Occupation Law II online

after dealing with the nature of the L of bigant occupation with the definition of of O occupation with the legal sources of the laws of bigant occupation and the core objectives of this branch of law I wanted to address the definition of pro protected persons The Darlings of the laws of bigant occupation as you may remember the first and maybe core objective of the laws of bigant occupation is to make sure that the interests and needs of the local occupied population are catered For and this begs the question as to how you define this group

of protected persons the hag regulations failed to equip us with a an explicit legal definition as to this category and in contrast the Fourth Geneva Convention provided us with an explicit definition of this group the group of protected persons article four of the Fourth Geneva Convention states that persons protected by the convention are those who at any given moment and in any manner whatsoever find themselves in the case of occup occupation in the hands of the occupying power of which they are not Nationals so if we focus on this definition we can see that the

circumstances leading to a person becoming a protected person the circumstances are immaterial the timing is also immaterial as you can see at any given moment so the timing of of becoming protected person is immaterial also in principle the nationality of of the relevant protected person is immaterial what is important and what is crucial is the fact that an individual found himself subject to the military control of the occupying power so we are speaking about a relationship of dependence between the occupying power and an individual who found themselves subjected to the authorities of the occupying power

so this is the core definition of protected persons I must emphasize the fact that the that article four of the Fourth Geneva Convention excludes from the definition of protected persons the Nationals of the occupying power together with any other person who is protected by the other conventions by the other Geneva conventions namely the first second and third conventions of of Geneva and and this basic principle is enshrined and manifested in the Juris Prudence of the Israeli Supreme Court when we would address the specific case study of of Israel we would see that the Israeli Supreme

Court doesn't treat Israeli settlers as protected persons is falling under the explicit definition of protected persons given the fact that they are they are Nationals of the state of Israel but as we would see the Israeli Supreme Court grants them protection through other sources of Law and not through the direct definition of protected persons the next question I wanted to address is whether occupation should be equated with illegality under public international law or more specifically under the laws of bent occupation and I would want to argue that there's no axiomatic formula that states that occupation

is equal to illegality take for example the case where a country exercises legally the legal right of selfdefense in face of an armed conflict and the legal exercise of the legal right of self-defense leads to a scenario of occupation in such a case the occupation is absolutely legal under international law because it's the end result and the outcome of a legal exercise of the legal right of self-defense in addition those who argue that one has to distinguish between Jad Bellum and Jin bellu might argue that the very fact that the initial use of force was

illegal need not mean that the outcome namely occupation is illegal under international law having said that one must accept the idea that if a country attempts to transform the temporary possession namely occupation into a permanent legal title but differently to a permanent legal sovereignty trying to transform possession into ownership then in such a case such an attempt would be considered to be illegal under international law given the fact that such an attempt would contradict the customary principle of inadmissibility of the acquisition of territory through the use of in addition in such a case of attempted

annexation international criminal law might treat such an attempt as an international criminal law offense namely the offense of aggression so we are speaking here about a a dichotomic definition if it's position due to Legal exercise of right of self-defense it's kosher and if it's an attempt to transform temporary possession into permanent ownership then it's illegal so we're speaking about this dichotomous framework of either temporary position which may be legal or permanent ownership which would amount to illegality in the recent attempt by the general assembly of the United Nations in the end of 2022 to raise

the question of of Israel's occupation of the territories before the icj in the framework of an advisory opinion the icj might be forced to address the question as to whether a very long term temporary occupation which was not formulated at least formally as permanent annexation is legal or illegal under international law so my basic argument is that the Israeli specific case study that might reach the icj might provide us with this hybrid situation not fully temporary possession but not full formal annexation in addition one has to remember that if the occupying power exercises the authorities

of stemming from the laws of eligent occupation in contradiction with the law of bent occupation then obviously such an exercise would be considered to be breach of of the laws of Bagent occupation and an illegal act under international law so for example if the occupying forces attempt to deport the civilian local population from the occupied territories then such an act would be considered to be in in breach of article 49 of the for Geneva Convention and hence it would be considered as a breach of the laws of bent occupation a breach of international law after

