Protection, occupation and International Humanitarian Law in the OPT

After 37 years of Israeli military occupation, the situation in the West Bank and the Gaza Strip has degenerated into a political, social and economic quagmire. Despite attempts to find a viable solution, violence, depredation, poverty and disillusionment have driven the conflict to unparalleled levels of hatred and despair. Could the proper management of the occupied Palestinian Territory (OPT) have prevented such an appalling situation? Would better respect for the law of occupation by Israel have made a significant difference to social and economic outcomes? Apart from blaming Israel for its repeated and multifaceted violations of the law of occupation, are there insights to be gained on the adequacy of the law to manage such long-term occupation?

This article analyses the law of occupation in its application to the OPT. It argues that international law has provided limited means to enhance the protection of the Palestinian population living under long-term occupation, while its significant ambiguities have allowed Israel to implement some of its most disruptive policies, in particular movement restrictions, as well as to further its administrative control over the territory. Arguably, the law has not fulfilled its humanitarian purpose, and has not constituted a proper framework for tackling difficult humanitarian issues arising in the West Bank and the Gaza Strip. Furthermore, international law has failed to fulfill its security purpose to stabilise the situation in the OPT, and serve as an intermediary station on the path from war to peace. Nevertheless, occupation law remains as essential today as it was in the first days of the Israeli invasion in 1967. Israel’s planned withdrawal from the Gaza Strip and expansion of settlement in the West Bank are stark reminders of its critical role in enhancing or jeopardising the security of Palestinians.

What went wrong?

For most observers, Israel’s repeated violations of IHL are to blame for the derailment of its occupation. Israeli settlement policy, increasingly intrusive military operations against insurgents, and various instances of collective punishments against Palestinian civilians – such as the extended use of administrative detentions and house demolitions – have exacted a heavy toll on Palestinian society. The causal link between Israeli violations and the distressing situation in the OPT, however, requires closer examination.

First, respect by Israel of the applicable rules contained in the law of occupation would not result in a major lifting of the significant restrictions imposed by Israel in September 2000 on the movement of Palestinian people and goods. Growing insecurity due to attacks in Israel since 1994 has provided legal grounds to Israel under IHL to impose strict limitations on the movements of the local population inside and outside the OPT. These restrictions are acknowledged as the main sources of social and economic decline since the onset of the second Intifada.

Second, the deterioration of the situation in the OPT does not result exclusively from Israel’s behaviour as an Occupying Power. In many respects, the Palestinian Authority’s inefficient management is also to blame for poor public services. Equally, human rights abuses and the Palestinian security services’ lack of accountability are also the responsibility of the Palestinian Authority.

Finally, there is broad consensus that the central source of Palestinian hardship is not so much Israel’s mismanagement of the occupation but the occupation itself. No occupation, even one managed under the highest international standards, can provide a long-term development environment for the occupied population. Many argue that Israeli military occupation should have ceased decades ago, as Israel’s neighbours (Jordan, Egypt, Syria and Lebanon) no longer represented significant threats to its security. However, with the lack of sustainable peace in the region and continued military activities at Israel’s borders, Israel has had, in principle, legitimate security grounds to maintain its military presence in and around the OPT for more than 30 years.

Consequently, there is no clear evidence that improved respect of the rules of IHL by Israel would have prevented the current social, economic and political situation in which Palestinians find themselves. The legal regime of occupation seems to have, in fact, little bearing on overall underdevelopment in the OPT. The chances are that, after three decades, any occupation would display features similar to those affecting the Palestinian population in the West Bank and Gaza Strip. This is not to say that respect of the law is unimportant, or that Israeli violations are irrelevant. Rather, a clear understanding of the strengths and limitations of current international treaties remains a critical step in the development of more appropriate tools and strategies to address the situation in the OPT.

