The Occupation, Acquisition and Annexation: The Fourth Geneva Convention and the 9 July 2004 Advisory Opinion of the International Court of Justice
Before I deal with why the 2004 advisory opinion of the International Court of Justice has been included in the preamble of a resolution focused on the illegality of building settlements, I want to clarify the difference between the “acquisition” of territory versus mere occupation, on the one hand, or the much more radical step of annexation. The last blog dealt with the issue of acquisition of territory. I perhaps should have started by explaining at least the difference between occupation and acquisition and between acquisition and annexation.
The issue of acquisition of territory under international law goes back to the competition among Western colonial powers dating back to the fifteenth century and the competition for colonial territories in disputes between Spain and Portugal and then between those two powers, backed by the interpretations of international law by the Pope, and the refusal of the other powers, most specifically the Netherlands, Britain and France, to comply with those international rulings. In a future blog I will discuss when an international authority in determining international law – currently a political entity like the UN or a legal entity like the International Court – loses respect for its jurisdictional authority.
There were two relevant mechanisms for acquiring new territories – so-called “discovery” of the territory and, second, conquest. Discovery has long been irrelevant, whether or not it was ever really just, but conquest has remained an issue. As I tried to point out in my first blog in this series, international law has attempted to prohibit the acquisition of territory by force of arms, particularly since the end of WWII, but this effort is most notable for the frequency of the breaches rather than the universality of its application either in time or space.
Given the hypocrisy with respect to acquisition, there exists a tension between occupation, the temporary control and jurisdiction over a territory, and annexation of such territory that ends an occupation, not by ceding the territory back to another power, but by making that territory an extension of the territory already under the governance of a power. Annexation by means of prescription, cession and accretion are not relevant here and, in any case, are now considered obsolete. The two modes of asserting sovereignty have been by occupation and by conquest. A main thrust of international law over the last century, but particularly since WWII, has been to deny the right of powers to acquire permanent jurisdiction over a territory and extend sovereignty by either conquest, occupation, or both.
Currently, international law overwhelmingly protects the rights of an existing population in a territory to determine the sovereignty over that territory. It also deems illegal the transfer of populations into that territory under the auspices of military conquest in order to change the demographic makeup such that the resident population and demographic shifts effect sovereignty claims. Yet, as I tried to show, in Crimea, Tibet, Kuwait, East Timor, Cyprus, the Western Sahara, Eritrea-Ethiopia, Kosovo (I dealt with this case in a number of articles and a book), as well as other areas that I did not discuss, sovereignty was determined in fact by power politics – sometimes one way and sometimes the other, but virtually never by international law. Thus, there is a real tension between international law and military force. In that tension, international law has won a number of rhetorical victories, but in virtually no case has it determined outcomes. Further, because of this failure, many would contend that international law has been placed in disrepute and the “law” that might is right has been reinforced.
The issue may be when an occupied territory or parts thereof can legally be transferred to the sovereignty of an occupying power. Note that a country can be in occupation of a territory even if the reasons for that occupation are totally legitimate under the laws of war. The ethics of conduct applicable to an occupying power under the rules of jus ad bellum are relevant solely on the ground of whether humanitarian international law is applicable. A “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
It does not matter whether the occupying power has or does not have legal rights or claims on the territory in question. If the political and/or military power did not have administrative control of the territory before the belligerency and does so after, it is an occupying power and in occupation of the territory in question. Further, the reasons for calling it an occupying power relate to humanitarian considerations with respect to the treatment of the local population and not with regard either to the justice of such occupation or the legal rights to ownership of the territory in question. As we shall see, the two issues, while distinguishable, are related.
This, the politicians on the right in Israel may and do refer to the territory of the West Bank as Judea and Samaria to press forward a legal claim to the West Bank territory, but that is of no relevance for determining whether the West Bank is occupied territory or whether Israel is an occupying power. Simply put, Israel is an occupying power; the West Bank, including East Jerusalem and the Old City, are occupied territories under international law. That situation of occupation continues until there is recognition of the party having legal jurisdiction AND that legal party also exercises de facto control over that territory. It is the latter point that gives rise to claims, whether valid or not, that Gaza remains occupied territory even though governance is now under the jurisdiction of Hamas. As long as a territory is under the control of foreign troops without the consent of local authorities or the local population, the territory is considered under occupation.
Thus, occupation says absolutely nothing about sovereign rights. Further, occupation is regarded as temporary even when, as in the case of the West Bank, it has lasted for almost fifty years. The occupying power must respect local laws already in place with two exceptions: a) if the local law undercuts international humanitarian law, and b) local law threatens the security of the occupying power. It is the latter tension between the responsibilities to humanitarian law, on the one hand, and to the security of the occupying power that are critical.
It is understandable why a reader might find it strange that the Fourth Geneva Convention concerning humanitarian law and, in particular, the protection of persons in time of war, may seem odd in a document concerned with halting and even reversing Israeli settlements in the West Bank. For, bracketing the issue of settlements for the moment, under any reasonably objective standards, Israel is exemplary by and large in adhering to humanitarian norms with respect to protection of the civilian population. That civilian population is guaranteed protection as long as the majority of individuals there do not become nationals of the Occupying Power. This is a major reason why East Jerusalamites, by and large, never took up the offer of citizenship in Israel when Israel annexed that territory and extended the boundaries of Jerusalem.
In addition to its own security, an occupying power has a responsibility for ensuring public order and safety while, at the same time, respecting the rights of all civilians under its jurisdiction, including not deporting, ethnically or religiously cleansing that population (article 49 Fourth Geneva Convention – henceforth I will cite only the relevant article). The Convention prohibits forced labour, (art. 51) and insists that the occupying power, offer workers protection (art. 52), respects municipal laws and the administration thereof (art. 54), ensures health services (arts. 55-57), protects the local religions (art. 58), provides welfare as needed (arts. 60-63), and ensures the administration of criminal law (arts. 64-78).
