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Illegal Occupation and Its Consequences

Published online by Cambridge University Press:  19 March 2012

Yaël Ronen

Abstract

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This Article explores the grounds and consequences of illegal occupation. It proposes that an occupation may be considered illegal if it is involves the violation of a peremptory norm of international law that operates erga omnes, and is related to territorial status. Accordingly, illegal occupations are primarily those achieved through violation of the prohibition on the use of force and of the right to self-determination, or maintained in violation of the right to self-determination. This examination forms the basis for a systematic analysis of specific occupations that have been declared illegal by U.N. organs. The second part of the Article addresses the consequences of an occupation's illegality, in view of the political and legal objectives of determining such illegality. It considers the international responsibility for an illegal occupation; the obligation of non-recognition and the law applicable to an illegal occupation; and the right to self-defense. The Article concludes by commenting on the role of “illegal occupation” as a category under international law.

Type
Articles
Information
Israel Law Review , Volume 41 , Issue 1-2: Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context , 2008 , pp. 201 - 245
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

References

1 See also The 1907 Hague Convention No. IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 205 Consol. T.S. 277 and its annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907 [hereinafter Hague Convention IV and Hague Regulations respectively].

2 Regulations Respecting the Laws and Customs of War on Land annexed to the Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 187 Consol. T.S. 429.

3 Benvenisti, Eyal, The International Law of Occupation 4 (2nd. ed. 2004)Google Scholar.

5 As well as other definitions, see, e.g., a situation where “the armed forces of a country are in control of foreign territory.” Roberts, Adam, What is a Military Occupation?, 55 Brit. Y.B. Int'l L. 249, 250 (1985)Google Scholar.

5 See, e.g., with regard to the French administration of Mayotte, see 1989 U.N.Y.B. 154, U.N. Sales No. E.97.I.11; Israel's Occupation of Southern Lebanon, see 1978 U.N.Y.B. 298, U.N. Sales No. E.80.I.1; Israel regarding Jordan's occupation of East Jerusalem 1948-1967, id. at 347; Indonesia's annexation of East Timor, see Permanent Mission of Portugal to the United Nations, Note Verbale Address to the Secretary-General: Question of East Timor, U.N. Doc. A/52/152 (May 20, 1997)Google Scholar; Turkey's Presence in Northern Cyprus, see Letter dated May 28, 2004 from the Permanent Representative of Cyprus to the United Nations Addressed to the Secretary-General, U.N. Doc. A/518/815-S/2004/438 (May 28, 2004) (signed by Andreas D. Mavroyiannis); the Soviet annexation of Estonia, Latvia, and Lithuania see Case of Slivenko v. Latvia, see App. no. 48321/99, 2003-X Eur. Ct. H.R. ¶. 76, HC Debs., vol. 980, WA, col. 223 (Mar. 5, 1980); Argentina's military campaign in the Falkland/Malvinas Islands, see Letter Dated Apr. 29, 1982 from the Permanent Representative of the United Kingdom of Great Britain And Northern Ireland to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/15010 (Apr. 29, 1982); the Soviet occupation of Afghanistan, 12-1984 Bulletin of the European Communities 111 (1984)Google Scholar; the Chinese Occupation of Tibet, U.S. S. Res. 271, 102 Cong. (1993); the Syrian occupation of Lebanon, see U.S. H. Con. Res. 363 108th Cong. (2004); U.S. and U.K. occupation of Iraq, see opinion of the UK General-Attorney, Kampfner, John, Blair was Told it Would be Illegal to Ozccupy Iraq, New Statesman, May 26, 2003Google Scholar, available at http://www.newstatesman.com/200305260010; Bahrain control of Hawar Islands, see Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 2001 I.C.J. 40, at 60, ¶ 58 and at 74, ¶107; U.S. control over Guantánamo Bay, see Core document Forming Part of the Reports of States Parties: Cuba, ¶¶ 22, U.N. Doc. HRI/CORE/1/Add.84 (Oct. 13, 1997).

6 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116 (Dec. 19) (separate Opinion of Judge Kooijmans) [hereinafter Armed Acfivities].

7 Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 Am. J. Int'l L. 44, 66 (1990)CrossRefGoogle Scholar; Brownlie, Ian, Principles of Public International Law 409 (6th ed. 2003)Google Scholar; Gray, Christine, International Law and the Use of Force 101 (2000)Google Scholar; But see a more detailed analysis in Cassese, Antonio, Self-Determination Of Peoples: A Legal Reappraisal 55, 99 (1995)Google Scholar; Talmon, Stefan, The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Ius Cogens Obligation: An Obligation without Real Substance?, in The Fundamental Rules Of The International Legal Order, Ius Cogens And Obligations Erga Omnes 99, 116 (Tomuschat, Christian & Thouvenin, Jean-Marc eds., 2006)Google Scholar; Benvenisti, supra note 3, at 187. Ben-Naftali, Orna, Gross, Aeyal M., & Michaeli, Keren, Illegal Occupation: Framing the Occupied Territories, 23 Berkeley J. Int'l L. 551 (2005)Google Scholar; Milano, Enrico, Unlawful Territorial Situations in International Law (2006)CrossRefGoogle Scholar.

