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Illegal Occupation: Framing the Occupied Palestinian Terrority - By Orna Ben-Naftali, Aeyal M. Gross & Keren Michaeli
 

 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1098483

1 of 1 DOCUMENT

Copyright (c) 2005 Berkeley Journal of International Law

Berkeley Journal of International Law

2005

23 Berkeley J. Int'l L. 551

LENGTH: 31907 words

ARTICLE: Illegal Occupation: Framing the Occupied Palestinian Terrority

NAME:

By Orna Ben-Naftali, Aeyal M. Gross & Keren Michaeli*BIO: * Orna Ben-Naftali is a senior lecturer at the Law School, The College of Management, Academic Studies in

Tel-Aviv; Aeyal Gross is a senior lecturer at Tel-Aviv University Law Faculty; and Keren Michaeli is a senior research

fellow at the Law School, The College of Management, Academic Studies in Tel-Aviv. Earlier versions of this paper

were presented in the following conferences, and the authors wish to thank their participants for their helpful comments:

the Inaugural Conference of the European Society of International Law (International Humanitarian Law Agora)

(Florence, 13-15 May 2004); the Heinrich Boll Foundation, Annual Foreign Policy Conference on the Role of

International Law and the United Nations (Berlin, 24-25 May 2004); and the Conference on Democracy and

Occupation, held at the Concord Center for the Interplay Between International Law and National Law, the Law School,

The College of Management Academic Studies in Tel-Aviv (6-8 June 2004). The authors are grateful to Yuval Shany

for his comments on an earlier draft of this article. The authors also wish to thank the editors of the Berkeley Journal of

International Law, and in particular Robert da Silva Ashley, Thomas W. Walsh, Alessandra Pelliccia, and Andrea

Lindemann, for their helpful work on this article.

SUMMARY:

... A. The Missing Question of the Legality of an Occupation Is the continued Israeli occupation of the Palestinian

territory conquered in 1967 legal or illegal? We explore this question in this Article. ... This is the nature of the Israeli

occupation of the Occupied Palestinian Territory (OPT). ... The occupying power assumes responsibility for managing

the occupied territory to prevent chaos for the duration of the occupation. ... This may also be said with regard to

paragraph 6 of Article 49, which prohibits the settlement of the occupant's nationals in the occupied territory. ... In

conclusion, the very same actions which indicate that the occupation can no longer be regarded as temporary also

disclose the violation of the substantive constraints imposed by the law of occupation on the managerial discretion of

the occupying power; they amount to a de facto annexation of large portions of the occupied territory and entail gross

violations of humanitarian and human rights norms and defy both the principle of the inalienability of sovereignty and

the principle of trust. ...

HIGHLIGHT: ... If all time is eternally present

All time is unredeemable.

What might have been is an abstraction

Remaining a perpetual possibility

Only in a world of speculation.

T.S. Eliot, Burnt Norton

TEXT:

Page 1

[*551]

I.

Introduction

A. The Missing Question of the Legality of an Occupation

Is the continued Israeli occupation of the Palestinian territory conquered in 1967 legal or illegal? n1 We explore this

question in this Article. Curiously, amongst the wealth of legal writings on various aspects of this occupation, most

concern Israel's compliance or noncompliance with its obligations as an occupying
[*552] power; virtually no attention

has been paid to the question of the legality of the occupation itself. n2

Indeed, when the Secretary-General of the United Nations, in a statement to the Security Council on March 12,

2002, called on Israel to "end the illegal occupation," n3 critics accused him of engaging in a "redefinition of the Middle

East conflict ... . A new and provocative label of "illegality' is now out of the chute and running loose." n4 This genie,

however, was soon put back in the bottle, when the spokesman for the Secretary-General clarified that the word

"illegal" referred to Israel's refusal to accept the legal obligations that the status of an occupying power entails and to its

actions running contrary to these obligations, actions that both the Security Council and the General Assembly have

declared illegal. n5 The discourse thus appeared to resume its habitual focus on specific actions undertaken within the

occupation, as distinct from the nature of the occupation as a normative regime. Even the recent advisory opinion

rendered by the International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, n6 while critical of both this construction and the related settlement enterprise, and decreeing their

illegality, still focused on specific actions by Israel without questioning the legality of the occupation regime as such.

The virtual immunity from critical discussion conferred on the regime of this occupation cannot be explained away

on political grounds. Indeed, the Israeli occupation has been subject to a widespread political and moral critique, both

internationally and domestically. The reason lies in the perception of the occupation as a factual, rather than a

normative, phenomenon. Thus posited, the fact of occupation generates normative results - the application of the

international laws of occupation - but in itself does not seem to be part of that, or any other, normative order.

One might understand this practically axiomatic perception in three ways. First would be to conceive of the

phenomenon of occupation as a fact of power,
[*553] a kind of Grundnorm, which itself is grounded in an extra-legal

domain. n7 A second alternative is to situate the phenomenon as legally permissible absent a norm prohibiting

occupation. n8 A third option is to identify a norm that governs the phenomenon, differentiating between a legal and an

illegal occupation. This identification involves a legal construction relating to both the normative order an occupation

generates and to the normative order that generates the legal regime of occupation.

The first two perspectives presuppose an answer to the question this article seeks to answer, but each is

problematic. The barren beauty of Kelsian formalism, underlying the first option, offers a vision of law far too narrow

to account for the substantive interaction of form with function, structure with substance, fact with norm, and power

with law. n9 The splendid "majesty of law," n10 implicit in the second option, is equally deceptive by purporting to

subject power to law in a manner that may well disregard the many other ways and means of their interaction. n11 Both

perspectives thus generate the same troubling results: international law becomes an apology for power, n12 and the very

phenomenon of occupation is excluded from a critical legal review. Such exclusion is an invitation for excessive power.

This article posits the third approach. This approach locates the occupation within a normative framework that

differentiates between legality and illegality and may both resolve the specific question of the legality of the Israeli

occupation and redefine the contours of the legal discourse on occupation.

B. The Thesis and Structure of the Article

Page 2

23 Berkeley J. Int'l L. 551, *551

The underlying principle of the international legal order rests on a presumption
[*554] of sovereign equality between

states. n13 Current international law understands sovereignty to be vested in the people, giving expression to the right to

self-determination. n14 Analytically, the phenomenon of occupation challenges this standard order by severing the link

between sovereignty and effective control in the occupied territory. n15 This exceptional situation is thus not merely

factual, it is also normative because it exists only by virtue of the norm's suspension. n16

The international law of occupation enters the picture signifying both the need to distinguish between order and

chaos and the need to distinguish between orders: between the rule and the exception. In distinguishing between order

and chaos, the function of international law is to manage the situation; to eliminate chaos through control of the

exceptional situation. In distinguishing between orders, its function is to create an orderly space which is defined by its

exceptionality - by its suspension of the rule.

We argue that the legality of the phenomenon of occupation, as it relates to the function of managing the situation,

is to be measured in relation to three fundamental legal principles:

(a) Sovereignty and title in an occupied territory are not vested in the occupying power. The roots of this principle

emanate from the principle of the inalienability of sovereignty through actual or threatened use of force. Under

contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the

population under occupation. n17

[*555]

(b) The occupying power is entrusted with the management of public order and civil life in the territory under control.

In view of the principle of self-determination, the people under occupation are the beneficiaries of this trust. The

dispossession and subjugation of these people violate this trust. n18

(c) Occupation is temporary. n19 It may be neither permanent nor indefinite.

These principles, as we will show, interrelate: the substantive constraints on the managerial discretion of the occupant

elucidated in principles "(a)" and "(b)" generate the conclusion in "(c)" that occupation must necessarily be temporary.

Violating the temporal constraints expressed in principle "(c)" cannot but violate principles "(a)" and "(b)," thereby

corrupting the normative regime of occupation in the sense that an occupation that cannot be regarded as temporary

defies both the principle of trust and of self-determination. The violation of any one of these principles, therefore, unlike

the violation of a specific norm that reflects them, n20 renders an occupation illegal per se. This is the nature of the

Israeli occupation
[*556] of the Occupied Palestinian Territory (OPT). Section II.A: Intrinsic Dimensions of the Israeli

Occupation of the OPT, substantiates this argument.

We further argue that the legality of occupation, in its function to create an orderly space that is nevertheless

distinct from the normal political order of sovereign equality between states, is to be measured by its exceptionality:

once the boundaries between the normal order (i.e., sovereign equality between states) and the exception (i.e.,

occupation) are blurred, an occupation becomes illegal. The nexus between the two functions is clear: an occupation

that is illegal from the perspective of managing an otherwise chaotic situation is also illegal in that it obfuscates the

distinction between the rule and its exception. Yet, the distinction between these two forms of illegality is important; the

former is grounded in the intrinsic principles of the law of occupation, while the latter is extrinsic to this law and

delineates its limits. The Israeli occupation of the OPT is illegal both intrinsically and extrinsically. Section II.B:

Extrinsic Dimensions of the Israeli Occupation of the OPT, substantiates this argument.

Page 3

23 Berkeley J. Int'l L. 551, *553

The concluding section (III) of this article focuses on the indeterminacies of this occupation as reflecting both its

essential feature and its legitimizing mechanism, and proceeds to consider the normative consequences of an illegal

occupation.

It is worthwhile to recall that the ICJ has already determined the illegality of one historic occupation: the presence

of South Africa in Namibia following the revocation of the mandate by the General Assembly. n21 The Court started

with the historical fact of South Africa's presence in Namibia (then called South
[*557] West Africa) and then

proceeded to deduce the illegality of that continuing presence from various pertinent components that had characterized

this fact. n22

Our inquiry proposes to complement this type of historical approach with an analytical perspective that focuses on

the legal and political structure of the phenomenon of occupation. We hope that this discussion will advance the current

discourse on the legality of occupation regimes.

C. Current Discourse on the Legality of Occupation Regimes

The current discourse on the legality of occupation regimes is in dire need of development and articulation. The

occupation of Iraq indicates that the phenomenon of occupation, far from becoming obsolete, is revived. It now claims

legitimacy on the basis of purposes inherently at odds with belligerent occupations; that is, the liberation of a people

from an abusive regime. n23 At the same time, the little discussion the issue has generated thus far seems both polarized

and lacking specificity. Thus, the inherent tension between the right to self-determination and the legality of occupation

has led Antonio Cassese to conclude that "self-determination is violated whenever there is a military invasion or

belligerent occupation of a foreign country, except where the occupation - although unlawful - is of a minimal duration

or is solely intended as a measure of repelling, under Article 1 of the UN Charter, an armed attack initiated by the

vanquished Power and consequently is not protracted." n24 This view, then, regards all occupations as inherently

unlawful, but admits that the legitimacy of the initial act - the use of force in self-defense - may provide a legal

justification for an occupation's existence, subject to a strict, albeit unspecified, temporal limitation. n25

[*558] A different position, recently advanced by Eyal Benvenisti, posits that the notion of "illegal occupation"

could amount to "major qualifications if not a revolution in the law of occupation." n26 This notion, observes

Benvenisti, has its roots in various international documents, wherein an occupation was grouped together with unlawful

modalities of governance such as colonialism and apartheid. n27 The latter, however, should not be read as advocating

the outlawing of the modality of occupation in its entirety. Rather, only an occupant who uses this modality as an

indefinite grant of power and refuses to negotiate its withdrawal "abuses its power and might taint its continuing

presence in the occupied territory with illegality." n28 An occupation that has not been thus abused retains its legal

validity. Support for this limited notion of illegality, says Benvenisti, is found in Security Council Resolution 1483 of

May 22, 2003, which recognized the authorities, responsibilities, and obligations under applicable international law of

the "occupying powers" in Iraq, and called upon "all concerned to comply fully with their obligations under

international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907," n29

thereby reviving the neutral connotation of the doctrine of belligerent occupation and relieving it of its derogatory

undertone. n30

Practice has echoed, to a large extent, this scholarly debate. Thus, the inherent tension between the full enjoyment

of human rights and the situation of occupation has led the Special Rapporteur of the United Nations Commission of

Human Rights, John Dugard, to conclude in one of his Reports on the Violation of Human Rights in the Occupied Arab

Territories that "violations of human rights are a necessary consequence of military occupation." n31 Israel understood

this conclusion to imply that, "while military occupation may not itself be inherently illegal, it necessarily leads to

violations of human rights, and so presumably must be illegal, if not directly then at least indirectly. This remarkable

legal thesis contravenes the entire body of humanitarian law dealing with belligerent
[*559] occupation." n32

The polarization evinced by the above positions underscores the need to clarify and develop the legal discourse and

Page 4

23 Berkeley J. Int'l L. 551, *556

to refine the criteria by which we measure the legality of an occupation. Torn between the position that all occupations

are inherently illegal and the position that an occupation is a neutral fact that defies any such characterization, the

criteria that have been advanced in this context seem to focus on either the legitimacy of the initial act of occupation or

on the legality of specific actions undertaken during the course of an occupation. The discussion further seems to refer

to the duration of occupation but fails to specify or otherwise qualify this reference.

We propose to advance the discussion by positing that an occupation, while neither initially nor inherently illegal,

is not neutral. Occasioned by, and extending the use of force - regardless of its initial justification and notwithstanding

the prohibition on this use n33 - it is to be viewed and monitored critically, lest the much necessary law of occupation

becomes a shield for the violation of its own extrinsic purpose and intrinsic principles. The specification of this purpose

and these principles provide adequate criteria for determining the legality or illegality of any specific occupation. Lack

of such criteria may well generate a legitimizing effect allowing this precarious, albeit not necessarily illegal, situation

to indeed become illegal.

II.

The Legal Matrix of Occupation

A. Intrinsic Dimensions of the Israeli Occupation of the OPT: the Norms of Occupation

The Israeli occupation of the OPT violates the three basic tenets of the normative regime of occupation and is,

therefore, intrinsically illegal. This section discusses the basic principles informing this normative regime and then

applies them to the Israeli occupation. Sub-section (1), The Evolving Concept of
[*560] Occupation, discusses the

major cornerstones in the development of this normative regime and the extent of their applicability to the occupation at

hand. Sub-section (2), Occupation Suspends Sovereignty, focuses on the first basic tenet of this regime, that is, that

occupation does not confer title. Sub-section (3), Trust Matters, discusses the second basic principle of the normative

regime of occupation, according to which an occupation regime is a form of trust under which the occupant, without

forsaking its own security interests, is nevertheless obligated to act as a trustee on behalf of the occupied population.

Sub-section (4), Right on Time, is concerned with the last basic principle of the normative regime of occupation, which

decrees that an occupation must be temporary, as distinct from indefinite. In each sub-section, the normative

conclusions generated by the discussion are then applied to the Israeli occupation of the OPT.

1. The Evolving Concept of Occupation

(a) Defining the Phenomenon of Occupation

The phenomenon of occupation is currently defined as "the effective control of a power (be it one or more states or an

international organization, such as the United Nations) over a territory to which that power has no sovereign title,

without the volition of the sovereign of that territory." n34

This widely accepted definition contains three notable features. First, it is expansive so as to cover varied types of

occupation. The rationale behind this expansiveness is clear: the moment an occupation exists, the normative regime of

occupation - which comprises a host of humanitarian rules - applies. This broad definition curbs the defiance of

occupying powers who are reluctant to abide by those rules and deny that the specific situation qualifies as an

occupation. n35 Israel's rejection of the applicability of the Fourth Geneva Convention to the OPT, discussed below,

underscores this point. n36

Secondly, the definition incorporates the principle of the inalienability of sovereignty. This principle is the most

fundamental tenet of the law of occupation in three senses. First, it indicates that occupation does not confer title. n37

Second, it recognizes that the situation of occupation is exceptional, as it deviates from the normal order of sovereign

states insofar as it reflects the suspension of the link between sovereignty and effective control. It is this exceptionality,

in turn, that defines both the substantive and the temporal nature of the relationship between the occupying power and

Page 5

23 Berkeley J. Int'l L. 551, *559

the sovereign. n38 Taken together, these principles demarcate the boundaries of the phenomenon in relation to the

[*561] normal order of the international state system. Finally, the definition notably signifies that the phenomenon of

occupation is currently understood in a manner quite distinct from its original conception. The remaining part of this

sub-section describes briefly the legal evolution of the concept of occupation and the changing circumstances that have

shaped and re-shaped it.

(b) Historical Development of the Law of Occupation

The evolution of the concept of occupation and the rules attached to it, like the development of the laws of war in

general, reflects the general shift in international law away from a state-centric system toward the recognition and

promotion of the role and rights of individuals. Indeed, the tension between rights of states and rights of individuals is

the hallmark of the laws of war. It is thus unsurprising that early efforts to codify the law of belligerent occupation

primarily concerned the rights and interests of states, often at the expense of individuals. The normative reflection of

this concern found expression in the subjection of principles of humanity to those of military necessity. n39

The Lieber Code, n40 commissioned by President Lincoln for training Union forces during the U.S. Civil War, is

generally credited as the first milestone in the genesis of the law of belligerent occupation. n41 The Code clearly

prioritizes military over humanitarian considerations: while it recognized minimum protection of the civilian

population, n42 it also sanctioned starvation and bombardment of civilians without warning, when military necessity so

required. n43

The first international attempt to codify the law of belligerent occupation took place in Brussels in 1874, where

delegates of seventeen European states convened to draft comprehensive regulations on warfare. n44 This effort

generated a final declaration that was never ratified: the great powers viewed it as "too "humanitarian,'" n45 while the

small nations considered the articles on occupation as detrimental to their interests in calling on their populations for aid

in resisting
[*562] invasions by larger armies. n46

There was, however, some agreement on the definition of occupation. Article 1 of the Brussels Declaration defined

occupation as a territory actually placed under the authority of a hostile army bounded by the territories around which it

could establish and exercise authority. n47 There was no agreement as to the exact meaning of the term "actually placed

under the authority." Article 2 read, "the authority of the legitimate Power being suspended and having in fact passed

into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible,

public order and safety." n48 Thus defined, the concept of occupation mirrored nineteenth century European political

consciousness: war was waged between sovereign states and the protected interests belonged to them. n49 Thus, the

rights of the population took a back seat to the interests of the sovereign. As between states, however, the Brussels

Declaration is notable for recognizing that the situation of occupation is one of suspension: the normal order of the

international society wherein the legitimate sovereign exercises effective authority is suspended in relation to the

occupied territory and population. It is not, however, terminated. The occupying power assumes responsibility for

managing the occupied territory to prevent chaos for the duration of the occupation. This assumption does not, however,

confer sovereignty on the occupier.

