so welcome back in the previous session we dealt with the laws of bigant occupation and I attempted to provide you with a very general expose of this branch of international law trying to share with you some of the basic fundamentals of of that body of law drawing on the previous session in this session we would examine the particular case study of the state of Israel I the particular unique applicability of the laws of eligent occupation to the state of Israel and in this session I would try to argue that generally speaking Israel is subjected to
the laws of deligent occupation as any other country in the world and Israel is a Contracting party to to the principal relevant treaty including the hag regulations and the for Geneva Convention and having said that there are certain very special or unique features that render the applicability of the laws of deligent occupation to the state of Israel somewhat different or unique or more challenging so I would try to share with you the basic special features of the state of Israel as it pertains to the laws of bigant occupation or put differently this somewhat different or
special interface or relationship between the Lo of bent occupation and the state of Israel the first special feature is the unclarity as to their geographical applicability of the laws of deligent occupation with respect to the state of Israel so generally speaking when Iraq is being subjected to British occupation this is obviously a simple case in the sense that Iraq is not part of the territory of of Britain and hence it is very clear that the laws of relent occupation apply with respect to Britain and its occupation of certain parts of Iraq this is very different
in the case of Israel because as you may remember in the session devoted to the state of Israel and its border recognized borders under international law there are certain unclarities or disputed conflicting arguments with respect to the recognized borders of isra under international law and in order to decide the geographical applicability of of the laws of bent occupation with respect to Israel one has to decide what is proper Israel and what are the territories that are under Israel's possession but not under Israel's ownership but differently one has to determine what are the recognized borders of
Israel under international law but as we saw in the session devoted to this topic because of of the fact that the there are some unclarities with respect to the recognized borders of Israel under international law that the reative is that there are certain unclarities as to the geographical applicability of the laws of belan occupation to the state of Israel this brings us to the second special feature and the feature is the gap or dissonance between Israel's legal approach and political approach to the territories legally speaking Israel recognized at least in principle the applicability of the
laws of bent occupation to its possession of the West Bank and Israel is willing at Cent principle to subject itself to the laws of bent occupation with respect to the West Bank this is from the legal perspective but one has to contrast the legal perspective with a political perspective in the sense that Israel's political argument with respect to the territories is very different all Israeli government actually argued that the Israel enjoys a certain territorial claim over the West Bank some governments consider the territories as disputed as supposed to occupied and other governments including the current
government of 2023 treats the territories as at least part of the state of Israel and hence in legal terms Israel is willing to accept the idea that the West Bank is occupied territories but politically the argument is very very different the Third special feature relates to Jerusalem and in more particular to East Jerusalem as you remember from the session devoted to the borders of Israel under the international law Israel conquered one may argue liberated East Jerusalem in 67 and in 1980 it subjected Jerusalem the United Jerusalem both West and East to the basic law Jerusalem
declaring the United Jerusalem as the Eternal capital of the state of Israel so from the Israeli perspective from the perspective of Israeli law Jerusalem is part of of of of the state of Israel and Jerusalem is subjected to Israeli law and hence the laws of belig occupation are utterly irrelevant to his Jerusalem or to Jerusalem generally speaking and this position this Israeli position this Israeli legal position should be contrasted with international law because the conventional reading of international law as reflected in in in in by many tribunals including the icj and by many International organizations
including the UN General Assembly and the Security Council is that East Jerusalem is actually occupied Palestinian territory and hence Israel holds East Jerusalem under the laws of beligan occupation including the for Geneva Convention and the international law would argue that any purported annexation of Jerusalem is n and void and hence when it comes to the laws of bigant occupation we see here a very strong clash between Israeli law that treats Jerusalem as part of Israeli law and recog and treats the laws of bilent occupation is utterly irrelevant and international law that perceives Jerusalem certainly is
Jerusalem as occupied Palestinian territory the fourth Fe special feature which is strongly connected to the previous one relates to the Golan Heights as you reme may remember from the session devoted to Israel's recognized borders under international law Israel conquered the Golan Heights during the Six Days War of 67 and in 1981 it subjected the Golan Heights to Israeli law to Israeli jurisdiction but differently it annexed the Golan heits and hence under Israeli law the Golan Heights are part of the state of Israel subjected to Israeli law and they and the laws of religion occupation are
again utterly irrelevant to the Golan Heights because Israel is not willing to accept the idea that the Golan Heights are occupied territories occupied from Syria in contrast international law again as reflected by numerous International tribunals and and organizations treats the Golan heits as part of the Syrian territory and insists on the fact that Israel holds the Golan Heights as as part of its occupation and hence Israel is subjected to the laws of villig and occupation and again just as in the case of East Jerusalem we see here a very sharp conflict a very sharp clash
