[Aeyal Gross is Professor of Law at the Tel-Aviv University Law School and Visiting Reader in Law at SOAS, University of London. In Fall 2017, he will be a Fernand Braudel Senior Fellow at the European University Institute. This post is the final post of the symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Nothing could be more rewarding for authors than to have experts on the topics discussed in their books sharing ideas, concerns, and critiques. I am thus deeply grateful to the four contributors who devoted time and thought to comment on my book as well as to the editors of Opinio Juris. In this brief reply, I cannot do justice to all the contributors’ comments but will try to address some of them.

Eliav Lieblich addresses the normative/functional approach to occupation developed in my book and points to its potential for creating new ambiguities. Rather than limit the application of this approach to a “full” post-occupation stage, after states remove “boots on the ground” while retaining some form of control, Lieblich considers the option of states exercising control over some government functions in other states without a previous “traditional” occupation stage.

In a way, this question returns to a more fundamental one: should the beginning and end of occupation be viewed as symmetric for all purposes, including for a functional analysis of occupation? I address this question in my book and argue that dismantling an occupation is different from establishing one. One response to Lieblich, then, could be that the remnants of an occupation that never ended may possibly signal that the law of occupation continues to apply functionally, even when the remaining degree of control might have been insufficient to establish the occupation and apply the laws that govern it. Another answer, however, backed by some of the decisions of the Ethiopia Eritrea Claims Commission (EECC), support the notion that the law of occupation could be triggered based on partial or functional occupation and not only following a “full” occupation.

The question of what might be the triggering standards for functional occupation is also raised by Kristen Boon. Boon asks how to avoid a standard that is either too high (imposing positive obligations on states simply holding territories within their sphere of influence) or too low (permitting states to operate just short of the “boots on the ground” standard or taking advantage of new forms of technology while depriving individuals of the humanitarian protections they are legally owed). Finding a “one size fits all answer” may be hard, but one guiding principle should be whether the perceived occupier exercises some power over the territory with its actions preventing exercise of authority by other powers, especially the authorities of the occupied party. As I note in the book, Judge Kooijmans’s separate opinion in the Armed Activities (DRC v Uganda) case, which views states as occupiers when their actions preclude the functioning of local government, seems to be a step in the right direction (see pp. 74 and 129). Combined with the EECC approach mentioned above, we can consider that the responsibilities of occupation exist when power – not just influence – is exercised. From this perspective, continued Israeli control of the airways and waterways of Gaza in a way that does not allow the local population and its government to exercise control, seems like a clear case of occupation functionally continuing.

Whatever the answers we choose to Lieblich’s and Boon’s questions, they seemingly highlight two significant issues. The first is that, once we stop thinking of occupation in on/off terms, we realize that a continuum exists between occupation and other forms of control. The second is that, given occupation’s indeterminacy, the functional approach presented in my book attempts to replace a “pick and choose approach” with one that creates accountability, without claiming this to be a panacea to all the problems of the law of occupation. No such panaceas are available in law (or in life …).

Lieblich further ponders whether the functional approach does not ultimately collapse into some extra-territorial variation of human rights implementation. Although this is a valid question, it is pertinent to insist on the special protections that the law of occupation makes available (including the special status of protected persons) that are lost in a human rights analysis. In the last chapter of the book, I show how a human rights analysis often undermines the special protections accorded within the law of occupation. In this light, shifting the focus to the extra-territorial application of human rights law does not appear to be an alternative to the solution offered by the functional approach.

Finally, Lieblich mentions that the functional approach, which I began to develop in my work in 2007, has recently been endorsed by the ICRC. The need for this approach arose after the 2005 Gaza disengagement, growing out of both my academic research and my NGO work. I first presented it at the closing plenary lecture of a 2007 conference organized by the Minerva Centres for Human Rights at the Tel-Aviv and Hebrew Universities together with the ICRC, to mark the fortieth anniversary of the Israeli occupation of the Occupied Palestinian Territory, and first published about it in 2012, in a post that opened a symposium on the topic in this blog. As Lieblich notes, the ICRC adopted a variation of what was suggested in my work and the work of the Gisha NGO, on whose board I serve, and eventually backed the functional approach in its 2016 updated commentary on the Geneva Conventions, as documented here. The ICRC model, however, is a somewhat narrower version of the view developed in my book. It considers the functional approach relevant to “specific and exceptional cases,” whereas my analysis throughout the book shows that, given the indeterminacy of many situations where occupation and sovereignty are mixed, we need to rely on it regularly (see p. 133, n. 350). The Gaza situation and the analysis it required led me to a deeper understanding of how indeterminacy, control, and functions are always relevant to the understanding of occupation, be it in Berlin, Iraq, or Ethiopia-Eritrea.

While Lieblich’s comment considers the actual framework of the law of occupation, Valentina Azarova points to the connection between the law of occupation and other regimes of international law. Specifically, Azarova notes the role of jus ad bellum in the prohibition of annexation and shows how this prohibition should be seen as deriving from jus ad bellum rather than, as my analysis might imply, from the law of occupation itself. The law of occupation, she argues, depends for its proper function on the operation of other rules of international law, such as jus ad bellum, yet notes that an unlawful annexation maintained through occupation exposes the limit of the jus in bello/jus ad bellum distinction. Indeed, occupation highlights the complexities of the relationship between them, as Iris Canor noted. Azarova’s comments require me to reconsider the relationship between the law on the use of force (jus ad bellum) and occupation, a question I admittedly scarcely addressed in the book.

Going back to the law of occupation itself, Diana Buttu points to its limited role in giving any remedy to Palestinians. She argues that, despite very small legal victories (or, in her usage, “victories”), Israeli courts have legitimized Israel’s actions and prevented any scrutiny of the big picture, focusing instead on localized practices. Indeed, part of my reason for writing Illegal Occupation with Orna Ben-Naftali and Keren Michaeli in 2005 was to take back the discussion to the big picture— the illegality of the occupation itself. I find Buttu’s reservations about my statement that “only insisting on the normative content can save the benevolent reading of this body of international law… and prevent a return of colonialism” (252) intriguing, when she notes how, in the case of Israel, we are not facing a return of colonialism since it never left. Whereas I was alluding to the return of a colonialism that has been rendered illegal but might be brought back in the guise of a legally structured occupation, Buttu seems to be referring to this specific territorial context, pointing to the continuity of colonialism/occupation in Israel/Palestine (and beyond). How is this particular continuity an instance of a general continuity between the law of colonialism and the law of occupation? These questions need a broader scope than the one considered in my book. In his recent book on the Israeli occupation, Gershon Shafir touches on this relationship in the Israeli-Palestinian context from a historical political perspective, but further legal historical work seems warranted on this issue.

Coming from a very different perspective, and that is an understatement, Eugene Kontorovich questions the value of the normative approach from several perspectives, mainly that of gaps of enforcement in the law of occupation. Violations of the law of occupation by countries other than Israel have, in Kontorovich’s argument, gone unnoticed by the international community. But even if, for the sake of the argument, we agreed that Israel is treated as an exception, the enforcement gaps he addresses remain relevant to Israel too. He has counted about five hundred UN General Assembly resolutions dealing with Israel and very few regarding other occupations. These resolutions, however, remain unenforced and, moreover, since for the most they are not backed by the Security Council, are not even binding. How do these conditions affect Kontorovich’s suggestion that, before building a normative regime of occupation, it might make sense to bolster the existing one? I would argue that, without endorsing a normative approach, much of the criticism of Israel, at least at the legal level, not only lacks concrete enforcement but remains focused on specific issues, thus validating the bigger picture of this occupation rather than pointing to it as intrinsically illegal and illegitimate. The normative approach, then, which could help us to evade this vicious cycle, would prove vital for breaking the current impasse.

Kontorovich also notes that assigning a key role to self-determination, as I do in the normative analysis, constitutes a departure from current law and practice, which respect the sovereignty of states and not of peoples. Insistence on the relevance of self-determination first emerged in the 2005 Illegal Occupation article by Ben-Naftali, Michaeli, and myself. It is justified not only by the current understanding of self-determination in international law as a necessary interpretation of the law of occupation but also given the need to deal with occupation in areas where no state had previously been sovereign, such as the Occupied Palestinian Territory or Western Sahara. Taking self-determination out of this equation would imply denying protection to people who are occupied but had previously lacked a state.

Finally, though I do not share Kontorovich’s interpretation of the political context, I will avoid a factual and political argument on his determination that the Israeli occupation is different given the rejection of “numerous … good-faith offers of statehood to the Palestinians,” an issue I deliberately sidestepped in my book. My argument is that this occupation, which entails the constant dispossession of Palestinians, the establishment of a discriminatory apartheid-like regime, and illegal settlements whose existence is central to the dispossession and discrimination, is illegal regardless of who is to “blame” for the lack of an Israeli-Palestinian peace settlement. Had the occupation abided by international law (meaning no settlements and no dispossession of the Palestinian population) and notwithstanding the denial of liberties inherent in any situation of occupation, we would be engaging in an entirely different discussion. The current occupation, now ongoing for fifty years, which denies Palestinians their most basic liberties and dispossesses them daily, often denying their very life, must stop, and this illegal and inexcusably unjust situation must be brought to an end.

[This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

One of the interesting observations Aeyal makes in his important new book The Writing on the Wall, is that new forms of control are radically challenging the law of occupation.   Traditionally, occupation has been understood as a question of fact:  territory will be considered occupied if there are “boots on the ground” that demonstrate effective control.  However, as Aeyal notes throughout the book, the law of occupation is fraught with complex realities.  One of these realities is that new forms of technological and political control are increasingly relevant to the law of occupation.   Citing the 2015 ECHR decisions Chiragov (question of Armenia occupying Nagorno-Karabakh) and Sargsyan (question of Azerbaijan occupying Gulistan), Aeyal argues that adopting restrictive interpretations of the law of occupation results in denying protection of norms in the Geneva Conventions.     The Sargasyan decision is particular explicit in its explanation of what is required to trigger the law of occupation:

“The requirement of actual authority is widely considered to be synonymous to that of effective control. Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation, i.e. occupation is not conceivable without “boots on the ground” therefore forces exercising naval or air control through a naval or air blockade do not suffice.”