8 A discussion of some aspects in the context of the effect of violation of jus ad bellum on jus in bello is offered by Orakhelashvili, Alexander, Overlap and Convergence: The Interaction Between Jus ad Bellum and Jus in Bello, 12 J. Conflict & Security L. 157 (2007)CrossRefGoogle Scholar.

9 S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003).

10 Benvenisti, Eyal, The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective, 1 I.D.F. L. Rev. 19, 36–37 (2003)Google Scholar. See also Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, ¶ 62, U.N. Doc. A/HRC/4/17 (Jan 29, 2007) (prepared by John Dugard). There are various documents that suggest that an occupation is by definition an illegal situation. Documents that refer to colonial a domination, occupation, and racism, (see, e.g., the Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX), art. 16(1), U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc A/9631 (Dec. 12, 1974); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 1(4), Dec. 12, 1977, 6 U.S.T. 3114, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]), particularly in the context of the legitimacy of the struggle for self-determination, suggest that just as colonial domination and racism are ipso facto illegal, so is occupation. For a review of some opinions to this effect and their critique see Ben-Naftali, Gross & Michaeli, supra note 7, at 557-59.

11 Cassese, supra note 7, at 99; Benvenisti, supra note 3, at 68.

12 Ben-Naftali, Gross, & Michaeli, supra note 7; Milano, supra note 7.

13 This is comparable to the notion that the existence of a state constitutes the violation of an obligation inter partes, see, e.g., the establishment of the Federal Republic of Germany in violation of the quadripartite agreements on the status of Germany, see Crawford, James, The Creation Of State In International Law 454–55 (2nd ed. 2006)Google Scholar.

14 Hough, William J.H. III,, Note, The Annexation of the Baltic States and its Effect on the Development of Law Prohibiting Forcible Seizure of Territory, 6 N.Y.L. Sch. J. Intl & Comp. L. 301 (1985)Google Scholar.

15 Australian Practice in International Law, 8 Aust. Y.B. Int'l L. 253, 279 (1978–1980)Google Scholar; East Timor (Portugal v. Australia), Counter-memorial of the Government of Australia, ¶¶ 175-76, (June 1, 1992), available at http://www.icj-cij.org/docket/files/84/6837.pdf (last visited Jan. 29, 2008); Rejoinder of the Government of Australia, ¶¶ 44-54, East Timor (Portugal v. Australia) (July 1, 1993), available at http://www.icj-cij.org/docket/files/84/6841.pdf (last visited Jan. 29, 2008).

16 A separate question is whether a violation of a peremptory norm can be waived by the entire international community.

17 Kadelbach, Stefan, Cogens, Ius, Obligations Erga Omnes and other Rules—the Identification of Fundamental Norms in Tomuschat & Thouvenin, supra note 7, at 25Google Scholar.

18 Byers, Michael, Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules, 66 Nordic J.Int'l L. 211, 236–37 (1997)Google Scholar. The relationship between the peremptory and erga omnes characteristics of a norm is discussed in Kadelbach, supra note 17, at 25.

19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, Judgment, 1986 I.C.J. 14, 100-01, ¶ 190 (June 27) [hereinafter Nicaragua]. International Law Commission, Report of the International Law Commission, Draft Articles on State Responsibility for Internationally Wrongfit1 Acts, 283 (Commentary to Article 40, ¶(4)), U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001) [hereinafter ILC Draft Articles].

20 See, e.g., Armed Activities, supra note 6, at ¶ 147. Or, according to a different approach, if it is disproportionate to the attack instigating it. Dinstein, Yoram, War, Aggression and Self-Defence 225 (4th ed. 2002)Google Scholar.

21 Orakhelashvili, supra note 8, at 195-96.

22 Cassese, supra note 7, at 55 & 90-99.

23 East Timor Case (Portugal v. Indonesia) 1995 I.C.J. 90, 102, ¶ 29; ILC Draft Articles, supra note 19, at 113 (commentary to art. 40 ¶ 5).

24 Id.

25 Cassese supra note 7, at 55 & 99. The author appears to argue that even an occupation falling within the scope of Article 51 is unlawful. The basis for this argument remains unclear.

26 Benvenisti, supra note 3, at 68. This situation may be more appropriately addressed as an “illegal annexation.” However, with respect to both Iraq's annexation of Kuwait and Israel's annexation of Jerusalem (and possibly the Golan Heights, see Sheleff, Leon, Application of Israeli Law to the Golan Heights is not Annexation, 20 Brook. J. Int'l L. 333 (1994)Google Scholar and Maoz, Asher, Application of Israeli Law to the Golan Heights is Annexation, 20 Brook. J. Int'l L. 355 (1994)Google Scholar the terminology used was “illegal occupation.”

27 Ben-Naftali, Gross, & Michaeli, supra note 7, at 554, 570-79, 592-99.

28 Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, Report, ¶ 8, U.N. Doc. A/62/275 (Aug 17, 2007) (prepared by John Dugard).