between Israeli law that treats the Golan heits as proper Israel and and international law that treats the Golan Heights as occupied territories subjected to the laws of deligent occupation including the four Geneva Convention as you may recall from the session devoted to Israel treatment of international law when isra Israeli law primary Israeli law proport to contrast or to override international law in very clear words then the Israeli legal system would provide legal Supremacy to Israeli law at the expense of international law and hence when the issue of of the Golan height so East Jerusalem comes
before the Israeli legal system including the Israeli Supreme Court the Israeli legal system would ascribe legal Supremacy to Israeli law at the expense of international law and hence it would treat East Jerusalem and the Golan Heights as part of Israeli law refusing to subject those two territories to the laws of bent occup occupation I wanted to show you yet another special feature that renders the applicability of the laws of bent occupation to the state of Israel more complicated or more nuanced and the special feature relates to the Gaza Strip as you may remember from the
session dealing with Israel's recognized borders under international law Israel conquered the entire Gaza Strip during the Six Days War of 1967 and Israel held the Gaza Strip from 67 until 2005 under a military regime and Israel acknowledge its subjection to the laws of vent occupation having said that 1990s Israel with Drew from the populated Palestinian areas of of the Gaza Strip under the Oslo Accords and then in 2005 Israel unilaterally disengaged from the rest of the Gaza Strip and hence as of 2005 until now there's no continuous military or civilian Israeli presence in the Gaza
Strip This is obviously relevant to the applicability of the laws of bent occupation because as you may remember from the session dealing with the general principles of the laws of bent occupation occupation means effective control or at least potentially effective control and the conventional reading of the laws of bent occupation the traditional reading of the laws of bent occupation would tell us that in order to gain effective control or at least potential effective control there must be actual military presence in the occupied territories or put differently the occupying power must have boots on the ground
this traditional position is actually reinforced by the heg regulations article 42 of the heg regulations would states that the territory is considered occupied when it is actually placed under the authority of the Hostile Army so again the letter of the he regulations insist on actual presence and hence boots on the ground Israel's position is that as of 2005 there's no Israeli presence in the Gaza Strip hence there's no effective control hence there's no occupation and hence that there's no applicability of the laws of bent occupation and this reflects actually Israel's official position because when Israel
disengaged from Gaza in 2005 and when Israel closed gaza's Gates and left the entire strip is Israel declared the end of the applicability of the laws of bent occupation so is Israel actually disapplied the L of Bagent occupation and this position was adopted by the Israeli Supreme Court which came to the conclusion that without this physical presence W without this actual effective control over the Gaza Strip there's no occupation and hence there's no applicability of the laws of bent occupation and this is Israel's position official position continuous position as of 2005 until today having said
that there are numerous International and Israeli ngos that would adopt the exact opposite legal stance so those NOS would argue that Israel continues to be an occupying power viav the Gaza Strip not withstanding the lack of actual presence in the strip and and those NGS would argue that in modern times and drawing on Modern Technologies a country may enjoy effective control over another territory not withstanding the lack of actual military presence so drawing on Modern Technologies you can control another territory from the outside externally so those NOS would argue that Israel actually has a very
strong control over the Gaza Strip and the Gaza Strip and it and its inhabitants are heavily dependent on Israel so those NOS would argue that Israel controls the Sea of of Gaza Israel controls the air over Gaza Israel controls certain cross borders controlling Gaza Israel controls the economy of Gaza Israel would decide which Commodities would be allowed to enter Gaza and which Commodities would not Israel controls the entrance and departure of of the inhabitants of Gaza so if a person from Gaza wishes to leave Gaza he would depend on Israel's permission Israel controls the question
whether Personnel of international organizations or International humanitarian organizations would be allowed into Gaza Israel would control the question whether a certain diplomat may or may not be allowed to enter Gaza and Israel controls the question whether money can be entered physically into Gaza and those ngos would argue that none of those manifest manifestations of control amount to effective control or at least to potential effective control but when you combine those various elements or various manifestations of control in totality they do provide Israel with effective control or at least with potentially effective control over the Gaza
Strip and hence Israel continues to be bound under the laws of bent occupation Vis V Gaza and Visa V the inhabitants of Gaza not withstanding the lack of those boots on the ground it is interesting to note that the prosecutor of the IC uh was willing to adopt this position when it had to decide whether to investigate alleged war crimes committed by Israel during Israel's raid on the Turkish flotilla and the prosecutor framed this question as an international armed conflict and this framing was based on the assumption that Gaza remains occupied by the state of