Instead, he argues, indirect and remote control, virtual occupation, should trigger the law of occupation to extend the protections afforded to populations.   I agree with his assessment of the problem, and have looked myself at the problematic aspects of the effective control test in the field of the law of responsibility.

Nonetheless, it is difficult to determine what the triggering standards for these other types of control should be.   As I note in my article, in the context of the law of responsibility, it goes to the definition of the state, and the decision made by the drafters of the articles of the law of responsibility was to maintain a high standard resulting in limited exposure, despite the trend of outsourcing many state responsibilities.  In the occupation context, too low a standard places positive obligations on states that may simply hold territories within their spheres of influence, too high a standard permits states to operate just short of the boots on the ground standard, or to take advantage of new forms of technology, while depriving individuals of the humanitarian protections they are owed as a matter of law.

I would be delighted if Aeyal could further elaborate these points.   How should we think about control in the occupation context?  Are there lessons learned from the law of responsibility, such as the development of alternative means of holding states responsible based omissions or the duty to prevent.  And I look forward to continuing this conversation during at International Law Week at Fordham this fall, where Aeyal and I will be speaking on a panel on the law of occupation.

[Eugene Kontorovich is a Professor at Northwestern University Pritzker School of Law. This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Prof. Gross’s excellent book The Writing on the Wall: Rethinking the International Law of Occupation presents a normative synthesis of international humanitarian and international human rights law design to provide an occupation law regime acutely focused on protected persons and the ensuring that the temporariness of the occupation. Gross’s honest embrace of a normative regime allows him to be quite acute in his analysis of practice and case law that does not support his vision. Thus the book includes incisive analyses of international court decisions regarding northern Cyprus and Nagorno-Karabakh, and a valuable discussion about the applicability of occupation law to Western Sahara and East Timor. He points out many interesting incoherencies and tensions in occupation law in these contexts. His account of the legal treatment of these various situations, and his very detailed discussion of the case law of the Israeli High Court, are invaluable for any student of international humanitarian law.

First, it is worth pointing out a basic challenge of any normative account of IHL.

The non-normativity of what he calls the “factual” approach to the law of occupation is deeply embedded in the essential non-normativity of international humanitarian law itself. IHL treats aggressors and victims the same. There are strong reasons for that non-normativity. Among them, IHL is primarily treaty-based, and requires initial state consent for its rules. States have highly diverse normative commitments. One can, of course, have a state sign up for one thing only to learn it has signed up for another, but such moves, while they may be immediately gratifying, will not encourage states to support any further development of IHL.

A central part of IHL’s neutrality is its prospectivity. IHL norms are agreed on in advance of conflicts to which they apply. This prospectivity is why in the Fourth Geneva Convention, Art. 6 exempts occupying powers from certain restrictions in prolonged occupations. When the conventions were adopted, the Allied Powers were engaged in preexisting occupations of Germany and Japan. In the drafting of the conventions, the U.S. expressed concern that the new norms would apply to its existing occupations. Art. 6 was in part a concession to this concern.

Gross sees Art. 6 in its traditional interpretation as “incongruent with the purpose and practice of the normative regime of occupation.” This may be true, but it is fully consistent with the intent of the Drafting Conference and their understanding of the functions of occupation law, which did not apparently include making long-term occupation more difficult. Indeed, assuming the Fourth Convention represents some step towards Gross’s normative vision compared to prior law, Art. 6 shows the difficulty of shoehorning existing situations into old norms.

This leads to a difficulty. Gross’s normative vision of occupation law is a response to certain situations, which in his view the “factual” approach occupation law has not dealt with satisfactorily. Most prominent among these is the Israeli-Palestinian conflict. But a normative reinterpretation of existing law cannot expect buy-in from existing participants, as it is clear from the outset who it benefits. To put it differently, what does the normative vision offer currently affected states?

This problem is exacerbated by the great “enforcement gap” in the international law of occupation. One of the great virtues of Gross’s book is that while it focuses on the Israeli-Palestinian case, it does not give short shrift to historic or ongoing occupations, including some that have received almost no academic attention, such as East Timor and Nagorno-Karabakh.

Yet the enforcement of occupation law by the international community almost entirely exempts these situations. For example, the U.N. General Assembly has reminded Israel in critical resolution of the country’s obligations under the Geneva Conventions about 500 times since 1967—as opposed to twice for the other prolonged occupation situations. Even in recent weeks, reports of a new Armenian settlement being built in Karabakh, and massive Russian settlement activity in Crimea – which challenge both a formalist and certainly the normative regime of occupation law – have gone entirely unremarked by the international community.

This suggests a few things. First, before building a normative regime of occupation, it may make sense to actually bolster the existing formal one. Second, the practical outcome of a normative regime is known in advance. It will not likely have any more effect on existing occupations than the formal one, with the possible exception of Israel. From Gross’s normative approach, this may be better than nothing, but from a positivist approach, it is hard to see why Israel or its allies would endorse such a development, and indeed it might weaken their commitment to the basic black-letter Geneva Convention regime.

Gross’s normative model is based on ensuring that occupations remain temporary, and do not become a shell for conquest. He argues that occupation law should be much more informed in its particulars by the systemic principles of international law – self-determination and the prohibition on conquest in particular.

One normative criterion is the occupation law according to Gross that ensures the self-determination of people in the occupied territory. But this seems a large leap from existing practice. International humanitarian law is based on the sovereignty of states, not peoples. Thus Libya returned the Azou strip to Hassan Habre’s Chad, not to its population. Israel has long been asked to turn the Golan Heights over to Assad’s Alawite regime, not to the Druze people (though these demands have become more muted lately, they have not been withdrawn). Iraq returned Kuwait not to the Kuwaiti people but to its monarch. Indeed, the self-determination principle will often contradict the preservation of the status quo principle. In his central example of the Palestinian situation, the creation of a new Palestinian state would be a departure from the pre-war status quo.

Gross correctly notes that the applicability of the law of occupation cannot be defeated by the occupier merely claiming sovereign title. Occupations routinely (but not inevitably) take place in the context of territorial disputes. On the other hand, the occupation cannot be entirely insensitive to considerations of underlying sovereignty. A country retaking its territory in a conflict can hardly be deemed an occupier.

Gross suggests that prolonged prior control by another power, even one lacking sovereignty, is enough to trigger the applicability of occupation law if that territory is retaken. But this can conflict with his normative goal of not giving any lasting weight to the reality created by an occupation. In the context of the Israel-Palestine conflict, it would mean the very borders of a brand-new state were created by the Egyptian/Jordanian occupation that lasted until 1967.

Or consider the following example. Imagine a newly created country occupying the territory of its newly created neighbor in a war that breaks out upon their mutual creation. An imperfect armistice holds for twenty years, after which the state that lost territory in the original conflict manages to retake some of it in a new one – albeit territory over which it had never previously exercised control, and from which all of its nationals had been expelled. Would the new state be considered an occupier?

It is not a hypothetical question, but rather reflects what happened when Azerbaijan managed to retake some previously Armenian-held territory in Karabakh. As far as I know, this has not been treated as an occupation by anyone.

Thus normative criteria such as self-determination cannot avoid the questions of territorial sovereignty. Self-determination does not answer the question of the geographical unit in which it is exercised. Armenians, for example, do not principally have a preexisting sovereignty claim to Nagorno-Karabakh. Rather, they see Armenian control as an exercise of the self-determination of the Karabakh population. Similarly, Russia justifies its occupation not on prior title but on the self-determination of the Crimean population. International law rejects this argument, and regards Armenian control as an occupation, because the standard lines in which self-determination is exercised is the preexisting administrative borders, in which case Azerbaijan, not Karabakh, is the relevant unit.

Another of Gross’s normative goals, in accord with most of the literature, is the vital need for preserving the prior status quo. Gross faults existing occupation law for sometimes being inadequate to that aim. But this is in part, as he recognizes, because the Geneva Convention may not have contemplated decades-long occupations. (This omission may have arisen in part because the norms against conquest were not as clearly defined in 1949 as he would suggest, as witnessed by the vast reapportionment of territories by the Allied Powers after the war, Yugoslavia’s absorption of the sector of the Free State of Trieste that was under its control, and similar examples.)

Certainly some prolonged occupations are the result of colonialist or annexationist aims. But this is not inevitably the case. The Allied occupation of West Berlin lasted forty-five years, and had the then-dominant views about the duration of the Soviet empire been correct, it could have lasted forever. This was not an occupation of choice but of expedience. Similarly, with Israel’s capture of the West Bank, the situation was even more contingent. Jordan only entered the Six Day War half-way through, and the West Bank was entirely outside of Israel’s original war aims.

Israel retained the territory because immediate attempts at a settlement with the Arab states were rejected, as were numerous internationally-backed good-faith offers of statehood to the Palestinians after the end of the Cold War. Indeed, it is these repeated and rejected offers of statehood that prominently distinguish Israel’s situation from any of the others discussed in the book.

This leads us back to the question of temporariness. Maintaining a status quo over many decades is an impossible task, as nothing in the world stands still. Demographics and migrant flows, as Europe’s recent experience has shown, is one of those things. No one can stop the clock at 1967. Of course, Gross’s position is more nuanced, as it would forbid only changes that benefit the occupier. But this itself is a monumental task, as it effectively burdens the occupier.

Limiting one’s trade and movement with an adjacent territory is a high cost. That which burdens the occupier reduces the other side’s incentives to accept an amicable deal. And indeed, one reason the Geneva Convention may not have anticipated prolonged occupations is that its drafters did not conceive of situations where occupation would not promptly lead to annexation, or a peace deal on terms acceptable to both parties.

Thus an alternative normative occupation regime might, for example, terminate all restrictions on the occupier upon the failure of the other side to accept a good faith diplomatic arrangement that would leave them better off than they were before.

[Diana Buttu is a lawyer and activist who is currently a law fellow at the University of Windsor Law School. This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

This June, Israel marked 50 years of military occupation of the West Bank, Jerusalem and the Gaza Strip. Far from being a sombre affair, this anniversary was met with wide celebrations by Israeli politicians across the political spectrum. Titling the event “50 years of liberation,” (not occupation), Israeli politicians spoke of the “miracle” (not disaster) of Israel taking over and conquering Palestinian land and vowed never to withdraw: “[I]n any agreement, and even without an agreement, we will maintain security control over the entire territory west of the Jordan River,” said Netanyahu. In August 2017, Netanyahu added that, “We are here to stay, forever. There will be no more uprooting of settlements in the land of Israel.” Not to be outdone, Israel’s opposition leader, Isaac Herzog, chimed in with similar expressions of occupied lands forever remaining in Israel’s hands.

