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Occupied Zone—“a Zone of Reasonableness”?

Published online by Cambridge University Press:  19 March 2012

Martti Koskenniemi
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Abstract

The vocabulary of “reasonableness” invokes a wide margin of discretion that is often needed to temper the excessive rigour of legal rules and to deal with the inevitable problems of over- and under-inclusion associated with application of formal law to individual cases. The acceptability of the use of discretion by a law-applying institution such as the Israeli High Court of Justice is based on the assumption that its preferences and moral sensibilities are broadly reflective of the preferences and sensibilities of the community in which it exercises its jurisdiction. When jurisdiction is exercised in conditions of occupation, however, such consensus cannot be easily presumed. On the contrary, recourse to moral pathos by an institution of the occupying power will appear to normalize its jurisdiction and add an element of hypocrisy to the felt illegitimacy of its possessing jurisdiction in the first place. Moreover, it will undermine the moral and political significance of the fact of the occupation, even diminishing the urgency of bringing it to an end.

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Articles
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Israel Law Review , Volume 41 , Issue 1-2: Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context , 2008 , pp. 13 - 40
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel [2004] IsrSC 58(5) 807, at ¶ 42 [hereinafter Beit Sourik]. An English translation is available in H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) P.D. 807, 38 Isr. L. Rev. 83 (2005) and also available on the Israel Supreme Court website, http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.htm (last visited May 18, 2008).

2 Id. ¶ 34.

3 Id. ¶ 35. In the decision, the Court also relied on the proportionality ground of review in Israel's administrative law (see id. ¶ 38). Here I am not going to review that aspect of the matter, however, but will concentrate on proportionality in international law.

4 Id. ¶ 36.

5 Id. ¶ 37.

6 Id. ¶ 36.

7 Id. ¶ 41.

8 Id. ¶ 44.

9 Id. ¶ 45.

10 Id. ¶ 48.

11 Id. ¶ 86.

12 See De l'esprit des lois, bk ix, ch. vi (1748).

13 Benvenisti, Eyal, The International Law of Occupation (2nd ed. 2004)Google Scholar.

14 Id. ¶¶ 59-60,70,76; see also HCJ 7957/04 Mara'abe v. The Prime Minister of Israel [2005] IsrSC 38(2) 393, ¶ 74, an English translation is available at http://elyon1.court.gov.il/files_eng/04/570/079/a14/04079570.a14.pdf.

15 Id. ¶ 24.

16 Id. ¶ 29.

17 Id. ¶¶ 110-16.

18 HCJ 3799/02 Adalah v. The Central Command, IDF [June 23, 2005] (unpublished), available at http://elyon1.court.gov.il/Files_ENG/02/990/037/a32/02037990.a32.pdf.

19 Id.

20 Id. ¶ 23.

21 Id.

22 Id. ¶ 24.

23 HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel [Dec. 11, 2006] (unpublished), ¶ 2 [hereinafter Targeted Killing].

24 Id. ¶ 46.

25 Id.

26 Id. In fine.

27 The turn to reasonableness and proportionality (in contrast to “hard” rules) in national laws is one aspect of what appears as the increasing complexity of the social context that legal systems are expected to regulate. For one discussion of its projected extreme consequences, see O'Hagan, Timothy, The End of Law? (1984)Google Scholar. More recently, pressures from “globalization” are understood as significant contributors to this. See, e.g., Arnaud, André-Jean, Critique de la raison juridique. 2 Gouvernants sans frontières. Entre mondialisation et post-mondialisation (2003)Google Scholar. However, the emphasis in this Article is not on the technical details of “proportionality” under domestic administrative law but under international law. For a recent overview of the theme in international law, See Gardam, Judith Gail, Necessity, Proportionality and the Use of Force (2004)CrossRefGoogle Scholar.

28 As pointed out in Cohen-Eliya, Moshe, The Formal and the Substantive Meaning of Proportionality in the Supreme Court's Decision Regarding the Security Fence, 38 Isr. L. Rev. 264 (2005)Google Scholar.

29 I have made this argument in some length in regard to the suggestion for criteria of “humanitarian intervention” in The Lady Doth Protest too Much: Kosovo, and the Turn to Ethics in International Law, 65 Mod. L. Rev. 159–75 (2002)Google Scholar. The best overall statement of these problems remains Schauer, Frederick, Playing by the Rules. A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 31-34, 47–52, & passim (1991)Google Scholar.

30 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 53, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].

31 HCJ 10356/02 Yoav Hass v. The IDF Commander in Judea and Samaria [2004] IsrSC 443 53, at 66,¶ 9.

32 See. e.g.. Weber, Max. On Law and Economy in Society 303–21 (Rheinstein, Max ed., 1954)Google Scholar.

33 See, e.g., the discussion in Cassese, Antonio, On Some Merits of the Israeli Judgment in Targeted Killings, 5 J.Int'l Crim. Just. 342 (2007)CrossRefGoogle Scholar.

