International Humanitarian Law, Law of Belligerent Occupation

ABSTRACT
"There can be, in our country or beyond its borders, no serious person who has studied the history of the land of Israel who would attempt to deny that for many generations the Golan Heights were an integral part of the land of Israel," (Menachem Began, Dec 15, 1981). With those words, the Knesset passed into law a bill which applied Israeli law and administration over the Golan Heights, ratified by a 63-21 majority. Although not specially referring to annexation, the bill incorporated the Golan Heights into Israel, creating a domestic legal framework for the reality of Israeli control over the region since its occupation in 1967.The international response was swift. The United Nations Security Council, the UN General Assembly, and many individual countries, including the U.S.A., rejected Israel’s claim. This paper will analyze this legal question: On what basis in international law did Israel justify this action? Conversely, what was the legal basis for the rejection of those claims?

The Geneva Conventions and Additional Protocol I do not provide much guidance in determining the end of belligerent occupation in international armed conflict situations and discussions within the academic circle provided little assistance in analysing the situation. In this article attempt has been made to analyse various mechanisms and instances which may or may not end belligerent occupation. While the matter is largely a question of fact, the write-up will assist academics and practitioners alike in clarifying the delicate nature of the concept of occupation.

Total rejection of the aggression and territory occupation in the international law leads to their hybrid and concealed forms using gangs and mercenaries, proclaiming new “states” etc. These activities constitute serious threat to international security, can cause and already cause the fragmentation of states, anarchy, criminalization of politics, new forms of expansionism and so on. The authors of the article generalize the forms of illegal control over the territory in international law and their application considering the status of Donbas determination.
International law for more than a century provides for the possibility of separate regulation of the sovereignty and legal rights of the state to the territory, on the one hand, and the implementation of the regime of illegal control over the territory – on the other. Authors argue that in the modern sense, primarily developed by doctrine and courts, illegal control over the territory can be considered as a legal regime, one of the forms of which is occupation, while others are defined as effective, overall, general, de facto control and related to undisclosed actions and informal means used by the aggressor states. This regime is characterized by the exercise of power over the territory by the will of a foreign state, and the forms of implementation of the regime differ depending on whether such a will is officially recognized or concealed.
The transformation of international humanitarian law after the Second World War erased the boundaries between recognized and officially unrecognized occupation. But unlike occupation, the fact of which may be obvious, the fact of effective or other control over the territory requires the determination by judicial authorities.
The qualification of illegal control by the Russian Federation of the Donbas in national and international law is ambiguous. The authors argue that the full recognition of the international armed conflict between Ukraine and Russia in Donbas, as well as Russia’s illegal control over latter should be expected in the process of consideration of a number of cases in the international judicial institutions.
Keywords: international law, international humanitarian law, illegal control over territory, occupation, aggression, effective control, de facto control, general control

What I examine in the current work, as a Liber Amicorum for a prominent Professor, scholar and practitioner, whom I admire and respect, is the concept of « effective control » for the attribution of state responsibility for gross violations οf human rights and its application in various situations in the past years by international courts and tribunals.The attribution of state responsibility for gross human rights violations (war
crimes, crimes against humanity, genocide) occupied a central part of my PhD
research and writing, since the developments of pluralistic and « flexible » yet
fragmented interpretation of notions, such as « effective » or « overall control »
in international law, created confusion as a result of the contradictory case law of
international courts and tribunals. This has been especially the case since the
creation and the jurisprudence of international criminal tribunals (International
Criminal Tribunal for the Former Yugoslavia/ICTY, Rwanda/ICTR and the
International Criminal Court/ICC), as well as an equally important jurisprudence
by the European Court of Human Rights (ECtHR). At the time, I could not but
remark that such a « fragmentation » could be alarming, even if pluralistic
approaches, by specialized judges, have had a positive impact on the protection
of the individual. However..... If then, one or more courts and tribunals, moved away from effective control to a more flexible concept (i.e. overall control), this could affect the triggering mechanism of an occupation and therefore a strengthened and expanded protection of populations in occupied territory, especially their right to self- determination, which is closely connected to their right to fight occupation forces and achieve independence.