These expressions of joy at having maintained an occupation for half a century were only slightly tempered by statements of the United Nations calling occupation “ugly” and reminding the world that years of living under foreign military rule has had devastating humanitarian and other effects on Palestinians forced to live under or cope with this rule. More tellingly, the United Nations reminds us that, “Neither the occupation, nor its impact, is static of course.” It is this latter sentence that stands out the most, as we try, as lawyers, academics and activists, to ensure that the occupation is temporary and static insofar as it does not lead to a deterioration of living conditions for Palestinians under Israeli military rule.

It is in addressing this struggle – that of the desire by Israel to maintain this occupation so as to facilitate its colonization and attempts by activists to ensure that occupation is temporary – that the role of Israel’s courts, international humanitarian law and international human rights law come to play an important, indeed vital, role. For years, lawyers, trying to alleviate the ravages of Israeli military occupation, have resorted to Israel’s (and later international) courts for redress. Using international humanitarian law, international law and domestic Israeli law arguments, lawyers have fought tirelessly to soften Israel’s blow. Yet despite very small legal “victories” in the Israeli court system, Israel’s courts have not only legitimated Israel’s actions but have prevented an examination of big picture Israeli practices in favor of examinations of discrete, localized practices so as to maintain the fiction that Israeli actions are needed as part of an overall security effort and not as part of a long-term goal of perpetual control and colonization of Palestinian and Syrian lands.

By focusing on the international law of occupation in the context of Israel’s occupation of Palestine, Professor Aeyal Gross thoroughly and thoughtfully outlines the limitations of international humanitarian law, the risks of using an international human rights framework to the Israeli-occupied Palestinian territory, and the limitations (and tricks) of the Israeli Supreme Court in addressing these issues. As Nimer Sultany points out in his review of the Israeli Supreme Court, “Now, one needs to talk about one checkpoint out of the hundreds of check- points rather than the policy of checkpoints; one portion of the wall rather than the wall; and one settlement rather than the project of colonization. The effect of the Court’s rulings is to marginalize the overall picture. It also forces Palestinians and lawyers representing them to de-radicalize their demands.” The resultant effect is that the Court has justified the home demolitions, settlement construction, torture, fuel and electricity cuts and pillaging, among other practices, while pretending that it is implementing international humanitarian law. This is not simply a case of legal interpretation gone awry but the failure to view law in context of the political system implementing these problems.

But Gross’s analysis is not merely a critique of the application (or the non-application) of international humanitarian law by Israel, but also aims to examine the use of these legal frameworks in the context of an ongoing occupation. By arguing for a normative and functional approach to occupation, particularly in light of changing circumstances (such as in Gaza) so as to avoid legitimizing colonialism and conquest, Gross reframes our understanding of international humanitarian law.

Reading the book, however, one cannot help but feel that lawyers, academics and activists are trying to fit a square peg into a round hole, with these same actors going to great lengths to simply try to ameliorate a daily worsening situation in the form of legal redress (hence the growing attempt to try to use international human rights law arguments despite the risks pointed out by Gross). This is, not, of course, the same argument put forth by occupation-apologists, who seem to try to make claims that Israel is entitled to extreme latitudes when dealing with IHL – (the “pick and choose” types highlighted by Gross). Rather, by attempting to pretend that the occupation is temporary or static – when it is both permanent and dynamic – and using legal tools that fit this pretend state of affairs rather than reality, we are left with endless debates about international humanitarian law which Gross so aptly highlights, documents and critiques.

While the book has no shortcomings, an analysis of apartheid and colonialism would serve the reader well. I find myself in disagreement with only one line: Gross mentions that “what makes occupation akin to colonialism is not the length of the occupation per se but the breach of the normative content” adding that “only insisting on the normative content can save the benevolent reading of this body of international law … and prevent a return of colonialism.” Yet, in the case of Israel, we are not facing a return of colonialism: it has never left.

And while, in the context of Israel’s occupation of Palestine, there are no magic formulas that will end Israel’s military rule over Palestinians and their land, one thing is clear: Israel’s military occupation will not end through a legal “knock-out.” Israel’s courts are too entrenched in preserving the occupation – rather than challenging it – and international mechanisms remain far too weak and flawed to have any real impact. Given this reality, we will continue to see lawyers, academics and activists continue to try to fit square pegs into round holes in an attempt to try to address legally an issue that requires a political solution.

[Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.] 

Wars of Words and Tweets

The recent escalation of tensions on the Korean Peninsula provides an opportunity to reflect on the prohibition on the threat of the use of force. In less than a month, virtually every form of threat of force was either expressed or exercised by the United States and North Korea. Pyongyang precipitated the crisis on July 4^th and 28^th, 2017 by test-firing ballistic missiles reportedly capable of reaching the contiguous United States. The initial US response was measured. The White House issued a statement affirming that the US “will take all necessary steps to ensure the security of the American homeland and protect our allies in the region.” The US and South Korea also test-fired missiles, including South Korea’s Hyunmoo-2 missile, in response to the North Korean tests. Then, on August 5^th, acting under Chapter VII, the UN Security Council adopted resolution 2371. The resolution determined that the situation threatened international peace and security and imposed new sanctions on North Korea.

On August 8^th, the war-of-words between the US and North Korea escalated. Echoing President Truman’s warning that Japan would suffer “a rain of ruin” if it failed to surrender, President Trump warned that North Korea would be met with “fire and fury” if it threatened the US. Seemingly undeterred, North Korea announced that it was preparing plans to attack Guam, in response to which President Trump took to twitter to warn that “military solutions are now fully in place, locked and loaded.” The next morning, another Presidential tweet further flexed American military muscle by showcasing the readiness of US Pacific Command’s B-1B bombers based in Guam to execute operations against North Korea.

Meanwhile, in what is either evidence of confusion within the American administration or an exercise of ‘good-cop, bad-cop’ tactics, the US Secretaries of State and Defense issued statements that were less bellicose than the President’s. They expressed Washington’s preference for a diplomatic solution to the crisis and declared that the US was not seeking regime change in North Korea. Shortly thereafter, it was announced that North Korean leader Kim Jong-Un decided to delay plans to strike Guam. The next week, the US and South Korea commenced the annual Ulchi-Freedom Guardian exercises that simulate operations to repel a North Korean attack. Pyongyang condemned these exercises and affirmed that “The Korean Peoples’ army is keeping a high alert, fully ready to contain the enemies. It will take resolute steps the moment even a slight sign of preventive war is spotted.”

The US administration appeared to have interpreted North Korea’s backing down from attacking Guam and the lack of an immediate provocative or forceful response to its joint exercises with South Korea as a conciliatory gesture. President Trump declared that Kim Jong-Un “is starting to respect us,” and Secretary of State Tillerson expressed satisfaction at Pyongyang’s restraint and hinted at the possibility of dialogue with North Korea in the near future. Days later, however, North Korea proved that President Trump’s triumphalism and Secretary Tillerson’s optimism were premature. On Saturday, August 25^th, North Korea test-fired several short-range missiles, and then in the early hours of Tuesday, August 29^th, it test-fired a longer range missile that overflew Hokkaido, prompting the Japanese government to sound air raid sirens and to instruct civilians to seek shelter. Japanese Prime Minister Shinzo Abe called North Korea’s escalation, which is the third time that North Korea fired missile over Japan, a “reckless action [that is] an unprecedented, serious, and grave threat.” Meanwhile, President Trump declared that “threatening and destabilizing actions only increase the North Korean regime’s isolation in the region and among all nations of the world. All options are on the table.”

The Prohibition on the Threat of Force

Unlike the prohibition on the use of force, the threat of force is an undertheorized area of jus ad bellum. Despite the efforts of some scholars who have written in this area (see notably here), the content of the prohibition on the threat of force is ambiguous. Both the definition of threats of force and the threshold separating legal and illegal threats remain uncertain. Even the few judicial statements on the matter have left many questions unanswered. As is well known, the International Court of Justice (ICJ) reflected on threats of force on a few occasions, most notably in the Nicaragua Case and in the Advisory Opinion on the Threat and Use of Nuclear Weapons. In both instances, the Court linked the legality of threats of force to the legality of the actual use of force. As it explained in the Nuclear Weapons Opinion: “The notions of ‘threat’ and ‘use’ of force … stand together in the sense that if the use of force itself in a given case is illegal … the threat to use such force will likewise be illegal.”

While this formulation offers some guidance on the content of the prohibition on threats of force, it is insufficiently developed to enable a thorough legal evaluation of the infinite variety of threatening behavior that occurs in inter-state relations. For instance, should threats of force involving weapons of mass destruction be subjected to the same legal standards as threats to use conventional weapons? Does the form of threat matter? In other words, is a physical threat, in the form of, for example, military maneuvers, more serious than a threatening statement, or in the case of North Korea, a photograph or video threatening an attack against the US? How do the principles of necessity and proportionality, which govern the use of force, apply to threats of force? Can force be threatened to preempt armed attacks, or to deter less grave uses of force that do not amount to armed attacks? Can threats be wielded to achieve legally permissible policy objectives that enjoy the support of the international community, such as the denuclearization of North Korea? (For an insightful discussion by James Green and Francis Grimal see: here)

These are some of the issues that are unanswered by existing judicial consideration of the prohibition on threats of force. One possible approach to examine these issues and to reflect on the legality of threats, such as those recently exchanged between the US and North Korea, is to construct an escalating scale that includes three levels of threats: (1) non-coercive threats, (2) demonstrations of force, and (3) prohibited threats of force.

An Escalating Scale of Threats

Non-Coercive Threats

This category is legally unproblematic. Not every hostile statement, menacing act, or antagonistic policy constitutes a prohibited threat of force. It is widely recognized that Article 2(4) of the UN Charter prohibits threats of armed force. This means that the non-coercive tools of diplomacy employed by states to affect the policies of their adversaries, or even their allies, such as political and economic pressure or diplomatic censure, broadcasting propaganda, unilateral or multilateral sanctions, trade, travel, and arms embargoes, are not affected by the prohibition on threats of force.

