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.


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.

Copyright 1994