Vol. 4 No. 7 (July, 1994) pp. 88-90
THE INTERNATIONAL LAW OF OCCUPATION by Eyal Benvenisti.
Princeton: Princeton University Press, 1993. 241 pp. Cloth
$29.95.
Reviewed by Robert J. Beck, Woodrow Wilson Department of
Government and Foreign Affairs, University of Virginia.
Eyal Benvenisti's important new book explores the international
legal dimensions of what scholars traditionally have termed
"belligerent occupation." His purpose is "to
understand the arrangement that the international community has
devised for settling the possible conflicts of interest between
occupant and occupied and to assess the shortcomings and
challenges of such a system" (p. 6). Benvenisti's study is
admirably well researched, structured, and written; indeed, in
its Yale doctoral dissertation iteration, it received the Law
School's Ambrose Gherini Prize. Nevertheless, upon reading his
comprehensive examination of state practice since 1914, one
wonders if the work might better have been entitled, AN
INTERNATIONAL LAW OF OCCUPATION?
Benvenisti defines occupation as "the effective control of a
power (be it one or more states or an international organization,
such as the United Nations) over a territory to which that power
has no sovereign title, without the volition of the sovereign of
that territory" (p. 4). He rejects the less inclusive terms
of "belligerent" and "wartime" occupation
because twentieth century history "has shown that occupation
is not necessarily the outcome of actual fighting" (p. 3).
Though Professor Benvenisti did not do so, he might also have
formally defined "annexation" in order to distinguish
that concept more clearly from "occupation."
Four principal scholarly tasks are undertaken in Benvenisti's
monograph. First, in Chapters 1 and 2, the author sets out
clearly the framework of the law of occupation, focusing
especially on Article 43 of the Hague Convention Regulations,
"the gist of the law" (p. 7). Second, Benvenisti
skillfully traces over eight decades the evolution of the state
practice of occupation. Chapters 3 through 6 examine in
succession the cases of: World War I; World War II; Israel's
occupations of the Golan Heights, the West Bank, Gaza, and Sinai;
and the more recent occupations of Kuwait, Western Sahara, East
Timor, Afghanistan, Kampuchea, Grenada, Panama, Bangladesh,
Northern Cyprus, Iraq, and Southern Lebanon. Third, Benvenisti
assesses in Chapter 7 the prospects for enforcement of the law by
existing domestic and international institutions. Here, he
concludes that adjudication and enforcement through
"protecting powers" do not "seem at present to be
capable of meeting the challenges facing the law," but that
international global and regional organizations are
"promising" mechanisms (p. 207). Finally, in Chapter 8,
he offers "his own reading" of the law "in an
effort to accommodate it to contemporary challenges" (p.
209).
Professor Benvenisti identifies three predominant trends in this
century that have transformed the law of occupation. First, the
role of central governments has expanded substantially, and with
profound international legal implications. "At the heart of
almost every modern occupation," Benvenisti contends,
"lies a conflict of interest among the occupant, the local
population, and the ousted government, a conflict over policies
and goals." Thus, the contemporary occupant "is no
longer the impartial trustee of indigenous private interests ...
envisioned in the Hague Regulations" (p. 210). Second, the
international community has placed an increasing emphasis on
personal and communal rights. This shift has manifested itself
both in international prescriptions designed to protect
individuals, and in the increasing approval of "indigenous
community" claims at the expense of ousted government
interests (pp. 210-11). Third, occupants have regularly failed to
acknowledge their rules as "occupations." This unhappy
tendency has reflected state government desires to justify their
forcible actions, their interests in establishing titles to
territory, and their recognitions that "occupation" has
acquired a pejorative connotation (pp. 211-12).
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THE INTERNATIONAL LAW OF OCCUPATION constitutes a valuable
contribution to the literatures of international law and
international relations, and will surely prove of great interest
to students of both disciplines, particularly in light of recent
changes in Israel's occupation. Traditional works on belligerent
occupation tended to reflect solely the Hague Regulations, and to
be strictly legal in orientation; newer ones have generally
consisted only of narrow historical or legal analyses of specific
occupations. Hence, the comprehensive, multi-dimensional quality
of Benvenisti's study genuinely distinguishes it; the book's
extensive bibliography and table of cases further enhance its
utility.
Though Benvenisti's book lacks any extended discussion of
international legal methodology, his approach nevertheless
reflects certain prominent aspects of the Lasswell-McDougal
jurisprudence, the so-called "New Haven School."
OCCUPATION evinces, for example, an appreciation of international
law's dynamism and its authority, of governmental concerns for
their power bases; it displays a sensitivity to law's histori-
cal/political context and to the expectations of international
actors; it focuses squarely on the process of actor claims and
reactions. That Benvenisti's project should be so oriented is not
surprising given that, at the dissertation stage, it was directed
by W. Michael Reisman. A cogent work would have been even more
compelling, however, if it had offered an explicit definition of,
or a test for, "international law." Benvenisti never
makes clear precisely how one ascertains what "the law"
is, what hierarchical relationship exists (if any) between formal
legal instruments and state practice, or even if any legally
significant distinction exists between Security Council and
General Assembly resolutions.
In 1990 Thomas Franck observed that "the extensive body of
international `law'" on the use of force, "oft restated
in solemn texts, ... simply, if sadly, is not predictive of the
ways of the world" (1990, 32). The same can also surely be
said of this century's international law of occupation. Indeed,
it is tempting to question seriously whether any genuine
"law" of occupation ever existed at least, if one
understands "law" as "authoritative and
controlling state practice" (Arend and Beck, 1993, 9-10).
Benvenisti, himself, appears at times nearly to embrace this
conclusion. He concedes in his introduction, for example:
"In exploring the phenomenon of occupation, I was struck by
the fact that most contemporary occupants ignored their status
and their duties" (p. 6). Later, in his discussion of World
War II occupations, he admits that "there is sufficient
ground to claim that in light of the recurring disregard of the
law of occupation, the Hague Regulations had lost their legal
authority by the end of the war" (p. 58). In reviewing
contemporary state practice, moreover, Benvenisti writes:
Careful analysis reveals that in all of the recent cases of
occupation, except for the Israeli control of the West Bank (not
including East Jerusalem) and Gaza, the framework of the law of
occupation was not followed even on a de facto basis. No occupant
in the past two decades has established a temporary government
that could effectively balance the conflicting interests of the
occupant and occupied, nor did any occupant (except for Israel)
invoke the Hague Regulations or the Fourth Geneva Convention to
justify its measures. (pp. 189- 190)
And in his final chapter, he submits:
It is ... my expectation that few future occupants will
voluntarily recognize the applicability of the law of occupation.
Occupants who deny its applicability are likely not to consider
themselves bound by its commands, even on a de facto basis. Thus,
the tendency to ignore the basic com-
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mands of the law of occupation seems to pose the most potentially
destructive challenge to its survival. (p. 212)
This sober assessment must cast some doubt upon the vitality of
the international law of occupation, but it reflects as well the
clarity and intellectual honesty that characterize Eyal
Benvenisti's excellent book.
REFERENCES
Arend, Anthony Clark, and Robert J. Beck. 1993. INTERNATIONAL LAW
AND THE USE OF FORCE: BEYOND THE U.N. CHARTER PARADIGM. London:
Routledge.
Franck, Thomas M. 1990. THE POWER OF LEGITIMACY AMONG NATIONS.
Oxford: Oxford University Press.