Demonstrations of Force

Demonstrations of force have many forms. These include troop movements, mobilization, and troop concentrations or constructing military bases, including in areas bordering an adversary; putting the armed forces on heightened alert; conducting military exercises, including using live ammunition; increasing defense budgets; developing weapons systems and conducting tests of conventional and/or unconventional weapons.

Demonstrations of force are the most challenging category of threats of force. In addition to jus ad bellum, these activities are governed, inter alia, by arms control agreements, environmental law, the law of the sea, and bilateral peace treaties. Thus, while the latest North Korean missile test of August 29^th 2017 that overflew Japan was not a prohibited threat of force, which is discussed below, it violated the sovereignty of Japan over its maritime and territorial airspace. Also, in some cases such as North Korea, there are Security Council resolutions that prohibit demonstrations of force such as nuclear detonations and missile tests. Determining the legality of demonstrations of force is also challenging given the endless purposes that they serve. These include: demonstrating a WMD first or second strike capability, signaling the credibility of conventional and unconventional deterrents, showcasing force-projection abilities, reinforcing a commitment to a mutual defense treaty, displaying force readiness, rejecting certain policies of adversaries (think of US naval operations in the South China Sea to challenge China’s claims in the area), and training for offensive and defensive operations.

Further complicating discussions on the legality of demonstrations of force is the ambiguity of the political message that these threats are intended to signal. Whatever their form, all demonstrations of force include an element of political messaging. Whether they are routine exercises or exceptional maunvers, demonstrations of force send signals to specific adversaries or to general domestic or foreign audiences, or some combination thereof. Ultimately, whatever the content and political context of that signal, the purpose of demonstrations of force is to affect and shape the policy, preferences, and perceptions of the target state or audience. Demonstrations of force are not merely tools of self-defense and deterrence, but are also an exercise of political influence. As Thomas Schelling put it: “It is latent violence that can influence someone’s choice – violence that can still be withheld or inflicted, or that a victim believes can be withheld or inflicted. The threat of pain tries to structure someone’s motives.”

Given the ubiquity of demonstrations of force in international relations and the general tolerance of such behavior by states, it appears that these forms of threats are not proscribed by international law. (See contra Marco Roscini) Even if they occur in the context of a protracted conflict or a hostile relationship, as long as demonstrations of force do not rise to the level of prohibited threats of force such as ultimatums, which are discussed next, it appears that these practices are generally permissible. This is supported by the brief discussion in the Nicaragua Case on a series of acts and statements that constitute demonstrations of force. Although the Court did not use the label ‘demonstrations of force’, it examined the legality of US military exercises with the Honduran army close to the Nicaraguan border and US naval maneuvers involving thousands of troops, which led the Nicaraguan government to put its armed forces on alert. The ICJ also examined what it termed “the militarization of Nicaragua” through increasing arms purchases. The Court found that neither of these demonstrations of force constituted impermissible threats of force. The US exercises and maneuvers, which took place amidst a hostile relationship between Washington and the Sandinistas, did not violate of the prohibition on the threat of force, and Nicaragua’s arms-buildup was not illegal because there are no general rules “whereby the level of armaments of a sovereign State can be limited.”

Prohibited Threats of Force

A prohibited threat of force is a clear act or an unambiguous statement that communicates an intention to use armed force unless a specific demand, that is impermissible under international law, is met. (See Oscar Schachter here p.1625) This definition of a prohibited threat of force is akin to ultimatums, which were a widely wielded instrument in the pre-Charter era. (See here)

Defining prohibited threats of force in this manner is supported by the observations of the ICJ in its Nuclear Weapons Advisory Opinion. The Court stated that “whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, paragraph 4, of the Charter depends upon various factors.” It is noteworthy that the Court used the term “signaled intention to use force” and later in the same paragraph, the phrases “stated readiness” and “declared readiness” to use force, to describe threats falling within the ambit of Article 2(4). This suggests that the ICJ sought to exclude implicit threats, ambiguous signals, and menacing behavior that is intended to relay political messages without amounting to a clear and unambiguous sign of an intention to use force, which are hallmarks of demonstrations of force. Moreover, the phrase “whether a signalled intention to use force if certain events occur” indicates that not only should there be a signaled, stated, or declared readiness to use force, but that this threat should be accompanied with a specific demand which if not fulfilled would lead to the use of force. Finally, by requiring that this demand be impermissible under international law, the aforementioned definition allows for threats of force in situations where the actual use of force would be lawful, such as self-defense against an armed attack or against an occupation or to enforce a Chapter VII Security Council resolution. (See Dino Kritsiotis here)

Determining the legality of threats of force will always depend on their political context and strategic circumstances. This is because the threshold between permissible demonstrations of force and prohibited threats is not a bright-line. States rarely issue unequivocal ultimatums of the kind made by George Bush against Saddam Hussein on the eve of the invasion of Iraq. More often, states express positions or adopt physical postures that, in combination with other statements or policies, could constitute a prohibited threat, even if the determination to use force remains ambiguous or equivocal. One example of this is US National Security Adviser H.R. McMaster’s threat of “preventive war” against North Korea if it develops the capacity to deliver nuclear weapons to the US. Although not phrased as a clear ultimatum – “relinquish your nuclear weapons, or else” – explicitly threatening preventive war to denuclearize North Korea, which if executed would constitute an illegal use of force, potentially amounts to a prohibited threat of force. 

Conclusion

Viewed on this escalating scale of threats, it appears that the recent war of words, tweets, videos, missile tests, and military maneuvers between the US and North Korea did not, for the most part, involve prohibited threats of force. These acts and statements appear to be demonstrations of force that each party used to communicate political messages to its adversary and to affect its strategic calculus. Finally, I should note that it is not my intention to extoll the value of demonstrations of force as a tool of statecraft or to underestimate the dangers of this practice, especially in a context that involves nuclear weapons and unpredictable leaders. Nonetheless, we do live in an anarchic international system in which violence is pervasive and where threats of force perform an important, if regrettable, function in inter-state relations, and it appears that international law reflects this unfortunate reality.

“The supreme art of war is to subdue the enemy without fighting” – Sun Tzu

[Valentina Azarova, Post-Doctoral Fellow, Center for Global Public Law, Koç University Law School, Istanbul; legal adviser, Global Legal Action Network (GLAN).This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

The Writing on the Wall is a valuable response to growing frustration with the inadequacies of the law of occupation in redressing contemporary realities of foreign territorial control. The book, informed by Gross’ deep involvement in the international practice he documents, addresses a key question that has been posed by civil society about Israel’s occupation: has occupation law become so implicated in Israeli actions aimed at maintaining prolonged rule over Palestinian territory, that the law is now part of the problem? Gross exposes the manipulative application of this special legal regime, and interrogates the structures and political orientation of the law. The book complements the classic works on the law of occupation – including by Benvenisti, Dinstein, and Arai-Takahashi – and provides the ground work for a “rethinking” that may open up transformative possibilities.

Gross claims that occupation law is based on the presumption that occupying states are precluded from dressing up outlawed forms of conquest and exploitation in the “new clothes of the legal and temporary institution of occupation” (p. 21), but that the law of occupation nonetheless lacks the normative safeguards necessary to effectively disincentivize and regulate such actions. Though occupation law was intended as a merely “neutral” standard based on a “factual” approach to the determination and regulation of situations of occupation, Gross maintains that “occupation is not only a fact but a norm.” Its normative content consists of three “prongs”: “non-acquisition of sovereignty,” “management of the territory for the benefit of the local population,” and “temporariness.” (pp. 23-34) Unless occupying states adhere to these premises, foreign territorial control “can, under the cloak of temporariness, lead to […] continued rule by the conquering country, this time in the garb of legitimacy.” (p. 23)

Gross couples this “normative” shift with a “functional” approach to the assessment of the extent of an occupier’s responsibility, which moves beyond the binary question of whether or not an occupation exists and occupation law applies (Chapter 2). Instead, the book is structured by Gross’s distinction between what he dubs the “jus ad occupation” and the “jus in occupation”: the former considers whether an occupation exists and is legal, and the latter regulates the norms concerning the occupier’s conduct. (p. 4)

Limiting my comments to Gross’ framing of the “jus ad occupation” – Chapters 1, 2, and parts of 3 – I offer two reflections intended to further the project of “rethinking” the law of occupation in light of the need to better regulate contemporary situations of occupation in international law. The first pertains to Gross’ “normative approach” and its presuppositions about the regulatory reach and remedial nature of occupation law and its relationality to other bodies of international law. My second point queries whether the “functional approach” Gross advocates can redress the problem of occupation law’s indeterminacy.

The remedial limits of occupation law

Gross’s premise is that if occupation law is to address contemporary abuses, it must be based on a “normative approach.” He adduces support for this approach by arguing that, as an exclusionary legal category, occupation “differs in its nature and legal consequences from conquest” (quoting Graber, p. 29). Gross notes the importance of turning to “other regimes” of international law – on acquisition of territory by force and self-determination of people – if we are to reckon with the limits of occupation law. Indeed, I would argue that occupation law is integrally reliant on other bodies of law to regulate certain consequences outside its scope and to enable its own proper function.

Take for instance the provision in Article 47 of Geneva Convention IV that protected persons shall not be deprived of the benefits of the convention, including through an attempt to annex the occupied territory or change its government. The provision precludes occupiers from opting out of their obligations under occupation law, and maintains the objective applicability of occupation law, irrespective of the occupying state’s positions and actions. But what Article 47 is not, despite having sometimes been misconstrued as such, is a prohibition of annexation internal to IHL. (Its purpose, according to the ICRC’s commentary, “is to safeguard human beings and not to protect the political institutions and government machinery of the State as such.”) The consequence of an occupation that pursues annexation is, rather, an issue of the jus ad bellum: the law on the interstate use of force and its prohibition on the acquisition of territory through force against the territorial integrity and political independence of another state (enshrined in Art 2(4) of the UN Charter), which arguably includes the territorial integrity of an internationally recognised self-determining people. Annexation is a situation that violates the absolute prohibition of territorial acquisition (Jennings 1963). While IHL can function as an indicator for violations of the jus ad bellum – for instance, an occupying power’s changes to local laws may violate IHL, and that violation may also be evidence of unlawful intent to claim sovereignty over the territory – violations of IHL cannot in themselves substantiate a breach of the jus ad bellum prohibition of annexation (or territorial acquisition by force).