The definition of belligerent occupation survived the two subsequent codification projects of the laws of war in The

Hague Conventions and their annexed Regulations. The Conventions were the products of two conferences held at The

Hague in 1899 and 1907, and constituted a comprehensive, albeit incomplete, n50 codex of the laws of war.

The most relevant convention for this discussion is the 1907 Fourth Hague Convention and annexed Regulations,

n51 which by WWII had attained customary status. n52 Article 42 of the 1907 Hague Regulations reiterated verbatim

the definition of belligerent occupation expressed in Article 1 of the Brussels Declaration. n53
[*563] Article 43 of the

1907 Hague Regulations stipulated that "the authority of the legitimate power having in fact passed into the hands of the

occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and

safety/civil life, while respecting, unless absolutely prevented, the laws in force in the country." n54 This provision

Page 6

23 Berkeley J. Int'l L. 551, *560

became the cornerstone for the determination of the nature and scope of the occupant's responsibility. That duty is of a

temporary duration and the occupying power is to manage the territory in a manner that protects civil life, exercising its

authority as a trustee of the sovereign. n55 Further protection of the occupied population was provided by the

Regulations in respect of family honor and the rights to life, private property, and religious convictions and practices.

n56 Pillage n57 and collective sanctions n58 were forbidden. n59

Thus, modern occupation law traditionally recognized and regulated only belligerent occupation characterized by

four main features: (a) the occupation is undertaken by a belligerent state; (b) it is over a territory of an enemy

belligerent state; (c) it occurs during the course of war or armed conflict; and, (d) before any armistice agreement is

concluded. n60 Also, the occupation extends only to those areas over which the occupant exercises effective control.

n61 The assumption underlying this approach is that no other authority exists in the occupied area. n62 Further, control

is measured by the authority's ability to assume the primary responsibility that attaches to an occupying power: the

ability to issue and enforce directives to the inhabitants of the territory, n63 or, in other words, the occupant's

[*564]

ability to have its will prevail everywhere in the territory. n64

This traditional definition of occupation proved unsatisfactory during WWII. For example, in cases where the

occupied states encountered little, if any, armed resistance, or where the territories were not necessarily administered by

the armed forces of the occupant, as was the case with Denmark and Czechoslovakia, the traditional definition of

occupation was inadequate. n65 Furthermore, inadequate protection afforded to the occupied population was painfully

evident throughout the war and highlighted the need for occupation law reforms. n66

The four 1949 Geneva Conventions, of which the fourth Convention is the most relevant for the purposes of this

discussion, were concluded in the light of lessons learned from WWII. n67 The second paragraph of Common Article 2

of the four Geneva Conventions expanded the applicability range of the laws of occupation by including therein that

occupation has taken place even without a declaration of war and without hostilities. n68 Article 4 of the Fourth Geneva

Convention then applies the Convention's provisions to "protected persons" who, either during an armed conflict or

during an occupation, find themselves in the hands of a party to the Convention of which they are not nationals. The

term "in the hands of" applies to persons who are not necessarily in the physical custody of the occupant. Instead, it

pertains to all people present in the territory under the control of the occupant other than its own nationals or the

nationals of its allies. n69 The Fourth Geneva Convention expanded not only the application of the rules of belligerent

occupation, but also the duties incumbent on the occupant with respect to the civilian population, thus constituting a

new and far broader bill of rights when compared to the previous Hague Conventions. n70 Thus, it is the protection of

the occupied civilian population, rather than the facilitation of
[*565] governmental interests, which informs the

Fourth Geneva Convention. n71 This is a clear shift of concern from governments to people. n72

Still, under the Fourth Geneva Convention, the qualifications of situations which constitute occupation require

some nexus to an armed conflict. Further, the Convention seemed to stipulate that the occupied territory should form

part of the territory of another High Contracting Party. n73 Consequently, the rules enumerated in the four Conventions

did not apply to any form of occupation other than belligerent occupation. n74 This also proved unsatisfactory. As the

twentieth century drew to a close, other types of occupation surfaced, and the ever-heightened interest in protecting the

civilian populations required that these new types of occupations also be subject to the provisions of the Fourth Geneva

Convention. n75

(c) The Transition into the Contemporary Law of Occupation: the Growing Significance of Self-Determination

The growing concern for the plight of civilians reflects two paradoxical yet interrelated facets of the latter half of the

last century: the development of the international human rights discourse, and the undeniable recognition of the fact that

wars are being waged against civilians rather than soldiers. n76 The growing significance of the right to

self-determination reflects, to a large extent, an attempt by the international community to take account of both these

developments. Already recognized in the UN Charter, n77 the two International Covenants on human rights, n78

several General Assembly resolutions, n79 and opinions rendered by the ICJ, n80 the right to self-determination

Page 7

23 Berkeley J. Int'l L. 551, *563

produced a wave of international
[*566] approval for the lawful struggle for self-determination of peoples subject to

foreign domination - including occupation. n81

It is against this backdrop that the development in occupation law as articulated in Article 1(4) of the First

Additional Protocol of the Geneva Conventions should be read:

The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against

colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination,

as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning

Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. n82

Article 1(4) was designed to cover occupied territories severed either from a nonparty state or otherwise lacking clear

international status. n83 The drafters of this First Additional Protocol ("Protocol") had, inter alia, the OPT in mind.

Israel and a few other states - most notably, the United States - refused to join the Protocol. n84

The controversy generated by Article 1(4) questioned the customary status of many of the Protocol's provisions n85

and blurred the contours of their application. This was detrimental to the ongoing development of international

humanitarian norms, since the Protocol promoted humanitarian concerns over military necessity. n86 One must not,

however, ignore the influence Article 1(4) has had on the law of occupation. As the Israeli example itself clearly

demonstrates, international
[*567] recognition of the need to apply occupation laws to situations outside traditional

belligerent occupation has taken root in contemporary international law.

(d) Application of the Law of Occupation to the OPT

Israel has long maintained that the Fourth Geneva Convention is not applicable to the occupied territories. n87 This

contention relies on the second paragraph of Article 2 of the Fourth Geneva Convention, according to which, since the

territories did not form part of the territory of a High Contracting Party upon their occupation, the Convention does not

apply. n88 Israel based this argument on Jordan's annexation of the West Bank in 1950, which was recognized by only

Britain and Pakistan. n89 Israel also based this argument on the fact that Egypt never claimed the Gaza Strip as part of

its territory. n90

Israel's position exemplifies the inadequacy of the traditional definition of occupation. The narrow definition allows

exploitation by states attempting to refrain from providing minimal protection to occupied civilian populations. The

Israeli position is also quite telling because it has been so widely rejected, even within Israel itself. n91

The first legal response to the Israeli position is formalistic. First, there is no evidence that the term "territory of a

High Contracting Party," as used in Common Article 2, refers solely to full legal title. Rather, it pertains to a de facto

title of territory. n92 The rationale underlying this argument is that the Convention's drafters did not intend to provide

occupants with discretion to ascertain the validity of title the ousted power had with respect to the territory. n93 Second,

[*568] the first paragraph of Article 2 is the relevant paragraph to apply when an occupation begins during a war, as in

the present case. n94 This is supported by the ICRC's Commentary on Common Article 2 of the Convention. n95

A second line of reasoning is based on the Palestinian right to self-determination. Accordingly, sovereignty lies in

the people, not in a government. The Israeli position is thus untenable because it ignores the possibility that the

Palestinian people constitute the lawful reversioner of the territories. n96 A related argument assumes that title cannot

exist in a vacuum. Whether or not the 1948 Jordanian occupation and subsequent annexation were legal, Palestinians

ultimately allowed the annexation, combining their sovereignty with that of Jordan's, resulting in the territories being

taken from a High Contracting Party. n97

Page 8

23 Berkeley J. Int'l L. 551, *565

Lastly, the third line of reasoning is teleological and focuses on the rights of the occupied population: the rationale

underlying the Fourth Geneva Convention is to ensure protection of the civilian population from a foreign occupying

power. Indeed, for all intent and purposes, Israel is a foreign occupying power of the Palestinian population. The

Convention is part of international humanitarian law, the main purpose of which is protection of local populations

regardless of whether a legitimate sovereign state exists. n98 Therefore, there is no justification for denying a local

population the protections afforded by the Fourth Geneva Convention. n99

[*569] The international community widely embraced the concept of a Palestinian right to self-determination, as

evidenced in the resolutions of the General Assembly n100 and the Security Council. n101 Accordingly, the

international community demanded that Israel apply the Fourth Geneva Convention to the OPT. Israel declared that it

would apply the "humanitarian provisions" of the Convention to the Palestinian territories, n102 a declaration relied

upon by the Israeli High Court of Justice (HCJ) in petitions pertaining to various measures undertaken by Israel in the

OPT. n103

Finally, the ICJ had the opportunity to rule on this issue in its recent Construction of a Wall Advisory Opinion. In

it, the ICJ endorsed the first and third reasoning. n104 Having first opined that, as of 1967, "all these territories

(including
[*570] East Jerusalem) remain occupied territories," n105 it proceeded to conclude that:

The Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between

two or more High Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armed conflict

broke out. The Court accordingly finds that the Convention is applicable in the Palestinian territories which before the

conflict lay to the east of the Green line and which, during the conflict were occupied by Israel, there being no need for

any further enquiry into the precise prior status of those territories. n106

The ICJ discussion in this advisory opinion underscores the rationale for a wider definition of occupation to ensure that

the law of occupation is applied to a broader range of situations. n107 This clearly lends significant legal weight to the

compelling underlying logic in favor of applying the Geneva regime to the occupation in the OPT.

Having determined the relevance of the normative regime of occupation to the issue at hand, we can now proceed

to discuss its essential foundations. "The foundation upon which the entire law of occupation is based," writes

Benvenisti, "is the principle of inalienability of sovereignty through the actual or threatened use of force. Effective

control by foreign military force can never bring about by itself a valid transfer of sovereignty." n108 The rule of

non-recognition, forbidding states to recognize title thus acquired, is the normative consequence of this principle. n109

The following sub-section details this fundamental principle.

2. Suspension of Sovereignty: Occupation Does Not Confer Title

(a) Acquisition of Territory by Force is Impermissible Even If the Force is Used Legally

This basic tenet of the law of occupation rests on and reflects the well-established general international legal principle

that the acquisition of territory by force does not confer a valid title to that territory. n110 This principle holds even if

force is used legally - for example in self-defense - and even if the status of the territory under consideration is disputed.

n111 The rationale behind this
[*571] principle is an obvious manifestation of two fundamental norms of the

international legal order: the prohibition on the use of force and the right to self-determination. n112

It is instructive to note in this context that the rule of non-recognition for the acquisition of title, as distinct from its

prohibition, is not a novel idea. Rather, it was well established when the laws of occupation began to take form, n113 in

an era preceding the prohibition on the use of force.

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23 Berkeley J. Int'l L. 551, *568

Thus, up until the late eighteenth century, international law recognized the right of conquest, "the right of the

victor, in virtue of military victory or conquest, to sovereignty over the conquered territory and its inhabitants." n114

The occupant was considered the absolute owner of the occupied territory and therefore could dispose of it in any way it

saw fit, including by annexation. n115 The premise upon which the laws of war were drafted, however, is that of the

territorial integrity of states. All that was being sought by the laws of belligerent occupation was the maintenance of a

status quo until a final resolution of the dispute was reached between the occupant and the ousted sovereign. It is for this

reason that Article 43 of the Fourth Hague Conventions did not confer sovereign powers on the occupant, but rather

limited its authority to maintain public order and civil life, while "respecting, unless absolutely prevented, the laws in

force in the country." n116 This proviso precluded the annexation of the territory by the occupant. n117 This preclusion

was further clarified in Article 47 of the Fourth Geneva Convention, which emphasized that annexation of an occupied

territory during wartime, before the conclusion of any peace treaty, does not deprive protected persons of the rights

guaranteed by the Convention. n118 Consequently, annexation does not alter the status of the territory or its population.

n119 The latest affirmation of this principle is found in Article 4 of the Protocol, restating that neither occupation of a

territory nor the application of the Protocol's provisions shall affect the legal status of the territory under dispute. n120

The non-recognition rule, however, did not in itself render the acquisition
[*572] of territory completely illegal.

Rather, acquisition has become illegal as a result of gradual renunciation by the international community of the use of

force as an acceptable policy. n121 The principle, enshrined in Article 2(4) of the UN Charter, that "all members shall

refrain in their international relations from the threat or use of force against the territorial integrity or political

independence of any state, or in any other manner inconsistent with the purposes of the United Nations," n122 reflects

one of the most basic principles of international law today.

The unacceptability of territorial acquisition through the use, or threat, of force is thus viewed as a corollary of the

prohibition on the use of force. n123 The rationale behind this derives from the principle of ex injuria jus non oritur

n124 and was succinctly articulated by Robert Jennings: "To brand as illegal the use of force against the "territorial

integrity' of a state, and yet at the same time to recognize a rape of another's territory by illegal force as being itself a

root of legal title to the sovereignty over it, is surely to risk bringing the law into contempt." n125

This formulation leaves open the possibility that a territory occupied through the use of legal force (that is, force

not in violation of Article 2(4) of the UN Charter) may confer title. n126 However, a main feature of Article 2(4) is the

elimination of any potential benefit emanating from the use of force, rendering it an unattractive policy to pursue, and

consequently, the rejection of any type of force utilized as a means of achieving territorial change. n127 Furthermore,

the argument that acquisition of territory by force used in self-defense pursuant to Article 51 of the UN Charter can

confer legal title rests on the dangerous assumption that any extension of a legal use of force is legal. n128 This is

inconsistent with the limits attached to the right of self-defense, namely, that the force used is proportionate to the threat

of immediate danger. As a result, when the threat has diminished, it no longer sustains the right to self-defense.

Therefore, the right to have recourse to self-defense does not include the right to permanently seize the territory of the

attacked. n129 Indeed, Article 51 is an exception to the rule prohibiting the use of force and should be narrowly

construed to limit the right to self-
[*573] defense only as a means to restore the status quo. n130

Finally, the most convincing basis for the rejection of the argument that legitimizes the acquisition of territory

through use of force in self-defense is the frequent inability to distinguish between the aggressor and the victim in a

particular conflict. Wars, and memories of grievances, tend to rest on competing narratives that often defy

aggressor/victim determinations. The Security Council, a political body entrusted with this determination, n131 is

hardly a satisfactory arbitrator of history and of collective consciousness. Thus, differentiation with respect to the

legality of title between one achieved through illegal use of force, and one achieved through a legal use of force rests on

shaky ground, and ultimately undermines the coherence of the rule. n132

The conclusion that no use of force can confer legal title finds support in the UN Declaration on Principles of

International Law Concerning Friendly Relations and Co-operation among States. That document does not distinguish

between legal and illegal uses of force when it states that "no territorial acquisition resulting from the threat or use of

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23 Berkeley J. Int'l L. 551, *571

force shall be recognized as legal." n133 Despite Israel's adamant claim that the 1967 war was pursued in self-defense,

the same rationale underlies the UN Security Council's Middle East Resolution 242, which reiterated the inadmissibility

of the acquisition of territory by war. n134

In sum, the legality of occupation, or lack thereof, cannot be grounded in the determination that an occupation was

occasioned as a result of self-defense. Thus, the debate about the legality of Israel's original action in occupying the

OPT during the 1967 war - a debate reflected in the different narratives which shape the conflict - is irrelevant to the

question with which this paper is concerned. n135 Indeed, even if the Israeli narrative of a war fought in self-defense

was accepted as the shared assumption of the conflict, it is irrelevant to both the determination of the legality of the

continued occupation and to the principle of the inalienability of sovereignty.

Another important conclusion is that the Israeli annexation of East Jerusalem - expanding gradually its boundaries

from 6.5 to 71 square kilometers - is
[*574] illegal. n136 This illegality was affirmed by both the Security Council and

the General Assembly, with the consequence that under international law the area is still considered occupied. n137 The

ICJ's Construction of the Wall Advisory Opinion confirms this conclusion. n138

(b) Occupation Does Not Confer Title In Light of the Principle of Self-Determination

The principle of self-determination complements the principle that use of force cannot confer legal title to territory.

Self-determination informs not only United Nations decisions regarding Israel's annexation of occupied East Jerusalem

and its settlements in the OPT, n139 but also the Security Council's vision of "a region where two states, Israel and

Palestine, live side by side within secure and recognized borders." n140 Underlying this determination is the rationale

that if people, according to Common Article 1(1) of the International Covenants on Human Rights, have the right to

"freely determine their political status," n141 then sovereignty belongs to the people, and no valid title can be

transferred in disregard of the will of the population of the territory. n142 This point was wholeheartedly approved by

the Construction of a Wall Advisory Opinion regarding the de facto annexation of the vast Palestinian territories by way

of settlement establishments and the construction of the Wall by Israel. n143

An occupation, thus, suspends sovereignty insofar as it severs its ordinary link with effective control; but it does

not, indeed it cannot, alter sovereignty. Effective control must be exercised in a manner that accords with the

obligations of the occupying power as a trustee. The meaning of this form of trust is detailed
[*575] in the following

sub-section.