However, there are articles which Israel has been charged with abusing, such as prohibitions against confiscation and the destruction of property (art. 53) owned privately, cooperatively or collectively. The problem has not been the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences. To the greatest extent, these have been respected. However, property seized for security purposes or taken over for the construction of settlements for Israeli Jews under the guise of security concerns have been viewed as breeches of international humanitarian law. The seizure of such property is allowed only if the property is absolutely required for security purposes and, even then, only during the conduct of hostilities.
There is this reservation. Confiscation of property is permitted when “absolutely necessary for military purposes” and imperative military requirements demand such confiscation. It is up to the military occupying power to make such a determination. However, international humanitarian law does NOT permit the occupying power to simply cite such military considerations. The latter must be demonstrated and cannot be used as a cover for clearly other purposes, such as the transfer of Israelis into the territory in question. That would be a bad faith application of the exemption provision. The criteria of reasonableness and proportionality apply.
A second area concerns the internment of locals because of security concerns (most of the remaining 159 articles), but comparatively speaking, Israel has treated individuals interned for security purposes well and has never exercised the use of capital punishment which is permitted under the Fourth Geneva Convention. Israel has never subjected the domestic population to forced labour for the occupying authority and certainly never subjected the civilian population to military conscription.
The most relevant of the articles of occupation that Israel has been found to breach is the prohibition against the transfer of the civilian population of the occupying power into the occupied territory. It does not matter whether that population is transferred there by the state or individuals and families move voluntarily on their own. It does not even matter whether that population moves to retake ownership of property once held, whether in the Old City or in parts of the West Bank. Under the Fourth Geneva Contention, the general principle is that such movements of peoples are not permitted. This is a key relevant element with respect to a Security Council motion against settlements and a reason for inclusion of this reference.
If the reference to the Fourth Geneva Convention helps clarify the areas of dispute and contention, why is there a reference to the 9 July 2004 advisory opinion of the International Court concerning the construction of a wall (though along most of its length it is a fence) in the Occupied Palestinian Territories? The answer is in the title. The territories are by the fact of the make-up of the existing population “Palestinian.” Hence, under the law, the Court deemed hat the construction of the wall (fence) was contrary to international law.
Israel denied the jurisdiction of the Court on this issue because the occupying power had not consented to its jurisdiction according to the rules of the Court. In so doing, the Israeli case for military necessity was never made and there is no reference in the considerations as to whether the construction of the wall/fence served a military purpose in protecting both the civilian populations of the territory under occupation and/or the territory under the sovereign authority of Israel. Rather, the advisory opinion has been written in the context of the efforts of twentieth century international law to reverse centuries of practice in which settlement activity and annexation were used to determine sovereignty and convert an occupied territory into a legal extension of existing territory under the sovereign authority of the occupying power.
Further, the Court claimed jurisdiction because the General Assembly, which requested the opinion by resolution ES 10/14 of 8 December 2003, was authorized to do so by Article 96, paragraph 1, of the Charter. The Court did not explain why the UN Charter provision trumped the rules of the court requiring consent by both contending parties, except to assert that its opinion was only advisory and not determinate. “The lack of consent by a State to its contentious jurisdiction has no bearing on its jurisdiction to give an advisory opinion.” The Court did attend to the prohibition against the General Assembly acting on its own and not fulfilling the requirement that the Security Council first authorize such a request by determining that the Security Council had failed to fulfill its responsibilities to maintain international peace and security in this case.
The Court ruled in an advisory capacity to the UN General Assembly, which had referred the question with respect to the issue of legality of the activity, that “the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.” With respect to continuing action, “Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion.”
Third, with respect to remedial action, the Court ruled that “Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.” Fourth, with respect to the obligations of other states, “All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” Fifth, with respect to the continuing obligations of the UN and specifically the Security Council, “The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.”
The nub of the issue was that the wall was perceived, not primarily as a security measure, though no consideration was given to the extent to which the wall-fence significantly reduced acts of sabotage and terror in Israel proper. Rather, the wall was perceived as a de facto instrument of annexation, especially since the wall included a number of Israeli settlements within an enlarged Israel.
The route of the wall as fixed by the Israeli Government includes within the Closed Area (between the wall and the Green Line) some 80 percent of the settlers living in the Occupied Palestinian Territory. Recalling that the Security Council described Israel’s policy of establishing settlements in that territory as a flagrant violation of the Fourth Geneva Convention, the Court finds that those settlements have been established in breach of international law. It further considers certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine; it considers that the construction of the wall and its associated régime create a fait accompli on the ground that could well become permanent, in which case . . . [the construction of the wall] would be tantamount to annexation. The Court notes that the route chosen for the wall gives expression in loco to the illegal measures taken by Israel, and deplored by the Security Council, with regard to Jerusalem and the settlements, and that it entails further alterations to the demographic composition of the Occupied Palestinian Territory. It finds that the construction [of the wall], along with measures taken previously, . . severely impedes the exercise by the Palestinian people of its right to self determination, and is therefore a breach of Israel’s obligation to respect that right.
The inclusion of the reference to the Fourth Geneva Convention and the International Court’s advisory opinion on the wall/fence were not just rhetorical gestures to repeat past claims and determinations, but were directly relevant to the core diplomatic, political and legal debate on settlements and, in particular, whether an enlarged Jerusalem annexed by Israel and other territories with large settlement properties could be traded for land elsewhere without the full consent of the Palestinians.
With the help of Alex Zisman