The lex specialis of occupation is an inherently interactive body of law that presupposes the concurrent application of the jus ad bellum in situations of occupation to protect against transformative acts. That is, occupation law not only exists within a broader normative environment, but depends for its proper function on the operation of other international law, like the jus ad bellum, to determine the legality of the purpose of the continued use of force to maintain the occupation. It is hard to see how occupation law’s restrictions could serve their intended purpose where the occupier pursues the acquisition of the occupied territory without incurring the consequences for such a breach of the jus ad bellum. The contemporary absolute prohibition on the acquisition of territory by force provides an existential backbone for occupation law. It also enables the vigorous application of the third state responsibility of non-recognition as lawful of an unlawful situation of annexation and its perquisites.

Such an unlawful situation maintained through occupation exposes the limits of the classic axiomatic distinction between jus in bello and jus ad bellum. The consequences of the jus ad bellum is triggered by an occupier’s actions having the intent or effect of annexation or regime change (Giladi and Sloane). Gross does not explicitly discuss the necessity of applying jus ad bellum to respond to such unlawful situations. But the substantiation of this exception could encourage a rethinking of how contemporary occupations are and should be regulated in international law (including through more diligent application of the jus ad bellum), and pre-empt claims that one is making merely aspirational arguments about occupation law.

Gross examines the abusive application of IHRL in time of occupation, arguing that the ”righting” of occupation law through IHRL has permitted occupiers to justify abuses against protected persons in the name of “balancing” their human rights against those of the occupier’s own nationals whom it unlawfully transferred into the occupied territory (Chapter 5). Just as the IHL of occupation law must be predicated on respect for and compliance with the jus ad bellum, as its backbone, the application of IHRL in time of occupation must be predicated on the full implementation of IHL. Here too, it should be noted, another body of law is also highly relevant: the concurrently applicable law on the self-determination of peoples, which places limits on the scope of the occupier’s human rights protection mandate. In this regard, as Carcano affirms, self-determination law interplays with and reinforces the conservationist premise of occupation law.

The effects of an obligation to withdraw

Gross argues that to “reinforce accountability – rather than allow a ‘pick and choose’ situation where the powerful [occupier] chooses the norms convenient for its control” (p. 130) – a “functional approach” is needed to determine the scope of the occupier’s responsibility, based on the extent of its actual control over different domains of life in the occupied territory. His logic seems indisputable: “duties follow from the existence of control, regardless of whether the situation is conceptualized as falling into the category of occupation or of sovereignty” (p. 130).

But a fully adequate assessment of responsibility must necessarily judge not only whether control is being exercised, but also the purpose of that control and its effect on the population under occupation. Such a judgment would need to factor in the legality of the occupier’s casus belli under the jus ad bellum, as well as the obligation to demonstrate a good faith effort to withdraw from the territory for occupiers that violate the jus ad bellum. Gross remarks that the indeterminacy of Israel’s control over Palestinian territory is disguised by a “cherry picked” law of occupation (Chapter 3). To expose this subterfuge and remedy its effects, it is surely necessary to identify the jus ad bellum consequences of Israel’s underlying intent to annex Palestinian territory (as evidenced by e.g. unclassified official Israeli government documents unearthed by Akevot), and its consequent obligation to withdraw from the territory.

A full assessment of the occupier’s responsibility must also address the manner and structures through which it exercises control over the territory. In cases where the genuine local authorities of the occupied territory exercise control over certain domains of life, international law is likely to prohibit an occupier from (re-)asserting its control by ousting local authorities. (p. 133) Yet, when the occupier has wrongfully delegated such authority to de facto authorities such as secessionist movements that depend on the occupying state’s support to further their claims (and who seldom have the best interests of the local population in mind), the occupier may be legally obligated to re-assert and re-centralise control over life in the territory. An occupier whose actions attract an obligation to withdraw is precluded from invoking “security needs” to perpetuate the occupation, and is limited to adopting only necessary measures of protection of the local population pending withdrawal (by analogy, Kretzmer argues the occupier owes only pragmatic minimal obligations to settlers pending their removal).

IHL, quite simply, was never intended to redress exploitative (or colonial) occupations, and has been widely criticised for its plasticity. To call the bluff of an occupation that has become an unlawful territorial situation (Milano) or illegal territorial regime (Ronen), the jus ad bellum must be diligently applied and enforced. Yet, an overreliance on “conflict management” law (IHL and IHRL) in the regulation of occupation has come at the cost of the application of “conflict resolution and prevention” law, and its critical component the jus ad bellum. Scholars and practitioners afflicted with IHL tunnel vision risk rendering occupation law into disrepute. As we take up Gross’s challenge of rethinking the law of occupation, we should not neglect the lex specialis’s integral interaction with the other bodies of law, and seek to better understand the apparent reluctance to apply the jus ad bellum to contemporary predicaments.

[Eliav Lieblich is Associate Professor at Buchmann Faculty of Law, Tel Aviv University.This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Introduction

Living up to its name, Aeyal Gross’s insightful new book engages critically with traditional assumptions of the law of occupation. As in his past work, Gross’s critique here is firmly rooted in traditions of legal realism, critical legal studies (CLS), and – in his constant attacks on binary legal categories – in deconstructive method. In fact, the book can serve as an excellent exposition on critical approaches to law, even for those not specifically concerned with occupation law.

Yet, despite of his critical view of law and its relationship to power, Gross’s thought is not driven by despair or nihilism. Instead, his approach urges jurists to reflect on their work, and to refrain from being passively complicit in the overtaking/perpetuating dynamics of law and power. In this sense, rather than dismissing legal doctrine altogether, as some critical scholars do, Gross analyzes and suggests to reformulate law to reflect what matters to living and breathing human beings, not to legal persons as abstract clusters of rights and duties.

In this comment, I will say a few words about two of the book’s central themes: (1) the normative approach to occupation; and (2) the functional approach to occupation.

The Normative Approach and Per Se Illegality

Gross suggests a normative approach to occupation, which challenges the longstanding view of occupation as a factual, normatively neutral construct. Viewed in the latter way, law only imposes certain limitations on the occupier, while tolerating – and in fact legitimizing – the violations of fundamental rights inherent in the concept of occupation. Accordingly, Gross expands in the book a claim he first formulated together with Ben-Naftali and Michaeli, whereby occupation becomes illegal when it infringes three principles: (1) that the occupier is not the sovereign in the territory; (2) that the occupier is obligated to preserve public order and civilian life in the area; and (3) that occupation must be temporary.

In my view, principles (1) and (3) are interrelated mainly because the perpetuation of occupation blurs the distinction between occupation and annexation. When this distinction is blurred without proceeding to civilian rule, without allowing the political participation of the local population, and without granting them full and equal rights, the distinction between occupation and unlawful regimes such as colonialism, apartheid, or plain military dictatorship collapses.

The distinction between occupation and annexation is not only a temporal one, but also pertains to the nature of the administrative discretion exercised by the occupying power. For this distinction to hold, occupation law must construct the “military commander” – the de facto administrator of the occupied territory – as functionally independent from her state. Her discretion is not one of sovereignty but of trusteeship: it begins and ends with the interests protected by occupation law, while wider state interests must be disregarded. If the commander is made, however, a technical instrument of the occupying state – with no independent discretion whatsoever – again, the distinction between occupation and annexation collapses.

In terms of legal theory, the tension is the following: from the intra-state perspective (at least in dualist states), the military administration in occupied territories is simply an agent of the executive, deriving its power from domestic law. Conversely, from the viewpoint of international law, the military commander draws her power from occupation law. The military administration must somehow operate within this dualism, navigating between its double identity as a state and international organ.

If we examine the situation in Israel-Palestine, this double identity has been brought to a breaking point with the recently passed “Judea and Samaria Settlement Regulation Law.” In this law – the constitutionality of which is now pending in the Israeli Supreme Court – the Israeli legislature directly compels the military commander in the West Bank to seize, in certain situations, private Palestinian lands taken by Jewish settlers, and to legalize these takings. Obviously, this law – beyond compelling the commander to violate Article 49(6) of Geneva Convention IV – suffers from another layer of illegality by disregarding that power to act in the occupied territories derives from international law alone. Therefore, the Israeli parliament cannot override the military commander’s duty to exercise independent discretion while performing her obligations under international law.

The Functional Approach

The functional approach to occupation, expounded in Gross’s book, has its roots in Felix Cohen’s classic critique of the excessive recourse by jurists to abstract legal terms, in detachment from their operation in the real world. Cohen referred to this as “transcendental nonsense” and called to examine law in functional terms, that is, according to its actual influence on people.

Throughout the book, Gross illustrates how the concept of “occupation,” in its formal sense, suffers from this syndrome. By altering the formal designation of a situation from one of occupation to “non-occupation,” states seek to reduce their obligations toward people, although they continue to exercise power over their lives. Conversely, Gross calls not to ask whether a territory is formally “occupied,” but to ask two other questions: (1) what are the facts on the ground; and (2) whether obligations derived from occupation law should apply in these circumstances.

The functional approach to occupation law emerged directly from practice, and specifically from the attempt to makes sense of the peculiar relations between Israel and Gaza after Israel’s 2005 “disengagement” from the territory. Initially, this question was discussed in binary terms: does the situation qualify as occupation or does it not? Gross was perhaps the first to identify the problem of this binary discourse – including in a symposium in this blog – as on the one hand, Israel maintains control over many aspects of life in Gaza, while on the other, it does not have “boots on the ground” in the territory. Gross argued, since 2007, that Israel’s post-disengagement obligations toward Gaza should not be examined in formal, abstract and binary terms. Instead, we should ask the opposite question: does Israel influence the lives of Gaza’s citizens? Does this influence relate to functions that can be viewed as governmental (such as control of the population register, the air space, and so forth)? If so, whether or not we use the formal term “occupation” to describe the aggregate of these powers, by virtue of its de facto control over government functions in Gaza, Israel is both morally and legally required to administer these functions in accordance with what occupation law requires: namely, to act positively for the benefit of the protected population.