The relevance of the law of occupation in Israel and the OPT

If Israeli violations are not the controlling factor in the current deterioration, what is? The argument presented here emphasises (i) the inadequacy of some of the current legal standards contained in the law of occupation in addressing the specific situation in the OPT; and (ii) the lack of a focused and dynamic response by the international community to the deterioration of the situation in the territory.

From the outset, two points need to be underlined.

• The law of occupation is designed primarily to regulate security-motivated occupation

The international law of occupation, as embodied for the most part in the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949, regulates the presence of foreign military forces in a territory during an international armed conflict. These treaties were developed on the assumption that this foreign military presence is dictated primarily by the security concerns of the Occupying Power. Parties have adopted these norms on the understanding that only temporary security motives can justify an occupation, to the exclusion of attempts to annex, colonise or fundamentally transform unilaterally-occupied territories and societies, or alternatively to draw on natural resources for the exclusive benefit of the Occupying Power. International law therefore limits how far occupation forces can permanently affect the life, livelihood and social environment of the occupied population.

• The motives of military occupation have evolved considerably in the twentieth century, while the law of occupation has remained largely unchanged

The nineteenth century understanding of occupation was based on the classical notion of sovereign control over a territory and population. When a sovereign, whether king or government, was displaced by an invading party, the invader did not acquire full control over the occupied territory. The occupier remained only the depository of the assets and population of the legitimate sovereign for the duration of the occupation. The former had to act as a custodian of these assets until their return to the legitimate sovereign as the result of a reversal of the military campaign, or as agreed in a peace treaty. Political and practical incentives were such that conflicts in the nineteenth century rarely resulted in the long-term military occupation of neighbouring states. The lack of proper tools to maintain centralised political control over extended territory and populations hindered expansionist ambitions. If dominant states were interested in the resources of neighbouring countries, they built or imposed alliances as part of peace agreements. Consequently, continued military control over foreign territory did not hold much strategic value.

The ability of states to control foreign territory expanded considerably in the twentieth century with the development of modern communication tools and transport networks. As a result, the strategic value of military occupation increased, serving the hegemonic and transformative goals of dominant states, or simply serving expansionist policies. These enterprises are best illustrated with Japanese and German expansionism in Asia and Europe during the Second World War, and the total occupation of both countries at the end of the war by the US and its allies – occupations which were aimed not only at displacing the sovereign power, but at reshaping these two nations, giving them a new political identity and, for the first time, attributing the privileges of sovereignty directly to the people.

Despite these changes in the nature of occupation, the international law of occupation remained unmodified for the greater part of the century. Through various interpretative methods, states managed to function within the traditional parameters of the law, implementing their transformative policies despite the contradictions generated in the law. In Japan and Germany, for example, the military occupations were undertaken with the understanding that traditional rules of occupation law would be respected to the extent that they allowed the reshaping of political, legal and social institutions pertaining to the defunct Nazi or Japanese states. The sovereign having disappeared or surrendered, it was seen as the responsibility of the Occupying Power to establish the sovereignty of the people and bring the occupation to an end.

Can IHL address the needs of the Palestinian population?

The evolution of state practice, and the static nature of the law of occupation, has resulted in a growing gulf between the law and the practice of occupation. In particular, states no longer seem to consider military occupation strictly as a security tool. Since the occupation of Germany and Japan, the transformative objective is increasingly recognised as a legitimate motive of an Occupying Power by the international community when such occupation is endorsed by the UN Security Council, as part of its response to a threat to international peace and security. The success of such transformation is even seen as a prerequisite for bringing the occupation to an end (as in Iraq, under Resolutions 1483 and 1511).

In addition, following the development of human rights and the recognition of the right of self-determination under the UN Charter, the international community no longer envisages simply handing back a territory to the former sovereign (as it did, for example, at the end of the Japanese occupation of Vietnam and Indonesia, where the two countries were returned to the French and Dutch colonial powers). The legitimacy of the new sovereign authority resides in its representation of the people living in the occupied territory.

