hi everyone this session would be devoted to the laws of deligent occupation and distinct branch of international law we will discuss the question of what is occupation what are the laws of vent occupation what is the applicability of of this branch of law what are the legal sources of of the laws of Bagent occupation what are the core objectives and principles of the laws of Bagent occupation and who are the beneficiaries of of this distinct branch of international law once we manag to conclude this session we would move to the next session which would deal
with this particular case study of Israel and we would try to apply the core principles of this branch of law to the Israeli Palestinian conflict trying to focus on the particular features of of of the of this case study when it interacts with the laws of bigant occupation so let's start with the general expose of the laws of deligent occupation the starting point is obviously the question of what is occupation so occupation is an objective factual State of Affairs that triggers the applicability of the laws of bent occupation and this obviously begs the question what
is occupation the legal starting point is article 42 of the hag regulations which stipulate the territory is considered occupied when it is actually placed under the authority of the ostel army the occupation extends only to the territory where such Authority has been established and can be exercised so we are speaking about this scenario where Army of country a invades a territory which is not under the legal Authority or title of sovereignty of of that country country a and and the Army succeeds in establishing military control over that territory at the expense of the entity that
previously enjoyed from such an authority so we're speaking for example of a scenario where the army of country a invades country B succeeds in establishing military control over that territory at the expense of the authority of country B I must emphasize the fact that formalities are not important in that respect so occupation can exist without the formal Declaration of occupation by the occupying power and occupation may exist irrespective of the question whether the occupying power established a military regime or civilian regime to administer the occupied territory what is very important is the actual effective control
by the invading Army of the O occupied territory so the C legal analysis is is is focused on the issue of effective control if we can return to regulation 42 the territory is considered occupied when it is actually placed under the authority of the occupying power so the test is the effective control this test is actually supported by the uh jurisprudence of the nberg tri which again focused on on the issue of effective control and recent Juris Prudence for example the icj case of Congo versus Uganda repeated this test of effective control so if I
may quote from the Judgment the icj stated that the said Authority was in fact established and exercised so we speaking about actual effective control the court of the ICT adopted a more lenient um test stating that the cap capacity to send troops within reasonable time to make the authority fail so in in fact we're speaking here not of actual effective control but of potential effective control and it is interesting to note that the Israeli Supreme Court actually adopted a more lenient a formula or or test by subscribing to the test of potential effective control I
must emphasize in this context the fact that Invasion itself doesn't amount to occupation The Invasion must result in in a situation in an objective situation in a factual situation of effective control and hence not any form of resistance May negate occupation it's again a factual H question there are two interesting points with respect to the definition of occupation the first is whether occupation demands or requires presence in in the sense of boots on the ground the convention and reading of of the laws of belig occupation or the working assumption was that obviously occupation entailed military
presence of the invading power but there are modern question as to whether occupation may exist without the actual presence without the boots on the ground we would return to this question when when we will deal with the Israeli case study another interesting question is whether occupation may exist when the invading Army enters a country that doesn't have a binding legal title under international law over the occupied territory and and in such a scenario whether occupation exist or or not and whether the laws of bigant occupation may or may not not apply I would revert again
to this question when we will deal with the Israeli case study so our tentative conclusion is that the laws of religion occupation constitutes a distinct branch of international law it attempts to regulate a State of Affair a scenario of military occupation and this branch of law applies in a scenario in which a an army of country a invades a a territory another country and establishes therein military control at the expense of the authority previously enjoyed by the original Sovereign and and this obviously begs the question about the applicability of the laws of bent occupation the
laws of bent occupation would only apply to the territory subjected to this effective control and the laws of bent occupation would only apply during the time in which such effective control is actually being exercised my two statements are supported by tic article 42 of the hag regulations which established that the occupation extends only to the territory where such Authority has been established and can be exercised so for example if Israel invaded Southern lean Lebanon in 8 1982 and established effective control between 1982 and 2000 so the law of deligent occupation would apply to Israel and
would subject Israel to Legal obligations related to those 18 years and related to this distinct territory in which Israel established effective control namely Southern Lebanon after addressing the branch of the law of deligent occupation and trying to define the situation of occupation that triggers the very application of of the laws of bent occupation I wanted to move and address the core objectives of the laws of bent occupation a conventional reading of this branch of law would teach us that this branch of law is meant to attain Three core fundamental objectives the first probably the principal
objective of the law of relent occupation is to protect and Safeguard and cater for the needs and interests of the local population the occupied local population once the occupation occurs once in Invasion occurs the original sov exhausted there's a vacuum the occupying power enters into this vacuum the occupying power enters into the shoes of of the original Sovereign and the laws of bigant occupation would impose on the occupying power the legal obligation to exercise all authorities needed with a view of catering for the comprehensive systematic D Dynamic civil and security needs of the local population