34 These dilemmas are anxiously stressed in the meticulous analysis in Cohen, Amichai & Shany, Yuval, A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case, 5. J. Int. Crim. Just. 310 (2007)CrossRefGoogle Scholar where the authors point to the “indeterminate nature of the proportionality test” and the “ambiguous and subjective considerations involved,” concluding that “it is much easier to formulate the principle in general terms than it is to apply it in a particular set of circumstances,” id. 314, 316. I doubt whether this is helped by distinguishing between the “formal” proportionality of the first two subtests (rational objective and least harmful effect) that would be proper for a court to make from “substantive” proportionality (interest-comparison) that would belong in the realm of the legislative, as suggested by Cohen-Eliya, supra note 28. Any legislative “balance” will have to take the form of a general rule that would need to be applied to a particular case in which the relative intensity of the juxtaposed values would again need to be re-assessed by the law-applier (i.e., a court).

35 Beit Sourik, supra note 1, ¶ 59. This is what the Court repeatedly calls proportionality stricto sensu. See, e.g., Targeted Killing, supra note 23, ¶ 44.

36 Kennedy, Duncan, Critique of Adjudication. Fin de Siècle 97–156 (1996)Google Scholar.

37 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131, ¶¶ 122, 134 (July 9) [hereinafter Wall Advisory Opinion].

38 Id. ¶¶ 122 & 134.

39 Id. ¶ 135.

40 Id.

41 Id. ¶¶ 135 & 137.

42 Id. ¶ 140. For appropriately critical analysis of the ICJ's economy of argument, see Kretmer, David, The Advisory Opinion: The Light Treatment of International Humanitarian Law, 99 Am. J. Int'l L. 98–100 (12005)Google Scholar; Shany, Yuval, Capacities and Inadequacies. A Look at the Two Separation Boundary Cases, 38 Isr. L. Rev. 134–36 (2005)Google Scholar.

43 For surely it had at least unofficial access to such data despite Israel's absence from The Hague. In any case, much of it was included in the Beit Sourik case, supra note 1, even as it was rendered only a few days before.

44 Cf. Barak-Erez, Daphne, Israel: The Security Barrier—Between International Law and Domestic Judicial Review, 4 Int'l Const. L. 547–48 (2006)Google Scholar.

45 Thus, General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶10, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26,2004) states that:

[A] State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party… the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.

46 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 24 (July 8); Wall Advisory Opinion, supra note 37, ¶ 106; Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116, ¶¶ 215-221 (Dec. 19).

47 Issa v. Turkey, 41 Eur. Ct. H.R. 27 (2004), ¶ 69.

48 But see also R. (on the application of Al-Skeini) v. Secretary of State for Defence, [2004] EWHC 2911; Al Skeini v. Secretary of State for Defence, [2005] 2 WLR (QBD). But also critique in Leach, Philip, The British Military in Iraq—the Applicability of the Espace Juridique Doctrine under the European Convention on Human Rights, 448–458 Pub. L. (2005)Google Scholar.

49 Detainees at Guantamo Bay, Cuba, Request for Precautionary Measures, Inter-Am. C.H.R. (March 13, 2002), reprinted in 41 I.L.M. 532.

50 For analysis of the expansive role of human rights arguments in occupation situations, see Gross, Aeyal, Human Proportions: Are Human Rights the Emperor's New Cloths of the International Law of Occupation, 18 Eur. J. Int'l L. 9 (2007)CrossRefGoogle Scholar.

51 Mara'abe v. The Prime Minister of Israel, supra note 14, ¶ 18.

52 McCann v. United Kingdom, 21 Eur. Ct. H.R. 97, ¶ 194 (1995).

53 Mara'be v. The Prime Minister of Israel, supra note 14, ¶ 29.

54 Targeted Killing, supra note 23, ¶ 22.

55 I have discussed the process of deformalization of rights further in my The Effect of Rights on Political Culture, in The European Union and Human Rights 99 (Alston, Philip ed., 1999)Google Scholar as well as in the more recent La Politique du droit International 175 (2007)Google Scholar.

56 Al-Jedda v. Sec'y of State for Defense, [2005] EWHC 1809.

57 Id. see ¶¶ 94 et seq.

58 Id. ¶ 104.

59 Id. ¶ 108.

60 See the quote from Beit Sourik, at supra note 10.

61 On this, see especially Kennedy, David, The Dark Sides of Virtue. Reassessing International Humanitarianism 266 (2005)Google Scholar.

62 See further Bhuta, Nehal, The Antinomies of Transformative Occupation, 16 Eur. J. Int'l L. 721 (2005)CrossRefGoogle Scholar.

63 Convention Respecting the Laws and Customs of War on Land (Hague, IV), Oct. 18, 1907, 36 Stat. 2277, 2306, 205 Consol. T.S. 277, 295 [hereinafter Hague Regulations].

64 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter First Geneva Convention, Second Geneva Convention, and Third Geneva Convention] and the Fourth Geneva Convention, supra note 30.

