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Post-Occupation Obligations Under the Law of Belligerent Occupation?

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Post-Occupation Obligations Under the Law of Belligerent Occupation? © COPYRIGHT by Dana Wolf 2015 ALL RIGHTS RESERVED POST OCCUPATION OBLIGATIONS UNDER THE LAW OF BELLIGERENT OCCUPATION? By Dana Wolf ABSTRACT This dissertation explores the issue of whether international law of belligerent occupation encompasses, or should evolve to encompass, some form of post occupation duties upon a former occupier. The most fundamental question of this dissertation is thus, who bears responsibility under the law of belligerent occupation for the protection of civilians of the formerly occupied zone with respect to public order, security, and essential services, and in particular with respect to the rights and obligations of governance of a territory following the end of occupation, given that the law of belligerent occupation is motivated by both a “civilian protection” principle and a “preserve the sovereignty of the returning sovereign” principle. This legal question arises because of a lack of “fit” between the basic paradigm of occupation underpinning the law of belligerent occupation and situations of occupation (which might be acknowledged by the parties or not) that arise in the contemporary world that are not easily assimilated to the structure of belligerent occupation law. These gaps and poor fit give rise to criticisms of the law of belligerent occupation as being inadequate for addressing the varied situations of occupation that have arisen in the past several decades. The result of the critiques is a call for either other bodies of law to provide for civilian protection in any gap of governance or protection, or else to reform belligerent occupation law, in order to impose duties toward the territory and civilian population, upon the former occupier, even after the occupation has been withdrawn. This dissertation accepts that there are important gaps and lack of fit with the law of belligerent occupation as it stands today. It concludes, however, that the law of belligerent occupation does not create an on-going regime of post occupation duties falling upon the former occupier. To fill in the vacuum, a “transitional post occupation obligation” model is proposed, grounded not in other bodies of law, but in the law of belligerent occupation itself, which should be triggered under certain circumstances when the end of occupation is approaching and gaps in essential governance and civilian protection at issue. The defining element of this model is a transfer of rights and duties of governance from the departing occupier to the returning sovereign, for the protection of the civilian population, rather than a body of legal duties falling upon the former occupier alone. ii AKNOWLEDGMENTS First and foremost, I would like to express my special appreciation and thanks to my adviser Professor Kenneth Anderson. He has provided invaluable guidance and relentless support throughout my research, with uncompromised dedication and belief in my work. It has been an honor to be his S.J.D student. I appreciate all of his contributions of time and ideas to make my S.J.D experience productive and stimulating. My thesis committee guided me throughout the research and contributed their valuable time, thoughts, and ideas. Thank you to Professor Robert Goldman and Professor Diane Orentlicher. Professor Goldman taught me the foundation of the laws of war and, in particular, the law of occupation. He was an inspiration in many ways. Professor Diane Orentlicher served as my adviser during Professor Anderson‟s sabbatical and contributed her valuable thoughts and guidance throughout my research, writing, and presentation. I would also like to thank Professor Amanda Frost, Program Director, for her support and guidance. I extend another warm thank you to Professor Amy Tenney, Associate Director, for her close support, guidance, and devotion throughout the program. Thank you also Bill Ryan, Law Librarian, for his work to help me meet university requirements. Thank you also to Hillary T. Lappin and Diana Sawyer for their support along the way. Thank you all for the opportunity to be part of American University Washington College of Law and its visionary work. I owe a big and special thanks to Professor Uriel Reichman, the President of IDC, Herzliya, Israel, who showed me the way and always unconditionally expressed his great support and belief in me and my work despite all difficulties and tough times along the way. iii A warm thank you to Professor Robert Mnookin, Chair, Executive Committee of Program on Negotiations at Harvard Law School, and Susan Hackely, Managing Director of the Program on Negations at Harvard Law School, and all incredible faculty and staff granting me the Program on Negotiations Graduate Research Fellowship, which allowed me to spend the last year of research and writing in a unique environment that has had invaluable contribution to my work and perspectives. Thank you for the opportunity to be exposed to such a high level of professionalism. I would like to thank all my friends and colleagues at American University and the Program on Negotiations at Harvard Law School for the amazing atmosphere within which we conduct our long hours of research. I would also like to thank all of my lifetime friends who supported me in writing, and inspired me to strive towards my goal. Last, I would like to thank my family for all their love and encouragement. Words cannot express how grateful I am and forever will be. You are the most important people in my world and I dedicate this dissertation to each one of you. iv TABLE OF CONTENTS CHAPTER 1 INTRODUCTION ....................................................................................... 1 The Dissertation‟s Overarching Argument and Conclusions ................................. 3 The Chapter-by-Chapter Argument ...................................................................... 11 CHAPTER 2 GAZA: A CASE STUDY OF CONTERMPORARY OCCUPATION ................................................................................................................. 15 Introduction ........................................................................................................... 15 Israel‟s Unilateral Withdrawal from Gaza in 2005 ............................................... 17 The Aftermath of Israel‟s Unilateral Withdrawal from Gaza ............................... 19 Historical and Legal Background of the Gaza Strip Territory until 1993 ............ 26 Overview of the Relationship between Israel and the Palestinian Authority from 1993 until 2005 and the Evolution of the Withdrawal of Israel‟s Forces .................................................................................................................... 33 The Legal Status of the Gaza Strip Following Israel‟s Unilateral Withdrawal in 2005............................................................................................... 41 Israel‟s Standpoint .................................................................................... 41 Palestinians‟ Standpoint ............................................................................ 42 International Community‟s Standpoint ..................................................... 42 The Legal Status of Gaza After 2005 is Open to Debate Among International Law Scholars ....................................................................... 44 Legal Issues Emerging from the Case of Gaza With Respect to the Application of the Law of Belligerent Occupation ............................................... 48 Israeli High Court of Justice Decision – Al Bassiouni Case .................... 50 The Problem: Lack of Responsible Power to Protect Gaza‟s Population Following Israel‟s Unilateral Withdrawal in 2005 ................. 54 Conclusion ............................................................................................................ 60 CHAPTER 3 THE EXISTING LAW OF BELLIGERENT OCCUPATION AS PART OF THE LAW OF ARMED CONFLICT ............................................................. 63 Introduction ........................................................................................................... 63 The Beginning of Occupation according to the Law of Bellgierent Occupation ........................................................................................................... 66 Military Presence ...................................................................................... 70 Effective Control within the Meaning of the Law of Belligerent Occupation ................................................................................................ 74 Fundamental Legal Principles Protected by the Law of Belligerent Occupation ................................................................................................ 81 v Legal Obligations of the Occupying State according to the Law of Belligerent Occupation ............................................................................. 82 The End of Occupation according to the Law of Belligerent Occupation ............ 84 The Tests for Determining the End of Occupation Represent Unwinding of the Test for its Beginning .................................................. 87 The Law of Belligerent Occupation‟s Legal Principal: Ending Occupation Means Automatically Removing the Occupying State‟s Responsibilities ......................................................................................... 87 Military Withdrawal.................................................................................. 89 Losing or Transferring Effective Control ................................................
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