The functional approach has practical implications and can be extremely helpful to counter attempts by states to exercise control without responsibility. It is unsurprising, thus, that it was adopted by the ICRC in its updated commentary on the Geneva Conventions. For instance, during 2014’s Gaza conflict (Operation Protective Edge), some Israeli jurists argued – in a legal opinion that was discussed in the Israeli parliament – that Israel was permitted to cut off water and electricity provided to Gaza because Gaza is not occupied territory. To them, if Gaza is not occupied according to the formal definitions of occupation (no military presence on the ground), then Israel has no positive obligations toward its population (to act in favor of the population), but only negative obligations derived from the laws on the conduct of hostilities (not to inhibit those acting in favor of them).

By contrast, the implementation of the functional approach’s two stages clearly indicates that such a cutoff would be illegal: (1) factually, the Gaza Strip is (almost) entirely dependent on Israel for its electricity supply, partly because Israel alone controlled the territory for almost forty years; (2) the control of electricity supply is a governmental function and, therefore, concerning this specific government function, Israel should be subject to the positive obligations of occupation law. Indeed, it impossible to wield quasi-government powers on the one hand and, on the other, to deny the obligations that flow from them. Twelve other Israeli international jurists (including me) submitted such an opinion reflecting this line of argument concerning this question , in contrast to the legal opinion read in parliament.

Like every legal doctrine, however, the functional approach is not perfect. In a sense, it almost willfully gives rise to new ambiguities. For instance, until now, this approach has been understood to delineate state obligations after removing troops from “fully” occupied territories. Yet, if we take this approach seriously, it is unclear why a previous “full” occupation is needed to begin with. Assume that using peaceful means only – say, through state-run corporations – State A takes over the natural resources of State B. Functionally, isn’t State A now exercising control over a governmental function in B, sens previous occupation or even armed conflict? If so, shouldn’t obligations from occupation law apply? And if this is true, isn’t the connection between the functional approach and IHL rather tenuous? Doesn’t it collapse, at the end of the day, to a close variant of international human rights law, applied extraterritorially?

Furthermore, Gross views indeterminacy as a characteristic feature of occupation. This indeterminacy enables the occupying state to manipulate the status of the territory according to its own interests, while maintaining a façade of legality and legitimacy. The paradigmatic example – analyzed in detail in the book – is Israel’s official attitude toward the West Bank, which recognizes the situation as occupation when this allows exercise of power (for example, the power to enact security legislation), while simultaneously denying the existence of occupation, on purely formal grounds, when occupation law limits state action (for example, by prohibiting the transfer of population to the territory). The functional approach, according to Gross, will make it harder to play this “pick and choose” game. It exposes functional power, and thereby limits the ability to mask wrongful actions with formal indeterminacies.

Yet, we should ask whether indeterminacy is indeed an inherent, rather a historically contingent, situation. Counterintuitively, at the basis of the opportunistic use of indeterminacy is a yearning for legal legitimacy, which, in turn, assumes a domestic and international order that still perceives adherence to law as a virtue. If one discards this notion, resort to indeterminacy to conceal violations of law is unneeded, because law itself becomes unimportant. In other words, if states are not embarrassed by violations of law, they don’t need to manipulate law by taking advantage of its indeterminacies to begin with. They can simply claim that law is irrelevant. In this context, by exposing manipulations of law, critical approaches might be “fighting the last war.” Arguably, we are living in times of post-embarrassment, in which even legal apologetics are abandoned. In such times, indeterminacy might be replaced by utter clarity—an unambiguous admission by (some) states that they simply do not care about international law. Therefore, the next legal fight might not be against the abuse of legal indeterminacy, but rather, against the very clear and straightforward discarding of international obligations altogether.

[Aeyal Gross is Professor of Law at the Tel Aviv University Law School. He is also Visiting Reader in Law at SOAS, University of London. In Fall 2017 he will be a Fernand Braudel Senior Fellow at the European University Institute.This post is part of an ongoing symposium on Professor Aeyal Gross’s book  The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

When I started writing on the law of occupation about twelve years ago, the contemporary case law concerning occupied territories was scanty. The Israeli Supreme Court had a very big roster of cases but, other than a few Cyprus related cases from the European Court of Human Rights (ECtHR), not much more was available. In the course of my work on The Writing on the Wall, however, new case law began to emerge. Some of it followed the occupation of Iraq, when UK courts and later the ECtHR made important judicial pronouncements on the application of human rights in occupation. Other cases came from the engagement of the International Court of Justice with Israel in the Occupied Palestinian Territory (OPT) and with Uganda’s occupation of parts of the Democratic Republic of Congo. The ECtHR also revisited the Northern Cyprus question and issued significant decisions concerning occupation (or lack thereof) in Nagorno-Karabakh.

These cases brought up questions that intrigued me in the context of the Israeli-Palestinian case: what is a military occupation? How do we determine that it exists, and how do we know if it has ended? Does this category offer appropriate protection to occupied populations or does it legitimize new forms of dispossession? Does applying human rights in occupation in addition to the traditional framework of international humanitarian law (IHL) help or hinder the protection of occupied populations?

In 2000, when the Second Intifada began, a debate emerged within human rights organizations in Israel. Up until then, human rights groups had usually focused on specific violations of the law of occupation based on a widely shared view stating that international law has nothing to say about the legality of occupation as such. I held, however, that addressing particular violations legitimized continued Israeli control under the cover of occupation as a temporary regime, and that the traditional understanding of occupation in international law as merely a factual situation is partly responsible for this legitimation effect. This debate led me to develop the thesis that the acceptability of occupation as a legal regime rests on several basic norms. Chief among them is the principle that occupation is a temporary deposit and, should the occupier depart from it, occupation is illegal. Orna Ben-Naftali was developing similar ideas at the very same time and, after teaming up with Keren Michaeli, we published our article “Illegal Occupation.” The Writing on the Wall begins from where we left off in that article, focusing on the need to shift from a “merely factual” approach to occupation to what I term a “normative approach.”

In 2005, Israel withdrew its settlers from the Gaza Strip and ended its permanent military presence there. Since Israel retained control over many aspects of life in Gaza, a debate ensued as to whether Gaza was still occupied territory. To me, these discussions seemed like an enactment of Felix Cohen’s “heaven of legal concepts,” where legal concepts are “thingified” in what Cohen characterizes as “transcendental nonsense.” Insofar as we continued to deal with it in the on/off terms of traditional international law, occupation fitted Cohen’s category of “magic solving words,” referring to terms incapable of solving anything. Cohen’s legal realist approach suggests that norms should not follow from abstract concepts but rather the opposite. When applying Cohen’s insights to occupation law, we need to consider whether the liabilities and duties of an occupier should attach to certain acts. The backdrop was thereby set for a functional approach to occupation, which looks at the substance of control rather than at whether there are “boots on the ground.” In the course of the writing, the normative and functional approaches were increasingly revealed as complementary. If occupation is a normative rather than merely a factual framework, it entails duties when the occupant continues to exercise power, even if control no longer takes the form of “boots on the ground,” as in Gaza. The first two chapters of The Writing on the Wall are devoted to the normative and functional approaches and their mutual relationships. The last two chapters consider the application of international humanitarian law and human rights law in situations of occupation, reflecting my critical concern re their legitimizing role and pointing to their nature as double edged swords. Regarding human rights, my discussions in the book developed in the wake of Israeli Supreme Court cases that applied human rights law in the OPT. Reading these cases, I realized that a rights analysis shifts the vertical balance between the rights of the occupied and the security of the occupier to a horizontal balance between both parties’ rights. Applying human rights, then, upsets the balance built into IHL—which ensures special protections to people living under occupation—and widens the justification for limiting their rights. In the Israeli case, the settlers’ security adds a burden unanticipated in international law. For example, to protect settlers from potential violence, Israel’s High Court of Justice allowed the demolition of Palestinians’ houses. While humanitarian law places strict limits on the destruction of civilian property in occupied territories, a human rights analysis allowed to “balance” the property rights of Palestinian owners against the rights of settlers that the occupying army claimed it must protect.

The book offers a critique of the legal framework and a different way of thinking about occupation, without pretending that a normative and functional approach is a panacea to the flaws of the current approach. It considers the application of IHL and human rights law in occupation from a critical perspective, showing they may not only offer protection but also legitimize dispossession and oppression.

The first two chapters of the book look at the occupation framework (what I call jus ad occupation), and the last two look at the application of humanitarian law and human rights in occupation (what I call jus in occupation). In between is Chapter 3, which functions as a bridge and closely examines the Israeli occupation of the OPT and its legal history through the perspective of the book’s different themes. The analysis points out how the official Israeli position created legal indeterminacy as to the OPT’s status, when definitions of it as occupied/not occupied played out against one another. This uncertainty enables a “pick and choose” regime, whereby Israel acts as both occupier and sovereign, while Palestinian residents of the OPT enjoy neither the full rights of protected persons under humanitarian law nor citizenship rights in Israel. This chapter considers how this indeterminacy and the repeated description of the situation as sui generis allowed for control through indeterminacy at different stages of the occupation—after 1967, after the 1993 Oslo agreements, and after the 2005 Gaza disengagement. The chapter aims to explain the complex legal and political mechanisms serving as the building blocks of Israel’s control that, besides creating indeterminacy, include a shift toward a reduction of direct friction meant to render the occupation invisible (through Oslo, the disengagement, the wall, and the privatization of checkpoints). Another major building block is the rise of the proportionality analysis focusing on means-ends tests, which isolates cases rather than enabling a broader context and artificially separates the authority to act from the ways this authority is exercised. I believe that looking at these processes together, as I do in Chapter 3 and more generally in the book, is crucial to understanding the role of law in this occupation, and indeed in occupations in general.

I am grateful to Opinio Juris for devoting a symposium to the book. Its 2012 symposium dealing with the functional approach, which opened with a post where I outlined it, was an important milestone on the way to the book and it is exciting that, in a way, we have now come full circle. I am thankful to the authors of the posts that will follow for engaging with my work and look forward to reading their contributions.

Over the next three days we will be featuring an online discussion of my SOAS colleague and TAU law professor Aeyal Gross‘s new book for Cambridge University Press, The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017). The book develops ideas that Aeyal discussed on Opinio Juris — in a symposium on the functional approach to occupation — more than five years ago. So it’s fitting that we discuss his book on the blog now!