The Coalition Provisional Authority (CPA) established the Central Criminal Court of Iraq (CCCI) in July 2003 to hear cases involving serious criminal offenses, including terrorism, organized crime, government corruption, acts of sabotage and sectarian or ethnic violence. While the primary purpose of the CCCI was to try terrorism cases, particularly attacks against Coalition Forces, the court has much broader jurisdiction and now adjudicates a variety of criminal cases from all corners of Iraq. The CCCI has nationwide jurisdiction and can pre-empt local jurisdiction to hear serious cases that require a secure judicial environment.  Other Iraqi courts can refer cases to the CCCI.  In  addition, CCCI judges travel outside Baghdad to handle cases where local judges have been unable or unwilling to investigate or try cases.

This article examines the attitude of the Supreme Court of Israel towards international law in the past decade, focusing on cases concerning the Occupied Territories. The article argues that the status of international law in these decisions has, overall, declined, in compare to the decade between the mid-1990’s and the mid 2000’s. The article argues that while the international law of occupation still operates, officially, as the governing law in the Occupied Territories, the emphasis on compliance with the norms of international law in the Court’s decisions has decreased. Instead of relying on international law, the Court has increased its reliance on Israeli administrative law, and, in recent years, on Israeli constitutional law. 
The article suggests that the decline in the status of international law is rooted in a different perception of the role of the Court in relation to its international and domestic audiences, and that the change is related, at least partially, to the current attacks on the Court. Between the mid-1990’s and the mid-2000’s, the Court, under former President Barak’s leadership, perceived itself to be part of the "Global Community of Courts", a transnational legal community of international and national courts engaging in an ongoing dialogue, reading and citing each other’s opinions and participating in what they perceive as a common judicial enterprise. The Court thus directed its decisions not only to the Israeli public but also to the international community and, in particular, to the international legal community, referred to by Schachter as the “invisible college of international lawyers”. The current Court, on the other hand, is struggling to maintain its status in within Israel. It thus focuses on its Israeli audience, addressing in its decisions, first and foremost, the Israeli public.
While relying on international law may increase the legitimacy of the Court’s decisions among an international audience, the article argues that it may have the opposite effect on an Israeli audience, in particular in the current political climate. The recent Court thus retreats from the extensive referral to international law in favor of an approach that examines issues that arise in the Occupied Territories as if they were, essentially, internal Israeli matters, in a manner that coincides with the prevailing political discourse regarding the future of the Occupied Territories.

The blind spot of the wealth of scholarship on the legality or illegality of specific actions undertaken by Israel to maintain its control over the Occupied Palestinian territory (OPT) is the question of the very legality of this occupation. This question is the focus of this article.
The article advances the proposition that the legality of the phenomenon of occupation has to be assessed in relation to two parameters: an intrinsic parameter relating to the occupier's responsibility to manage the territory and an extrinsic parameter relating distinction between the norm of sovereign equality and the exception of belligerent occupation.
The intrinsic legality of an occupation is to be measured in relation to three fundamental legal principles: (a) Sovereignty and title in an occupied territory are not vested in the occupying power. The roots of this principle emanate from the principle of the inalienability of sovereignty through actual or threatened use of force. Under contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the population under occupation. (b) The occupying power is entrusted with the management of public order and civil life in the territory under control. In view of the principle of self-determination, the people under occupation are the beneficiaries of this trust. The dispossession and subjugation of these people violate this trust; and (c) Occupation is a temporary form of control. It may be neither permanent nor indefinite. These principles interrelate: the substantive constraints on the managerial discretion of the occupant elucidated in principles "(a)" and "(b)" generate the conclusion in "(c)" that occupation must necessarily be temporary. Violating the temporal constraints expressed in principle "(c)" cannot but violate principles "(a)" and "(b)," thereby corrupting the normative regime of occupation in the sense that an occupation that cannot be regarded as temporary defies both the principle of trust and of self-determination. The violation of any one of these principles, therefore, unlike the violation of a specific norm that reflects them, renders an occupation illegal per se. This is the nature of the Israeli control over the OPT. Section II.A: Intrinsic Dimensions of the Israeli Occupation of the OPT, substantiates this argument.
The extrinsic dimension of the regime, functioning to create an orderly space that is nevertheless distinct from the normal political order of sovereign equality between states, is to be measured by its exceptionality: once the boundaries between the normal order (i.e., sovereign equality between states) and the exception (i.e., occupation) are blurred, an occupation becomes illegal. The nexus between the two functions is clear: an occupation that is illegal from the perspective of managing an otherwise chaotic situation is also illegal in that it obfuscates the distinction between the rule and its exception. The Israeli occupation of the OPT is illegal both intrinsically and extrinsically. Section II.B: Extrinsic Dimensions of the Israeli Occupation of the OPT, substantiates this argument.
Concluding section III focuses on the indeterminacies of this occupation as reflecting both its essential feature and its legitimizing mechanism, and proceeds to consider the normative consequences of an illegal occupation.