This is of special importance in the international community’s approach to the Israeli occupation of the OPT, and the conditions and strategies needed to bring it to an end. In particular, the law of occupation remains silent on:

• the methods through which the Occupying Power and the international community can build a modern, sovereign state in the occupied territory, and the limitations that they should respect;
• the role and authority of the Palestine Liberation Organisation (PLO), and the standards under which it can negotiate an end to the occupation;
• the human rights requirements and the accountability of the Palestinian Authority;
• the conditions under which an occupation can be terminated; and
• the process through which such a determination can be made.

One may argue that, considering the increasing challenges of occupation in the twenty-first century, the law of occupation may need to be revisited to ensure the highest level of protection to the occupied population and to devise a proper and realistic path to bring an occupation to an end. This article focuses Israel; other cases, such as the US and British occupation of Iraq, could serve as fertile research ground.

Israel’s occupation policies in the OPT: from security to territorial expansionism

Israel invaded the West Bank and Gaza Strip in the course of the Six Day War in June 1967. The invasion and subsequent occupation of Arab territories were dictated by Israel’s security concerns at the time. Israel argued from the outset, however, that since the sovereignty of Egypt and Jordan over the Gaza Strip and the West Bank was disputed, it was not under an obligation to return these territories. Despite the request of the UN Security Council in Resolution 242 for Israel to withdraw from the occupied territories, Israel extended its control over the West Bank and Gaza Strip through the annexation of East Jerusalem and the establishment of civilian colonies and military outposts inside the OPT.

In this light, the Israeli military occupation of the West Bank and Gaza Strip differed substantially from what was envisaged in the Hague Regulations and the Fourth Geneva Convention. Especially after the settlement of the conflict with Egypt and Jordan, one may argue that the maintenance of an Israeli military presence in the OPT became, in these circumstances, essentially a tool for expansion, rather than a way of strengthening border security.

What use might IHL then have if the fundamental interest of the Occupying Power differs substantially from the underlying values and interests of the applicable treaties? Arguably, the Palestinian population living in the OPT is in dire need of a protection regime. In a formal sense, the law remains valid regardless of the motives of the Occupying Power until the agreed return of the sovereign. Given the inability of the parties to the conflict to agree on the conditions to bring the occupation to an end, as well as the international community’s unwillingness to impose serious enforcement measures against Israel’s violations and expansionist policy in the OPT, how can one promote, and demand Israeli compliance with, a legal regime that contradicts its implied political goals? Should the international community continue to insist on the implementation of the law of occupation, or should it consider other intermediary regimes to ensure proper protection of the Palestinian population (e.g. international civil administration, or trusteeship)?

Developing proper compliance strategies

Given that enforcement measures are unlikely against Israel for its violations of the law of occupation, compliance strategies must be based on (i) solid understanding of the motives and interests of Israel in the OPT; (ii) good control over the potential ambiguities of the law that may be used by the deviant state; and (iii) appropriate strategies for, and targeting of, international interventions. In other words, if the international community hopes to have an impact on Israel’s behaviour in the OPT, there are few alternatives to engaging with the stakeholders of Israeli government policies, domestically and abroad, and negotiating proper arrangements for the implementation of the law and/or the development of an alternative regime. This will mean going beyond a holistic and discursive approach to the violations of IHL by Israel and engaging political parties, civil society organisations and the general public in a debate on the political goals underlying Israeli policies and their (in)compatibility with specific humanitarian and security imperatives as embodied in international law. The examples below illustrate this issue.

The humanitarian consequences of Israeli settlement policy

The Israeli government has been engaged for more than 35 years in the relocation of Israeli nationals to the territories it occupied as a result of the 1967 war. It has done this through programmes facilitating, supporting, encouraging and/or enabling the establishment of Israeli settlements in the OPT. The legality of these settlements has been challenged by the other parties to the conflict, other parties to the Geneva Conventions, and international organisations such as the UN. Among all aspects of Israeli policy in the OPT, the establishment of Israeli settlements has generated the most significant tensions between the parties, and it has been a constant source of pressure on the occupied Palestinian population.

