IsraCampus.Org.il

Orna Ben-Naftali
College of Management Academic Studies
Aeyal Gross
Tel Aviv University - Buchmann Faculty of Law
Keren Michaeli
affiliation not provided to SSRN
Berkley Journal of International Law, Vol. 23, p. 551, 2005
February 28, 2008

Abstract:
The international legal discourse on belligerent occupation has traditionally regarded the phenomenon of occupation as a fact of international life which, once established, generates normative consequences: the application of the law of occupation. Accordingly, its focus has been on the manner with which an occupying power complies, or fails to comply with specific obligations under this law. Virtually no discussion exists as to the legality of the phenomenon itself. This article proposes to expand this discourse by inquiring into the nature of the normative regime of occupation, as distinct from the legality of specific actions undertaken within it. Such an inquiry, rather than regarding the phenomenon of occupation as merely a fact of power, identifies a norm which governs the phenomenon, thereby making it possible to differentiate between legal and illegal occupations. This identification involves a legal construction relating to both the normative order which is generated by an occupation and to the normative order which generates the legal regime of occupation. Focusing on the continued Israeli occupation of the Palestinian territory conquered in 1967, the article argues that this occupation has become illegal both intrinsically (that is, in terms of the normative regime of occupation) and extrinsically (that is, in terms of the international legal order which generates the normative regime of occupation as an exception to the normal order of sovereign equality between states: the situation is exceptional due to the severance of the link between sovereignty and effective control). Section I advances this proposition.

The intrinsic legality of an occupation is to be measured in relation to three interrelated fundamental legal principles: (a) Sovereignty and title in an occupied territory is not vested in the occupying power; under contemporary international law, and in view of the principle of self-determination, said sovereignty is vested in the population under occupation; (b) The occupying power is entrusted with the management of public order and civil life in the territory under control. In view of the principle of self-determination, the people under occupation are the beneficiaries of this trust. The dispossession and subjugation of these people is thus a violation of this trust, and (c) The occupation is temporary, as distinct from indefinite. The violation of each of these principles, as distinct from the violation of a specific norm which reflects an aspect of these principles, renders an occupation illegal. Further, these principles are interrelated: the substantive constraints on the managerial discretion of the occupant elucidated in principle (a) and (b) respectively, generate the conclusion that it must necessarily be temporary, and the violation of the temporal constraints expressed in principle (c) cannot but violate principles (a) and (b), thereby corrupting the normative regime of occupation. This occupation is illegal. This is the nature of the Israeli occupation. The extrinsic legality of an occupation is to be measured by its exceptionality. Once the boundaries between the exception and the rule are blurred, the occupation becomes illegal. The Israeli occupation has thus blurred these boundaries. Section II substantiates this argument.

Concluding Section III focuses on the indeterminacies of this occupation as reflecting both its essential feature and its legitimizing mechanism, and proceeds to consider the normative consequences of an illegal occupation.