dealing with the abstract question as to whether occupation amounts to illegality under international law I wanted to address now some of the core overriding principles of the laws of bigant occupation the first principle is is the principles that states that occupation provides the occupying power with possession and hence responsibility yet it doesn't provide the occupying power with legal title with sovereignty or with ownership again this principle should be examined in the context of the customary principle of inadmissibility of the acquisitional territory through the use of force occupation I repeat provides possession it is not meant

to provide legal ownership yet another core principle that relates to the first principle is the fact that the laws of bigant occupation insist on the fact that occupation is always a temporary State of Affairs so the laws of deligent occupation insist on the temporary nature of occupation having said that the laws of deligent occupation failed to provide us with an explicit answer as to how long can such a temporary State of Affairs May last and this is obviously related to the specific case study of Israel in which occupation at least forly remains temporary but for

a very long period of time the issue of of of the temporary nature of occupation also reflects as we will S as we will see soon specifically in the Israeli case study on the scope of authorities of the military power because if occupation is very very short term then the authorities of military commander the occupying Commander are very very restricted they are very modest but once occupation becomes more and more longterm then this reflects on the scope of the authorities of the military commander and the military commander May and actually might be bound to deviate

more aggressively from the legal status quo that prevailed on the eve of occupation in order to cater for the comprehensive and dynamic needs of the local population of the protected persons yet another core principle of the laws of bigant occupation which stems from the previous core principles is the obligation imposed by this branch of of Lo the occupying power to adhere as far as possible possible to the Constitutional civil and criminal legal apparatus that was binding on the eve of occupation and and the occupying power must not deviate from the status quo unless such a

deviation is absolutely required so as to enable it to F fulfill its obligations under the laws of bent occupation this core principle is is reflected in article 43 of the heg regulation stating that the the occupying power must respect unless absolutely prevented a very very harsh test unless absolutely prevented the laws en forc in the country so I would just give you two extreme examples to explain this legal obligation to adhere to the legal status quo if for example the occupying power enters into the occupied territory establishes therein effective control it is not meant to

implement substantial fundamental legal reforms for example in the area of tax law certainly if the occupation is is shortterm in contrast if for example the occupying power enters the occupied territories and it is faced with a legal provision that provides each and every individual with a free right to freely carry weapons then in order to fulfill its obligations namely to restore and ensure public safe safety and order the occupying power May abolish at least on a temporary basis this right in order to make sure that the protected persons do not carry freely uh guns with

a view of negating the ability of the occupying power to exercise its effective control and restore and ensure Public Safety and and order after dealing with the core principles of the laws of bent occupation I wanted to uh shortly deal with the substantive legal obligations stemming from the laws of vent occupation so the core provision the central Pro provision the pivotal provision is article 43 of the he regulations which imposes on the occupying power the legal obligation to restore Public Safety in order and throughout the term of occupation such safety and Order and article 43

is construed in a manner that it imposes on the occupying power a very very broad legal obligation to cater for the entire comprehensive civilian and security needs of the protected person article 43 of the heg regulations is supported by article 27th of the Fourth Geneva Convention and when you read the article you would see that the article actually demands from the occupying power to make sure that their dignity the honor and the safety of the protected persons is always being safeguarded by the occupying power those two basic Provisions article 43 of the he regulations together

with article 27 of the four Geneva Convention are considered in conjunction is to be of a quasi constitutional nature and a very cool of the legal obligations imposed on the occupying power those two Provisions are supported by a very large number of very specific very concrete very high resoluted legal Provisions in the he regulations and in the for Geneva Convention very very specific legal obligations that cater for the various dimensions of of the daily lives of the protected persons and when you examine all those legal specific specific obligations in conjunction all those obligations are meant

to make sure that the occupying power fulfill its fundamental legal obligation namely to look after the entire broad systematic and dynamic needs of the protected persons who are dependent on the occupying power