the second fundamental objective of the L of deligent occupation is to safeguard the Strategic interests of the original Sovereign the working assumption is that temp occupation must always be temporary and the working assumption is that once security guarantees are provided the original Sovereign would return to the original territory and hence the laws of eligent occupation impos on the occupying power a positive in a negative obligation the positive obligation would be to ad adhere to the legal status go prevailing on the eve of occupation and the negative obligation is to refrain from implementing any fundamental legal
sociopolitical or any other fundamental changes that would render the return of the original Sovereign either impossible or more difficult this principle is enshrined in in in article 43 of the he regulations that states that the once the the authority of the legitimate power have in fact passed into the hands of the occupant the occupant shall take all measures in its power to restore and ensure as fast possible public order and safety while respecting unless absolutely prevented the laws in force in that country the third fundamental core objective of the laws of villig and occupation is
actually to entrust the occupying power with sufficient authorities both civilian and security authorities so as to ensure that the occupying power can succeed in fulfilling its obligations mainly Visa the local occupied population when we examine the Three core fundamental objectives of the laws of religion occupation we may come to the conclusion that there's a certain tension between the three objectives and therefore the construction and implementation of the law of big ation entail a very delicate balancing act when we would deal with the specific case study of Israel we would see that the Juris Prudence of
the Supreme Court insist on the fact that in the specific case study of Israel the laws of bigant occupation actually have only two and not Three core objectives but that would be addressed in in due course after dealing with this branch of of of of laand international naal law and after defining occupation and after speaking about the applicability of the laws of deligent occupation and about the core objectives I wanted now to address the main legal sources of this particular branch of law so the laws of bigant occupation are based on two core legal sources
the First Source is the he regulations of 1899 and 1907 I'm speaking about the regulation concerning the laws and customs of War on land the he regulations the second legal source is actually the Fourth Geneva Convention the convention relative to the protection of Civilian persons in times of war the Fourth Geneva Convention with respect to the first legal Source namely the he regulations the he regulations were adopted during an era era in which much importance was ascribed to National sovereignty and National Security and hence the when we speak about this delicate Balancing Act between security
needs and civilian needs the he regulations are more tilted in favor of of security needs the heg regulations were adopted in 1907 and it is now nowadays accepted that they reflect customary international law and hence they bind all countries in the world whether they are Contracting parties to the he regulations or not actually this principle was already established in the nerenberg trials in which in 1946 the nerur international Military Tribunal stated that the convention undoubtedly represented an advance over the existing international law at the time of their adoption but by 1939 these laws were recognized
by all civilian Nations and were regarded as being declaratory of the laws and customs of War I in 1946 it was established that the hag regulations actually reflect customary international law and when we would deal with a specific case study of Israel we would see that the Israeli authorities including the Israeli Supreme Court actually accept the idea that the he regulations reflect custom international law and hence they are part of the Israeli legal system binding on all Israeli authorities the second major legal source of of the law of bent occupation is the Geneva is the
Fourth Geneva Convention the Fourth Geneva Convention was adopted in 1949 in the aftermath of the atrocities of the second world war including the Holocaust and hence the formulation of the four Geneva Convention was heavily influenced by the trauma stemming from the atrocities of the war and hence again when we return to this very delicate Balancing Act between security needs and civilian needs we see that the Geneva Convention as opposed to the he regulations is more tilted in favor of Civilian interest as opposed to security interest due to the long time that passed since the adoption
of of the Geneva Convention due to the almost Universal membership of the for Geneva Convention and due to in light of State practice it is believed that the Geneva the four Geneva Convention actually reflect customary international law and hence it is binding on all states in the world irrespective of the fact whether a particular state is a Contracting party to the Geneva Convention or not Israel is a Contracting party to the for Geneva Convention but it never adopted the convention into the Israeli legal system and as opposed to the conventional reading of of of international
law the Israeli Supreme Court refuses to accept the idea that the entire Corpus of laws stemming from the Fourth Geneva Convention are customary instead the Israeli Supreme Court conducts an adhoc examination to estab established with respect to each and every provision whether it's customary or not a third additional source of the laws of bent occupation is the first protocol to the Geneva conventions the first protocol was adopted in 197 1977 it deals with International conflicts and it has a particular chapter dealing with the laws of bigant occupation most countries in the world actually joined the
first protocol but even countries that did not acceed to the protocol such as the state of Israel and even countries who actually opposed the first protocol such as the state of Israel are are willing to accept the idea that some of the provisions of the first protocol actually represent customary international law and hence they abiding on all countries in the world hence with respect to the particular case study of Israel we would see in in the session devoted to the laws of war in the specific case study of targeted killing that the Israeli Supreme Court