Israeli settlement policy has been acknowledged by a great majority of states, scholars and international organisations as a violation of IHL. Paragraph 6 of Article 49 of the Fourth Geneva Convention states that ‘[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. This provision implies the following.

• This obligation suffers no exception. No circumstances can justify the Occupying Power’s deportation or transfer of its population to the occupied territory.
• This obligation applies only to the Occupying Power. It does not prohibit voluntary migration of the Occupying Power’s nationals into the occupied territory; it only forbids the Occupying Power’s participation in, or contribution to, this process.

Article 49 was adopted with the objective of preserving the basic demographic and social configuration of the occupied territory. According to the ICRC Commentary, the purpose of Article 49 paragraph 6 was precisely ‘to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race’.

The current blanket denunciation by the international community of Israeli settlement policy is, by itself, unlikely to have a significant impact, either on the policy or on the livelihood of Palestinians. Instead, international interventions should engage with the Israeli authorities and Israeli society over the damage incurred by Palestinian communities in the establishment and expansion of settlements. This pragmatic approach needs to be complemented with more targeted interventions on specific cases, for political audiences who can have an influence on these issues. For example:

• Proper data should be maintained on the locations and population profile of settlements in the OPT.
• Independent evaluations of the social and economic impact of selected settlements should be undertaken, with recommendations on how to correct this impact.
• Information and advocacy campaigns should be undertaken on the illegality of settlements and their impact on Palestinian communities. These campaigns should target government constituencies in Israel and abroad. They should be undertaken by agencies and organisations unrelated to the parties to the conflict.
• International agencies should agree on strategic targets in slowing down settlement expansion, and measure the results of their activities regularly.

In the absence of a proper response from the Israeli government to such interventions, the international community should look beyond IHL. Ultimately, the inefficacy of the international community in bringing Israel into compliance with the law of occupation on the settlement issue is the most cogent argument in favour of developing an alternative protection regime that will limit the further expansion of Israeli settlements in the West Bank and Gaza Strip. In present circumstances, it is hardly imaginable that the international community continues to recognise Israel’s fiduciary authority over Palestinian public land as stipulated in the law of occupation. Insisting on the implementation of the law of occupation implies maintaining the legal authority of the Israeli government and courts over Palestinian private and public land, which is at the core of Israeli settlement policies.

Movement restrictions as a collective punishment

After Israeli settlement policy, the movement restrictions imposed on Palestinians appear to be one of the most damaging Israeli policies in the OPT. Since the beginning of the Intifada in September 2000, the Israel Defense Force (IDF) has introduced a number of measures restricting the movement of Palestinians within the OPT, including curfews, internal closures, roadblocks and checkpoints, closed military areas, the separation barrier, and the encirclement of communities located on the west side of the barrier.

The law of occupation contains only a limited number of provisions of direct relevance to the general freedom of movement of the local population in an occupied territory. Nevertheless, the existence of such a right is hardly contested. The general obligation of the occupant to respect the fundamental rights of protected persons under Article 27 of the Fourth Geneva Convention implicitly includes the right to move about freely. This right, however, is not absolute. According to Article 27, the Occupying Power ‘may take such measures of control and security in regard to protected persons as may be necessary as a result of the war’.

The ICRC Commentary to the Fourth Geneva Convention explains further both the right to free movement and its limitations. According to the Commentary, ‘the right to personal liberty, and in particular, the right to move about freely, can naturally be made subject in war time to certain restrictions made necessary by circumstances’. The Commentary goes on to explain that ‘a great deal is left to the discretion’ of the Occupying Power in terms of its choice of security measures. The Commentary does state, however, that ‘the regulations concerning occupation … are based on the idea of the personal freedom of civilians remaining in general unimpaired’. The right to free movement is further supported by the growing tendency to read International Humanitarian Law in the light of international human rights instruments (see Article 12 of the International Covenant on Civil and Political Rights).