Illegal occupation gives rise to a duty of the occupant to withdraw from the occupied territory immediately and unconditionally. International law has long recognized the illegality of occupation that results from an unlawful use of force by the occupying state. An emerging approach among international lawyers holds that occupation resulting from a lawful use of force by a state, in self-defense, may also become illegal. Proponents of this approach link the illegality of the occupation to the occupant's violation of the prohibition on the use of force or of the right of peoples to self-determination. These violations result from the occupant's policies which amount to de facto annexation of the occupied territory, manifested in refusal to engage in good-faith negotiations to end the occupation or in actions aimed at perpetuating the occupation (e.g., enabling the settlement of the occupant's citizens in the occupied territory). Arguments that such conduct renders the occupation illegal have largely focused on the occupation of Arab territories by Israel. This article argues that the purview of the notion of illegal occupation in international law does not extend to occupation resulting from the lawful use of force by a state in self-defense ("lawfully created occupation"). The article reviews the various theories presented in support of such an extension, but shows that state practice does not support the existence of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal. The author subscribes to the view that a policy of de facto annexation pursued by an occupant violates the right to self-determination, and possibly the prohibition on the use of force. Such violation leads to legal consequences, but these do not include the illegality of occupation. This article examines the rules of international law that determine the legal consequences of state conduct that violates international law, and shows that these rules do not accommodate an extension of the notion of illegal occupation to lawfully created occupation. The article proceeds to argue that the introduction of a rule of customary international law providing that a lawfully created occupation may subsequently become illegal is inadvisable because such a norm would be full of uncertainty.

This considers whether Israel's withdrawal from Gaza terminated its occupation of the territory as a matter of international law.  What are the conditions for the termination of a military occupation?  Is self-determination a relevant consideration in this assessment?

Allo scopo di fornire una risposta al quesito di fondo (cioè se di possa parlare di un unico conflitto in riferimento ai fatti siriani ed iracheni) bisogna, a nostro avviso, partire da alcuni punti fermi. Prima di tutto, ricostruire l’analisi del conflitto iracheno – inizialmente
definito internazionale, poi non-internazionale ed infine guerra civile dai connotati etnico-confessionali – attraverso i report e le risoluzioni delle Nazioni Unite.
Nel far ciò, non possiamo mancare di evidenziare le riflessioni sul temuto (e poi verificatosi) vuoto di potere e di autorità che ha caratterizzato (e forse caratterizza ancora) l’Iraq post-Saddam (al pari di quanto accaduto
in Libia con il post-Gheddafi), le conseguenze dell’occupazione angloamericana e giungere alla politica di al-Maliki ed all’entrata in scena dell’Isis. Successivamente, ricordare la qualificazione – almeno per il caso siriano – fatta dalla Commissione Indipendente d’Inchiesta sulla Siria istituita dalle Nazioni Unite nel 2011, di un conflitto non-internazionale ricondotto poi nei più modesti ma non meno seri, ranghi di reazione anti-governativa. Infine, ed in base alle fonti disponibili, provare ad evidenziare i punti in comune ed eventualmente ipotizzarne l’unicità.