29 Benvenisti, supra note 3, introduction to the paperback edition.

30 Cassese, supra note 7, at 99.

31 Benvenisti, supra note 3, at 187, 216.

32 See, e.g., Ben-Naftali, Gross, & Michaeli, supra note 7, at 579-90.

33 Falk, Richard A. & Weston, Burns H., The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada, 32 Harv. Int'l L. J. 129, 155 (1991)Google Scholar. The authors also suggest that the measures in question also impinge on the right to self-determination. The U.N. Secretary-General used the terminology “illegal occupation” to indicate the violations by Israel of international humanitarian law in the maintenance of the occupation. Eckhard, Frederic, Letter to the Editor, A Delicate Word in the Mideast, N.Y. Times, Mar. 23, 2002Google Scholar, at A16.

34 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131, 199, ¶¶ 155, 157 (July 9) [hereinafter Wall Advisory Opinion]; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 79 (July 8) [hereinafter Nuclear Weapons Advisory Opinion]; ILC Draft Articles, supra note 19, at 113 (commentary to art. 40, ¶ 5); but see President (then Judge) Higgins in her separate opinion in Wall Advisory Opinion at 529, ¶ 39.

35 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].

36 Kadelbach, supra note 17, at 30-31.

37 Hague Regulations, supra note 1, violation of art. 52; Fourth Geneva Convention, supra note 35, art. 49; and Hague Regulation, supra note 1, art. 43 and Fourth Geneva Convention, supra note 35, art. 64, respectively.

38 Fourth Geneva Convention, supra note 35, violation of arts. 42 & 27; Hague Regulations, supra note 1, arts. 52, 55.

39 Falk & Weston, supra note 33, at 155; U.N. Doc. A/62/275, supra note 28, at ¶ 8.

40 For example, territory may be occupied through the use of weapons which are prohibited under customary international law, or through violation of the principles of distinction and proportionality.

41 Such as whether territory is by definition a necessary military objective and whether the act of occupation is subject to the same tests of proportionality as other attacks, namely that the expected incidental injury to civilians and civilian objects is measured against the concrete and direct military advantage anticipated gained by the control of the territory. Additional Protocol I, supra note 10, art. 51(5)(b).

42 The occupation of Iraq, although arguably illegal, is regulated, inter alia, by Security Council resolutions. Compliance by states with such resolutions takes precedence over conflicting international law obligations, U.N. Charter, art. 103.

43 G.A. Res. 2625 (XXV)¶ 10, U.N. GAOR, 25th Sess. Supp. No. 28, U.N. Doc. A/8082 (Oct. 24, 1970) [hereinafter 1970 Declaration].

44 G.A. Res. 2542 (XXIV), art. 26, U.N. GAOR, 24th Sess., Supp. No. 30, U.N. Doc. A/7630 (Dec. 11 1969) [hereinafter 1969 Declaration].

45 G.A. Res. 42/22, ¶ 10, U.N. GAOR, 42nd Sess., Supp. No. 49, U.N. Doc. A/RES/42/22 (Nov. 18, 1987) [hereinafter 1987 Declaration].

46 Nicaragua, supra note 19, at 98-101, ¶¶ 187-90; Wall Advisory Opinion, supra note 34, at 171, ¶ 87.

47 Gray, supra note 7, at 85.

48 G.A. Res. 2145 (XXI), U.N. Doc. A/6316 (Oct. 27, 1966).

49 S.C. Res. 264, U.N. Doc. S/RES/264 (Mar. 20, 1969).

50 S.C. Res. 276, U.N. Doc. S/RES/276 (Jan. 30, 1970).

51 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16 at 54, ¶ 118, details at 50, ¶ 105 (June 21) [hereinafter Namibia].

52 Id. at 54, ¶ 118.

53 See, e.g., S.C. Res. 264, supra note 49, ¶¶ 2; G.A. Res. 2403 (XXIII), ¶¶ 3, U.N. GAOR, 23rd Sess. Supp. No. 18, U.N. Doc A/7218 (Dec 16, 1968).

54 See, e.g., S.C. Res. 301, U.N. Doc. S/RES/301 (Oct. 20, 1971); S.C. Res. 366, U.N. Doc. S/RES/366 (Dec. 17, 1974); S.C. Res. 385, U.N. Doc. S/RES/385 (Jan. 30, 1976); G.A. Res. 2871 (XXVI) U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429 (Dec. 20, 1971); G.A. Res. 41/39A, U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc. A/RES/41/39A (Nov. 20, 1986); S.C. Res. 601, U.N. Doc. S/RES/601 (Oct. 30, 1987); and G.A. Res. 43/26A, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc. A/RES/43/26A (Nov. 17, 1988).

55 MacQueen, Norrie, Belated Decolonization and Politics against the Backdrop of the Cold War; Portugal, Britain, and Guinea-Bissau's Proclamation of Independence, 1973–1974. 8 J. Cold War Stud. 29 (2006)CrossRefGoogle Scholar.

56 G.A. Res. 3061 (XXVIII), U.N. GAOR, 28th Sess. Supp. No. 30, U.N. Doc. A/9030 (Nov. 2, 1973).

57 See, e.g., G.A. Res. 3113(XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, (Dec. 12, 1973), S.C. Res. 322, U.N. Doc. S/RES/322 (Nov. 22, 1972).

58 For the purposes of this Article. South Africa's first status in the territory was of occupant following the ousting of the German forces during the First World War. This period of occupation is of no concern to this Article.

