Israel and Turkey on Common Legal Ground

It’s unfortunate for Turkey that Prime Minister Recep Erdogan considers Gaza territory to be occupied by Israel as this undermines a claim integral to Turkish foreign policy. While the international community holds that the Turkish Republic of Northern Cyprus (TRNC) is part of the Republic of Cyprus and occupied by Turkey, Turkey maintains that the TRNC is an independent state that has permitted the presence of Turkish troops. In actuality, both Israel and Turkey are wrongfully accused of being occupiers, and this common ground could serve as a stepping stone to rekindling relations.

Under international law, a territory is occupied only when a foreign power exercises effective control over it without the permission of the host state. According to those insisting that Israel occupies Gaza, Israel has effective control by virtue of its control of the Israeli side of the Gaza border, Gaza’s airspace and its territorial waters. Other elements are sprinkled into this, such as Israel’s allegedly controlling Gaza’s population registry, Gaza’s being dependent on Israel for electricity, the lack of a peace agreement ending the supposed occupation or Gaza’s being a single territorial unit with the West Bank.

However, none of the above constitute effective control. In fact, they are irrelevant to the matter. In United States v Wilhelm List et al., one of what are known as the Subsequent Nuremberg Trials, the court needed only a single paragraph to define effective control. The court held in no uncertain terms that effective control is defined as

the exercise of governmental authority to the exclusion of the established government…presuppos[ing] the destruction of organized resistance and the establishment of an administration to preserve law and order.

More recently, this definition was reiterated and detailed in a wideranging set of guidelines by the International Criminal Tribunal for the Former Yugoslavia in a war crimes trial of two Bosnian Croat commanders.

When it comes to the status of Gaza there are only two questions: 1) Has Israel eliminated all organized resistance and 2) Does Israel govern to the exclusion of the established government? Seeing as how Hamas maintains a fully functional standing army and controls virtually every aspect of life in Gaza, the answers to these questions are obvious.

The case of Northern Cyprus is vastly different, but the occupation litmus test remains the same.

Following a decade of violent ethnic tension between the majority Greek-Cypriots and minority Turkish-Cypriots, which culminated in a coup sponsored by Greece, Turkey invaded Cyprus, citing a legally mandated right to maintain the status quo. Turkey subsequently carved out the northern third of the Island for the Turkish-Cypriots. In 1983, the Turkish Cypriots declared independence, which was harshly condemned by the UN Security Council. Today, Turkey has about 30,000 troops in the TRNC.

In the landmark refugee rights case Loizidou v Turkey, the European Court of Human Rights ruled that Turkey, by virtue of its large and active troop presence, has effective control in Northern Cyprus, rendering the TRNC a “subordinate local administration.” An abundant presence of active foreign troops, however, does not render a territory occupied. Iraq, for example, was no longer occupied following the transfer of authority to the post-Saddam government. And in a non-controversial ruling, the International Court of Justice held in Congo vs. Uganda that some key territories held by Ugandan-allied Congolese rebels were not occupied by Uganda; its large troop presence notwithstanding. This determination was made on the basis of whether or not the rebels “acted on the instructions of, or under the direction or control” of Uganda. In other words, which party was governing the territory to the exclusion of the established government?

There are considerable grounds for holding that the TRNC does not act under the instructions or direct control of Turkey. According to Freedom House, which issues perhaps the most authoritative country-by-country analysis on the global state of democracy, the TRNC is an electoral democracy. In fact, it is more democratic than Turkey. It would require a rather strange and extensive redefinition of republican democracy to hold that a government accountable to the will of its citizenry through regularly scheduled elections, not to mention the checks and balances derived through an independent judiciary, is in fact operating according to the will of a foreign entity.

Unless there is evidence that Turkey is taking action in the TRNC without its permission, it cannot be said that Turkey is an occupying power. Whether or not Turkey’s invasion and the TRNC’s subsequent declaration of independence were in accordance with international law is moot. Such matters are not relevant to the criteria of effective control.

Israel and Turkey could take the small step of rekindling their cooperative relationship by establishing a joint committee to investigate the charges that they are occupiers. While such a committee would be a mere formality, as it’s clear that neither are such, the issuance of an irrefutably detailed report would demonstrate the benefits of cooperation, perhaps opening the door to gradually more cooperation at some point in the future. Israel need not even reach out to Erdogan. A committee composed of former officials from a previous friendlier government would be just as effective.

Matthew Mainen is a policy analyst at the Institute for Gulf Affairs 

About the Author
Matthew Mainen is a policy analyst at the Institute for Gulf Affairs.