent occupation took place in 1949 with the adoption of the Geneva Convention relative to the Protection of Civilian Persons in Time of War.²⁴

Article 43 is the important ‘purpose’ provision of the Hague Regulations. It states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure as far as possible public order [ordre publique] and safety, while respecting, unless absolutely prevented, the law enforced in the country.²⁵

The same policy is expressed in article 47 of the Geneva Convention which provides:

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 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.²⁶

These two provis...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Summary of Contents
• Contents
• Acknowledgments
• Introduction
• Chapter I War, Conquered Territory and Military Occupation in the Contemporary International Legal System
• Chapter II The Palestine Controversy: Historical and Juridical Basis
• Chapter III Management: the Limits of Institutional Change
• Chapter IV Disposition: Sovereignty and Postliminium Problems
• Summation
• Appendices
• Index of Law Cases
• Index