59 See the definition of occupation suggested in the introduction.

60 Other colonies did not become “occupied” precisely because they were not recognized as independent and therefore foreign. See Crawford, supra note 13, at 137.

61 For a comparison in this context of Guinea-Bissau with other Portuguese colonies see Crawford, id.

62 Except possibly by South Africa, whose attitude toward Namibia was unclear and inconsistent. At times South Africa appeared to claim that Namibia had been incorporated into it.

63 Separate opinion of Vice-President Ammoun in Namibia, supra note 51, at 89, ¶ 12.

64 The Namibia case is a case of “continued presence.” Dinstein defines as “constructive armed attack” a situation where the forces of one state stationed by permission on another state's territory refuse to withdraw upon expiry of the time allotted for their presence, see Dinstein, supra note 20, at 196. See also Definition of Aggression, G.A. Res. 3314 (XXIX), ¶¶ 3(e) of annex, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/9631 (Dec. 14, 1974).

65 G.A. Res. 3061, supra note 56, prmbl. ¶¶ 2, 3, 4, operative ¶¶ 2, 3, 4.

66 G.A. Res. 3414 (XXX), prmbl. ¶ 2, U.N. GAOR, 30th Sess., Supp. No. 34, U.N. Doc. A/10034 (Dec. 5, 1975).

67 G.A. Res. 32/20, prmbl. ¶ 4 and operative ¶ 1, U.N. GAOR, 32nd. Sess., Supp. No. 45, U.N. Doc. A/RES/32/20 (Nov. 25, 1977). Virtually identical paragraphs appear in, G.A. Res. 33/29, prmbl. ¶ 4 and operative ¶ 1, U.N. GAOR, 33rd Sess., Supp. No. 45, U.N. Doc. A/RES/33/29 (Dec. 7, 1978) and in G.A. Res. 34/70, prmbl. ¶ 5 and operative ¶ 1, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/RES/34/70 (Dec. 6, 1979). See also Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, G.A. Res. 35/122E, U.N. GAOR, 35th Sess., Supp. No. 48, U.N. Doc. A/RES/35/122E (Dec. 11, 1980).

68 G.A. Res. 3414, supra note 66, operative ¶ 2; G.A. Res. 32/20, supra note 67, ¶ 1; see also G.A. Res. 33/29, supra note 67, and 34/70, supra note 67, common operative ¶ 1; see also G.A. Res. 36/226A, operative ¶ 1, U.N. GAOR, 36th Sess., Supp. No. 51, U.N. Doc. A/RES/36/226A(Dec. 17, 1981); see also G.A. Res. 35/122E, id., prmbl. ¶ 2; G.A. Res. 40/168A, operative ¶ 5, U.N. GAOR, 40th Sess., Supp. No. 53, U.N. Doc. A/RES/40/168A (Dec. 16, 1985); G.A. Res. 43/54A, operative ¶ 5, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc. A/RES/43/54A (Dec. 6, 1988); G.A. Res. 44/40A operative ¶ 5, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. DOC. A/RES/44/40A (Dec. 4, 1989); G.A. Res. 45/83A, operative ¶ 5, U.N. GAOR, 45th Sess., Supp. No. 49, U.N. Doc. A/RES/45/83A (Dec. 13, 1990).

69 See, e.g., G.A. Res. 38/180A prmbl. ¶ 5, U.N. GAOR, 38th Sess., Supp. No. 47, U.N. Doc. A/RES/38/180A (Dec. 19, 1983); G.A. Res. 40/168B, prmbl. ¶ 5, U.N. GAOR, 40th Sess., Supp. No. 53, U.N. Doc. A/Res/40/168B (Dec. 16, 1985); G.A. Res. 43/54B prmbl. ¶ 5, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc. A/RES/43/54B (Dec. 6, 1988); G.A. Res. 44/40B, prmbl. ¶ 5, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/RES/44/40B (Dec. 4, 1989); G.A. Res. 47/63A, preambular ¶ 5, U.N. GAOR, 47th Sess., Supp. No. 49, U.N. Doc. A/RES/47/63A (Dec. 11, 1992).

70 G.A. Res. 3414, supra note 66, prmbl. ¶ 2. Yet even the controversial definition of aggression adopted the preceding year in G.A. Res. 3314, supra note 64, qualified as aggression “[t]he invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack[…]” (art. 3(a)), thereby limiting occupation to a violation of jus ad bellum.

71 Gray, supra note 7, at 102.

72 See, e.g., G.A. Res. 3236 (XXIX), prmbl. ¶, U.N. GAOR, 29th Sess., Supp. No. 31, U.N. Doc. A/RES/3236 (Nov. 22, 1974).

73 “[T]heir inalienable national right.”

74 The resolutions passed in the late 1970s refer to the deprivation “three decades” earlier, supra note 67.

75 This distinction between violation of sovereignty and violation of the right to self-determination may be cited in support of the analysis offered by Ben-Naftali, Gross, & Michael, who regard a prolonged occupation which frustrates the resumption of sovereignty as an independent ground for illegality. However, it is suggested here that the obligation to respect the right to self-determination may encompass more, in the context of illegal occupation, than the violations of the law of occupation through the prolongation of occupation.