3. Trust Matters: Occupation As a Form of Trust

(a) The Framework of this Trust

Implicit in the principle that occupation does not confer title and that the occupant is vested with the authority, in the

words of Article 43 of the 1907 Fourth Hague Convention, "to take all the measures in his power to restore, and ensure,

as far as possible, public order and safety/civil life, while respecting, unless absolutely prevented, the laws in force in

the country," is the notion of trusteeship. Occupied territories "constitute ... a sacred trust, which must be administered

as a whole in the interests both of the inhabitants and the legitimate sovereign or the duly constituted successor in title."

n144

The framework of the trust consists of two features: the security needs of the occupying power on the one hand and

the maintenance of civil life on the other hand. The trust thus carries with it a potential conflict of interests between

those of the population and those of the occupant. In the nineteenth century's context, where governmental involvement

in the life of the population was minimal, this framework produced two primary rules: the occupant bore the negative

duty of refraining from infringing on the most basic rights of the inhabitants, while the latter possessed the duty of

obedience to the occupant. n145

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23 Berkeley J. Int'l L. 551, *573

With the continued evolution of the law of occupation, the scale began to tip to the side of the inhabitants. The

Fourth Geneva Convention seems to reject the idea that the occupied population was under any international legal

obligation to obey the occupant. n146 In parallel, the Convention considerably expands the protection of the inhabitants,

setting obligations to respect their persons, honor, family life, religious convictions, and customs; to ensure humane

treatment and freedom from discrimination; and, in particular, the protection of women. n147 The Convention also

prohibits the infliction of physical suffering, corporal punishment, medical experiments, collective punishment, pillage,

reprisals, the taking of hostages, deportations, and retroactive criminal legislation and
[*576] punishment. The right of

the occupant to compel the inhabitants to work is restricted. The Convention further imposes positive duties on the

occupant with regard to protecting children, ensuring food and medical supplies, maintaining hospitals, providing

certain due process rights, and providing certain rights of imprisoned persons. n148 The Convention also restricts the

right of the occupant to detain protected persons and stipulates substantial protection for detainees. n149

The expanded protection of the inhabitants culminates with the currently prevailing view that international human

rights law applies concurrently with international humanitarian law to occupied territories: the latter is the lex specialis,

but the former applies either in cases of lacunae or for interpenetrative purposes. n150 Indeed, the longer the

occupation, the heavier the weight to be accorded to the human rights of the occupied population. n151 The

inseparability of human rights guarantees from the concept of trust rests at the heart of the ICJ advisory opinion

concerning the Legal Consequences of the Continued Presence of South Africa in Namibia. The Court construed the

relationship between South Africa and Namibia as a "sacred trust" n152 and found South Africa's continued

infringement of the rights and well-being of the inhabitants of Namibia to destroy
[*577] "the very object and purpose

of that relationship." n153 Therefore, the Court held the UN General Assembly's termination of the mandate to be valid

and the continuing presence of South Africa in Namibia - a presence which thereafter was a foreign occupation n154 -

to be illegal. n155

It is interesting to note in this context that the Court reiterated this position in its recent Construction of a Wall

Advisory Opinion. In the part of the opinion dealing with the status of the OPT, the Court narrates the history of the

conflict, the roots of which are described as follows: "Palestine was part of the Ottoman Empire. At the end of the First

World War, a class "A" Mandate for Palestine was entrusted to Great Britain by the League of Nations." n156 The

Court recalled that, in its 1950 opinion on the International Status of South West Africa, n157 it held that "two

principles were considered to be of paramount importance" with respect to territories that were placed under the

Mandate system: "the principle of non-annexation and the principle that the well-being and development of ... peoples

[not yet able to govern themselves] formed "a sacred trust of civilization.'" n158

The Court returned to this point in a later part of the opinion concerned with determining the relevant international

legal rules applicable to the issue at hand. Recalling its 1971 opinion on the Continued Presence of South Africa in

Namibia, the Court stated that "current developments in international law in regard to non-self governing territories ...

made the principle of self-determination applicable to all [such territories] ... . These developments leave little doubt

that the ultimate objective of the sacred trust ... was the self-determination of the people concerned." n159 What the

Court seemed to be doing, then, was to construct the concept of a "sacred trust," the origins of which were rooted in the

Mandate system, as the common denominator of all situations where people are not self-governing, occupation

included. That construction is facilitated by the historical fact that Palestine was a Mandate territory, and that the roots

of the Israeli-Palestinian conflict rested in the dissolution of the Mandate. This construction enabled the Court to

emphasize not only the principle of self-determination, but also the related notion of a "sacred trust" as applicable to the

OPT. n160

The trust, especially one emanating from a belligerent type of occupation
[*578] rather than from a mandate, does

not abrogate the security interests of the occupying power. n161 The Convention explicitly provides exceptions to some

of the guarantees afforded to the population, based on military necessity and conditions. n162 Furthermore, the

occupant is allowed to take measures against protected persons in the form of promulgating penal laws n163 and

assigning residence n164 and internment. n165 That being said, such authority seems to have fallen out of favor in

recent years in light of pronouncements by the international community endorsing the right of an occupied population to

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23 Berkeley J. Int'l L. 551, *575

rise against the occupant in its pursuit of self-determination. n166 Security measures are thus subject to careful scrutiny.

The balance between humanitarian and human rights concerns - pouring content into the notion of trust, on the one

hand, and military necessity, delimiting but never substituting this trust on the other hand - is thus a hallmark of the

current law of occupation. The working assumption behind this arrangement is that an occupation is of a relatively short

duration. n167 The restriction on the occupant's authority to amend the laws of the country so as to make necessary

reforms, which might be called for throughout the years, underscores this point. In long-term occupations, the result

may well be the stagnation of all aspects of life: economic, political, cultural, and social existence, with harsh

consequences for the population. It is, in fact, hard to reconcile such an outcome with the occupant's general duty to

ensure civil life in the occupied territory. n168 Furthermore, the longer the occupation lasts, the higher the likelihood of

an uprising by the population, acting in pursuit of its right to self-determination. This, in turn, is likely to generate

stricter security measures by the occupant, to the detriment of the population. The net result would thus be less, rather

than more, weight given to the humanitarian and human rights concerns of the population, especially in the event of an

unsuccessful uprising. The trust then would be sacrificed at the
[*579] altar of the interests of the occupying power in

maintaining its hold over the occupied territory. Such indeed is the sorry story of the Israeli occupation of the OPT.

n169

(b) Application of the Framework to the OPT

The story of the occupation is inseparable from the settlement enterprise. The latter generates both the dispossession of

and the discrimination against the Palestinians and signifies Israel's breach of the trust contemplated by the normative

regime of occupation. In order to substantiate this argument, the remaining part of this section discusses the genesis of

the settlements and the debate concerning their legality. We then focus on various consequences of the settlements'

construction and maintenance, including the confiscation of land, the existence of two separate legal systems in the area,

operating along ethnic lines, and the effects of such actions on the daily life of the occupied population. While the Devil

may well be in the details, for the purposes of this discussion, we are less concerned with specific violations of the law

of occupation occasioned by any particular action - violations that have attracted attention elsewhere in the relevant

literature - but, rather, with identifying the basic structure and nature of this occupation regime.

(i) The Settlements

Immediately following the 1967 war, the Labor government then in power initiated the settlement project based

ostensibly on security considerations. n170 When the Likud Party formed a government in 1977, the security motive

gave way to an ideological claim to the entire OPT, based on historical and religious grounds. The settlements

enterprise thus became a "holy work" which Prime Minister Shamir, who took office after Begin in 1983, vowed to

pursue. n171 That year, the Ministry of Agriculture and the World Zionist Organization, a quasi-governmental

organization entrusted with furthering the political objectives of Zionism, jointly prepared a master plan for the

development of the settlements designed "to achieve the incorporation (of the West Bank) into the (Israeli) national

system." n172 A comparison between its details and current realities indicate a high degree of geographical, if not

demographical, materialization. n173 This has been achieved by a dual Israeli policy of land expropriation from the

[*580] Palestinians and economic incentives to the settlers. n174 As a result of this policy, there are at present some

120 settlements in the West Bank with over 230,000 settlers. The much ado about the recent withdrawal from the Gaza

Strip involved the dismantlement of a mere 16 settlements and the evacuation of less than 10,000 settlers. About

180,000 settlers live in the neighbourhoods of the expanded area of East Jerusalem. n175 The population growth in the

settlements is three times that of Israel. n176

The land upon which the settlements are built in the West Bank, in addition to adjacent confiscated land, settlement

bypass roads, and other land controlled by the military, amount to 59% of the West Bank. The settlements and the

bypass roads connecting them to each other as well as to Israel have divided the West Bank into some 60

non-contiguous zones. East Jerusalem is severed from the rest of the West Bank. n177

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23 Berkeley J. Int'l L. 551, *578

[*581]

(ii) Dispossession: Violations of the Law of Occupation Generated as a Result of the Settlements

The legal debate concerning the Israeli settlements has focused primarily on Article 49 paragraph 6 of the Fourth

Geneva Convention, which prohibits the occupant from transferring parts of its own civilian population into the territory

it occupies. n178 The Israeli government has always maintained that the prohibition does not include voluntary transfer

by citizens to occupied territories because it was informed by, and should be interpreted in light of, the policies

practiced by Germany during WWII, to which the Israeli policy cannot be compared. n179 This position is not entirely

consistent with the ICRC commentary on the Fourth Convention, according to which the intent of this provision was to

maintain a general demographic status quo in occupied territories. n180 Further pronouncements by the Parties to the

Convention rejected the Israeli interpretation by declaring the settlements as a breach of Article 49 paragraph 6. n181

This situation prompted the adoption of a different version of this prohibition in Article 8(2)(b)(viii) of the Rome

Statute, which criminalizes such transfers whether they are undertaken directly or indirectly. n182 This provision might

well render Israel's incentive policy as an "indirect transfer," and largely explains Israel's decision not to ratify the

Statute. n183 Further, given that the Israeli government built the settlements and provided financial incentives to

settlers, the correct conclusion seems to be that the settlement project is a "direct transfer" and thus falls within the

scope of the original prohibition of Article 49 paragraph 6. n184
[*582] The ICJ had an opportunity to opine on this

matter in its advisory opinion on the Construction of a Wall, as the "wall's sinuous route has been traced in such a way

as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including

East Jerusalem)." n185 Noting that "since 1977, Israel has conducted a policy and developed practices involving the

establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49 paragraph 6," the

Court concluded that "the Israeli settlements in the Occupied Palestinian Territory (including east Jerusalem) have been

established in breach of international law." n186

Israel's extensive confiscation of Palestinian land, carried out to satisfy the needs of the continuing expansion of the

settlements, n187 might also amount to a grave breach of Article 147. Article 147 prohibits "extensive appropriation of

property, not justified by military necessity and carried out unlawfully and wantonly." n188 Such action is criminalized

by Article 8(2)(a)(iv) of the Rome Statute.

The method and effect of this expropriation merit attention. Following a determination by the Israeli High Court of

Justice (HCJ) that private land could not be confiscated for the establishment of civilian settlements, n189 the Israeli

government moved quickly to define ever greater portions of the occupied territories as "state land." The lack of a

comprehensive land ownership registration in the OPT, which made it quite difficult for individuals to prove their land

ownership, as well as a governmental decision to designate all uncultivated rural land as "state land," facilitated the

expansion of the definition of "state land." n190 The effect of these practices has been two-fold: first, the de facto

dispossession of individual Palestinians; second, the dispossession of the Palestinian population of land reserves that

should have primarily served its interests. Instead, these lands are administered by the Israel Land Administration, a

body set up under Israeli Law to administer state land in Israel proper, and now being used for settlements. n191

[*583] Israel has also used control over planning to restrict the growth of Palestinian towns and villages while

expanding the settlements. n192 This control has been exercised by omission - that is, by refraining from "preparing

updated regional outline plans for the West Bank. As a result, until the transfer of authority to the Palestinian Authority

(and, to this day, in area "C'), two regional plans prepared in the 1940's by the British Mandate continue to apply." n193

Subsequent "special partial outline plans" for some four hundred villages, far from alleviating the problem of inadequate

planning schemes, underscored its rationale as they constituted demarcation plans which prohibited construction outside

existing lines. This administrative and legal structure has then been used both to justify the rejection of Palestinians'

applications for building permits on private land, and to issue demolition orders for houses that were constructed

without a permit. n194 Thus, the law that vested the occupant with the power to ensure the welfare of the occupied

population has been used by the former to advance its own interests to the detriment of the latter.

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23 Berkeley J. Int'l L. 551, *580

Indeed, while different phenomena are associated with the settlements - such as unequal allocation of water

resources coupled with acute water shortage in the Palestinians villages n195 and acts of violence committed by settlers

against the Palestinian population which receive no proper response from the Israeli security forces n196 - it is the legal

terrain wrought by the occupation which is of
[*584] special relevance to our analysis. There are separate legal

systems operating concurrently in the West Bank, effectively dividing the population along ethnic lines. Jewish settlers

are extra-territorially subject to Israeli civilian law, whereas the Palestinians are subject to the Israeli military law and to

local law. n197 Two methods are used to generate this situation: first, the application of Israeli law in personam to

Israeli citizens and Jews in the OPT; second, the partial application of Israeli law, on a supposedly territorial basis, to

the Jewish settlements in the OPT. Each of these arrangements merits our brief attention.

The personal application of Israeli law works in a myriad of ways. For example, Emergency Regulations issued by

the Israeli government, and renewed regularly through legislation, n198 determine that Israeli courts will have

jurisdiction over criminal offences committed by Israeli citizens (and, in general, by people who are present in Israel) in

the OPT, even if the offence took part in areas under the control of the Palestinian Authority. n199 Further, the law

extending the Emergency Regulations determines that, for certain statutes, people who live in the OPT will be

considered residents of Israel if they are Israeli citizens or are "entitled to immigrate to Israel under the Law of Return"

(i.e., Jews and family members of Jews). n200 These statutes, seventeen in total, include the Income Tax Ordinance, the

Social Security Law of 1968, and the National Health Care Law of 1994. n201 The net result is a different set of rights

and duties applying to different groups in the OPT along ethnic lines. Finally, in this context, we should note the

extension, on a personal basis, of Israel's Election Law, which determines that Israelis who reside in territories held by

the Israeli Defense Forces
[*585] (IDF) will be able to vote in their place of residence. n202 This provision is

significant, especially considering Israel's lack of absentee ballot voting. n203 Its effect is to allow Israeli settlers in the

OPT to take part in choosing the government which rules these territories as an occupying power, whereas the

Palestinian residents of the very same territories, who are also subject to the actions of this very same government, do

not partake in choosing it. n204

Whereas the personal application of Israeli law to Israelis - and in some cases, to non-Israeli Jews - in the OPT is

effected through Emergency Regulations issued by the Israeli government and extended by the Israeli legislature,

territorial application occurs through Orders issued by the Israeli Military Commander in the territories. n205 These

Orders give special status to Jewish settlements in the OPT by applying certain aspects of Israeli law in various spheres,

such as education, to those territorial units, giving them the privileges enjoyed by localities within Israel. The same

mechanism further prohibits Palestinians from entry into the settlements unless they possess a special permit. Israelis

are exempt from the need for a special permit to enter the settlements. Israelis are defined for this purpose as (1)

residents of Israel; (2) residents of the territories who are Israeli citizens, or who are allowed to immigrate to Israel

under the Law of Return; or, (3) people who are not residents of the territories, but who have a valid visa to Israel. This

definition extends the privilege of entering the settlements beyond Israeli citizens and Jews to tourists who are neither

Israeli nor Jewish. n206 Given this last qualification, the supposedly territorial application of these laws may also be

seen as personal. The net result is the creation of two separate legal regimes, including rules restricting freedom of

movement, based on a combination of ethnic and territorial factors.

It should finally be noted that in a recent decision concerning the rights of Israeli settlers evacuated from the Gaza

strip, the HCJ decided that the Israeli Basic Laws (which comprise the nascent constitution of Israel), including the

Basic Law: Human Liberty and Dignity, apply in personam to Israelis in the occupied territories. In the same decision,

the Court left open the question of the application of these laws to non-Israeli residents (i.e. the Palestinians) of the

same territories. n207

[*586] The partial application of Israeli law to the OPT, observed leading Israeli constitutional law scholar

Amnon Rubinstein in his 1988 article The Changing Status of the "Territories"(West Bank and Gaza): From Escrow to

Legal Mongrel, blurred the boundaries between Israel and the territories. n208 This partial application also propelled the

drastic change in the status of the territories from "escrow" to "legal mongrel." Once perceived as an ""escrow' under

the rules of international law - that is as a trust - they have gradually been incorporated in practice into the realm of

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23 Berkeley J. Int'l L. 551, *583

Israel's rule." n209 The substitution of the "legal mongrel" for the "escrow" clearly signifies the breach of trust by the

occupier and, prima facie, appears to have generated the veiled annexation of the territories. Given that the violation of

trust and the veiled annexation violate the two basic tenets of the normative regime of occupation, it would be more

appropriate to conclude that the transition effected was from an "escrow" to an "illegal" mongrel. Indeed, a "legal

mongrel," at least in this context, seems to be an oxymoron: the "mongrel" is illegal.

Furthermore, closer scrutiny reveals that, from a legal perspective, the Israeli government's actions actually

constitute a greater violation of international law than that which would have been created by a straight-forward

annexation, as they confer the benefits of annexation to the occupier without requiring it to incorporate the people under

occupation to its polity, with its ensuing rights and privileges. When combined with the different treatment and rights

accorded to settlers, n210 often at the expense of the Palestinians, the occupation appears to resemble a form of colonial

regime - the hallmark of which is the exploitation of the resources of the territory for the benefits of the home country

and its citizens - rather than a belligerent occupation. n211 Indeed, it may well amount to prohibited discrimination as

defined by Article 1 of the Convention on the Elimination of All Forms of Racial Discrimination n212 and under the

International
[*587] Convention on the Suppression and Punishment of the Crime of Apartheid. n213 In its extreme

form, that is, if practiced as a widespread or systematic policy, apartheid is criminalized in Article 7(1)(j) of the Rome

Statute as a crime against humanity. n214

[*588] For the purposes of the argument advanced in this section, however, it is not necessary to determine

whether or not the occupation of the OPT has become a form of colonialism or resembles an apartheid regime. Rather, it

is sufficient to conclude that, inasmuch as the legal structure of the occupation regime is designed to - and in fact does -

serve the interests of the settlers at the expense of the interests of the occupied population, it breaches the obligations of

the occupant under Article 43 of the 1907 Fourth Hague Convention, thus violating the basic tenet of trust inherent in

the law of occupation. n215 Inasmuch as the justness of an occupation is determined, as recently suggested by Michael

Walzer in the context of the American occupation of Iraq, by its political direction and the distribution of benefits it

provides, n216 the occupation of the OPT appears to be neither legal nor just.

