Hughes: Moving from Management to Termination: A Case Study of Prolonged Occupation

David Hughes (Univ. of Michigan - Law) has posted Moving from Management to Termination: A Case Study of Prolonged Occupation (Brooklyn Journal of International Law, Vol. 44, no. 1, 2018). Here's the abstract:

In 2017, the Israeli occupation of the Palestinian territories reached a half-century in duration. This reignited a conversation amongst legal scholars. In articles and books, lawyers questioned the efficacy of occupation law. They asked whether it had become an anachronism. Across Israel and the Palestinian territories, those that directly invoke the law of occupation sought a more effective means of adapting the law to meet the exigencies of a fifty-year-old occupation. The accompanying debates recalled questions concerning the legal treatment of prolonged occupation. This article seeks to fundamentally alter this recurring discourse.

Built around a detailed case study of Israel’s occupation of the West Bank, I argue that as commonly interpreted, international law does not regulate – but instead – facilitates prolonged occupation. Referencing various historical moments, I describe when and how international law has been employed to entrench an occupying power’s control. These legal engagements are justified as responses to the exigencies of prolonged occupation. Such uses of international law, the article argues, are based on a common interpretative approach. This understands occupation as a fact or non-normative phenomenon. As a result, international law is unable to alter occupation. Instead, it may only manage it.

Identifying the motive of management as a causal factor, I argue that common responses to prolonged occupation may be necessary but when taken within the occupation framework’s traditional, non-normative confines they risk perpetuating occupation. They entrench a legal framework that is understood to neglect duration and curtail the inherent requirement of temporality. This interpretation of the occupation framework becomes susceptible to manipulation. In response, the article proposes a novel interpretative approach. This shifts the focus of the occupation framework. It emphasizes a conception of occupation as temporary and facilitates efforts to end the occupation. By recognizing that prolonged occupation constitutes an altered form of control, and grounding responses to this means of control in established legal principles, this amended normative approach identifies a legal basis under which an occupying power will be required to enable the conclusion of prolonged occupation. This reasserts the law of occupation’s relevancy and efficacy. It better aligns the purpose and function of occupation law with diplomatic objectives and international norms. And it shifts the discourse that accompanies prolonged occupation from management to termination.