76 G.A. Res. 32/20, supra note 67, prmbl. ¶ 3 takes into account the resolutions of the Fifth Conference of Heads of State or Government of Non-Aligned Countries, held at Colombo on Aug. 16-19, 1976, concerning the situation in the Middle East and the question of Palestine (Fifth Conference of Heads of State or Government of Non-Aligned Countries, Colombo, Aug. 16-19, 1976, Resolution on the Middle East, NAC/Conf.5/S/Res.8 and Res.9 contained in U.N. Econ. & Soc. Council, Report of the Economic and Social Council, U.N. Doc. A/31/197, at 116, 119 (Sept. 8, 1976)), in which there is reference to Israeli aggression. However, the usage of the term “aggression” in these resolutions is not clearly in the context of jus ad bellum, and can be linked to claims of violation of international humanitarian law, international human rights and denial of self-determination. G.A. Res. 33/29, supra note 67, takes into account the decisions of the Conference of Ministers for Foreign Affairs of Non-Aligned Countries held at Belgrade on 25-30 July 1978 concerning the situation in the Middle East and the Question of Palestine. These resolutions refer to the illegality of Israel's exploitation of Palestinian resources (Conference of Ministers for Foreign Affairs of Non-Aligned Countries, Beograd, 1978, Resolution on the Middle East, NAC/Conf.5/FM/PC/L.1, ¶ 12 (July 30, 1978), reprinted in Conference of Ministers For Foreign Affairs of Non-Aligned Countries, Belgrade, July 25-30, 1978, Documents, U.N. Doc. A/33/206, at 131 (Sept. 6, 1978). However, in the Final Declaration of the Conference (to which Res. 33/29 does not refer), the Foreign Ministers confirm the need for concern “in view of Israel's expansionist policy and attempts at procrastination which aim at continuing its illegal occupation of Palestinian and Arab territories…” This single reference to the illegality of the occupation grammatically assumes illegality prior to the claimed violations of the right to self-determination, but substantively may link the two. Both resolutions, however, contain various statements that are hard to reconcile with prevalent international law (e.g., that occupation is in violation of international law). Their legal significance should therefore not be overestimated.

77 See generally 1977 U.N.Y.B, 266-341, U.N. Sales No. E.79.I.1, 1978 U.N.Y.B., supra note 5, at 288-370.

78 See, e.g., Benin, 1977 U.N.Y.B., id, at 269; Syria, at 290; USSR, at 297. Albania referred to Israel as the “invader,” at 311; it is not clear from these statements whether the aggression refers to the event leading to occupation or to the conduct of occupation. Sri Lanka referred expressly to “territories occupied by force,” 1978 U.N.Y.B., id., at 337.

79 See, e.g., Syria, 1977 U.N.Y.B., id. at 286; Yugoslavia, at 300; Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, at 306; Jordan, at 314; and others, at 316. U.S, at 317.

80 Wall Advisory Opinion supra note 34, at 193-94, ¶ 137; G.A. Res. Es-10/13, U.N. Doc. A/RES/ES-10/13 (Oct. 27, 2003).

81 Wall Advisory Opinion, supra note 34, at 193-194, ¶ 137.

82 Id. at 184, ¶ 122.

83 Id. at 202, ¶ 163.

84 Id. at 184, ¶ 121.

85 Id. emphasis added.

86 The proposal by the U.N. Special Rapporteur that the International Court of Justice be asked for an Advisory Opinion on the legal consequences resulting from this prolonged occupation attempts to fill this gap. U.N. Doc. A/HRC/4/17, supra note 10 ¶ 62; see also U.N. Doc. A/62/275 supra note 28, ¶ 8.

87 Ben-Naftali, Gross, & Michaeli, supra note 7, reach a different result because they assess the facts differently (more widely than the Court), especially with regard to the role of Israeli settlement in the West Bank.

88 Wall Advisory Opinion (Separate Opinion of Judge Elaraby), supra note 34, at 256.

89 See text at supra note 39.

90 Wall Advisory Opinion (Separate opinion of Judge Elaraby), supra note 34, at 255-56; Ben-Nafatli, Gross, & Michaeli interpret Judge Elaraby's reliance on Falk and Weston, supra note 33, as indicating that he regards the occupation's illegality as based on the violation of jus in bellum, supra note 7, at 557, n.25.

91 The Kingdom of Cambodia, as it is called today, was called “Democratic Kampuchea” from 1975 until 1979, and “People's Republic of Kampuchea” from 1979 until 1989.

92 Acting through an Ad Hoc Committee of the International Conference on Kampuchea.

93 International Conference on Kampuchea Declaration, at 7-10, U.N. Doc. A/CONF.109/5 (July 17, 1981), reprinted in 20 I.L.M. 1503 (1981).

94 Id. ¶¶ 3 & 9.

95 G.A. Res. 36/5, U.N. GAOR, 36th, Sess., Supp. No. 51, U.N. Doc. A/RES/36/5 (Oct. 21, 1981).

96 Id. prmbl. ¶¶ 5 & 6.

97 U.N. Commission on Human Rights, Situation in Kampuchea, at 66, prmbl. ¶ 7, operative ¶ 2 CHR Res. 1989/20 U.N. ESCOR, 1989, Supp. No. 2, U.N. Doc. E/1989/20 (Mar. 6, 1989). See also CHR Res. 1983/5 (Feb.15, 1983); CHR Res. 1985/12 (Feb. 27, 1985), reaffirmed in ECOSOC Res. 1985/155 (May 30, 1985).