adjudicated the case and provide delivered its verdict based on the assumption that the provision the first protocol stating that a a civilian who takes direct part in hostilities may be attacked the Israeli Supreme Court relied on this provision and and construed the laws of of war in accord ordance with this provision I wanted to deal now with the applicability of the laws of belig occupation in conjunction with other branches of international law I must emphasize the fact that the laws of religion occupation they constitute a distinct branch of international law and therefore they have an
independence right of existence under our syllabus having said that one may contemplate a situation in which the laws of Bill occupation May apply in conjunction with another branch of international law with numerous branches of international law for example if the occupying power invades a country and establishes effective control but it faces from time to time SP sporadic attacks and there are some armed conflicts then we can contemplate the situation in which the laws of bent occupation apply in conjunction with the laws of war another situation is the applicability of international human rights treaties in principle
international human rights treaties May apply in an extr territorial Manner and may impose on the occupying power legal obligations stemming from the treaty in favor of the local population under occupation so for example we saw in the advisory opinion of the icj related to the wo that the icj insisted on the fact that in principle internation main Central international human rights treaties May apply in an extra territorial Manner and impose in that case on Israel legal obligations Visa the local population the icj stated that a question whether a particular international human rights treaty applies in
an extr territorial manner with respect to the occupied territories is a question of interpretation so each treaty should be construed on an adhoc basis in order to assertain whether the letter and objective of the treaty means that it is meant to apply in such an extraterritorial manner a third branch of law that may be applied in conjunction with the laws of Dent occupation is international criminal law consider a scenario in which an individual in a situation of occupation commits genocide or crimes against humanity or war crimes in such a case a soldier an officer or
a a political leader in a situation of occupation may be held accountable under international criminal law for the commission of those International crimes namely genocide war crimes or crimes against humanity and this is obviously stated in the Rome statute and when we would address the Rome statute we would see that individuals may commit International crimes and be held accountable in a situation of war and or a situation of occupation in addition the laws of bigant occupation May apply in conjunction with international criminal law so consider a scenario in which we have asol a soldier of
the occupying power who commits shwing occupation genocide crimes against humanity or war crimes in such a scenario we are speaking not only about the application of the laws of religion occupation but also side by side also with the application of of international criminal law and such a soldier or such an officer or such political leader may be held accountable under international criminal law for committing such International crimes this is obviously stated in the Rome statute dealing with genocide crimes against humanity and war crimes and we would deal specifically with this these issues in the session
devoted to international criminal law it is interesting to add that the newly introduced crime of aggression under the Rome statute defines aggression interia as the act of illegal occupation and also annexation and I'm quoting from the definition under article 8 of the Rome statute H aggression is defined among other definitions or among other manifestations as The Invasion or attack by the Armed Forces of a state of the territory of another state or in any military occupation however temporary so here we see again a branch of law which is applicable in conjunction with the laws of
bent occupation another branch of law that is relevant to the laws of bent occupation is actually the branch focused on selfdetermination in the session devoted to self-determination we saw that the right of self-determination grants every people the free right to determine the political social economic culture and other aspects of the of the people and obviously self-determination clashes with the with the scenario of occupation because in a scenario of self-determination we are speaking about the free autonomous exercise of the right of self-determination by a people whereas when we speak about occupation we deal with the exact
opposite scenario in which a people is subjected to the military occupation military force and Military effective control of the invading foreign country and as we saw when we dealt with the right of self-determination that a people may resist occupation when the occupying power negates the the right of a people to ex to freely exercise the right of self-determination and as we saw in the session dealing with self-determination according to the Juris Prudence of the Canadian Court dealing with Quebec extreme cases of occupation meant to negate the right of self-determination May Grant the occupied people the
right for external as opposed to internal self-determination another branch of international law that may apply in conjunction with the laws of eligent occupation is international environmental law because as we would see in the session devoted to International environmental law international environmental May apply its obligations in an extr territorial Manner and impose obligations on the occupying power with respect to the occupied territory yet another branch of international law that is relevant to the laws of bent occupation is international trade law when we would deal with International Trade law we we would see this dilemma as to
whether International treaties on trade May confer on the occupying power rights and privileges with respect to the production of of products the sell of products and the provision of services stemming from the occupied territories that so the question would be whether international trade treaties apply only to The Sovereign recognized territory of the Contracting party or whether in addition they may apply in an extr territorial manner and provide the occupying power certain privileges with respect to its trade conduct in the occupied territory we will deal in this context with cases of Israel Western Sahara and Morocco
Taiwan Northern Cyprus and others