Israel so the idea of certain NOS that Israel continues to be an occupying power over the Gaza Strip not withstanding the of military presence was adopted by the prosecutor of the IC and by other International organizations one must emphasize the fact that the Israeli Supreme Court as I mentioned earlier is refusing um to accept the idea that Israel continues to be an occupying power over the Gaza Strip due to the lack of actual physical presence in the Gaza stript personally I have some difficult difficulties with the idea that Israel is still subjected to the laws
of bent occupation because of the very simple fact that the laws of bigant occupation impose a very robust a very burdensome a very comprehensive body of legal duties to cater for the entire Dynamic needs of the local population the protected persons and I'm not sure whether it makes sense to subject Israel to the laws of deligent occupation in favor of the inhabitants of Gaza when Israel is is no longer no longer in Gaza and hence it it is no longer in the position to cater for the inhabitants of Gaza and is not no longer in
the position to comply with this very demanding body of law just to conclude the idea or the concept of Gaza the Israeli Supreme Court as I mentioned earlier refuses to treat Gaza as occupied territories and that hence it refuses to subject Israel to the entire Corpus of the laws of religion occupation but having said that the Israeli Supreme Court insists that Israel still owes certain legal duties Visa the inhabitants of Gaza but not based on on the laws of religion occupation but but based on IHL or put differently it it insist on subjecting Israel to
to international law Visa Gaza but to the less demanding body of law IHL as compared with the more demanding body of law of the laws of bent occupation returning to the West Bank here we are confronted with another special feature and the feature relates to Israel's willingness to accept the law of relig occupation only in a very selective manner in the sense that Israel is willing to recognize the applicability of the ha regulations with respect to the West Bank but when it comes to the Geneva f vention which is the main legal instrument of the
law of religion occupation Israel's position is much more selective so Israel would argue that the F Geneva Convention was not Incorporated to Israel into Israeli law and Israel would refuse to accept the idea that each and every provision of the fu Geneva Convention reflects customary international law in addition Israel would invoke yet another special feature and the feature is that when Israel conquered the West Bank and East Jerusalem in 67 it conquered it from Jordan which Jordan itself was an in a state of illegality and the international law due to its purported illegal annexation of
the West Bank in East Jerusalem in 1950 and Israel treats this very special feature of a country occupying a territory and taking that the control of of of that territory from an illegal occupier in order to advance the argument that the for Geneva Convention is actually inapplicable to the West Bank so Israel would argue that formally speaking because of the initial illegality of of of Jordan purported claim over the West Bank Israel is not bound by the Fourth Geneva Convention and Israel is willing unilaterally to accept the humanitarian provisions of the F Geneva Convention Israel's
position with respect to the inapplicability of the F Geneva Convention May find some support in article uh 43 of the he regulations when which states that the authority of the legitimate power having in fact passed into the hands of the occupant the latter shall take all measures Etc so the article 43 of the he regulations actually refer to the legitimate owner and hence and because of the fact that Jordan was not a legitimate owner of the West Bank Israel would draw on that fact in order to argue that at least formally it is not bound
by the Fourth Geneva Convention Visa the West Bank this argument was actually raised before the icj when the court was asked to deliver its advisory opinion in 2004 with respect to the legality of the wall or the security fence the court actually dismissed Israel's position holding that in order for the four for the for Geneva Convention to apply two prerequisites must be met the first is an armed conflict and the second is that the armed conflict must be between two Contracting parties of the fourth gen a convention and according to the opinion of the Court
those two prerequisites were actually met because in 1967 there was an armed conflict between two Contracting parties of of the uh Geneva Convention namely Israel and Jordan and hence the court came to the conclusion that the forth Geneva Convention is actually applicable Visa Israel and the West Bank and the court dismissed Israel's position it is also interesting to note that at at least in reality the Israeli Supreme Court is willing to be bound by the F Geneva Convention so when you examine the Juris Prudence of the Israeli Supreme Court and we would return to this
issue soon we would see that by and large the court is actually willing to accept the applicability of the Fourth Geneva Convention to the West Bank certainly the those Provisions that reflect a customary international law yet another special feature that renders the applicability of the laws of religion occupation to the isra case study much more nuan or much more complicated one may argue much more challenging from an a legal perspective is the prolonged nature of Israel's occupation over the West Bank as you may remember from the session dealing with the laws of vent occupation the
laws of bigant occupation were drafted in order to cater for a scenario of shortterm occupation and this scenario is very different from the Israeli scenario because Israel occupies the West Bank for already for 56 years without any Horizon for the termination of the occupation and hence we are faced with this challenge of a body of law which was drafted to cater for a short-term occupation which might not be suitable for Israel's possession over the West Bank and this obviously is relevant to the manner in which we actually read and construe the laws of bent occupation
and my basic argument would be this that this prolonged nature of the occupation must influence the way we read and construe the laws of villig occupation in the sense that the prolonged nature of occupation imposes a more robust legal obligation on the military commander when he attempts to cater for the dynamic evolving needs of the civilian population so actually the prolonged nature of of the occupation expands the duty imposed on the military Commander to look after the comprehensive Dynamic evolving needs of the local population what we call under the laws of eligent occupation the protected