98 CHR Res. 1989/20, supra note 97, operative ¶ 10.

99 See, e.g., CHR 1983/5, supra note 97, prmbl. ¶ 7 and operative ¶ 5(c).

100 See, e.g., S.C. Res. 661, prmbl. ¶ 3, U.N. Doc. S/RES/661 (Aug. 6, 1990); S.C. Res. 674, preamublar ¶ 11, U.N. Doc. S/RES/674 (Oct. 29, 1990).

101 S.C. Res. 674, supra note 100.

102 See, e.g., S.C. Res. 660, operative ¶ 1, U.N. Doc. S/RES/660 (Aug. 3, 1990); S.C. Res. 661, supra note 100, prmbl. ¶¶ 2, 3; S.C. Res. 677, prmbl. ¶ 2, U.N. Doc. S/RES/677 (Nov. 28, 1990); S.C. Provisional Verbatim Record, 2951st mtg., U.N. Doc. S/PV.2951 (Oct. 29, 1990); S.C. Provisional Verbatim Record, 2981st mtg., U.N. Doc. S/PV.2981 (Apr. 3, 1991).

103 See, e.g., S.C. Res. 1234, U.N. Doc. S/RES/1234 (Apr. 9, 1999) and S.C. Res. 1304, U.N. Doc. S/RES/1304 (June 16, 2000).

104 Armed Activities, supra note 6, ¶ 178.

105 Id. ¶ 259.

106 Id. ¶ 345 (emphasis added).

107 The submissions of the DRC also referred to the violation of the right to self-determination. Armed Activities, supra note 6, ¶ 24. The Court did not address this norm.

108 Judge Higgins, at the time the judgment was handed down.

109 Higgins, Rosalyn, The Place of International Law in the Settlement of Disputes by the Security Council, 64 Am. J. Int'l L. 1, 8 (1970)CrossRefGoogle Scholar.

110 As in Armed Activities, supra note 6, ¶ 149.

111 Id. (separate opinion of Judge Kooijmans), ¶ 56.

112 Id. ¶¶ 62 & 64 read together.

113 Id. ¶ 259; Wall Advisory Opinion, supra note 34, at 184-87, ¶¶ 123-26.

114 Roberts, supra note 4, at 293. It has been suggested in the past to distinguish between an aggressor-occupant and a lawful occupant, see Gerson, Alan, Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank, 14 Harv. Int'l L J. 1, 3 (1973)Google Scholar; and more recently Orakhelashvili, supra note 8; but see criticism by Benvenisti, supra note 3, at 69.

115 Cf. Namibia, supra note 51, at 54, ¶ 117; Wall Advisory Opinion, supra note 34, at 197, ¶¶ 147-48.

116 Portugal claimed sovereignty over its African holdings; South Africa's position as to its status in Namibia was vague and changeable. At times it claimed to continue holding the mandate (e.g., Binga v. Administrator-General, South West Africa, and Others 1988(3) SA 155); at times it claimed that the mandate was no longer in effect; and at times it assumed sovereignty over the territory; Iraq purported to annex Kuwait; Israel purported to annex East Jerusalem and the Golan Heights.

117 See, e.g., Vietnam and Uganda, Armed Activities, supra note 6, ¶ 170.

118 See, e.g., the claim to sovereignty in the case of Guinea-Bissau, annexation in the case of Kuwait, and change of government in the case of Kampuchea.

119 U.N. Doc. A/HRC/4/17, supra note 10, ¶ 62, and again in U.N. Doc. A/62/275 supra note 28, ¶ 8.

120 ILC Draft Articles, supra note 19, Draft Article 31. See Factory at Chorzów (Claims for Indemnity) (Jurisdiction) (Germany v. Poland) 1927 P.C.I.J. (ser. A) No. 9, at 21 (July 26); Armed Activities, supra note 6, ¶ 259.

121 See, e.g., S.C. Res. 301, supra note 54, operative ¶ 6 (Namibia); G.A. Res. 3061 (XXVIII), supra note 56, operative ¶ 3 (Guinea-Bissau); G.A. Res. 32/20 and 33/29, supra note 67, common preambular ¶ 5; G.A. Res. 45/83A, supra note 68, operative ¶ 5 (territories occupied by Israel); G.A. Res. 34/22, ¶ 7, U.N. GAOR, 34th Sess., Supp. 46, U.N. Doc. A/RES/34/22 (Nov. 14, 1979) (Kampuchea); S.C. Res. 660, supra note 102, operative ¶ 2; S.C. Res. 661 supra note 100, prmbl. ¶ 3 (Kuwait).

122 Armed Activities, supra note 6, ¶¶ 259 & 345(5).

123 S.C. Res. 674, supra note 100, operative ¶ 8.

124 S.C. Res. 687, operative ¶ 16, U.N. Doc. S/RES/687 (Apr. 3, 1991).

125 U.N. Compensation Commission, Criteria for Expedited Processing of Urgent Claims, ¶ 18(c), U.N. Doc. S/AC.26/1991/1 (Aug. 2, 1991).