Any measure to enforce limitations upon freedom of movement should be necessary and proportional. Extensive general movement restrictions may affect the ability of the local population to satisfy basic needs. Under the law of occupation, the Occupying Power is obliged to ensure that the occupied population has access to basic humanitarian supplies. Article 55(1) of the Fourth Geneva Convention states: ‘[T]o the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores, and other articles if the resources of the occupied territory are inadequate’. Since movement restrictions are a complex domain and the law is particularly unspecific about it, lawyers and policy-makers should engage Israel in expert dialogue on these issues to provide a technical determination applicable in the OPT. In particular:

• States should ensure continued support to mapping efforts regarding movement restrictions, such as the ones undertaken by the UN Office for the Coordination of Humanitarian Affairs (OCHA).
• The impact of the movement restrictions should be properly evaluated by independent organisations, using credible methodologies.
• This impact should be discussed by international IHL experts to evaluate the adequacy and proportionality of such measures compared to their portrayed purpose. These experts should produce practical recommendations on measures to alleviate the impact of movement restrictions on the Palestinian population.
• As with the proposed international response to Israel’s settlement policies, these recommendations should be presented to the various stakeholders of Israeli security policies.

Ultimately, as long as the law of occupation continues to apply in the OPT, Israel’s security considerations will remain the yardstick of all the security measures imposed on the Palestinian population, with no relief in sight for the latter’s social and economic needs. While the international community must insist on Israel’s full compliance with the rules stipulated in the law of occupation, it must also contemplate alternative regimes that could better serve the security needs of both Palestinian and Israeli populations.

Conclusion

The two examples above illustrate practical areas where states and international agencies could focus their efforts to ensure the protection of the Palestinian population living in the OPT. The fundamental issue remains that, while the current situation in the Middle East no longer warrants the Israeli occupation of the OPT, the continued application of the law of occupation provides for a series of prerogatives for the maintenance of Israeli security in, and control over, the OPT. The lack of commitment of the international community towards the enforcement of the rules of IHL has allowed Israel to implement expansionist policies, and has further endangered the security of the Palestinian population living in the territories.

This article suggests a series of measures to engage the Israeli government and civil society on IHL. Alternative strategies also need to be developed. The international community will have to choose between taking the necessary measures to ensure respect for the law occupation, or deciding on the implementation of an alternative legal regime that could better serve the human security objectives of both sides, such as an international civil administration. The continued inability of the parties to the conflict to settle their differences cannot by itself justify the maintenance of the Israeli military occupation. The international community should invest its energy in engaging the Israeli government, civil society and the media in developing practical measures to alleviate the impact of Israeli occupation on the Palestinian population and, ultimately, to bring the longest occupation in living memory to an end.

Claude Bruderleinis Director of the Program on Humanitarian Policy and Conflict Research at Harvard University. His email address is hpcr@hsph.harvard.edu.

References and further reading

Meir Shamgar (ed.), Military Government in the Territories Administered by Israel, 1967–1980: The Legal Aspects (Jerusalem: Hebrew University, Harry Sacher Institute for Legislature Research and Comparative Law, 1982).

Adam Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories since 1967’, American Journal of International Law 84, 1, 1990, pp. 44–103.

International Humanitarian Law Research Initiative, ‘Review of the Applicability of International Humanitarian Law to the Occupied Palestinian Territory’ and ‘Separation Barrier and International Humanitarian Law’, www.ihlresearch.org/opt.

Eyal Benvenisti, The International Law of Occupation (Princeton, NJ: Princeton University Press, 1993).

Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (New York: Cambridge University Press, 2004).

Jean Pictet (ed.), Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Geneva: 1960.

Orna Ben-Naftali and Yuval Shany, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’, Israeli Law Review 37, summer 2004, forthcoming.