65 Like the rest of 19th century law, this was limited it in two ways. First, it was applicable only in European territory. Late 19th century international law books were full of justifications for why the barbarity of the non-Europeans—in particular their lack of understanding of the intricate rules of civilized warfare—prevented the application of those rules to them. See, e.g., Westlake, John Vol. II: War, International Law 87 (2nd ed. 1910)Google Scholar. Second, it was valid only in formal wars between European States and was based on the assumption of the complete formal equality of the belligerents.

66 Benvenisti, supra note 13, at 26-29.

67 The complete assumption of all authority in Belgium and the reorganization of Belgian political and economic life by Germany in 1914-1918 would become, Benvenisti notes, “on the whole, a representative rather than unique experience,” id. at 47.

68 For an overview of the practices of WWII, see id. at 60-98.

69 The Fourth Geneva Convention, supra note 30, art. 11.

70 Id. art. 47.

71 Harris, Grant T., The Era of Multilateral Occupation, 24 Berkeley J. Int'l L. 19, 21 (2006)Google Scholar.

72 Island of Palmas (US. v. The Nether.), 2 R. Int'l Arb. Awards 869 (Perm. Ct. Arb. 1928).

73 For a careful analysis of the Western arguments, see Corten, Olivier, Les ambiguités de la référence au droit international comme facteur de légitimation portée et significantion d'une déformalisation du discours légaliste, in Oliver Corten & Barbara Delcourt, Droit, Legitimation et Politique Exterieure: L'europe et La Guerre de Kosovo 223–59 (2000)Google Scholar.

74 Harris, supra note 71, at 23.

75 See, e.g., Preu, Peter, Polizeibegriff und Staatszwecklehre. Die Entwicklung des Polizeibegriffs durch die Rechts—und Staatswissenschaften des 18. Jahrhunderts (1983)Google Scholar.

76 Pufendorf, Samuel, On The Law of Nature and of Nations, Bk vii, ch 9 § 3, in Political Writings 242 (Carr, & Seidl, ed., 1994)Google Scholar.

77 Hunter, Ian, Rival Enlightenments. Civil and Metaphysical Philosophy in Early Modern Germany 156, 158–63 (2001)CrossRefGoogle Scholar.

78 See my The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960 112–178 (2001)Google Scholar.

79 SKOP v. Estonia, (Helsinki City Court No. 496, Jan. 21, 1998) reported in Långström, Tarja Transformation in Russia and International Law 195 (2003)Google Scholar.

80 See Koskenniemi, Martti & Lehto, Marja, La succession d'Etats dans l'éx-URSS, en ce qui concerne particulièrement les relations avec la Finlande, XXXVIII Annuaire francais de droit international 190–98 (1992)Google Scholar.

81 See http://www.iraqcoalition.org/ (last visited May 18, 2008).

82 Harris, supra note 71, at 37.

83 For a critique, see my Legitimacy, Rights and Ideology: Notes Towards a Critique of the New Moral Internationalism, Associations. J. Legal & Soc. Theory 349 (2003)Google Scholar.

84 I have dealt with aspects of this e.g. in my Formalism, Fragmentation, Freedom. Kantian themes in Today's International Law, No Foundations. Journal of Extreme Legal Positivism 7 (4/2007)Google Scholar, available at http://www.helsinki.fi/nofo/.

85 Targeted Killing, supra note 23, ¶ 18.

86 See the discussion of the different scenarios in Targeted Killing, id., ¶¶ 29-40.

87 See especially Mara 'abe v. The Prime Minister of Israel, supra note 14, ¶¶ 21-40.

88 Barak-Erez, supra note 44, at 548.

89 See also the Israeli Court's discussion of the different factual bases of its decision in Beit Sourik and the International Court of Justice's decision in the Wall in Mara 'abe v. The Prime Minister of Israel, supra note 14, ¶¶ 61-72.

90 Beit Sourik, supra note 1, ¶ 27.

91 See generally Gong, Gerrit W., The Standard of Civilization in International Society (1984)Google Scholar.

92 Within the League of Nations' mandates system, the question of where sovereignty lay was soon resolved by thinking of it being “divided” between the three relevant entities: the mandate, the mandatory and the institutions of the League. See my The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960 172–74 (2001)Google Scholar.

93 Leander v. Sweden, 116 Eur. Ct. H. R. (Ser. A), ¶ 59 (1987).

94 Gross, supra note 50, at 1. It may be too much to say that “proportionality assumes an accountable democratic government committed to the collective good of its citizens,” id. 17. But at least it assumes a relationship between public authorities and citizens that can be articulated in a political theory about allegiance that occupation as de facto power can never provide. Occupation, unlike politics, cannot found a polity.

95 I have argued this at greater length in Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization, 8 Theoretical Inq. L. 9 (2007)Google Scholar.

96 Already to maintain this distinction, apart from other reasons, is sufficient to keep alive the debate about the illegality of the occupation, now continued for over 40 years, as suggested in Ben-Naftali, Orna, Gross, Aeyal M., & Michaeli, Keren, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 Berkeley J. Int'l L. 551 (2005)Google Scholar.