Deluxe Occupation

This concept refers to the tension between the official legal status of Israel as an occupier in Gaza and the West Bank, and its de-facto responsibility for the population in these territories.

Definition

The concept of "Deluxe Occupation" defines a situation in which an entity which is officially considered an occupier of a certain territory, does not carry the full responsibility which derives from this status, including responsibility for the actual funding and governance of the territory.

In the Israeli-Palestinian conflict, this concept refers to the gap between the official legal status of Israel as an occupier in Gaza and the West Bank, and its actual responsibility for the population in these territories.

Background - Legal Definitions

Occupation and End of Occupation - Under international law, Occupation is defined as effective control by a power over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory.1 Occupation ends when the power ceases to control the territory.2

Responsibility of an occupier - The basic responsibility of an occupying force is to "restore law and public order". In fulfilling this obligation, it is requested to balance its security and military interests with the needs and basic rights of the civilian population.3 According to the common interpretation of the Law of Occupation, the occupier is responsible for civil administration and for providing basic services for the population.

International Law does not define different degrees of occupation, but rather treats it as a binary issue - a territory can be either "occupied" or "not occupied". End of occupation usually requires an internationally recognized declarative act (such as an international agreement, or a UN resolution).4

The occupier's de-facto responsibility, however, changes according to military, economic, civil and political circumstances and international agreements. The responsibility of an occupier can be described as moving along an axis, which stretches between full responsibility over all aspects of governance in the occupied territory on one end, and a situation in which all powers and authorities regarding the territory are held by other elements on the other end.

Due to the difference between the binary concept and occupation, and the gradual concept of responsibility, there could be tension between the formal legal status of a territory and its governance responsibilities.

The Reut Institute suggests the concept of "Deluxe Occupation" to describe a situation in which a certain power is officially considered an occupier of a territory (de-jure occupation), but does carry the economic or administrative responsibility for that territory (de-facto end of responsibility).

The Israeli-Palestinian Context

International law does not offer a clear-cut mechanism for determining the existence or absence of occupation. However, there is an international consensus concerning Israel as an occupier in Gaza and the West Bank.5 This consensus has been expressed in Security Council Resolutions,6 Israeli Supreme Court decisions,7 and the advisory opinion of the International Court of Justice on the issue of the separation wall.8

However, the involvement of international and Palestinian elements in Gaza and the West Bank reduces Israel's de-facto responsibility for the population in those territories:

Administrative Responsibility -

  1. The Palestinian Authority - The PA, which was established during the Oslo Process carries legislative, executive, judicial and policing authorities for the territory encompassing the majority of Palestinian population in Gaza and the West Bank.
  2. UNRWA - The UN Relief and Works Agency provides services and aid to the Palestinian refugee population in Gaza and the West Bank. According to the assessment of the World Bank (10/04), UNRWA is the second largest supplier of services and education in these territories, preceded by the PA.9

Financing Responsibility - The mechanism of international aid to the PA was established following the Declaration of Principles between Israel and the PLO (9/93). It consists of arrangements and organizations that:10

  • Provide budgetary funding to the PA and supervise its activity;
  • Supervise and provide funding for physical, social and economic infrastructural projects in the PA;
  • Provide humanitarian assistance for the Palestinian population.


1 Eyal Benvenisti, The International Law of Occupation, Princeton: Princeton University Press 1993, p. 4

2 Article 5 of the Fourth Geneva Convention (1949) is the principal legal source for defining end of occupation.

3 Article 43 of the Hague Regulations (1907).

4 See "The War in Iraq and International Humanitarian Law: Frequently Asked Questions on Occupation", Human Rights Watch. Click Here.

5 It should be noted that throughout the years, the official Israeli position has been that the Fourth Geneva Convention does not apply to Gaza and the West Bank, since no party to the convention was considered the legal sovereign over these territories prior to 1967, as required by Article 2 of the Convention. See: Meir Shamgar, "The Observance of International Law in the Administered Territories," 1 Is. Yearbook of Human Rights (1971), pp. 262-266

6 UN Resolutions 242 and 338 (11/67; 10/73 respectively) and Resolution 446 (3/79) recognize Gaza and the West Bank as territories occupied by Israel.

7 The Israeli Supreme Court recognized the applicability of customary international occupation law on the territory of Gaza and the West Bank. See HC 2056/04 Beit Sourik Village Council v. the Government of Israel, decision given on 6/30/04; and HC 69/81, Abu Eita v. Commander of Judea and Samaria, PD 37(2), 197.

8 Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, July 9 2004, pp. 73-78, Click Here for full text.

9 Click Here for the full text of the World Bank Assessment.

10 The main institutions involved are:

Coordination and oversight - Quartet representatives, forum of contributing countries (AHLC), Local Aid Coordinating Committee (LACC), World Bank and International Monetary Fund.

Contributing countries - US., EU, Norway, Britain, Japan, Canada.

International aid organizations - World Bank, International Monetary Fund, Red Cross, UN Organizations (UNRWA, UNDP, UNESCO).