We are delighted to welcome a number of commenters, including Eliav Lieblich (TAU), Valentina Azarova (Koç) (who also contributed to the earlier symposium), Diana Buttu (IMEU), and Eugene Kontorovich (Northwestern). Aeyal will respond to the comments at the end of the symposium.

We look forward to the conversation!

Call for Papers

• Call for Papers – Human Dignity and Human Security in Times of Terrorism. The T.M.C. Asser Instituut and the International Association of Constitutional Law invite the submission of abstracts for a one day conference on “Human Dignity and Human Security in Times of Terrorism”, taking place at the Asser Institute in The Hague on 14 December. The organisers seek papers that are characterised by a critical legal reflection, that make an explicit link to the concept of human dignity and human security, and that think out of the box. Abstracts (of maximum 1000 words) should be submitted to Dr. Christophe Paulussen, c [dot] paulussen [at] asser [dot] nl, by 23 September 2017. Please include your name, e-mail address and a CV. Full papers (of around 10,000 words, including footnotes) are to be submitted by 1 March 2018. Dr. Christophe Paulussen and Prof. Martin Scheinin will make the final selections, and will later edit the full papers to be published by T.M.C. Asser Press and distributed by Springer in March 2019.For more information on the submission guidelines visit our website.

Announcements

• On September 11, ASIL will hold a live webcast  on, “International Law and the Trump Administration: The Use of Force.” Jack Goldsmith and Oona Hathaway will be joining us for this discussion. The webcast will be streamed live at 11:30 AM ET and will then be made available on our website and youtube page. More information is available at www.asil.org/trump.
• On 26 and 27 October, the Conference on the Legitimacy of Unseen Actors in International Adjudication will take place in The Hague, co-organised by the PluriCourts Centre of Excellence (Oslo University) and the Europa Instituut (Leiden University). ‘Unseen actors’ are central to the ‘institutional makeup’ of international courts and tribunals as registries and secretariats, law clerks and legal officers may exert varying levels of influence on the judicial process. At this conference, legal and political science scholars and members of adjudicatory institutions will consider and discuss the legitimacy of assigning ‘unseen actors’ certain roles in the judicial process as well as the implications thereof for the dispute settlement mechanism as such. The Conference Programme and link for registration are now available here . For more information, please email Prof. dr. Freya Baetens at freya.baetens@jus.uio.no .

• The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories. Criteria: Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate. Eligibility: Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed. Submission: Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. Printed submissions must be sent to: Professor Laurie Blank, Emory University School of Law, 1301 Clifton Road, Atlanta, Georgia  30322, USA. Electronic submissions must be sent to: Lblank[at]emory.edu. Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize. Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018.

If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

[Alina Balta is a PhD Researcher at Tilburg Law School, INTERVICT. Nadia Banteka is an Assistant Professor in International Law & Victimology at Tilburg Law School, INTERVICT. This blogpost is a product of the Intervict Reparations Initiative, commissioned by the NWO-VIDI Project, A Waste of Time or No Time to Waste.]

On August 17, 2017, the International Criminal Court (ICC) handed down its Order on Reparations in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi.  Al Mahdi was previously sentenced to nine years’ imprisonment, following a Trial Chamber’s decision on September 27, 2016.  He was convicted as a co-perpetrator for the war crime of attacking protected objects under articles 8(2)(e)(iv) and 25(3)(a) of the Rome Statute. The protected objects include ten buildings of religious and historical character, nine of which are UNESCO World Heritage sites in Timbuktu, Mali. The Court’s Order on Reparations marks the first time the ICC has awarded reparations for victims of crimes against cultural heritage.

The decision marks the first time the ICC has awarded reparations for victims of crimes against cultural heritage. This decision is also notable in its intended scope: the Court aimed to address all types of harm suffered by the victims through its awards of individual, collective, and symbolic reparations. The order assessed the economic and moral harm suffered by the victims and acknowledged the mental pain and anguish that the victimized communities experienced (para. 89). The decision thus demonstrates respect for the culture of the victims, and by providing reparations, the Court created precedent for protecting the spiritual and religious connection between the victimized communities and protected buildings.

Interestingly, the Al-Mahdi decision is the first time the Court urged the TFV to prioritize individual reparations over collective ones in implementing the award (para. 140).  While the Court recognized the TFV’s general position to prioritize collective reparations, it expressed its strong view that the extent of harm inflicted on certain individuals called for prioritizing individual reparations instead.  Through this approach, the order aims to acknowledge the individual victimization of those it has singled out for individual reparations. However, we believe that collective reparations are equally important in this case.  Collective reparations acknowledge the communal harm, bring the victims together, and set out to reconstruct the community’s sense of wholeness.  In its Judgement in the Al-Mahdi case, the Court found that the perpetrator destroyed the cultural heritage of the people of Timbuktu, Mali, and to an extent, the world (para. 56), with the intent to “break the soul” of the people of Timbuktu by attacking their religious and historical identity (para. 80).  Taking into account the nature of victimization, both modalities of reparations should carry the same urgency of implementation here.

The decision is also the first order on reparations that includes guarantees of non-repetition. The open-ended letter of article 75(2) of the Rome Statute offers judges discretion in putting forward different reparations measures. The ICC has given this article a wide margin of interpretation on what measures may form part of reparations. For example, this happened in the form of symbolic measures of satisfaction, such as a perpetrator’s apology, offered by Lubanga and Katanga in the cases against them, and now Al Mahdi’s. (para. 70)  The guarantees of non-repetition in the Al-Mahdi order represent a novel exercise of this discretion.

Guarantees of non-repetition traditionally aim to prevent the reoccurrence of crimes by addressing the institutional roots and structural causes of the violations involved.  That is why we often encounter this measure in cases concerning human rights violations and crimes committed by states that require systemic changes to ensure such atrocities are not repeated.  Often, they result in institutional or legislative reforms, vetting and training of public sector personnel, educational plans that address past struggles constructively, and development programs. The measure itself forms part of the Basic Principles on Reparations, as well as the Impunity Principles and, if implemented strategically, can no doubt have a rather far-reaching effect given the state’s capacity and willingness to implement it.

The Al-Mahdi case presents an intriguing application of guarantees of non-repetition as it concerns the non-repetition of war crimes against cultural heritage.   It will be interesting to see how the Trust Fund for Victims (TVF) responds to the challenge of framing specific reparation measures that can materialize in such non-repetition guarantees in this case.  Though in largely different contexts, the Inter-American Court of Human Rights has used guarantees of non-repetition extensively as part of its reparations judgments and may offer some useful paradigms for implementation.  As the recent reparations order provides, these measures are to be taken to the extent possible and following consultations with the government authorities in Mali (para. 67).  They could include setting into place mechanisms or protection measures facilitated by the Malian government to guarantee the non-recurrence of similar threats against cultural heritage. UNESCO has already undertaken emergency action in Mali by providing cultural heritage protection trainings to UN personnel but also to the Malian armed forces.  An increase and strategic implementation of similar measures can contribute to the goals of instilling a sense of safety to the already traumatized victims and achieving sustainable justice.

At the same time, the Court returned to concept of “deterrence” that it had employed in the Lubanga order, even though it had chosen to depart from this language entirely in the Katanga decision.  More specifically, the Court in Lubanga had suggested that the “wide publication of the decision may also serve to […] help deter crimes of this kind” (para. 238).  However, the Court in the Al-Mahdi case made a conceptual alteration: it spoke of “reparations being designed” – to the extent achievable – to “deter future violations” (para. 28).  While the wide publication of a conviction decision, such as that in Lubanga, may reasonably be expected to achieve some level of general deterrence, we find it more difficult to understand the logic behind reparations having a deterrent effect.  The underlying idea of reparations is that they respond, to the extent possible, to the suffering caused by the crimes, by alleviating some of the harm and doing justice for the victims.  Reparations have been loosely connected in the past, such as in the context of the Holocaust, with the goal of deterring future leaders from similar criminal policies by pledging to repudiate the past and rebuild the constitutional order.  However, in the Al-Mahdi case it is difficult to envision how the reparations order would achieve a deterrent effect in and of itself given the nature of the offenders and crimes involved.

But perhaps more pressingly, seeing reparations as a means to deter future violations runs the risk of assuming an economic perspective on reparations for crimes within the ICC jurisdiction.  In international criminal justice, reparations are largely understood as having a proportional relationship with the victims’ harm: the means to repair the harm determines the nature of the reparations.  A cost-benefit analysis of reparations would shift the focus—instead, we would ask what level of punishment through reparations would be sufficient to deter future wrongdoers.  This level may be completely unrelated to the victims’ harm suffered.  We do not contend that this is what the Court intended to do in this reparations order.  Rather, our goal is to draw attention to the potential risks that the malleable concept of reparations in these proceedings carries.  Admittedly, reparation measures in the form of guarantees of non-repetition may incorporate an element of deterrence based on past conduct (e.g. Case of Myrna Mack Chang v. Guatemala (25-11-2003) (Series C No. 101)) but this connection was not made clear in the current reparations order.

Finally, it is important to keep in mind that, although the Court assessed Al Mahdi’s individual liability for reparations to 2.7 million Euro, this measure has only symbolic and moral value.  While the financial circumstances of the convicted person should not have any impact on the reparations award or its enforcement (para 114), Al-Mahdi’s indigent status means that the burden of financing potential reparation measures will fall on the already strained budged of the TFV, which is tasked with drafting an implementation plan.  In the implementation process, it is essential that the TFV first consult with affected communities to take into account all local conditions in proposing concrete implementation measures. Doing so will be all the more challenging as the security situation in Mali remains worrying and uncertain despite progress.

In all, the ICC’s reparations order in Al-Mahdi’s case is a step forward for international justice through reparations. The Court confirmed some of the foundational elements of reparations it first laid out in Lubanga and Katanga and went on to set an important precedent for crimes against cultural heritage.  Perhaps in the next reparations orders, we will witness more instructive language regarding the concept of deterrence through reparations, and further consideration of both collective and individual harms in determining the circumstances in which prioritization of reparations modalities is desirable.