(iii) Disrupting the Fabric of Life of the Occupied Population

The unjustness of the political geography created by the above-described complex legal system of the occupation is

most poignant in its effect on the daily life of the occupied population, particularly as it severely restricts Palestinian

freedom of movement. An intricate network of some 300 checkpoints and roadblocks divides the OPT internally into a

patchwork of cantons. Permits are required to travel from one canton to the other; Gaza is completely isolated from the

rest of the Palestinian territory. n217 These multitudinous divisions and barriers constitute an enormous constraint on

the ability of Palestinians to get to work, schools, hospitals, friends, and family. n218 Assessing this situation, the

Special Rapporteur of the Human Rights Commission concluded that "settlements are linked to each other and to Israel

by a vast system of bypass roads that have a 50-to 75-meter buffer zone on each side in which no building is permitted.

These settlements and roads, which separate Palestinian communities and deprive Palestinians of agricultural land, have

fragmented both land and people. In effect, they foreclose the possibility of a Palestinian State as they destroy the

[*589] territorial integrity of the Palestinian Territory." n219

Further measures affecting movement and, indeed, any resemblance of a normal life are closures that prohibit

Palestinian movement without special permits and curfews that compel inhabitants to stay in their homes. n220 Curfews

and closures constitute the primary cause for Palestinian economic losses. n221 The cumulative effect of checkpoints

and curfews is a sharp decline in access to health care, n222 in health standards generally (due to shortages of food,

clean water, access to hospitals), and rising rates of unemployment and poverty. n223

It is clear that these, and other measures, n224 not only violate fundamental
[*590] norms of both humanitarian

and human rights law, n225 but render the very conduct of civil life in the OPT practically impossible. It is, indeed, "a

human tragedy that is unfolding in Palestine." n226 The construction of the Wall signifies the culmination of these

policies, their devastating effect on life in the territories, and the violation of the very notion of trust which underlies an

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23 Berkeley J. Int'l L. 551, *586

occupying power's responsibilities vis-a-vis the occupied population. The ICJ's reading of this situation is quite

pertinent:

the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem

and the settlements, as deplored by the Security Council ... . There is also a risk of further alterations to the demographic

composition of the Occupied Palestinian Territory ... . inasmuch as it is contributing ... to the departure of Palestinian

population from certain areas ... . That construction, along with the measures taken previously, thus severely impedes

the exercise by the Palestinian people of its right to self-determination. n227

(iv) The (Im)balance of Security

The destruction of the fabric of life of the Palestinian residents of the OPT is evident. It is equally clear, however, that

an occupying power, while required to maintain civil life in the territories under its effective control, is not required to

forsake its own security interests. Indeed, Israel contends that the Palestinians, having responded to Israel's offer to end

the conflict with the al-Aqsa intifada comprising indiscriminate terrorist attacks - attacks constituting crimes against

humanity n228 - against Israeli citizens, are to be held responsible for their situation. n229 Israel argues further that

"many of the Palestinian terrorist groups perpetrate
[*591] their atrocities not to put an end to Israel's presence, but

rather to frustrate any political progress that may do just that." n230

Israel's thesis thus rests on an attempt to sever the nexus between the occupation and the intifada and, indeed,

between its obligations as an occupying power and its right and duty to protect its own citizens and security. In doing

so, it challenges, inter alia, the observation of the Special Rapporteur of the United Nations Commission of Human

Rights that "violations of human rights are a necessary consequence of military occupation." n231 As was noted above,

Israel regards this observation as "an attempt to rewrite international law" and as a "remarkable legal thesis" which

"contravenes the entire body of humanitarian law dealing with belligerent occupation, which establishes standards to be

maintained by States that find themselves in a situation of occupying territory." n232

Israel is right in maintaining that the international law of occupation establishes such standards and that, therefore,

an occupation does not ipso facto entail a violation of either human rights or its own governing regime; such a

construction would have rendered the normative regime which governs the situation not only redundant, but illegal ab

initio. It does not follow, however, that the violations of human rights and of humanitarian law in the OPT are not a

necessary consequence of this specific occupation; that is, that they are generated by Israel's breach of the basic tenets

of the law of occupation rather than by the mere fact of occupation.

This breach is evident in the following position taken by Israel and approved by the HCJ. According to this

position, the security concerns of the occupying power (within Article 43 of the Hague Regulations) - against which the

rights of the Palestinians should be balanced - include protection of the lives and safety of Israeli settlers, and therefore,

of the settlements themselves. Thus, the balancing act between the security needs of the occupying power on the one

hand, and the maintenance of civil life on the other hand, is imbalanced in a way detrimental to the rights of the

Palestinian population, when the added burden of protecting the illegal settlements is used as a security concern to

justify the impairment of the Palestinian rights. n233

[*592] In order to assess the issue of the (im)balance of security and to evaluate the respective positions

articulated above, it is necessary to inquire into the last tenet of the normative regime: its temporal dimension. The

following subsection undertakes this inquiry.

4. Right on Time: An Occupation Is Temporary

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23 Berkeley J. Int'l L. 551, *590

(a) The Normative Provisions Indicating the Temporary Nature of Occupation

The two basic principles discussed above - the inalienability of sovereignty vested in the people and its management as

a form of trust - generate the third principle of occupation: its temporality. Indeed, the very essence of occupation is

founded on this idea. Thus, writes Graber:

The modern law of belligerent occupation is anchored in the concept that occupation differs in its nature and legal

consequences from conquest. It is therefore not surprising that the early definitions of the modern concept of occupation

are chiefly concerned with the main aspects of this difference, namely the temporary nature of belligerent occupation as

contrasted with the permanency of conquest, and the limited, rather than the full powers which belligerent occupation

entails for the occupant. n234

It is in this light that one should understand the various provisions in the documents detailing the law of occupation that

have, ab initio, imposed constraints on the managerial powers of the occupant, evidencing the temporary nature of its

control. The Lieber Code already provided, in Article 3, that martial law imposed by the occupant only suspends

criminal and civil law as well as domestic administration and government during the period of occupation. n235 Article

32 of that Code spoke of suspension or termination of certain individual relationships, but emphasized that only a peace

treaty may settle such changes. n236 In the same vein, Article 2 of the Brussels Declaration defined the ousted authority

as suspended; Article 3 complemented this characterization by stating that "with this object he shall maintain the laws

which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary."

n237

Article 43 of the 1899 and 1907 Hague Conventions corresponded to Articles 2 and 3 of the Brussels Declaration

by imposing a duty on the occupant to respect, unless "absolutely prevented," the laws in force in the country. n238

Although not expressly defining the authority of the former sovereign as "suspended," the Hague Convention neither

altered the temporary concept of occupation nor its underlying rationale that the occupant does not acquire sovereignty,

but merely exercises a temporary right of administration until the
[*593] status of the territory is finally determined.

n239 Indeed, Article 43 prevents the occupant from creating laws, an unquestionable attribute of sovereignty, n240

which are not absolutely necessary for the specific temporary context of occupation, such as for the maintenance of

order, the safety of the occupier's forces, and the realization of the legitimate purpose of the occupation. n241 The

enactment of laws and regulations that have no reasonable relation to the purposes of occupation are illegitimate. n242

This understanding of the provisional, non-sovereign status of the occupant is reaffirmed by Article 55 of the 1907

Fourth Hague Convention, stating that the occupant is merely to administer and safeguard public buildings, real estate,

and the agricultural estates belonging to the state. n243

This idea of occupation as a temporary form of control underlies the provisions of the Fourth Geneva Convention.

n244 Due, however, to the shift in emphasis of the Convention from the rights of the ousted sovereign to the welfare of

the occupied population, n245 the temporal restrictions on the occupying authority are more implicit than explicit when

compared to earlier codes. Thus, for instance, the non-recognition of annexation stipulated in Article 47 of the Fourth

Convention is informed by, but does not explicitly state, the temporary nature of occupation. n246 This may also be said

with regard to paragraph 6 of Article 49, which prohibits the settlement of the occupant's nationals in the occupied

territory. In addition to the WWII experience with the mass transportation of population, which informed Article 49

paragraph 6, the provision was also designed to ensure that the sociological and demographic structure of the territory

be left unchanged. n247

Further indication of the temporary nature of occupation and its limitation to the preservation of the status quo is

found in Article 54 of the Convention, which stipulates that the status of judges and public officials in the territory shall

[*594] not be altered. n248 This proscription reaffirms the maintenance of the country's judicial and administrative

structure, which is expected to go on fu'nctioning without hindrance, n249 and enhances the conclusion that the

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23 Berkeley J. Int'l L. 551, *592

occupant authority is temporal and non-sovereign.

Article 64 contains a similar provision with respect to the laws in place. Its first paragraph states that "the penal law

of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the

occupying power in cases where they constitute a threat to its security or an obstacle to the application of the present

Convention." The second paragraph of the article, however, is more telling:

The Occupying Power may, however, subject the population of the occupied territory to provisions that are essential to

enable the Occupying Power to fulfill its obligations under the present Convention, to maintain the orderly government

of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying force

or administration, and likewise of the establishments and lines of communication used by them. n250

Unlike the first paragraph that speaks of only "penal law," the second paragraph refers to "provisions." In light of the

drafting history of the Article and the issues dealt with in the Convention, this provision applies to all types of laws.

n251 Indeed, the Convention's Commentary suggests that Article 64 "expresses, in a more precise and detailed form, the

terms of Article 43 of the Hague regulations, which lays down that the Occupying Power is to respect the laws in force

in the country "unless absolutely prevented.'" n252 The reason for the more permissive language of Article 64 lies,

according to Benvenisti, in the need to provide the occupant with the proscriptive means to fulfill its obligation under

the Convention, the extent of which reaches far beyond that stipulated in earlier codes. n253 This, indeed, expresses the

growing concern for the welfare of the occupied population that characterizes the Geneva Convention. n254

(b) Article 6 of the Fourth Geneva Convention

Article 6 of the Fourth Geneva Convention relates most directly to the temporal limits of occupation and thus merits

special attention. It provides in paragraph 3:

[*595]

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of

military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that

such Power exercises the fu'nctions of government in such territory, by the provisions of the following Articles 1 to 12,

27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.

The ICJ considered this provision in the Construction of a Wall Advisory Opinion. The Court opined that:

A distinction is also made in the Fourth Geneva Convention between provisions applying during military operations

leading to the occupation and those that remain applicable throughout the entire period of occupation ... . Since the

military operations leading to the occupation of the West Bank in 1967 ended a long time ago, only those Articles of the

Fourth Geneva Convention referred to in Article 6, paragraph 3, remain applicable in that occupied territory. n255

We submit that this textual interpretation, leading to the conclusion that long-term occupations reduce the

responsibilities of occupying powers vis-a-vis the occupied civilian population, is an absurd conclusion; it is

unwarranted by the text and is further incongruent with the purpose and legal practice of the normative regime of

occupation, confusing a problem with a solution. n256

Textually, Article 6 refers to a "general close of military operations." It does not, however, refer to military

operations "leading to the occupation." n257 The latter is a judicial insertion. The realities of the occupation in general,

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23 Berkeley J. Int'l L. 551, *594

and in particular the circumstances surrounding the construction of the wall (itself a military operation), attest to the fact

of on-going military operations. Even a literal reading of the text of Article 6 should have revealed its inapplicability on

its own terms. Indeed, Article 6 lends itself to an entirely different reading.

According to the language of Article 6, in an occupation that lasts longer than one year after the close of military

operations, only 23 of the 32 articles comprising Section III of the Convention, which deals with occupied territories,

would continue to apply. n258 The nine articles that would cease to apply include, for instance, the obligation

incumbent on the occupying power to "facilitate the proper working of all institutions devoted to the care and education

of children" n259
[*596] and "the duty of ensuring the food and medical supplies of the population." n260 It is

unreasonable to assume that the drafters of the Convention intended for children to be deprived of proper schooling or

for the population to be deprived of medical supplies and food in long-term occupations; such an intention would defy

the Convention's main objective. The only reasonable conclusion, therefore, is that the working assumption behind

Article 6 was that the situation of an occupation is bound to be relatively short and that responsibilities of this kind

would be transferred to local authorities in a process leading to the end of the exceptional situation of occupation. The

travaux preparatoires and the Commentary confirm this assumption. n261 Once reality defies the assumption, however,

the rationale informing Article 6 disappears and, insofar as law is to make sense, it should no longer apply.

Subsequent developments in both law and legal practice lend support to our proposed reading of the provision.

Once it became clear that the drafters' assumption regarding the short duration of occupations was not supported by

reality, and that this provision may be construed by occupying powers as limiting their responsibilities under the

Convention precisely in situations where the those responsibilities should be expanded, the provision was abrogated:

Article 3(b) of Additional Protocol I provides for the application of the Protocol's provisions until the termination of the

occupation. n262

The argument that Article 6 of the Fourth Geneva Convention limits the Convention's scope of applicability was

never raised before Israeli Courts. Indeed, the Israeli High Court of Justice had applied provisions that would have

otherwise become inapplicable in light of the language of Article 6. n263 This practice characterizes other prolonged

occupations, n264 thereby lending support to the proposition that Article 3(b) of Protocol I enjoys customary status.

n265

[*597] Further, the Court's determination regarding the limited scope of applicability of the Fourth Geneva

Convention is incongruent with - and defies the rationale behind - its determination regarding the applicability of

various human rights instruments together with humanitarian law in occupied territories. This co-application is designed

to offer greater protection to the civilian population. It is this incongruence which explains the odd conclusion of the

Court that Israel had violated some of its human rights obligations, but not those very same obligations as they appear in

the Fourth Geneva Convention. n266 The implication is that human rights law came into play to fill a lacuna in the

Geneva Convention, despite the fact that the Convention contains relevant provisions. The lacuna, therefore, is

constructed only to be filled by another, and less suitable normative source (in so far as humanitarian law, as distinct

from human rights law, is the lex specialis in situations of occupation). n267 This does not make sense.

It follows from the above that a proper reading of Article 6 should have generated the conclusion that this provision

has, as Roberts suggested, "correctly identified [the] problem" of prolonged occupation, but failed to offer a proper

solution. n268 It is regrettable that the Court confused the solution with the problem. Had it engaged in a discussion of

the temporal assumption informing the Fourth Geneva Convention, it could have not merely produced a better reading

of Article 6, but further shed light on the temporal limitations of an occupation. The remaining part of this Section

offers such a discussion.

(c) The Temporary/Indefinite Indeterminacy and the Construction of "Reasonable Time"

There is thus overwhelming evidence for the proposition that the normative regime of occupation requires that it be

temporary. n269 There are, however, no exact time limits set for its duration. This absence has been explained, indeed

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23 Berkeley J. Int'l L. 551, *595

explained away, by Justice Shamgar of the Israeli Supreme Court as being reflective of "a factual situation," generating

the conclusion that, "pending an alternative political or military solution this system of government could, from a

[*598] legal point of view, continue indefinitely." n270 This argument is not persuasive.

A legal point of view is not merely reflective of a factual situation, nor does it sanction the substitution of

"indefinite" for "temporary." A temporary situation has a definite end. An indefinite situation may, or may not, have an

end. The two situations are very different. In order to appreciate the point, it is useful to reflect momentarily on the

human condition, which is largely controlled by our awareness that our existence is temporary. Were we to conceive of

our existence as indefinite, it is quite likely that the human condition would be altered significantly. "Under the heaven,"

we may hopefully presume, there is "a time for every purpose," but on earth, we humbly acknowledge, time is a limited

resource. n271 Time thus affects us individually and socially and it is our awareness of the temporary nature of the

human existence which shapes our social institutions, including our law.

Far from reflecting time as naturally indefinite, law allocates, distributes, and mediates time as a "commodity, the

supply of which is not inexhaustible." n272 Law shapes our perceptions of the realities of time as a historical, social,

cultural, and political construct. n273 Law thus defines not only the supposedly natural time of birth and death, of

childhood and adulthood, but it also incorporates certain assumptions about individual and collective time to delineate

rights and duties. n274 Indeed, the very principle of legality, as well as foundational legal presumptions, contain

embedded conceptions of demarcated time, without which they, and law itself, would be meaningless. n275

Law, then, is preoccupied with time. Given that the distribution of limited resources is a major legal function, the

construction of time as a limited resource implies that law is interested in the distribution of time. Time, however,

unlike other natural commodities, is construed as limited. As such, it cannot be distributed in abstracto, but only in

relation to a concrete action. Indeed, it is the very conception of time as a limited resource that endows the concrete

action with meaning and requires time allocation relative to competing interests.

[*599] An example may illustrate this point. Administrative detention is a concrete action which involves two

competing interests: the public safety on the one hand, and the human right to liberty on the other hand. As time is

understood as a limited resource, the individual cannot be detained indefinitely and it is for this reason that a reasonable

time limit is set on the action. n276 Clearly, if temporality was not of the essence in administrative detention, the

competing interests would be meaningless. In this sense, it is time, then, that delineates liberty and renders it

meaningful; if administrative detention were permitted indefinitely, liberty would have lost its meaning.