This seminar revisits the occupation of Iraq 2003–2004 to ask about the use of the 19th century Lieber Code during its time. Why did an antiquated American Civil War code resurface in the wake of the international armed conflict in Iraq, and to what effect?
Often referred to as a historical predecessor to contemporary international humanitarian law the Lieber Code has received little attention as a prevailing source of the laws and practices of international armed conflicts of today. However, in this seminar, the Lieber Code is read as the legal framework through which the occupying powers in Iraq sought to frame the legality of its oscillation between exercising sovereign authority and acting as a non-sovereign authority of occupied territory in Iraq. Moreover, the Lieber Code’s prevalence in American military handbooks and literature as both the origins of the international laws of armed conflict and as a source of the contemporary law and practice of warfare indicates that the Lieber Code is far from an antiquated code primarily interesting for historical purposes. Drawing on recent debates on the ‘turn to history’ in international law the seminar puts Anne Orford’s argument on international law’s anachronism to use, an argument well received for its potential as we revisit international law and its histories for critical ends. Few scholars, however, have examined how anachronism appear in contemporary international legal practice: this, in contrast, is a task for this seminar.
Based on Matilda Arvidsson’s close readings of the laws and policies of the Coalition Provisional Authority (CPA) of occupied Iraq and contemporary international law and practice of belligerent occupation the seminar foregrounds how the normative force of international law’s many pasts continues to operate in our present times and conditions.

Sumario: 1. El raid de los zeppelines – 2. Mujeres rusas en la guerra – 3. Hacia Berlín (I) – 4. Hacia Berlín (II) – 5. La situación financiera en Alemania – 6.  Entre prisioneros (I) – 7. Condecoración a una heroína – 8. Entre prisioneros (II) – 9. Historia de un cañón – 10. Un hospital – 11. El envío de provisiones – 12. La bloqueadora, bloqueada – 13. – El día del káiser – 14. La guerra contra el hambre – 15. Un despacho del general French – 16. La guerra y el trabajo – 17. Espectáculos – 18. Canto de odio a Inglaterra

Sumario: 1. De Bruselas a Amberes – 2. Los príncipes que están en la guerra – 3. La caída de Amberes (I) – 4. La caída de Amberes (II) – 5. La Cruz de Hierro – 6. El trato a los prisioneros – 7. La caída de Amberes (III) – 8. La caída de Amberes (IV) – 9.Las pérdidas de la humanidad en la guerra – 10.  Hablando con el Gobernador General de Bélgica – 11. Curiosidades de la guerra – 12. El puerto de Amberes –  13. Por las calles de Amberes

This Article explores a path in international law for recognizing the right of the Palestinian population of the West Bank to Israeli citizenship, based on the annexationist policies of Israel in the West Bank.  The scope of the obligation of states to confer citizenship on individuals is determined by international human rights law (“IHRL”).  The Article shows that a plausible reading of the IHRL treaty obligations of Israel suggests that it has a duty to grant citizenship to individuals born in its territory, who would otherwise be stateless, and that most West Bank Palestinians are currently considered stateless.  Therefore, if a given area of the West Bank is considered to have become part of Israel, most Palestinians subsequently born in such territory are plausibly entitled to receive Israeli citizenship as a matter of treaty law.  There also seems to be a broad, emerging right under customary international law of the residents of a territory acquired by a state to receive the citizenship of that state, regardless of whether or not they would otherwise be considered stateless.
The West Bank is a territory under Israeli occupation, and annexation by an occupier of any part of the occupied territory violates international law.  The Article argues, however, that the illegal annexation by Israel of an occupied territory would make that territory a part of Israel for the limited purpose of the right to citizenship, as an exception to the principle that illegal annexation is null and void.  Hence, the existing and emerging IHRL obligations of Israel to grant citizenship to residents of territory acquired by Israel extend to Palestinians residing in areas of the West Bank illegally annexed by Israel.
The Article argues further that, for the purpose of applying the norms of IHRL that concern the right to citizenship, the definition of annexation extends beyond formal annexation and encompasses de facto annexation as well.  Annexation of occupied territory results from the occupier’s display of sovereignty in that territory, among other things, by settling its own population in the occupied territory.  In view of the current spread of Israeli settlements across the West Bank, unless Israel removes, within a reasonable time period, many of these settlements, the entire territory of the West Bank may be considered to have been annexed, and the entire Palestinian population of the West Bank would have a strong claim to Israeli citizenship under an emerging norm of international law.