126 U.N. Doc. S/PV.2951, supra note 102, at 91.

127 Id. Ethiopia, at 46; Finland, at 86; Canada, at 87; U.K., at 92-93; S/PV.2981, supra note 102, U.S. at 87, France at 93, China, at 96, U.K. at 114.

128 Orakhelashvili, supra note 8, at 195-96.

129 Armed Activities (Declaration of Judge ad hoc Verhoeven), supra note 6, ¶ 5 (translated Y.R.).

130 Uganda did not acknowledge its status as occupant. However, the applicability of international humanitarian law is not limited to situations of occupation. Also, once the Court determined that Uganda had been in occupation of Ituri, it could proceed to examine Uganda's actions in that context, even if Uganda itself had not done so before.

131 Wall Advisory Opinion, supra note 34, ¶ 153.

132 Establishment of the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory, G.A. Res. ES-10/17, U.N. Doc. A/RES/ES-10/17 (Dec. 15, 2006).

133 Ban Ki-Moon Appoints Experts to Board of U.N. Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory, U.N. News Centre, May 10, 2007, available at http://www.un.org/News.

134 See, e.g., Hague Regulations, supra note 1, arts. 52, 53, & 54.

135 See, e.g., id. art. 49.

136 Once a definition of the crime of “aggression” is adopted, this matter might need reconsideration.

137 ILC Draft Articles, supra note 19.

138 Cf. East Timor Case (dissenting opinion of Judge Weeramantry), supra note 23, at 171-74.

139 There is controversy whether the obligation applies to violations of all types of peremptory norms. Talmon, supra note 7 at 103. This controversy is partly conflated with the question considered below as to the meaning of the obligation where the violation results in a purely factual situation. In any case, the obligation undoubtedly applies to violations of the prohibition on the use of force.

140 Cf. Cassese, supra note 7, at 96.

141 See, e.g., Anti-War Treaty of Non-Aggression and Conciliation (Saavedra Lamas Treaty), art. II, Oct. 10, 1933, 49 Stat. 3363, U.S.T.S. 906; 1970 Declaration, Principle 10, ¶ 10.

142 (Emphasis added Y.R.). This drafting echoes the Helsinki Final Act, Section IV, ¶ 4 which provides that the participating states “ … will likewise refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law …. No such occupation … will be recognized as legal.” Conference on Security and Co-operation in Europe: Final Act: Declaration of Principles Guiding Relations between Participating States, Aug. 1, 1975, reprinted in 70 Am. J. Int'l L. 417 (1976)Google Scholar. The Final Act was not intended to be a legally-binding document. See Russell, Harold S., The Helsinki Declaration: Brobdingnag or Lilliput?, 70 Am. J. Int'l L. 242, 246–49 (1976)CrossRefGoogle Scholar; however, through the years the Helsinki Final Act has accumulated significant weight as a “soft law.”

143 See, e.g., with regard to Manchukuo, Rhodesia, Namibia, the South African Bantustans, the TRNC. John Dugard, Recognition and the United Nations (1987).

144 Koskenniemi notes that it is one of many documents that clearly do not go beyond the U.N. Charter. Koskenniemi, Martti, Police in the Temple Order, Justice and the UN: a Dialectical View, 6 Eur. J. Int'l L. 325, 340–41 (1995)CrossRefGoogle Scholar.

145 This does not mean that it was taken to reflect existing law.

146 Delegates to the Security Council debate clarified that the Declaration added nothing and had no law-creating force. Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-Use of Force in International Relations, UK2-3 ¶ 5; Israel, ¶¶ 3 & 7; France, ¶¶ 4 & 12; Germany, ¶¶ 4-5 & 13; possibly arguing that it is law, in U.N. GAOR, 42nd Sess., 6th Committee, U.N. Doc. A/C.6/42/SR.50 (Nov. 17, 1987).

147 Often referred to as a “de facto regime,” see, e.g., Scott, Pegg, International Society and the de Facto State (1998)Google Scholar; Schoiswohl, Michael, Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes in International Law: The Case of ‘Somaliland’ (2004)Google Scholar.

148 Talmon, Stefan, The Constitutive Versus the Declaratory Theory of Recognition: Tertium non Datur?, 75 Brit. Y. B. Int'l L. 101 (2005)Google Scholar.

149 Namibia, supra note 51, at 56, ¶ 122.

150 Id. at 56, ¶ 125.

151 See, e.g., G.A. Res. 2871 (XXVI), supra note 54.

152 Cf. Orakhelashvili, supra note 8, at 184.

153 Armed Activities (separate opinion of Judge Kooijmans), supra note 6, ¶ 58 but also see ¶ 60. This clear statement appears to be in conflict with the one previously quoted.

154 Id. (declaration of Judge ad hoc Verhoeven), supra note 6, ¶ 4. This statement can be reconciled with his statement on the illegality of all consequences of the violation of the prohibition on the use of force because he applies to the occupant only the obligations under international humanitarian law, and not the rights.

