International Law of Occupation by Benvenisti, Eyal -- Read -- Imperial Library of Trantor

Index

Cover Page Title Page Copyright Page Dedication Contents Preface List of Abbreviations Table of Cases 1. Introduction

1.1 The Concept 1.2 Challenges to the Law of Occupation 1.3 Legal Sources

1.3.1 Laws of international armed conflict 1.3.2 Human rights law 1.3.3 Law on the use of force, sovereignty, and self-determination: The “illegal occupation” 1.3.4 The law on state responsibility 1.3.5 Additional sources

1.4 Conclusion

2. Origins: The Evolution of the Concept of Occupation in the Eighteenth and Nineteenth Centuries

2.1 The Evolution of a Concept

2.1.1 The intellectual roots of an emerging European concept 2.1.2 The principle of humanity: The obligation to protect the property of enemy civilians 2.1.3 Enter national self-determination: “Occupation” becomes distinct from “conquest”

2.2 The Transformation of the Concept of Occupation into European and International Law

2.2.1 The doctrine on occupation arrives in the United States 2.2.2 Meanwhile in Europe: The Franco-Prussian War and its aftermath 2.2.3 Different conceptions of occupation beyond Europe

2.3 Conclusion

3. The Characterization of Occupation

3.1 Spatial Scope

3.1.1 Control of the land 3.1.2 A personal approach as an additional test 3.1.3 “Virtual occupation”? 3.1.4 Maritime resources and airspace

3.2 Temporal Scope

3.2.1 When occupation begins 3.2.2 When occupation ends 3.2.3 Pre-and post-occupation obligations

3.3 Occupation by Whom?

3.3.1 Who is a foreign power (the “hostile army”) 3.3.2 Occupation in a non-international armed conflict? 3.3.3 Occupation by proxies 3.3.4 UN-led occupations

3.4 The Lack of Sovereign Consent

4. The Law on the Administration of Occupied Territories

4.1 Background: Three Different Approaches to Regulate an Inherent Conflict of Interests

4.1.1 Article 43: “A seeming legal paradise” 4.1.2 Article 64 GCIV: Focusing on human welfare 4.1.3 The human rights dimension

4.2 The Scope of the Occupation Administration

4.2.1 Generally 4.2.2 The management of natural resources 4.2.3 The external relations of the occupied territory 4.2.4 The occupant’s forward-looking and post-occupation obligations

4.3 Stability versus Change: The Level of Respect for the Legal Status Quo

4.3.1 Article 43 Hague Regulations 4.3.2 Article 64 GCIV 4.3.3 Human rights

4.4 The Rights and Duties of the Ousted Government 4.5 Nationals of the Occupying Power

5. Occupations During and After World War I: Early Challenges to the Traditional Law of Occupation

5.1 The German Occupation of Belgium, 1914–18

5.1.1 Reorganization and regulation of the Belgian economy 5.1.2 Changes in the court system 5.1.3 Restructuring the Belgian political structure 5.1.4 Reactions to German occupation measures 5.1.5 The law of occupation in light of the occupation of Belgium

5.2 The Armistice Occupation of the Rhineland

5.2.1 Occupation policies 5.2.2 The German reaction 5.2.3 The law of occupation in light of the Armistice Occupation

6. The Law of Occupation in the Wake of World War II

6.1 Occupations by the Axis Powers

6.1.1 Japanese occupations 6.1.2 Italian occupations 6.1.3 German occupations 6.1.4 Occupations by the Soviet Union, 1939–40 6.1.5 The Finnish occupation of Eastern Karelia 6.1.6 The relevance of the Axis and Soviet occupations to the law of occupation: The status of illegal occupations

6.2 Allied Occupations during World War II

6.2.1 British occupation of African territories 6.2.2 The first US occupation of the war: French North Africa 6.2.3 Aftermath: The changing US attitude toward the administration of occupied territories 6.2.4 Unconditional surrender and debellatio: The occupations of Germany and Japan 6.2.5 Application and critique of the debellatio doctrine

6.3 The Law of Occupation in the Wake of World War II: The Surprising Resilience of the Doctrine on Occupation

7. Occupations Since the 1970s

7.1 Introduction 7.2 Annexation: Kuwait, Western Sahara, and East Timor

7.2.1 The Iraqi occupation of Kuwait (1990) 7.2.2 The Moroccan occupation of Western Sahara (1975) 7.2.3 The Indonesian occupation of East Timor (1975–99)