persons put differently the prolonged nature of occupation obliges the military commander to deviate from the legal status quo that prevailed on the EV of occupation to a larger extent as compared with a situation of short-term occupation so if a country occupies a territory for a week then obviously the laws of bent occupation would not demand the occupying power to establish hos hospitals or electricity equipments but when we are in in a scenario of 50 or 60 years then obviously the military commander is under and the occupying power generally speaking is under a much more expansive
Duty that may entail the need to establish hospitals and electricity infrastructure Etc in order again to cater for the dynamic needs of the local population H if I may connect that with the with article 43 of the he regulations article 43 has two limbs the first limb establishes that the military commander shall take all the measures in his power to restore and Ure as far as possible public order and safety and the second limb insist that while respecting unless absolutely prevented the laws en force in the country so the first limb is much more proactive
more expensive expansive in the sense that it demands the military commander to pursue steps in order to cater for the needs of the protected persons the second leap is much more restrictive it insists on the fact that the military commander must in principle adhere to the legal status quo that prevailed on the eve of occupation and this is obviously related to the prolonged nature of occupation but because when occupation becomes very long then one must ascribe much heavier weight to the first limb I the proactive limb and much less weight to the second limb the
more restrictive limb of adhering to the Le legal status quo so so again I would want to underscore and reinforce the fact the prong nature of occupation such as in the case of Israel imposes a more expansive Duty on the military commander to take more steps to cater for the dynamic needs of the local population the protected persons otherwise we would freeze the local population in in terms of of the state of Affairs that applied on the eve of occupation another special feature that relates to the prolong nature of occupation is the fact that the
general assembly of the United Nations adopted in December of last year of 2022 a resolution that requested the icj to deliver an advisory opinion relating to Israel's occupation of the Palestinian territories the resolution of the United Nations General Assembly was based on article 96 of the UN Charter and it asked the advis advisory opinion of the icj relating to the legal consequences arising uh from Israel's and I'm quoting ongoing violation of the Palestinian people's right to self-determination and the prolonged nature of Israel's occupation and annexation so to put it in in different terms I read
the request for an advisory opinion as a request that is actually focused on the prolonged nature of the occupation and the very basic question is whether this prolonged nature of occupation renders either the Juro de facto Israel's occupation is permanent and hence illegal because as you may remember in our session dealing with the general principles of of the laws of billig and of occupation this body of law insists on temporary possession as opposed to Perpetual occupation and the basic argument of the Palestinians is that after 56 years of occupation Israel is actually established a nonreversible
state of affairs in in the territories and this prolonged perpetuated occupation amounts to either the Juro de facto annexation and hence it colors the entire scenario with the colors of illegality under the laws of eligent occupation so it remains to be seen how would the icj address this question raised to it by the UN General General Assembly yet another very special feature with respect to Israel that renders the construction and applic application of the law of belig occupation in the Israeli case study much much more complicated is the issue of Israel's settlements in the West
Bank as you can see in this map as of 1967 Israel established a very large number of settlements in the West Bank and a very large number of his of Israelis moved from proper Israel and established themselves in in these settlements and this obviously complicated complicates the manner that in which we read and apply the laws of bent occupation because basic principles of laws of religion occupation a traditional scenario would speak about a military commander that has to strike a balance between catering for the security interest of the occupying power and the civilian needs of
the protected persons so we are balancing between two conflicting interests in the Israeli scenario there's a third element and these are the settlements and the settlers in the sense that this begs the question whether the military commander must exercise his authorities under the laws of bigit occupation not only for the purpose of the traditional purposes of security and civilian needs of the protected persons but also for the benefit of the settlers I would revert to this issue very soon yet another special features with respect to the state of Israel is the Juris Prudence of the
Israeli Supreme Court when we generally speak about the laws of religional occupation we are always addressed by national courts that are reluctant to deliver substantial or significant or comprehensive judgments relating to the laws of eligent occupation due to the very contested and politically charged nature of occupation the Israeli scenario is very very very different in the sense that the Israeli Supreme Court over the years delivered hundreds and thousands of judgments dealing with almost each and every aspect of the laws of bent occupation and hence the Juris Prudence of the Israeli Supreme Court the Corpus of
judgments dealing with the laws of bent occupation provide us with a much more comprehensive much more mature much more concrete and detail answers as to how we should read and apply the laws of bent occupation
