Last month, and as reported this week by Prof. Stefan Talmon, the German government disclosed its position on various legal questions relating to the presence of Russian and U.S. troops on Syrian territory. International law enthusiasts would surely find interest in Germany’s explicit statements on the legality of Russian presence in Syria (i.e., valid consent by the Syrian regime), as well as in its quite permissive understanding of the legal basis for the U.S. presence in oil fields in northeast Syria (i.e., the armed attack by IS still continues; and the U.S. control over the oil fields is covered by the right of self-defense against these attacks, because it cuts off potential income for IS).
In this brief analysis, I want to draw attention to another aspect of Germany’s approach: its view of the status of the U.S. forces controlling these oil fields. In Germany’s current view, the United States cannot be considered an occupying power in these areas, because although it exercises physical control over them, it does not “exercise jurisdiction” there. On this approach, for an occupation to materialize, two cumulative elements must be fulfilled: effective physical control and the actual establishment of an administration in the area.
Granted, this interpretation can be read into the text of Article 42 of the 1907 Hague Regulations, which provides that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army” and that “occupation extends only to the territory where such authority has been established and can be exercised.” What’s more, the International Court of Justice alluded to this position in its Armed Activities case – but as Talmon notes, its approach was widely criticized as both incoherent with previous rulings, and normatively problematic. The chief problem is that such an interpretation allows states to effectively control territory, while easily escaping the burdens imposed by the law of occupation, simply by refraining from establishing an occupation administration.
As Eyal Benvenisti notes in his seminal study, the argument that occupation actually requires establishing an administration was advanced in the formative years of the law of occupation in the 19th century by weaker states fearing occupation by greater powers. Back then, it made sense for weaker states to push for a higher threshold for occupation, because occupation was generally a favorable status for the occupying force: it provided them wide ranging security powers in relation to the local population, while imposing relatively few burdens. The expectations from occupants were basically to maintain the status quo ante, under an economical assumption of laissez faire. Unsurprisingly, therefore, stronger states – such as Germany itself – argued for a low threshold for the existence of occupation: simply put, they had mostly to gain by becoming occupants. Article 42’s eventual ambiguity reflects the negotiating dynamics on this question.
Nevertheless, it is clear that the interpretation which requires the actual administration of the territory makes little sense in current times. Occupation nowadays imposes heavy burdens on occupants. It requires them to actively take care of the local population in all aspects of life, while security powers are somewhat tempered by international human rights law. Under these conditions, states have every interest to deny that an occupation exists, as they most readily do. It is for these reasons that the better view is the one expressed, for instance, by the Supreme Court of Israel regarding Israel’s 1982 invasion of Lebanon, that for the purpose of occupation what matters is the “potential to replace the authorities of the previous government, not whether it [the State] did so in fact” (Tsemel v. Minister of Defense).
What’s worse, allowing states to circumvent the law of occupation by refraining from establishing an actual administration in the area is even more dangerous when the situation at hand involves the control of oil fields and other valuable natural resources. That’s because the law of occupation serves as a key normative framework for the protection of natural resources from exploitation by foreign states. At the risk of oversimplification, occupation law allows the occupant to use perishable natural resources only for the benefit of the local population, or for its own immediate security interests. Under Germany’s interpretation, the perverse outcome would be that by refraining from administering the territory, and thereby not becoming occupants, states would also be less legally constrained in relation to natural resources. The potential for abuse is rampant.
In sum, Germany’s position on this question is quite reactionary and surprising. One must recall that such interpretations are not localized, and can be utilized also in other places, by other states. As mentioned, states already do their best to deny that occupations exist when they are in control. Germany just added legitimacy to another way to do so, a way which was generally considered obsolete and ill-fitting for current circumstances.