It is equally unreasonable to place the concrete situation of occupation within an indefinite time frame. If

occupation "could, from a legal point of view, continue indefinitely," the interests it is designed to protect - the interest

of the occupied people to reach the point in time when they regain control over their lives and exercise their right to

self-determination, and the interest of the international system in resuming its normal order of sovereign equality

between states - would be rendered meaningless. Thus, the core assumptions of the normative regime of occupation

would be defied if an occupation can be stymied indefinitely. The temporary, as distinct from the indefinite, nature of

occupation is thus the most necessary element of the normative regime of occupation, as it gives meaning and effect -

both factual and legal - to the concepts of liberty, freedom, and the right to self-determination.

The notion of "reasonable time" underlies any concrete limits set by law on the duration of an action. The very

same rationale holds for setting limits on the duration of actions which are not defined in concrete temporal terms; the

conclusion that actions not defined in concrete temporal terms somehow transform the temporary into the indefinite is

unreasonable. Indeed, in such situations, the concrete time limit is determined by the legal construct of "reasonable

time," deriving from the legal principle of "reasonableness." n277 What is a reasonable time for an action depends on

the nature, purpose, and circumstances of the action. n278

[*600]

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23 Berkeley J. Int'l L. 551, *597

(d) Applying the Construction of "Reasonable Time" to the OPT: The Purpose, Nature, and Circumstances of the

Occupation

(i) The Purpose of the Occupation

Given the preceding discussion regarding the inalienability of sovereignty, the nature of the relationship between the

occupied population and the occupying power as a form of trust, and the related rationale for the temporary nature of an

occupation, it is clear that the purpose of the regime of occupation is to manage the situation in a manner designed to

bring about political change and to generate a resumption of the normal order of international society. Relevant

international norms further decree that this change should come about by peaceful means n279 and realize the principle

of self-determination. n280 The positions taken by the ICJ, the General Assembly, and the Security Council with

respect to the illegality of South Africa's post-mandate presence in Namibia all serve to underscore the point. n281

Israel's indefinite occupation frustrates the purpose of this regime.

(ii) The Nature of the Occupation

Indeed, it is not only the purpose of the regime of occupation, but also its essential nature, that may well be defied if the

occupation is allowed to continue indefinitely. The occupied population under foreign control does not enjoy the full

range of human rights, in the very least insofar as it is deprived of citizenship and the rights attached to that status. The

prolongation of such a situation may well be in the interests of an occupying power who may rely on the provisions of

the law relative to the maintenance of the status quo, as well as to its security concerns, to the detriment of the

population. Given that the occupant is likely to treat its own citizens in a manner vastly different from the manner with

which it treats the occupied population, the result may well be the de facto institutionalization of Apartheid of some

sort. n282 Such a scenario, while ostensibly legal in terms of a "rule-book" conception of the rule of law, is manifestly

illegal in terms of a "right" conception of the rule of law. n283 Indeed, in making the
[*601] very rule of law a casualty

of an indefinite occupation, it corrupts the law. n284

(iii) The Circumstances of the Occupation

The achievement of the purpose of a peaceful political change leading to a new sovereign state is a major policy issue.

Matters of policy necessitate planning designed to achieve the desired result. Such planning, especially in respect of

complicated and bitterly contested political issues that are not within the absolute control of one party, as is the

Israeli-Palestinian conflict, is neither a trivial nor an immediate matter. It is a long-term process; it may be incremental;

and it may, indeed, fail. It is possible, however, to evaluate whether such a policy was in the making ex ante. This

evaluation requires the examination of the circumstances of the specific occupation.

The most relevant circumstances to be examined in this respect are whether the occupying power has annexed the

occupied territory or has otherwise indicated an intention to retain its presence there indefinitely. The examination of

Israel's annexation of East Jerusalem, the expropriation of vast portions of Palestinians land to establish settlements in

the OPT, to construct the bypass roads, n285 and, most recently, to erect the Wall, all suggest such an intention. The

Wall, especially, merits our brief attention.

As noted in the preceding subsection, n286 the Wall's route does not follow the 1967 border. While its final path is

yet unclear and, indeed, changes regularly in response to internal n287 and external n288 pressures, it is clearly

designed to incorporate major settlements and many settlers into the Israeli side of it. In some areas it creates a barrier

that encircles Palestinian villages; in others, it isolates them from the rest of the West Bank. n289 The Special

Rapporteur of the UN
[*602] Commission on Human Rights concluded that "the construction of the Wall within the

West Bank and the continued expansion of settlements, which, on the face of it, have more to do with territorial

expansion, de facto annexation or conquest, raise serious doubts about the good faith of Israel's justifications in the

name of security." n290 The ICJ's conclusion on this issue is quite pertinent:

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23 Berkeley J. Int'l L. 551, *600

Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and

that the wall is of a temporary nature ... it nevertheless cannot remain indifferent to certain fears expressed to it that the

route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the

settlements and their means of access. The Court considers that the construction of the wall and its associated regime

create a "fait accompli" on the ground that could well become permanent, in which case, and notwithstanding the formal

characterization of the wall by Israel, it would be tantamount to de facto annexation. n291

Had the Court entertained the notion that the space between the "temporary" and the "permanent" is inhabited by the

"indefinite," its conclusion would have - and should have - been that the construction of the Wall is indicative less of a

de facto annexation that may happen in the (permanent) future, and more of such an annexation that has been effected in

the (indefinite) present.

When one considers the huge investment of Israeli resources to build the Wall, n292 and the territorial expansion

the Wall achieves, n293 the only reasonable conclusion is that Israel, far from treating the OPT as a negotiation card to

be returned in exchange for peace, has already effected a de facto annexation of n294
[*603] a substantial part of the

OPT. n295 The resulting political geography of the OPT, having been thus divided into a multitude of non-contiguous

cantons, would not allow the Palestinians to exercise their right to self-determination in a viable sovereign State, n296

frustrating the desired political change clearly articulated by the Security Council. n297 The question remains whether

Israel's security concerns justify the settlements and the chain of actions following their establishment.

(iv) The (Im)balance of Security Revisited

Israel claims that its actions are justified by legitimate security concerns, especially in the light of suicide bombing, and

that they are simply temporary measures evidencing no intention to alter political boundaries. n298 This argument,

however, is untenable on the basis of both substantive law and the facts on the ground.

It is clear that the substantive law of occupation recognizes the legitimate security concerns of the occupying

power. However, such recognition does not extend to all means and methods used to arguably further this security. n299

Indeed, it does not extend to settlements: paragraph six of Article 49 of the Fourth Geneva Convention contains no

exception to its prohibition of settlements on the grounds of such security considerations; security concerns cannot,

therefore,
[*604] render the settlements a valid security measure. n300 Even if, for the sake of argument, one

dissociates the construction of the Wall from the settlements and examines the legality of this one measure in isolation,

it would be hard to legally sustain the security claim in view of the fact that a significant portion of the Wall does not

actually separate Palestinians from Israelis; rather, it separates them from other Palestinians. This separation of

Palestinian from Palestinian renders Israeli security claims vacuous and bolsters the argument that the Wall

disproportionately hurts Palestinians. Given that the Wall, much like the bypass roads and the settlements themselves,

are as inseparable in reality as they are in applicable law, the legal grounds for the Israeli position are tenuous at best.

Further, the credibility of the "temporary" label Israel attaches to these alleged security measures is seriously

questionable given the relevant legal history. It is through allegedly temporary "requisition for military needs" orders

that Palestinian lands were seized. These lands were never returned. n301 It is quite instructive, in this context, to

ponder the Israeli State Attorney's response to the Israeli High Court of Justice in the context of an appeal against the

construction of the Wall:

The State is not prevented from seizing land by means of temporary seizure orders even for the purpose of erecting

structures that are not necessarily temporary in nature. By way of illustration: in Judea and Samaria, temporary seizure

orders have been used to erect permanent structures of many kinds, such as bypass roads and Israeli communities. n302

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23 Berkeley J. Int'l L. 551, *602

This language game between the "temporary" and the "permanent" functions to legitimize actions that would have been

otherwise prohibited, and is, in fact, made possible once an occupation has ceased to be, and to be conceived as,

temporary. Such an occupation, as the discussion pertaining to its purpose, nature, and circumstances demonstrates, has

exceeded its reasonable duration. Such an occupation, in substituting an indefinite for a temporary control, violates the

basic principle of temporariness underlying the normative regime of occupation.

The above does not suggest that the occupation is permanent. The recent withdrawal of Israel from the Gaza Strip

shows that a political decision can effect the dismantling of settlements and, perhaps, lead to the end of occupation. The

discussion does suggest, however, that in substituting an "indefinite" for a "temporary" occupation, Israel has violated

the normative regime of occupation. It is instructive to note in this context that following the political decision to

[*605] withdraw from, and dismantle the settlements in, the Gaza Strip, the Israeli High Court of Justice emphasized

the temporary - as distinct from the indefinite - nature of occupation to deny the settlers' claim to remain in the

settlements. n303 This decision is normatively sound. The fact that it was never made in order to question the legality of

the settlements enterprise in the preceding decades demonstrates that the temporary/indefinite indeterminacy is being

used to legitimize power, not to contain it: the temporary nature of occupation was resurrected to replace its "indefinite"

construction only when a political decision to pull-out was reached.

In conclusion, the very same actions which indicate that the occupation can no longer be regarded as temporary

also disclose the violation of the substantive constraints imposed by the law of occupation on the managerial discretion

of the occupying power; they amount to a de facto annexation of large portions of the occupied territory and entail gross

violations of humanitarian and human rights norms and defy both the principle of the inalienability of sovereignty and

the principle of trust. The violation of the temporal constraints cannot but violate the two other basic tenets of the law of

occupation; the latter necessarily generate the conclusion that an occupation must be temporary. The Israeli occupation,

having thus violated the three basic principles underlying the normative regime of occupation, is a conquest in disguise.

It is, therefore, intrinsically illegal. The examination of its legality from an extrinsic perspective is undertaken in Section

II.B below.

B. Extrinsic Dimensions of the Israeli Occupation of the OPT: The Nomos n304 of Occupation

The above discussion of the intrinsic dimensions of the Israeli occupation of the OPT concentrates on the way Israel

has managed the occupation in the light of the foundational normative standards set by the law of occupation. Its focus,

thus, is the substance of the normative regime of occupation; it serves as a measuring-rod for assessing various actions

undertaken by the Occupant. In this section, the focus shifts to the normative and political structure of the occupation as

a situation distinct from the regular order of the international society; we
[*606] focus on its exceptionality.

Structurally, the law of occupation bears strong resemblance to an emergency regime. This regime, with roots

dating back to the Roman-Commissarial model, rests on three precepts: exceptionality, limited scope of powers, and

temporary duration. n305 In this discourse, then, a situation of emergency is separated and distinguished from the

ordinary state of affairs as it signifies an occurrence which does not conform to the rule. Because the emergency

situation is the exception, its duration must be limited and it must generate no permanent effects; it merely suspends the

rule. n306 This is also why the norm is regarded as superior to the exception: the existing legal order defines the terms

under which it is suspended, and the powers granted in such a situation are to be used for the purpose of an expeditious

re-establishment of the status quo, that is, of a return to normalcy. n307

The basic tenets of the normative regime of occupation in the international arena largely conform to this

constitutional model. The normal order of affairs is based on the principle of sovereign equality between states that are,

at least to some extent, presumed to be founded on the ideas of self-government and self-determination. The severance

of the link between sovereignty and effective control, and life under foreign rule, constitute an exceptional state of

affairs and the law of occupation recognizes it as an exception; it is to be managed so as to ensure return to normalcy.

This is why the occupant has only limited powers in terms of both scope and time, and is not permitted to act in a

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23 Berkeley J. Int'l L. 551, *604

manner designed to yield permanent results. n308

Indeed, modern studies of emergency situations concerned with the derogation from human rights law thereby

occasioned have concluded that: "above and beyond the rules ... one principle, namely, the principle of provisional

status, dominates all others. The right of derogation (of human rights) can be justified solely by the concern to return to

normalcy." n309 This conclusion holds true and applies equally to occupation.

A reversal of the relationship between the norm and the exception generates,
[*607] as of necessity, the terminus

of every normative system. n310 Carl Schmitt's political theology, wherein the norm becomes subservient to the

exception, is both a precedent and a warning. "The rule," said Schmitt, "proves nothing; the exception proves

everything: it confirms not only the rule but also its existence, which derives only from the exception." n311 The state

of emergency, which in German is called a "state of exception" (Ausnahmezeustand), is one where the rule of man

prevails over the rule of law n312 and where the Leviathan reigns supreme. n313 The result is a Hobbesian state of war

- indeed the clearest case of an exception - where, bereft of any rights, the only meaningful distinction for a person to

make is between the reified constructs of "friend' and "foe'. n314 This situation signifies the destruction of both the

normative regime of the exception, and of the general rule. From a normative perspective, it is thus as meaningless as it

is indefensible. n315

One lesson to be drawn from the above is the importance of retaining a clear distinction between fact and norm;

between the rule and the exception, lest the exception becomes a new rule, and generates a new conception of reality.

This is important because in this new conception of reality, one's security habitually overrides one's enemy's human

rights. n316 Indeed, the reversal of the relationship between the rule and the exception operates as a legitimizing device

allowing for a discussion of various specific violations of human rights carried out in the name of security as if they are

the exception to the normal order of things, thereby obfuscating the fact that the violations have become the rule, not

[*608] the exception.

The Schmittian exception, reflects Giorgio Agamben in his book Homo Sacer, has generated the conditions of

possibility for the concentration camp, a space created once the exception - the temporary suspension of the rule -

becomes the rule. n317 This space, where the extraordinary and the provisional condition becomes ordinary and

permanent, says Agamben, is not limited to Nazi concentration camps. It is paradigmatic to every situation where the

political machinery of the modern nation state finds itself in a continuous crisis and decides to take it upon itself to

defend the biological life of the nation, collapsing human rights into citizens' rights, n318 subsuming humanity into

citizenry, and making the former the "exceptionless exception." n319 In such a situation, the enemy, stripped of human

rights, is stripped of his humanity. Having been excluded from the body-politic, he has only his own body as a political

tool and it is through this political body that he interacts with the body-politic that has thus reified him. n320 This may

well be the typology of the suicide bomber. It does not justify his actions which may amount to war crimes and, when

directed against civilians, may amount to crimes against humanity, n321 but it does contextualize them.

In order to contain the eruption of a Schmittian friend/enemy politic, the international rule of law recognized the

situation of occupation as an exception. It created a normative regime designed to ensure that the effective control of the

occupying power is exercised in a manner that is temporary, respectful of the humanitarian needs and human rights of

the occupied population, and leads to an expeditious return to normalcy based on sovereign equality. An occupation that

fails to do this is substantively and intrinsically illegal (in terms of the law of occupation), as well as structurally and

extrinsically illegal (in terms of the international legal order which provides the normative framework within which the

law of occupation operates). The Israeli occupation of the OPT has thus failed.

[*609]

III.

Concluding Observations: The Matrix of an Illegal Occupation and its Normative Consequences

Page 25

23 Berkeley J. Int'l L. 551, *606

In light of the above conclusion, one should revisit Israel's arguments regarding its security concerns and the measures

taken to ensure that they are met. n322 It is beyond dispute that terrorist attacks present a major challenge to the conduct

of normal life. This has become painfully evident in many parts of the world following 9/11. What should, however, be

disputed is the equation Israel has drawn between the Palestinians and al-Qaeda, and indeed between the former and

worldwide Islamic fanaticism. The Palestinians engage in a struggle for freedom by an occupied people; the latter is an

amorphous and transnational group intent on destroying the democratic way of life. The Israeli equation lends support

to the Israeli argument, discussed above, that the Palestinian response to Israel's most generous peace offerings at Camp

David evidences Palestinian's lack of good faith engagement in the peace process and exposes their true motivation: the

destruction of the only democratic state in the Middle-East, Israel. What is missing from the equation, however, is the

occupation. The equation is thus self-serving as it allows for the obfuscation of the cause and effect relations which

exist between this occupation and Palestinian violence. These relations do not justify terrorist attacks against civilians -

there is no justification for such attacks - but they do contextualize them and refocus the attention on the nature of the

Israeli occupation of the OPT. n323

Furthermore, our argument regarding the illegality of the continued Israeli occupation of the OPT rests on the

violation by Israel of the basic tenets of the normative regime of occupation. The various arguments advanced in

support of Israeli actions in the territory in the name of security thus fail to overcome our argument. The question of

whether a particular action by the IDF undertaken to advance Israel's security has violated certain rights of the protected

population is distinct from the question of the illegality of the regime of occupation.

Focusing on the nature of this regime - as distinct from analyzing specific actions undertaken within it - reveals that

obfuscation and the blurring of boundaries is the defining feature of the Israeli occupation. Its indeterminacy has

operated to legitimize that which would have otherwise been determined illegal.
[*610] Thus, while Israel has

consistently argued that the West Bank and the Gaza Strip are not occupied territories, the State's attorneys have sought

to justify Israel's actions in the territories which restrict the rights of Palestinians on the basis of the law of occupation.

n324 Similarly, the HCJ, while never confirming the applicability of the Fourth Geneva Convention to the territories,

has nevertheless decided to apply its humanitarian provisions in a manner that has allowed the IDF to exercise the

powers of a belligerent occupant but which rejected the vast majority of Palestinian petitions. n325 In this manner,

Israel has been able to enjoy the credit for applying international humanitarian law while at the same time violating its

essential tenets. n326 This occupation/non-occupation indeterminacy is complemented by its twin

annexation/non-annexation indeterminacy: Israel acts in the territory as a sovereign insofar as it settles its citizens there

and extends to them its laws on a personal and on a mixed personal/territorial bases, yet insofar as the territory has not

been formally annexed and insofar as this exercise of sovereignty falls short of giving the Palestinian residents

citizenship
[*611] rights, Israel is not acting as a sovereign. n327 In this manner, Israel enjoys both the powers of an

occupant and a sovereign in the OPT, while Palestinians enjoy neither the rights of an occupied people nor the rights of

citizenship. This indeterminacy allows Israel to avoid accountability in the international community for having illegally

annexed the territories, while pursuing the policies of "greater Israel" n328 in the West Bank without jeopardizing its

Jewish majority. n329 It is, finally, the blurring of the boundaries between the temporary and the indefinite, n330 and

between the rule and the exception, n331 which has donned a
[*612] mantle of legitimacy on this occupation and has

made possible the continuous interplay of occupation/non-occupation and annexation/non-annexation. This mantle,

however, much like the Emperor's New Clothes, should not obfuscate our vision of the naked illegality of this regime.