7.3 Externally Imposed Regime Change: The Occupations of Afghanistan (by USSR), Grenada, and Panama

7.3.1 The Soviet intervention in Afghanistan (1978–88) 7.3.2 The US intervention in Grenada (1983–84) 7.3.3 The US intervention in Panama (1989)

7.4 Facilitating Internal Regime Change: Cambodia, Afghanistan (by a US-led Coalition), Bangladesh, Cyprus, Georgia

7.4.1 The Vietnamese occupation of Cambodia (1979–89) 7.4.2 The US-led “coalition” occupation of Afghanistan (2001–02) 7.4.3 India’s involvement in the creation of Bangladesh (1971) 7.4.4 The Turkish invasion of Cyprus and the establishment of the Turkish Republic of Northern Cyprus (1974–) 7.4.5 The Russian occupations in Georgia (2008–) 7.4.6 General observations on humanitarian and self-determination occupations

7.5 Security Zones: Israel in Lebanon, US-led Coalition in South/North Iraq, Turkey in North Iraq, and Uganda in Congo 7.6 Conclusion

8. The Israeli Occupation of the West Bank and Gaza

8.1 The Status of the Territories Occupied by Israel since 1967

8.1.1 East Jerusalem 8.1.2 The West Bank and Gaza 8.1.3 The Israeli-Palestinian Interim Accords and their legal significance

8.2 The Actual Administration of the West Bank and Gaza

8.2.1 Institutional infrastructure 8.2.2 Legislation 8.2.3 Administration 8.2.4 The court system 8.2.5 The Israeli Supreme Court

8.3 1967–93: Integration of the Territories with Israel

8.3.1 Specific integrative measures 8.3.2 Extending the jurisdiction of the Israeli civil courts to transactions in the occupied territories 8.3.3 The Jewish settlements and their integration into Israel

8.4 1993–Onward: Segregating the Palestinian Population 8.5 Assessment According to the Law of Occupation

8.5.1 The settlements 8.5.2 The economic union 8.5.3 Long-term occupations and the law of occupation 8.5.4 Is there an obligation to end the occupation? 8.5.5 Changes in the occupant’s powers during long-term occupations

9. The Occupation of Iraq 2003–05

9.1 The Timeframe of the Occupation in Iraq

9.1.1 Pre-occupation responsibilities? 9.1.2 The beginning: When Iraq became occupied 9.1.3 The end of occupation 9.1.4 Post-occupation responsibilities

9.2 The Exercise of Authority by the Occupants in Iraq

9.2.1 Abolishing the existing political and military institutions 9.2.2 Amendments to criminal law and criminal procedure 9.2.3 Changes to the court system 9.2.4 Human rights legislation 9.2.5 Economic reforms 9.2.6 Good governance 9.2.7 Management of natural resources 9.2.8 The transition to democracy

9.3 Evaluation

9.3.1 The occupation of Iraq in light of the law of occupation 9.3.2 The law of occupation in light of the occupation of Iraq

10. The Administration of Territory by the United Nations: The Case of UNMIK in Kosovo

10.1 Introduction 10.2 Case study: Kosovo

10.2.1 The exercise of legislative, executive, and judicial powers by the SRSG 10.2.2 Accountability mechanisms 10.2.3 Assessment

10.3 Conclusion: Recognizing the Responsibility to Occupy

11. The Law on Post-Occupation: The Lasting Effects of the Occupant’s Legislation

11.1 First Period: Until World War II 11.2 Second Period: The Advent of the GCIV “Grave Breaches” Regime and Human Rights Law

11.2.1 Case study 1: Germany 11.2.2 Case study 2: Cyprus

11.3 Discussion 11.3.1 The distinction between the primary norms of the law of occupation and the secondary norms

11.3.2 Considerations in balancing the respective interests

11.4 Conclusion

12. Enforcement Mechanisms for Compliance with the Law of Occupation

12.1 Enforcement through Adjudication

12.1.1 Direct and indirect judicial review of the legality of the occupation or of occupation policies 12.1.2 Civil suits for compensation 12.1.3 Criminal proceedings

12.2 Enforcement through International Institutions

12.2.1 Protecting powers 12.2.2 United Nations bodies 12.2.3 Missions and Commissions 12.2.4 Transparency

12.3 Conclusion

13. Conclusion Bibliography Index Footnote

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