155 See, e.g., the obligations listed in Fourth Geneva Convention, supra note 35, arts. 27, 38, 39, 40, 50, 55, 56, & 59.

156 Armed Activities, supra note 6, ¶ 147.

157 Falk & Weston, supra note 33, at 148.

158 The Nuremberg tribunal expressly affirmed right to collect tax and requisition. Roberts, supra note 4, at 293-94.

159 This is hardly surprising given that there were no acknowledgements of occupation with the mentioned exception of Israel.

160 Which does not even declare the illegality of the occupation.

161 G.A. Res. 2949 (XXVII), operative ¶ 8, U.N. GAOR, 27th Sess., Supp. No. 30, U.N. Doc. A¶8730, (Dec. 8, 1972).

162 Namibia, supra note 51, at 56, ¶ 125.

163 Some states do not recognize Israel. No state recognizes the annexation by Israel of East Jerusalem and the Golan Heights. But no state recognizes Israel yet refuses to recognize its occupation over the West Bank.

164 See, e.g., Namibia, supra note 51.

165 See, e.g., G.A. Res. 2678 (XXV), operative ¶ 11, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (Dec. 9, 1970); S.C. Res. 674, supra note 99, prmbl. ¶¶ 3 and particularly 5; G.A. Res. 35/122E, supra note 67, operative ¶¶ 1-3, G.A. Res. 45/83A, supra note 68, prmbl. ¶¶ 11.

166 G.A. Res. 2949 (XXVII), supra note 161, operative ¶¶ 7-8.

167 Armed Activities (separate opinion of Judge Kooijmans), supra note 6, ¶ 60.

168 On the birth of this practice Ciobanu, Dan, Credentials of Delegations and Representation of Member States at the United Nations, 25 Int'l Comp. L. Q. 351 (1976)CrossRefGoogle Scholar.

169 With respect to South Africa, emphasis was put on the policy of apartheid within South Africa. With respect to Israel, the attempt was first made in 1982, following the First Lebanon War. Halberstam, Malvina, Note, Excluding Israel from the General Assembly by a Rejection of its Credentials, 78 Am J. Int'l L. 179 (1984)CrossRefGoogle Scholar.

170 The dispute was only resolved in 1991 with the signing of the Paris Treaty, terminating the civil war in Cambodia.

171 For a detailed chronology and discussion of these events see Ben-Naftali, Orna & Axenidou, Antigoni, “Accredito” Ergo Sum: Reflections on the Question of Representation in the Wake of the Cambodian Representation Problem in the Fifty-Second Session of the General Assembly, 27 Denv. J. Int'l L. & Pol'y 151, especially 178–84 (1998–1999)Google Scholar.

172 Warbrick, Colin, Kampuchea: Representation and Recognition, 30 Int'l Comp. L. Q. 234, 245 (1981)CrossRefGoogle Scholar.

173 Wall Advisory Opinion, supra note 34, at 194, ¶ 139.

174 Which she characterizes as an illegal occupant because of its illegal use of force, Gray, supra note 7, at 102.

175 Id.

176 1970 Declaration principle 1 ¶ 7, Definition of Aggression, supra note 64, pmbl. ¶ 6.

177 Cf. Benvenisti, supra note 3, at 187.

178 In that self-determination is not regarded as grounds for disrupting territorial integrity except under exceptional circumstances. Shaw, Malcolm, Peoples, Territorialism and Boundaries, 8 Eur. J. Int'l L. 478 (1997)CrossRefGoogle Scholar. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 127.

179 At least when it concerns a self-determination unit Crawford, supra note 13, at 115.

180 Cassese, supra note 7, at 55.

181 Gray, supra note 7, at 101. For statements see, e.g., Security Council, Provisional Verbatim Record, 2607th mtg., France, at 10, ¶ 127:

We cannot accept the pretexts put forward by the South African Government, according to which this attack is to be viewed as preventive action against the forces of SWAPO. They do not threaten the territory of South Africa, and nothing authorizes Pretoria to conduct military operations in Angola in the name of the inhabitants of Namibia[.]

Similarly U.S., at 11 ¶130: “[W]e are not sympathetic to South African assertion of any right to conduct military expeditions into Angola under the theory of defending its illegal presence in Namibia.” And see also the statement by Trinidad and Tobago, at 5, ¶ 47, U.N. Doc. S/PV.2607 (Sept. 20, 1985).

182 Dinstein, supra note 20, at 197.

183 Id. at 178.

184 See Benvenisti, supra note 3, at 216.

185 Leaving aside the question whether non-state entities have such a right. Cf. Falk & Weston, supra note 33.

186 The debate was almost revived following the U.S. and U.K.'s occupation of Iraq in 2003. However S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003) confirmed that the occupation of Iraq does not entitle the local population to struggle against it. Whether this is a basic principle of the contemporary law on occupation as argued by Benvenisti, supra note 10, at 37, or simply an instruction by the Security Council, depends largely on one's interpretation of the role of the Security Council in shaping international law.

187 Namibia (separate opinion of Vice-President Ammoun), supra note 51, at 90, ¶ 12. But note that Article 51 does not expressly require the attack to be unlawful for the triggering of the right to self-defense.