"The qualification of a situation as illegal," observed the ICJ, "does not itself put an end to it. It can only be the first

necessary step in an endeavour to bring the illegal occupation to an end." n332 While law, in itself, is surely no

substitute for statesmanship and cannot therefore "bring the illegal occupation to an end," there are normative results

which do follow from illegality. A state "whose conduct constitutes an internationally wrongful act having a continuing

character is under an obligation to cease that conduct, without prejudice to the responsibility it has already incurred."

n333

Further, the qualification of the occupation as "illegal," while it does not affect the continued application of both

humanitarian and human rights law (so as to avoid a legal vacuum and to offer protection to the occupied population so

Page 26

23 Berkeley J. Int'l L. 551, *609

long as the illegal situation persists), does affect the legality of the security measures taken in its defense - as distinct

from measures undertaken to protect Israel itself - as such measures are thereby illegal themselves. n334 This

consequence is relevant both to the legal assessment of various security measures undertaken by Israel, including but

not limited to the Wall, and to the legal validity of the arguments raised within Israel by soldiers who refuse to partake

in the defense of the occupation. Indeed, the perception of the Israeli occupation as illegal and illegitimate might well

have been the main factor which informed the ICJ's perception of the Wall in the Construction of a Wall Advisory

Opinion. While refraining from commenting on the occupation regime itself, the Court was well aware of the "greater

whole" of which the Wall is but one aspect. n335 This might explain, for example, its off-hand rejection of Israel's

self-defense argument, based on Article 51 of the UN Charter, on the ground that Israel was not reacting in response to

force used by another state but rather to force emanating from within its territory in light of the control it is exercising in

the OPT. n336

It may, however, be possible to construe additional normative consequences emanating from an indefinite

occupation which, as discussed above,
[*613] necessarily constitutes an assault on both sovereign integrity and

fundamental human rights. Such an occupation defies the basic tenets of both the laws of occupation and the normal

order of the international society. The time has come for the international community to promulgate clear time

limitations for the duration of an occupation, thereby offering a solution to the problem identified in, but not resolved

by, Article 6 of the Fourth Geneva Convention. n337 The international community may wish to entertain the thought

that, in cases of occupations lasting longer than a year, and pending a comprehensive political solution, the effective

control over the occupied territory be transferred from the occupying power to an appropriate international authority.

n338 It may further wish to consider the possibility that a refusal by an occupying power to thus transfer control be

construed as a form of aggression. n339 Indeed, the rationale underlying the criminalization of aggression, that is, that it

is a framework for an entire body of international crimes, as explained by the Nuremberg International Military

Tribunal, seems to apply here as well. n340 This notion is, perhaps, somewhat baffling and difficult to accept, given the

nearly axiomatic conception of occupation as a fact of life. n341 But, then, was not aggression, too, before WWII,

perceived as an acceptable albeit regrettable fact of life regulated by the Covenant of the League of Nations? n342

Whether or not the international community decides to deter similar instances
[*614] where the boundaries

between the rule and the exception become blurred, leading to the nomos of occupation by taking any of the measures

recommended above, remains "a perpetual possibility only in a world of speculation." n343 Such speculation is clearly

outside the scope of the present paper. It suffices to note that the materialization of such a possibility, much like the

carrying out of the normative consequences which currently do follow from the illegality of the occupation or the

construction of the Wall, cannot on their own eliminate the Israeli-Palestinian conflict. When coupled with wise and

decent statesmanship, however, they may well assist in its resolution.

Legal Topics:

For related research and practice materials, see the following legal topics:

GovernmentsLocal GovernmentsChartersInternational LawSovereign States & IndividualsGeneral OverviewMilitary &

Veterans LawWarfare

FOOTNOTES:

n1. In August 2005, Israel pulled out its settlements and military forces from the Gaza Strip. The question

whether this amounts to the end of the occupation in this area remains open and its determination depends on

factual and legal considerations relating to the notion of "effective control," which are beyond the scope of this

article. Even if one assumes that Gaza is no longer occupied, our discussion applies to the rest of the Palestinian

territory, which Israel continues to occupy, i.e. the West Bank including East Jerusalem, which constitutes a far

more substantial area both in terms of territory and the extent of Jewish settlements.

Page 27

23 Berkeley J. Int'l L. 551, *612

n2. A search in Lexis-Nexis on the Israeli occupation of the occupied Palestinian territory generated 171

entries concerned with various Israeli actions and positions as an occupying power, and no entry relative to the

legality of the very occupation itself. Similar results were obtained from Westlaw. Note further that, since 1999,

the term "occupied Palestinian territory" (hereinafter "OPT"), is gradually substituting the terms "the West Bank,

Gaza Strip and East Jerusalem" and "Palestinian occupied territories" in the terminology of the United Nations

referring to the areas occupied by Israel since 1967, to connote the contiguous nature of the area where the

Palestinians are entitled to exercise their right to self-determination. See, e.g., G.A. Res. ES-10/6, U.N. GAOR,

52d Sess., Supp. No. 494, U.N. Doc. A/ES-10/6 (1999).

n3. Press Release, Security Council, Secretary-General Tells Security Council Middle East Crisis "Worst in

Ten Years'; Calls on Palestinians, Israelis to "Lead Your Peoples Away From Disaster,' U.N. Doc. SC/7325

(March 12, 2002).

n4. George P. Fletcher, Annan's Careless Language, NY Times, March 21, 2002, at A37.

n5. Frederic Eckhard, Letter to the Editor, A Delicate Word in the Mideast, NY Times, March 23, 2002, at

A16.

n6. 2004 I.C.J. 131 (Jul. 9), at http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm [hereinafter

Construction of a Wall]. There are various terms used to describe this construction, for example fence and

separation barrier. We use the term "Wall" in accordance with the ICJ's language in this advisory opinion.

n7. Hans Kelsen, General Theory of Law and State 116 (1945). The text above does not suggest that Kelsen

would have regarded occupation as a basic norm, which is therefore not subject to the test of validity. On the

contrary, under Kelsen's theory, occupation would be considered a legal norm within a normative system the

basic norm of which authorizes the creation by States of customary and conventional international law.

n8. The Case of the S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (Ser. A) No. 10, at 18 (Sep. 7).

n9. For a critique of Kelsen's pure theory of law, see, for example, J. W. Harris, Legal Philosophies 59-75

Page 28

23 Berkeley J. Int'l L. 551, *614

(1980); Ronald Dworkin, Comments on the Unity of Law Doctrine (A Response), in Ethics and Social Justice

200 (Howard E. Kiefer & Milton K. Munitz eds., 1970); Herbert L.A. Hart, Kelsen's Doctrine of the Unity of

Law, in Kiefer & Munitz 171-99; Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of

the Legal System 93-120 (1980 ed.) (1970).

n10. Justice Oliver Wendell Holmes coined this term in an address reprinted in The Path of Law,
10 Harv.L. Rev. 457 (1897). The conception of law implied in this alternative is majestic, or reflective of imperialistic

positivism, inasmuch as it conceives of the law as governing all human actions, either forbidding - or

authorizing - each and every action, thereby rejecting the theoretical possibility of legal lacunae.

n11. Such interaction is one of the major elements comprising the Critical Legal Studies (CLS) critique of

legal liberalism. See, e.g., Duncan Kennedy, A Critic of Adjudication: Fin De Siecle (1997). In the context of

international law, see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal

Argument (1989).

n12. In reference to Koskenniemi's terms, see id. See also Martti Koskenniemi, The Politics of International

Law, 1 Eur. J. Int'l. L. 4 (1990).

n13. Enshrined in Article 2(1) of the Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No.

993,

3 Bevans 1153 (1945).

n14. See Eyal Benvenisti, The Security Council and the Law of Occupation: Resolution 1483 on Iraq in

Historical Perspective, 1 IDF L. Rev. 19, 28 (2003) [hereinafter Benvenisti, Resolution 1483]. On the right to

self-determination, see infra notes 17, 76-86 and accompanying text.

n15. This notion of suspension was already recognized in the first attempt to codify the international law of

occupation, in the Final Protocol and Project of an International Declaration Concerning the Laws and Customs

of War, Aug. 27, 1874, reprinted in The Laws of Armed Conflict: A Collection of Conventions, Resolutions and

other Documents 26-34 (Dietrich Schindler & Jiri Toman eds., 3d ed. 1988) [hereinafter Brussels Declaration].

See infra notes 237-43 and accompanying text.

n16. The tension between the rule and the exception formed one of the basic tenets of Carl Schmitt's critique

of the liberal state and, indeed, of the very rule of law. See Carl Schmitt, Political Theology: Four Chapters on

Page 29

23 Berkeley J. Int'l L. 551, *614

the Concept of Sovereignty (George Schwab trans., 1988)[hereinafter Schmitt, Political Theology]. A critical

discussion of Schmitt's concept of "the exception" is offered in Section II.B infra.

n17. Traditionally, sovereignty was attached to the state that held title to the territory prior to the

occupation. Currently, the focus has shifted to the rights of the population under occupation. See generally

Benvenisti, Resolution 1483, supra note 14. Note that a potential tension may be generated by this shift in focus

between the state which held the territory prior to occupation and the population under occupation. Under

current international law, this tension may be solved either generally by recognizing the primacy of the right to

self-determination of the people or, in a more constricted fashion, by a determination whether the latter are

entitled to an external or merely to an internal self-determination. On the differences between external and

internal self-determination, see James Crawford, The Right to Self-Determination in International Law: Its

Development and Future, in Peoples Rights 7-67 (Philip Alston ed., 2001). In the case at hand, given both

Jordan's dissociation from the West Bank and the widespread recognition of the Palestinian right to

self-determination, it is clear that the sovereignty lies with the Palestinian people. For a review of the U.N.'s

recognition of the Palestinian right to self-determination, see Antonio Cassese, Self-Determination of Peoples: A

Legal Reprisal 238-39 (1995) [hereinafter Cassese, Self-Determination]. As Cassese notes, "practically all states

(and inter-governmental organizations) except Israel, take the view that the Palestinians are entitled to

self-determination." Id. at 240. See also Frances Raday, Self-Determination and Minority Rights,
26 FordhamInt'l. L. J. 453 (2003) (discussing the right to self-determination of both Jews within Israel's 1948 Armistice Line

and Palestinians in the West Bank and Gaza). Raday distinguishes the right to self-determination from the

minority rights of Israeli-Palestinians and of Jews living in the West Bank and Gaza. It is important to note that

Israel itself seems to have recognized this right, albeit implicitly, at least since the Oslo Accords of 1993, as can

be inferred from both the text and the context of the Declaration of Principles signed between Israel and the PLO

in 1993. Cassese, Self-Determination, at 243-45; Israeli-Palestine Liberation Organization: Declaration of

Principles on Interim Self-Government Arrangements, Sept. 13, 1993,
32 I.L.M. 1525 (1993). Article 3(1)

stipulated that elections for the Palestinian Interim Self-Government Authority will be held "in order that the

Palestinian people in the West Bank and the Gaza Strip may govern themselves according to democratic

principles." Article 3(3) states, "these elections will constitute a significant interim preparatory step toward the

realization of the legitimate rights of the Palestinian people and their just requirements." Id. at art. 3(2); see also

U.S. Department of State, A Performance-Based Roadmap to a Permanent Two-State Solution to the

Israeli-Palestinian Conflict, Apr. 30, 2003, available at http://www.state.gov/r/pa/prs/ps/2003/20062.htm

(acknowledging Israel's acceptance of the idea of "an independent, democratic, and viable Palestinian state" as

part of the Middle East Roadmap); Statement by Prime Minister Ariel Sharon After the Aqaba Summit Meeting,

June 4, 2003, Israeli Ministry of Foreign Affairs, at

http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2003/ ("Israel ... has lent its strong

support for President's Bush's vision ... of two states - Israel and a Palestinian state - living side by side in peace

and security ... . It is in Israel's interest ... for the Palestinians to govern themselves in their own state."). In the

Construction of a Wall Advisory Opinion, the Palestinian right to self-determination was explicitly recognized,

the Court opining that "the existence of a "Palestinian people' is no longer in issue," and noting that Israel itself

has recognized this right. Construction of a Wall, supra note 6, P 118. It is significant in this context to note that

the Court further discussed Israel's right to exist peacefully, side by side with a Palestinian state. Id. PP 71, 162.

n18. A discussion of the principle of trust as embedded in the normative regime of occupation is offered in

Section II.A.3 infra.

Page 30

23 Berkeley J. Int'l L. 551, *614

n19. See Construction of a Wall, supra note 6, Separate Opinion of Judge Elaraby, P 3.1; Separate Opinion

of Judge Koroma, P 2. A discussion of the temporal constraints of the normative regime of occupation is offered

in Section II.A.4 infra.

n20. Article 53 of the Fourth Geneva Convention, for example, prohibits the destruction by the occupying

power of "real or personal property belonging individually or collectively to private persons, or to the State, or to

other public authorities, or to social or cooperative organizations ... , except where such destruction is rendered

absolutely necessary by military operations." This provision is a specific norm: it specifies an element of the

occupant's responsibility as a trustee in the occupied territories. A destruction of a house may thus be in

violation of this norm, but such a violation in and of itself does not undermine the underlying principle of trust.

n21. This was followed by a decision of the Security Council that declared the continued presence of South

Africa in Namibia to be illegal. See S.C. Res. 276, U.N. SCOR, 25th Sess., Res. & Dec. at 1, 2, U.N. Doc.

S/INF/25 (1970). See also Legal Consequences for States of the Continued Presence of South Africa in Namibia

(South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (June 21)

[hereinafter Continued Presence of South Africa in Namibia Advisory Opinion]. Note that the Court's reasoning

emanated from the revocation of the Mandate. The separate opinion of Vice President Ammoun, however,

emphasized that the Court's reasoning was not limited to the violations of the stipulations of the Mandate and

gave due consideration to the right of peoples to self-determination as well as to violations of human rights of

the people of Namibia by the South African authorities. See Separate Opinion of Vice President Ammoun, id. at

71-72. Note further that in the Construction of a Wall Advisory Opinion, supra note 6, the ICJ's historical

narrative of the events leading to the construction of the Wall emphasized that the territory used to be a mandate

and the Opinion contains several references to, and draws analogies from the Continued Presence of South

Africa in Namibia Advisory Opinion. See id. at PP 70, 88. Several of the judges who appended separate

opinions took exception to this analogy. See Separate opinion of Judge Higgins, id. at P 2; Separate opinion of

Judge Kooijmans, id. at P 33. The merits of the analogy notwithstanding, it should be noted that whereas in the

case of South Africa's presence in Namibia the Court was asked to opine on the nature of the presence itself, the

question relative to the Palestinian territory did not focus on the nature of the Israeli presence therein, that is, on

the occupation, but rather on the legality of a specific action undertaken in its context.

n22. See infra notes 152-60 and accompanying text.

n23. Since occupation is perceived as a fact rather than as a norm, the discourse surrounding the invasion

and occupation of Iraq focused primarily on the legality and legitimacy of the use of force by the U.S. and not

on that of the occupation. Underlying these arguments, however, is the implicit presumption that the legitimacy

accorded to the U.S. action extends to the occupation itself. Thus, writes Anne-Marie Slaughter, "the United

States and its allies can justify their intervention if the Iraqi people welcome their coming and if they turn

immediately back to the United Nations to help rebuild the country." Anne-Marie Slaughter, Good Reasons for

Page 31

23 Berkeley J. Int'l L. 551, *614

Going Around the UN, N.Y. Times, Mar. 18, 2003, at A33 (emphasis added). For criticism, see Richard A. Falk,

Future Implication of the Iraq Conflict: What Future for the UN Charter System of War Prevention?,
97 Am. J.

Int'l. L. 590, 596-97 (2003).

intervention. See also David J. Scheffer, Future Implication of the Iraq Conflict: Beyond Occupation Law,
Falk criticizes claims that a regime change constitutes a legal basis for humanitarian97Am. J. Int'l. L. 842, 851 (2003) (indicating that because the law of occupation is ill-suited for the purposes of

changing a regime or rebuilding a country, a nation-building policy by the U.N. rather than a U.S. occupation is

required).

n24. Cassese, Self-Determination, supra note 17, at 99 (emphasis added).

n25. Cf. Judge Elaraby, Construction of a Wall, supra note 6, Separate Opinion of Judge Elaraby, P 3.1.

Judge Elaraby cites with approval an article authored by Professors Richard Falk and Burns Weston, which

argues that "occupation, as an illegal and temporary situation, is at the heart of the whole problem." Judge

Elaraby does not explain why an occupation is illegal and does not make a connection between its temporary

duration and illegality. His reliance on Falk and Weston suggests that the illegality stems from the original act of

force that generated the occupation. For a more detailed discussion of this argument, see Richard A. Falk &

Burns H. Weston, The Relevance of International Law to Israeli and Palestinian Rights in the West Bank and

Gaza, in International Law and the Administration of Occupied Territories 125, 146-47 (Emma Playfair ed.,

1992).

n26. Eyal Benvenisti, Resolution 1483, supra note 14, at 33.

n27. Benvenisti lists the following documents: The Charter of Economic Rights and Duties of States of Dec.

12, 1974, G.A. Res. 3281, 29 U.N. GAOR, 29th Sess., Supp. No. 31, art. 16(1), at 52, U.N. Doc. A/9631

(1974)); GA Res. 3171, section 2, U.N. GAOR, 28th Sess., Supp. No. 30, at 52, U.N. Doc. A/9030 (1973);

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of

International Armed Conflicts (Protocol I), June 8, 1977, art. 1(4), 1125 U.N.T.S. 3 [hereinafter Protocol I];

International Convention Against the Taking of Hostages, Dec. 18, 1979, art. 12(12), U.N. Doc. A/C.6/34/L.23,

reprinted in
18 I.L.M. 1456 (1979). Benvenisti, Resolution 1483, supra note 14, at 32-33.

n28. Id. at 34.

n29. U.N. S/RES/1483 (2003), P 5.