I am delighted to release the call for papers for a workshop I am organising with Ingo Venzke, my fantastic colleague at the Amsterdam Center for International Law. The workshop is entitled “Contingency in the Course of International Law: How International Law Could Have Been” and will feature an opening address by Fleur Johns (UNSW) and a closing address by Sam Moyn (Yale). The workshop will be held over two half days and one full day from June 14-16 2018. Here is our description of the concept:

The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law’s development by inquiring into international law’s past. Such inquiries may be of systematic purport – asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success. International law’s past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law’s contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false. Either way, though, we will question the present state of international law by challenging its pretense to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: ‘If there is a sense of reality, there must also be a sense for possibility’.

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome.

In the course of concrete inquiries into international law’s past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator’s perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms? And how can we contextualize legal developments without reducing law to its context only? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law’s relationship with power, culture, and justice.

The workshop is open to everyone from PhD students to senior scholars — from law and from outside it — and the deadline for abstracts is December 1. You can download the full Call for Papers here. If you have any questions, please don’t hesitate to email me.

Here is CUP’s statement:

Kudos to CUP for doing the right thing. And kudos to everyone — including Jan Klabbers — who took a public stand against CUP’s capitulation to Chinese pressure.

UPDATE: True to form, China is now censoring news of CUP’s decision not to censor!

[Jan Klabbers is the Deputy Director of the Erik Castren Institute of International Law and Human Rights.]

Almost all governments are almost always engaged in rewriting almost all of the national histories of their states. What should come as an unpleasant surprise though is that Cambridge University Press proves to be a willing accomplice. The Guardian reported last Saturday that CUP blocked access in China to over 300 articles published in The China Quarterly (and here’s a follow-up). This is not just any journal; its editor is based at SOAS, and its website proudly claims that it is ‘the leading scholarly journal in the field’. The blocked articles have in common that they all deal with awkward political issues, ranging from the Cultural Revolution to the 1989 Tiananmin Square masacre, as well as the situation in Tibet – international lawyers may be interested in hearing that among the blocked pieces is an analysis of the Tibet question under international law by Alfred Rubin, published in 1968, nearly fifty years ago.

The upshot of all this is rather disturbing: Chinese historians, lawyers and social scientists get access to parts of The China Quarterly, but not to all of it. They might think they have the entire repository available to them, but they do not. The history accessible to them does not include the Cultural Revolution, nor Tiananmin Square, nor Tibet: to Chinese researchers – and the public at large – these events may simply never have taken place. It is troubling, but to be expected, that governments rewrite history; but when academic institutions collaborate, things really start to unravel. Academic institutions somehow stand for independence of thought and research, for neutrality, for objectivity, and are among the few institutions capable of providing a counterbalance to the airbrushed narratives governments may wish to endorse.

CUP acknowledges that it blocks articles, and justifies itself with the familiar consequentialist logic: pragmatically, a limited amount of articles is blocked, in order for others to remain available. This is the kind of logic that may work when encountering a mugger in a dark alley, but it is less persuasive in reiterative settings: you give in once, and you may never be able to turn the situation around. What is also troubling, on a different level, is that procedural decisions such as these are far less innocent than they may seem. Caving in to censorship demands ultimately undermines everything academia stands for, yet is breezily presented as a pragmatic solution.

All this would be bad enough when done by a cut-throat commercial publisher. What somehow makes it worse though is that it is precisely CUP that is involved, the oldest academic publisher in the world, whose website highlights a commitment to doing business responsibly and proudly speaks of delivering ‘the best learning and research solutions’. Well, no, not to Chinese readers. Most of my own books are published by CUP, and I have always felt that CUP would be a natural fit, precisely because of its academic orientation. In light of the above, however, I’m not so sure anymore.

Saudi-owned TV news network Al Arabiya aired a video simulation yesterday that shows a Saudi Arabian fighter shooting an air-to-air missile at a Qatari Airways plane. Here is the video:

That’s bad enough — but what is truly horrifying is the accompany voiceover, which intones the following:

International law permits states to shoot down any aircraft that violates a state’s airspace, classing it as a legitimate target, especially if flying over a military area.

No, it doesn’t. This is wrong on so many levels. To begin with, shooting down a Qatari Airways plane would categorically violate the Chicago Convention on International Civil Aviation, which Saudi Arabia ratified more than 50 years ago. Art. 3bis, which has been in force since 1998, provides as follows:

a) The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.

The second sentence recognises that Saudi Arabia would have every right under the UN Charter to defend it against armed attack — if, for example, the Qatar military decided to use a Qatar Airways plane for offensive military purposes. But although a civilian Qatar Airways plane would no doubt violate the principle of non-intervention if it intentionally entered Saudi airspace, thus giving rise to Qatari state responsibility (because Qatar owns Qatar airways), the mere fact of intentional entry would not remotely qualify as an armed attack — much less one that would justify the use of lethal force in self-defense.

The conclusion is no different under the jus in bello. A Qatar Airways plane would not become a legitimate target by flying over a Saudi “military area” — much less simply by entering Saudi airspace. Indeed, neither act would even be a use of force sufficient to create an international armed conflict between Qatar and Saudi Arabia. So IHL would not even apply.

We need to be clear about what the video represents. Quite simply, Saudi Arabia is threatening to engage in state terrorism — the use of violence to spread panic among Qatari civilians in order to persuade the Qatari government to supposedly stop supporting terrorist groups. (Something the Saudis know more than a little about.)

Saudi Arabia is a fundamentally lawless state. I’d like to think this horrific video could prove to be its Charlottesville moment, finally convincing the US and the UK that the Saudi government has no intention of complying with international law. But I’m not going to hold my breath. If routinely massacring civilians in Yemen isn’t enough, what’s casually threatening to blow up a civilian Qatari plane?

[Emma Irving is an Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University]

The ICC’s most recent arrest warrant, issued on the 15^th August 2017, should have us all talking for one important reason: it is the first ICC arrest warrant to be based largely on evidence collected from social media. This was a move that was bound to come, and it aligns the ICC with the realities of many of today’s conflicts.

The ICC arrest warrant in question was issued against Mahmoud Mustafa Busayf Al-Werfalli, in the context of the Libya situation. Mr. Al-Werfalli, an alleged commander within the Al-Saiqa Brigade, is accused of having committed or ordered 33 murders in Benghazi or surrounding areas in June 2016 and July 2017. The crimes are alleged to have taken place during the Al-Saiqa Brigade’s participation in Operation Dignity, an operation which began in May 2014 as a coalition effort to fight terrorist groups in Benghazi.

The charge of murder as a war crime under Article 8(2)(c)(i) of the Rome Statute is based on seven separate incidents captured in seven separate videos. The Pre-Trial Chamber decision describes the events in these videos, some of which show Mr. Al-Werfalli shooting individuals himself, and some of which show him ordering others to commit executions:

Mr Al-Werfalli, wearing camouflage trousers and a black t-shirt with the logo of the Al-Saiqa Brigade, and carrying a weapon, is seen in a video footage shooting with his left hand three male figures in the head (§12)

Mr Al-Werfalli is seen speaking into the camera and then raising his left hand in the air and sweeping it down towards the ground in a manner that suggests that he is ordering the two men to proceed with the execution. The men shoot the persons kneeling, who fall on the ground. (§16)

The first of the seven videos is stated to have been posted to Facebook, while the other six are simply described as having been posted to social media. It is not clear whether the videos were posted by the Al-Saiqa Brigade itself or by a third party. At least some of the material appears to have been posted by the group itself, as early in the decision the Pre-Trial Chamber notes that the evidence supporting the application for the arrest warrant comes from ‘social media posts by the Media Centre of the Al-Saiqa Brigade’ (§3).

That the ICC has turned to social media evidence (also referred to as open-source evidence) is significant. In many of today’s conflicts Continue Reading…

Snapshot of two days in the life of the ICC.

On Tuesday, the ICC issued a new arrest warrant in the Libya situation — for Mahmoud al-Werfalli, a commander in the so-called Libyan National Army (LNA), which defected from the Libyan army during the revolution and is currently vying for power with the UN-backed Government of National Accord (GNA). The arrest warrant represents a new phase in the ICC’s completely unsuccessful investigation in Libya, as it is the first to focus on events that happened after the revolution. There is no reason to believe, however, that the warrant for al-Werfalli will be any more successful than the ones for Gaddafi and al-Senussi: the LNA has already made clear they will not surrender him to the ICC, and the GNA has zero prospect at present of capturing him.

On Wednesday, Rodrigo Duterte, the President of the Philippines, instructed his police to shoot human-rights activists who are “obstructing justice” by investigating his war against (alleged) drug dealers. That war has involved at least 7,000 extrajudicial killings in the past 13 months and has featured Duterte openly admitting not only that he has ordered the extrajudicial kilings, but that he has personally committed them. Human-rights groups and even a Philippine senator have called for the ICC to open an investigation into the situation.

There seems to be little question that al-Werfalli is guilty of ordering and participating in more than two dozen summary executions of captured soldiers — remarkably, there is video to that effect. But al-Werfalli is one military commander among hundreds responsible for horrific crimes in Libya. Duterte, by contrast, is the President of one of the only states in Southeast Asia that has ratified the Rome Statute. Even if he never ended up in the ICC’s dock, a formal investigation of the situation that he has almost single-handedly created in the Philippines would do more to deter the commission of international crimes than 500 arrest warrants for thugs like al-Werfalli. Yet despite issuing a strong statement making clear that the Court has jurisdiction over the situation and could prosecute individuals responsible for international crimes, there is no indication that the OTP has seriously contemplated opening a formal investigation in the Philippines.

The ICC fiddles in Benghazi while Manila burns. And yet the ICC claims not to understand why so many people think it’s obsessed with Africa.

Call for Papers:

• The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes longer and shorter articles on all areas of international law. The Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words. Authors are asked to conform to the Hart Publishing house style. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally (siobhan [dot] mullally [at] nuigalway [dot] ie) and Fiona de Londras(f [dot] delondras [at] bham [dot] ac [dot] uk) by October 31 2017. Initial enquiries can be directed to either or both Editors. If you wish to review a title in the Yearbook’s book review section, please contact the book reviews editor Dr. Dug Cubie, d [dot] cubie [at] ucc [dot] ie (University College Cork.)