Page 32

23 Berkeley J. Int'l L. 551, *614

n30. See Benvenisti, Resolution 1483, supra note 14, at 36-38.

n31. See Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine,

Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the

Palestinian Territories Occupied By Israel Since 1967 (A/57/366), Aug. 29, 2002, P 21 [hereinafter 2002 Report

on the Violations of Human Rights in the Occupied Arab Territories].

n32. Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, Note

Verbale Dated 16 December 2002 from the Permanent Representative of Israel to the United Nations Office at

Geneva Addressed to the Secretariat of the Commission of Human Rights, Commission of Human Rights, 59th

Sess., E/CN.4/2003.G/21, P 9, (Dec. 23, 2002) [hereinafter Note From Israel to the U.N.].

n33. See in this context, Roberts' discussion of a possible grounding of an argument made by the

Palestinians on the illegality of the Israeli occupation, in the presumed fact that Israel was an aggressor in 1967.

Adam Roberts, Prolonged Military Occupation: The Israeli Occupied Territories Since 1967,
84 Am. J. Int'l. L.44, 49-51 (1990) [hereinafter Roberts, Prolonged Military Occupation]. In his list of seventeen types of

occupations, Roberts includes "illegal occupation" as a category, but puts this term within quotation marks, and

raises a doubt about its validity, based on the ground that this term is used to refer to an occupation which is

perceived as being the outcome of aggression. Adam Roberts, What is a Military Occupation?,
55 Brit. Y.B. Int'l.L. 249, 293-94 (1984) [hereinafter Roberts, Military Occupation]. Our argument about the illegality of

occupation does not rest upon facts relating to the question of initial aggression. Such a position, as Roberts

argues, is not tenable, given that the law of war, including the law of occupation, equally applies to all states,

whether aggressors or victims of aggression.

n34. Eyal Benvenisti, The International Law of Occupation 4 (1993) [hereinafter Benvenisti, Law of

Occupation].

n35. Richard R. Baxter, Some Existing Problems of Humanitarian Law, 14 Revue de Droit Penal Militaire

et de Droit de la Guerre 297, 298 (1975).

n36. See infra notes 87-109 and accompanying text.

n37. This principle is discussed in Section II.A.2 infra.

Page 33

23 Berkeley J. Int'l L. 551, *614

n38. See infra sections II.A.3 (the trust principle) and II.A.4 (the temporal principle).

n39. Chris Jochnick & Roger Normand, The Legitimation of Violence: A Critical History of the Laws of

War,

35 Harv. Int'l. L. J. 49 (1994).

n40. Instructions for the Government of Armies of the United States in the Field, General Orders No. 100,

Apr. 24, 1863, reprinted in Schindler & Toman, supra note 15, at 3 [hereinafter Lieber Code].

n41. About one-third of the Code's provisions relate to belligerent occupation. See generally, Doris A.

Graber, The Development of the Law of Belligerent Occupation 1863-1914 - A Historical Survey 15 (1949).

n42. Lieber Code, supra note 40, arts. 22-23, 34-38.

n43. Id. at arts. 14, 15, 17, 19. Although the Code was issued during the Civil War, it was designed to cover

international conflicts, as evidenced by the fact that the Union viewed the Confederate forces as de facto

belligerent. See Graber, supra note 41, at 18-19. Furthermore, between the years 1870 and 1893, other countries

- including Prussia, the Netherlands, France, Russia, Serbia, Argentina, Great Britain and Spain - adopted

similar manuals or codes. See Leslie C. Green, The Contemporary Law of Armed Conflict 30 (2d ed. 2000).

n44. Christopher Greenwood, Historical Development and Legal Basis, in The Handbook of Humanitarian

Law in Armed Conflicts 1, 10 (Dieter Fleck ed., 1995) [hereinafter Greenwood, Historical Development].

n45. Jochnick & Normand, supra note 39, at 67.

n46. Graber, supra note 41, at 24-25. Today, however, that section of the declaration that concerns

occupation, which was not revised by later conventions, is regarded as customary and applicable to the Israeli

occupation. See Greenwood, Historical Development, supra note 44, at 10.

Page 34

23 Berkeley J. Int'l L. 551, *614

n47. Brussels Declaration, supra note 15, at 3.

n48. Id.

n49. David Goodman, The Need for Fundamental Change in the Law of Belligerent Occupation,
37 Stan. L.

Rev. 1573, 1591 (1985).

n50. The preamble of Convention (IV) respecting the Laws and Customs of War on Land and its annex:

Regulations concerning the Laws and Customs of War on Land, Oct. 18, 1907, Reg. 42, 36 Stat. 2277,
1 Bevans631, states that: "It has not, however, been found possible at present to concert regulations covering all the

circumstances which arise in practice." [hereinafter: 1907 Hague Regulations].

n51. Id.

n52. Judgment of the Nuremberg International Military Tribunal (30 Sept. 1946), in 22 Trial of the Major

War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945 - 1 October 1946

411, 497 (1948). See also Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 257-58 (July 8)

[hereinafter Nuclear Weapons Advisory Opinion]. This was the basis of the Israeli High Court of Justice

decision to apply the Regulations to the Palestinian Occupied Territories. See H.C. 610/78, Oiev v. Minister of

Defense, 33(2) P.D. 113.

n53. See also regulation 42 of the Convention (II) with Respect to the Laws and Customs of War on Land

and its annex: Regulations concerning the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803,
1

Bevans 247.

n54. Note that the language of the official French version refers to "l'ordre et la vie publique" and that the

term "civil life" is more accurate and appropriate than the term "safety," used in the English version. The term

"civil life" is far broader than the term "safety" inasmuch as the former encompasses the entire commercial and

social life of a country. See John Westlake, II International Law: War 95 (2d ed. 1913). According to the

preparatory work on the Brussels Declaration, which produced the original French term, the correct translation is

Page 35

23 Berkeley J. Int'l L. 551, *614

"civil life" and not "safety" as the semi-official English translation put it. See Edmund H. Schwenk, Legislative

Power of the Military Occupant under Article 43, Hague Regulations,

54 Yale L. J. 393, 393 n.1 (1945).

n55. Arnold Wilson, The Laws of War in Occupied Territories, 18 Transactions Grotious Soc'y 17, 38

(1933); Roberts, Military Occupation, supra note 33, at 295. For a discussion of the principle of trust, see infra

Section II.A.3 infra.

n56. 1907 Hague Regulations, supra note 50, at art. 46.

n57. Id. at art. 50.

n58. Id.

n59. For additional reference, see the preface to the 1899 Convention (II), supra note 53, which stated that

the parties agree to "diminish the evils of war, as far as military requirements permit."

n60. The fact that the Conventions did not alter the definition of occupation is hardly surprising. According

to Jochnick and Normand, while considered by many an important achievement in the effort to humanize war,

the Conventions did not challenge the subjection of humanitarian concerns to military necessity. See Jochnick &

Normand, supra note 39, at 68-77.

n61. Roberts, Military Occupation, supra note 33, at 261.

n62. See 1907 Hague Regulations, supra note 50, at art. 43.

n63. Hans-Peter Gasser, Protection of the Civilian Population, in Fleck, supra note 44, at 209, 243.

Page 36

23 Berkeley J. Int'l L. 551, *614

n64. Gerhard von Glahn, The Occupation of Enemy Territory 29 (1957) [hereinafter von Glahn,

Occupation].

n65. Roberts, Military Occupation, supra note 33, at 252.

n66. Von Glahn, Occupation, supra note 64, at 16.

n67. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the

Field, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva

Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention

Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter

Fourth Geneva Convention].

n68. See Jean S. Pictet, Commentary - The Geneva Convention Relative to the Protection of Civilian

Persons in the of War 21 (1958). Article 2 reads as follows:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all

cases of declared war or of any other armed conflict which may arise between two or more of the High

Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High

Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are

parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the

Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. Id.

n69. Id. at 46.

n70. Benvenisti, Law of Occupation, supra note 34, at 105.

Page 37

23 Berkeley J. Int'l L. 551, *614

n71. Pictet, supra note 68, at 614.

n72. Benvenisti, Law of Occupation, supra note 34, at 99-100.

n73. The second paragraph of article 2 of the Fourth Geneva Convention refers to a territory of a High

Contracting Party. Israel relied on this clause in support of its position that the Fourth Geneva Convention is

inapplicable to the OPT. For more on this argument and a critique of its use, see infra notes 87-109 and

accompanying text.

n74. See von Glahn, Occupation, supra note 64, at 27.

n75. For a typology of occupations, see Roberts, Military Occupation, supra note 33, at 260-95.

n76. World War II, Vietnam, Kosovo, Bosnia, and Rwanda, are but a few notable examples of this

observation. See generally Chris Hedger, War is a Force that Gives Us Meaning 28 (2002).

n77. United Nations Charter, supra note 13, at arts. 1, 55

n78. International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 1(1), 999 U.N.T.S. 175, G.A.

Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1967) [hereinafter ICCPR];

International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 1(1), 993 U.N.T.S. 3, G.A.

Res. 2200A(XXI), 21 U.N. GAOR, art. 11(1), U.N. Doc. A/6316 (1976) [hereinafter ICESCR].

n79. See, e. g., Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res.

1514, 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684 (1960). See also infra note 81.

Page 38

23 Berkeley J. Int'l L. 551, *614

n80. See Continued Presence of South Africa in Namibia Advisory Opinion, supra note 21, Separate

Opinion of Vice Presdient Ammoun, supra note 21; Western Sahara, 1975 I.C.J. 12, 31-33 (Oct. 16).

n81. See Declaration on Principles of International Law Concerning Friendly Relations and Co-operation

Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess.,

Supp. No. 28, at 121, U.N. Doc. A/8028 (1970) ("every state has the duty to refrain from any forcible action

which deprives peoples ... of their right to self-determination and freedom and independence. In their actions

against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such

peoples are entitled to seek and to receive support in accordance with the purpose and principles of the Charter."

See also G.A. Res. 3281, supra note 27, at art. 16(1); Permanent Sovereignty over Natural Resources, GA Res.

3171, supra note 27. See also Construction of a Wall Separate Opinion of Judge Elaraby, supra note 6, P 3.1

(expressing his approval of Falk and Weston's conclusion that "in effect, the illegality of the Israeli occupation

regime itself set off an escalatory spiral of resistance and repression, and under these conditions all

considerations of morality and reason establish a right of resistance inherent in the population. This right of

resistance is an implicit legal corollary of the fundamental legal rights associated with the primacy of sovereign

identity."). Falk & Weston, supra note 25, at 146-47. On the different readings of these documents, see the

positions of Cassese and Benvenisti, supra text accompanying notes 23-30.

n82. Protocol I, supra note 27 (emphasis added).

n83. Michael Bothe et al., New Rules for Victims of Armed Conflicts 51, 52 (1982).

n84. Theodor Meron, The Time Has Come for the United States to Ratify Geneva Protocol I,
88 Am. J. Int'l

L. 678, 683 (1994).

n85. Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in Humanitarian Law

of Armed Conflict: Challenges Ahead 93 (Astrid J.M. Delissen & Gerard J. Tanja eds., 1991); Georges

Abi-Saab, The 1977 Additional Protocols and General International Law: Some Preliminary Reflections, in

Delissen & Tanja, supra at 115, 119; Theodor Meron, Human Rights and Humanitarian Norms as Customary

Law 62-70 (1989).

n86. See Protocol I, supra note 27, at art. 51(5)(6) (considering an attack which "may be expected to cause

incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which

would be excessive in relation to the concrete and direct military advantage anticipated," as a prohibited

indiscriminate attack).

Page 39

23 Berkeley J. Int'l L. 551, *614

n87. It is interesting to note that the Security Provisions Order issued by the Israeli military commander on

the day the IDF took over the West Bank contained a reference to the Fourth Geneva Convention as well as a

determination that, in legal proceedings in established military tribunals, the Convention will have precedence

over the Order. This Order, however, was revoked soon thereafter. See David Kretzmer, The Occupation of

Justice 32, 33 (2002).

n88. Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government - The Initial Stage, in

Military Government in the Territories Administrated by Israel 1967-1980 13, 33-34 (Meir Shamgar ed., 1982)

[hereinafter Shamgar, Legal Concepts].

n89. Yehuda Z. Blum, The Missing Reversioner: Reflections on the Status of Judea and Samaria,
3 Isr. L.

Rev. 279 (1968).

n90. Meir Shamgar, The Observance of International Law in the Administered Territories, 1 Isr. Y.B. Hum.

Rts. 262, 263 (1971) [herinafter Shamgar, Observance]; Stacy Howlett, Palestinian Private Property Rights in

Israel and the Occupied Territories,
34 Vand. J. Transnat'l L. 117, 153 (2001). Both Jordan and Egypt are parties

to the Fourth Geneva Convention.

n91. See, e.g., Yoram Dinstein, The International Law of Belligerent Occupation and Human Rights, 8 Isr.

Y.B. Hum. Rts. 104, 107 (1978); Esther R. Cohen, Human Rights in the Israeli-Occupied Territories 1967-1982,

51-56 (1985). For a concise summary of the arguments and counter-arguments, see Orna Ben-Naftali & Keren

R. Michaeli, "We Must Not Make a Scarecrow of the Law': A Legal Analysis of the Israeli Policy of Targeted

Killings,
36 Cornell Int'l. L. J. 233, 260-61 (2003) [hereinafter Ben-Naftali & Michaeli, Targeted Killings];

Benham Dayanim, The Isreali Supreme Court and the Deportation of Palestinians: The Interaction of Law and

Legitimacy,
30 Stan. J. Int'l L. 115, 143-150 (1994); Kretzmer, supra note 87, at 31-35.

n92. W. Thomas Mallison & Sally V. Mallison, The Palestinian Problem in International Law and World

Order 254 (1986).

n93. Id. at 255. Indeed, the disputed status does not prevent the applicability of the laws of occupation.

Throughout the 20th century, territorial disputes have often preceded or accompanied military occupations: the

long standing dispute between Argentina and England over the Falkland Islands; Indonesia's invasion into east

Timor; the Moroccan intervention in western Sahara. So was the South African occupation of Namibia.

Page 40

23 Berkeley J. Int'l L. 551, *614

n94. Roberts, Prolonged Military Occupation, supra note 33, at 64; Benvenisti, Law of Occupation, supra

note 34, at 109-10; Cohen, supra note 91, at 53.

n95. Pictet, supra note 68, at 20-22.

n96. Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory,
44 Harv. Int'l.

L. J. 65, 97 (2003).

n97. Joseph H. H. Weiler, Israel, the Territories and International Law: When Doves are Hawks, in Israel

Among the Nations 381, 386-87 (Alfred E. Kellermann et al. eds., 1998).

n98. It is interesting to note in this context that pursuant to the Israeli High Court of Justice's (HCJ) ruling of

April 18, 2002, H.C.J. 769/02, The Public Committee Against Torture v. Government of Israel (the legality of

targeted killings case), which requested the parties, inter alia, to state their positions on what system of law

applies to the issue, the Respondent's brief (Supplementary Statement by the State's Attorney's Office) argued

not only that International Human Rights Law is inapplicable, but that the Respondent will use the term "Law of

Armed Conflicts" rather than "International Humanitarian Law": "Without going into a profound discussion on

the logic inherent in the new term ("international humanitarian law'), it is important to emphasize that one of its

disadvantages, in the Respondent's way of thought, is the risk of confusing this term, which includes the "laws of

war' and the term "international human rights law', which is another area altogether and separate from

international law, which deals with the protection of the fundamental rights of individuals within state." H.C.J.

769/02, The Public Committee Against Torture v. Government of Israel, Supplementary Statement by the State's

Attorney's Office of 2 Feb. 2003, Para. 40 (unofficial translation) (on file with authors). On the co-application of

humanitarian and human rights law in occupied territories, see Orna Ben-Naftali and Yuval Shany, Living in

Denial: The Application of Human Rights in the Occupied Territories,
37 Isr. L. Rev., 17 (2003-04) [hereinafter

Living in Denial].

n99. Gasser, supra note 63, at 244; Geoffry R. Watson, The Oslo Accord: International Law and the

Israeli-Palestinian Peace Agreements 138 (2000). For a discussion on the effect Israel's occupation has had on

the Palestinian population, see infra section II.A.3. The position that the Fourth Geneva Convention should be

interpreted based on the substance of the relations, given that its purpose is to protect individuals, was taken by

the International Criminal Tribunal for the Former Republic of Yugoslavia in the Tadic judgment.
Prosecutor v.Tadic (Case IT-94-1-A) (1999) P 168, at http://www.un.org/icty/tadic/appeal/judgement/tad-aj990715e.pdf. For

a discussion of this judgment as representing the transformations in humanitarian law from being state centered

to being individuals-centered, see Eyal Benvenisti, The International Law of Belligerent Occupation, preface

Page 41

23 Berkeley J. Int'l L. 551, *614

(2004) [hereinafter Preface]. See also, Partial Award, Central Front, Ethiopia Claim No. 2, April 28, 2004, PP

28-29, at http://www.pca-cpa.org/ENGLISH/RPC/EECC/ET%20Partial%20Award.pdf., where the

Eritrea-Ethiopia Claims Commission rejected the link between the disputed status of certain territories and the

protection of individuals present in these territories. The protections of international humanitarian law, held the

Commission, "should not be cast into doubt because the belligerents dispute the status of the territory." Id. The

Commission rejected the idea that only territory to which title is clear can be occupied territory. Id.

n100. See, e.g., G.A. Res. 32/91, U.N. GAOR, 32d Sess., 101st plen. mtg. at 69, U.N. Doc. A/RES/32/91

(1977); G.A. Res. 33/113, U.N. GAOR, 33rd Sess., 87st plen. mtg. at 70, U.N. Doc. A/RES/33/113 (1978); G.A.

Res. 44/48, U.N. GAOR, 44th Sess., 78st plen. mtg. U.N. Doc. A/RES/144/48 (1989).

n101. See, e.g., S.C. Res. 237, U.N. SCOR, 1361st mtg. at 5 (1967); S.C. Res. 446, U.N. SCOR, 2134th

mtg. at 4 (1979); S.C. Res. 605, U.N. SCOR, 2777th mtg. at 4 (1987); see also Roberts, Prolonged Military

Occupation, supra note 33, at 69-70.

n102. Shamgar, Observance, supra note 90, at 266.

n103. See, e.g., H.C. 2977/02, Adallah v. Commander of the IDF in the West Bank, 56(3) P.D. 6; H.C.

3451/02, Almadani v. Minister of Defense, 56(3) P.D. 30, 35-36; H.C. 4363/02, Zindah v. Commander of the

IDF Forces in the Gaza Strip Judgment of May 28, 2002 (unpublished); H.C. 7015/02, Ajuri v. Commander of

the IDF in the Judea and Samaria, 56(6) P.D. 352; H.C. 2056/04, The Village Council of Beit Surik et al. v. the

Government of Israel and the Military Commander of the West Bank, 58(5) P.D. 807; H.C. 7957/04, Mara'abe v.

The Prime Minister of Israel (unpublished), available at www.court.gov.il. Prior to the breakdown of the Oslo

Accord, Israel had transferred most administrative functions in some of the territories to the Palestinian

authority. This prompted it to declare that the transfer of control indicates that Israel was no longer an occupant.

See Watson, supra note 99, at 176. This position seems dubious, given both the relatively small percentage of

the OPT that was transferred to the civilian administration of the Palestinian authority and the discontinuity of

the territories. In effect, Israel continued to exercise effective control over the OPT. In any case, Israel's

re-occupation of Gaza Strip and the West Bank during the second Intifada has rendered the argument irrelevant.

The recent withdrawal from the Gaza Strip is likely to resurrect that argument with respect to this area. See

supra note 1.

n104. The Court stated that the "the object of the second paragraph of Article 2 is not to restrict the scope of

application of the Convention, as defined by the first paragraph ... the drafters of the Fourth Geneva Convention

sought to guarantee the protection of civilians in time of war regardless of the status of the occupied territories."

Construction of a Wall, supra note 6, P 95.

Page 42

23 Berkeley J. Int'l L. 551, *614

n105. Construction of a Wall, supra note 6, P 78. This conclusion follows a discussion pertaining to the

status of the OPT, id. at PP 70-77, dating back to the Mandate. The Court notes specifically that various events

subsequent to 1967 "have done nothing to alter this situation" (of occupation). Id. at P 78.

n106. Id. at P 101. Before reaching its conclusion the Court discussed some of the arguments for and against

the application of the Fourth Geneva Convention discussed above, placing a special emphasis on the subsequent

interpretation of the Convention by the UN Security Council and General Assembly, the State Parties to the

Convention, the Red-Cross and the Israeli Supreme Court. Id. at PP 90-100.

n107. The question, whether all rules of occupation are relevant to all types of occupations in all

circumstances, is interesting but as it is incidental to this paper, shall not be discussed here.

n108. Benvenisti, Law of Occupation, supra note 34, at 5.

n109. Surya P. Sharma, Territorial Acquisition, Disputes and International Law 148 (1997).

n110. Benvenisti, Law of Occupation, supra note 34, at 5.

n111. See Partial Award, Central Front, Ethiopia Claim No. 2, supra note 99.

n112. As discussed in the text accompanying supra notes 74-81, the right to self determination has

supplanted, in this context, the right of states to sovereign equality and territorial integrity. See Construction of a

Wall, supra note 6, PP 87-88.

n113. See, e.g., L. Oppenheim, The Legal Relations Between an Occupying Power and the Inhabitants,
33L. Q. Rev. 363, 364 (1917). Cf. Lieber Code, supra note 40, at art. 33 (implicitly authorizing annexation prior to

the conclusion of a peace treaty).

Page 43

23 Berkeley J. Int'l L. 551, *614

n114. Sharon Korman, The Right of Conquest; The Acquisition of Territory by Force in International Law

and Practice 9 (1996).

n115. Graber, supra note 41, at 13.

n116. See supra notes 49-55 and accompanying text.

n117. Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals 166-67

(3d ed. 1957).

n118. See Fourth Geneva Convention, supra note 67, at art. 47.

n119. Pictet, supra note 68, at 275-76. Pictet emphasizes the fact that the reference to annexation in the

article cannot be considered as implying recognition of it as a means to acquire territory and that the contrary is

true. Id.

n120. Commentary on the Additional Protocols of 8 July 1977 to the Geneva Conventions of 12 August

1949 73, 74 (Yves Sandoz et al. eds., 1987) [hereinafter Commentary on the Additional Protocols].

n121. For a detailed description of the evolution of the prohibition on the use of force, see Yoram Dinstein,

War, Aggression and Self-Defense 78, 79-98 (2001).

n122. U.N. Charter, supra note 13, at art. 2(4).

n123. See Construction of a Wall, supra note 6, P 87. See also Korman, supra note 114, at 200-18.

Page 44

23 Berkeley J. Int'l L. 551, *614

n124. Hersch Lauterpacht, The Limits of the Operation of the Law of War,
30 Brit. Y.B. Int'l. L. 206, 233-37

(1953);

(1951).

Felice Morgenstern, The Validity of the Acts of the Belligerent Occupant, 28 Brit. Y.B. Int'l. L. 291, 321

n125. Robert Y. Jennings, The Acquisition of Territory in International Law 54 (1963).

n126. See, e.g., Schwarzenberger, supra note 117, at 297; Rudolf L. Bindschedler, Annexation, 3

Encyclopedia Pub. Int'l. L. 19 (1982); Rosalyn Higgins, The June War: The United Nations and Legal

Background, 3 J. Contemp. His. 253, 270 (1968).

n127. Korman, supra note 114, at 201.

n128. Jennings, supra note 125, at 55.

n129. Id. See also Derek W. Bowett, International Law Relating to Occupied Territory: A Rejoinder,
87 L.

Q. Rev. 473, 475 (1971).

n130. Brun-Otto Bryde, Self-Defense, 4 Encyclopedia Pub. Int'l. L. 212, 213-14 (1982); Korman, supra note

114, at 205. Korman indicates that the narrow ambit of Article 51 prohibits even the annexation of a territory of

an aggressor that repeatedly uses the territory as a base for attacks and can therefore might still be considered

proportionate. Id. at 204-05.

n131. Article 39 of the United Nations Charter, supra note 13.

n132. Jennings, supra note 125, at 55-56.

n133. G.A. Res. 2625, supra note 81.

Page 45

23 Berkeley J. Int'l L. 551, *614

n134. For the different views on the subject, see Amos Shapira, The Six-Day War and the Right to Self

Defence,
6 Isr. L. Rev. 65 (1971); Ibrahim F. I. Shihata, Destination Embargo of Arab Oil: Its Legality Under

International Law,

on Israel of October 6, 1973,

68 Am. J. Int'l. L. 591, 598-601 (1974); Eugene V. Rostow, The Illegality of the Arab Attack96 Am. J. Int'l. L. 272, 274-82 (1975).

n135. Criticizing the Secretary-General's reference to the Israeli occupation as "illegal," George Fletcher

argued, inter-alia, that: "Few seem to care anymore that the 1967 war was a war of self-defense for Israel."

Fletcher, supra note 4. Responding to this criticism, the spokesman for the Secretary-General noted that "in

using the word illegal ... Secretary General Kofi Annan had no intention of entering the debate about the legality

of Israel's original action." See supra note 5.

n136. Israel extended its law to East Jerusalem on 26 June 1967. See The Law and Administration

Ordinance (Amendment No. 11) Law, 21 L.S.I. 75 (1967); The Municipalities Ordinance (Amendment No. 6)

Law, 21 L.S.I. 75 (1967). It formally annexed that area on 30 June 1980. See The Basic Law: Jerusalem, Capital

of Israel, 34 L.S.I. 209 (1980).

n137. See S.C. Res. 478, U.N. SCOR, 35th Sess., 2245th mtg. at 14, U.N. Doc. S/INF/36 (1980); G.A. Res.

35/169E, U.N. GAOR, 35th Sess., Supp. No. 48, at 208-2209, U.N. Doc. A/35/48 (1981); S.C. Res. 673, U.N.

SCOR, 46th Sess., 2949 mtg. at Res. & Dec. 7, U.N. Doc. S/INF/46 (1991). Israel based its claim to sovereignty

over East Jerusalem essentially on its right to fill the sovereignty vacuum which existed since the termination of

the mandate, an argument which generated a debate among Israeli international lawyers and failed to gain the

support of the international community. On the debate within Israel, see for example, Yehudah Blum, The

Redemption of Zion in International Law,
3 Isr. L. Rev. 279 (1968); Yoram Dinstein, The Future Redemption of

Zion in International Law, 27 Hapraklit 5 (1971). For a discussion on the legal status of Jerusalem, see John

Quigley, The Future of Jerusalem: A Symposium: Sovereignty in Jerusalem,

45 Cath. U. L. Rev. 765 (1996).

Similar reactions followed Israel's annexation of the Golan Heights, a Syrian territory occupied by Israel during

the Six-Day war of 1967. See Golan Heights Law, 36 L.S.I. 7 (5742-1981/2); S.C. Res. 497 (1981); G.A. Res.

36/226A (1981); G.A. Res. 39/146A (1984).

n138. Construction of a Wall, supra note 6, PP 74-75, 120-22.

n139. G.A. Res. 37/88C, U.N. GAOR, 37th Sess., Supp. No. 51, at 93, U.N. Doc. A/37/51 (1982-83); S.C.

Res. 465, U.N. SCOR, 35th Sess., 2203d mtg. at 5, U.N. Doc S/INF/36 (1980).

Page 46

23 Berkeley J. Int'l L. 551, *614

n140. S.C. Res. 1397, U.N. SCOR, 4489th mtg., U.N. Doc. S/RES/1397 (2002).

n141. See also G.A. Res. 1514 (XV), supra note 79.

n142. Imseis, supra note 96, at 97; Benvenisti, Law of Occupation, supra note 34, at 183; Korman, supra

note 114, at 228.

n143. Construction of a Wall, supra note 6, PP 118-22. See infra section II.A.4.d.iii.

n144. Construction of a Wall, supra note 6, Separate Opinion of Judge Koroma, P 2; Wilson, supra note 55,

at 38.

n145. The duty of obedience stemmed from three possible sources: municipal law (i.e., the population was

to follow the laws of the land as they were the laws of the legitimate sovereign); international law (i.e., the

duties incumbent upon the sovereign gave rise to corollary rights); and the physical ability of the occupant to

enforce such obedience. See generally Oppenheim, supra note 113, at 365-69; Richard R. Baxter, The Duty of

Obedience to the Belligerent Occupant,
27 Brit. Y.B. Int'l L. 235 (1950) [hereinafter Baxter, Obedience].

n146. For example, the terms "war rebellion" and "war treason" were not incorporated in the Convention.

See generally Fourth Geneva Convention, supra note 67. Furthermore, while providing the occupant with the

right to take measures against protected persons who carry out acts detrimental to the security of the occupant, it

nevertheless preserves most of their rights under the Convention. Compare id. at arts. 27, 64 with id. at arts. 5,

68; see also Baxter, Obedience, supra note 145, at 261, 264.

n147. Fourth Geneva Convention, supra note 67, at arts. 27, 75.

n148. Id. at arts. 32, 33, 34, 49, 65, 67, 51, 52, 50, 55, 59-62, 56, 57, 66, 69, 71-73, 76, 77, respectively.

Page 47

23 Berkeley J. Int'l L. 551, *614

n149. Id. at arts. 79-135.

n150. See Construction of a Wall, supra note 6, PP 105-13; Nuclear Weapons Advisory Opinion, supra note

52, at 249. For similar views, see Cyprus v. Turkey, App. No. 8007/77, Eur. Comm'n H.R. Dec. & Rep. 85,

149-50 (1979); Loizidou v. Turkey, 310 Eur. Ct. H.R. (Ser. A) at 24 (1995); Abella v. Argentina, Case 11.137,

Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L./V./II.95, doc. 7 rev. 271, PP 161, 166 (1997). Israel rejects

this confluence of legal regimes, but its position has been widely rejected by both international bodies and

scholars. For the Israeli stand, see State of Israel, Implementation of the International Covenant on Economic,

Social and Cultural Rights - Second Periodic Report, Aug. 3, 2001, PP 5-8, U.N. Doc. E/1990/6/Add.32 (2001);

State of Israel, Implementation of the International Covenant on Civil and Political Rights - Second Periodic

Report, Nov. 20, 2001, P 8, U.N. Doc. CCPR/C/ISR/2001/2 (2001); State of Israel, Implementation of the

International Covenant on Civil and Political Rights - Additional Information, April 20, 2001, PP 2-5, U.N. Doc.

E/1989/5/Add.14 (2001). This was also the position taken by the Israeli delegation before the International

Committee on the Rights of the Child and the International Committee on the Elimination of Racial

Discrimination. See Summary Record of the 829th meeting: Israel, Oct. 10, 2002, PP 39-42, U.N. Doc.

CRC/C/SR.829 (2002); Note Verbale dated 8 August 1994 from the Permanent Representative of Israel to the

United Nations Office at Geneva, U.N. Doc. CERD/C/282 (1995). For the position of relevant international

bodies, see Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, May

23, 2003, P 15, U.N. Doc. E/C.12/1/Add.90 (2003); Concluding Observations of the Human Rights Committee:

Israel, Aug. 5, 2003, P 11, U.N. Doc CCPR/CO/78/ISR (2003). For a legal analysis of the respective positions,

as well as a summary and a critical review of the Construction of a Wall advisory opinion in this respect, see

Ben-Naftali & Shany, supra note 98.

n151. Cohen, supra note 91, at 29; Roberts, supra note 33, at 97.

n152. Roberts, supra note 33, at 28-32. While the relationship between South Africa and Namibia represents

a unique case (i.e., the mandate system established by the League of Nations), the reasoning of the Court

nevertheless seems to apply generally given the Court's interpretation of the traditional concept of trust, found in

the mandate system, in light of recent legal developments, namely, self-determination and independence of the

people and basic human rights. Furthermore, the Court construed South Africa's presence in Namibia following

the revocation of the mandate as an occupation.

n153. Continued Presence of South Africa in Namibia Advisory Opinion, supra note 21, at 47.

n154. Roberts, supra note 33, at 293-94.

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23 Berkeley J. Int'l L. 551, *614

n155. Continued Presence of South Africa in Namibia Advisory Opinion, supra note 21, at 54.

n156. Construction of a Wall, supra note 6, P 70.

n157. International Status of South-West Africa, 1950 I.C.J. 128 (July 11).

n158. Id. at 131; Construction of a Wall, supra note 6, P 70.

n159. Continued Presence of South Africa in Namibia Advisory Opinion, supra note 21, at 52-54;

Construction of a Wall, supra note 6, P 88.

n160. Note that some of the judges who appended separate opinions took issue with this analogy. See

Construction of a Wall, supra note 6, Separate Opinion of Judge Higgins, P 2; Separate opinion of Judge

Kooijmans, P 33.

n161. It is interesting to note that Allan Gerson referred to the Israeli occupation as a "trustee occupation."

He argues that this type of occupation occurs when the legal status of the territory prior to the occupation was

short of full sovereignty, the occupation was not generated by a war of aggression, and the occupant was seeking

to positively develop the area. The occupant should be seen as a trustee responsible for promoting the

population's right of self-determination and should, therefore, not be constrained by the law requiring the

preservation of the status quo. See Allan Gerson, Trustee Occupant: The Legal Status of Israel's Presence in the

West Bank,
14 Harv. Int'l L. J. 1 (1973). This typology, however, is problematic from the perspective of law and

fact alike. From a legal perspective, as discussed in the text above, the concept of trust underlies the law of

occupation in general; from a factual perspective, it is unclear whether Israel's occupation stemmed from a war

of self-defense, and even if it did, it is clear that it has not assumed the role of a trustee fostering the Palestinian

right to self-determination, as acknowledged by Gerson himself already in 1978. See Allan Gerson, Israel, The

West Bank and International Law 78-82 (1978).

n162. See, e.g., Fourth Geneva Convention, supra note 67, at arts. 27, 49, 51, 53.

n163. Id. at art. 64.

Page 49

23 Berkeley J. Int'l L. 551, *614

n164. Id. at art. 78.

n165. Id. at art. 42.

n166. See supra section II.A.1.c.

n167. See infra section II.A.4.a.

n168. Benvenisti, Law of Occupation, supra note 34, at 147; Roberts, supra note 33, at 52; Goodman, supra

note 49.

n169. Construction of a Wall, supra note 6, Separate Opinion of Judge Eleraby, P 3.1. See also supra note

81.

n170. See Meron Benvenisti, The West Bank Data Project: A Survey of Israel's Policies 30-36 (1984); Raja

Shehadeh, Occupier's Law: The West Bank and the Rule of Law 15-49 (1985) [hereinafter Shehadeh, Occupier's

Law].

n171. Cited in John Quigley, Living in Legal Limbo, 10 Pace Int'l. L.R. 1, 6 (1998).

n172. Id. The first settlement plan prepared by the World Zionist Organization stated clearly that the

objectives of the settlements were to fragment the Palestinian population and prevent it from forming "a

territorial continuity and political unity." See Kretzmer, supra note 87, at 76.

n173. Benvenisti, supra note 170, at 19-28.

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23 Berkeley J. Int'l L. 551, *614

n174. B'tselem, The Israeli Information Center for Human Rights in the Occupied Territories, Land Grab:

Israel's Settlement Policy in the West Bank, available at

http://www.btselem.org/english/Publications/Summaries/Land_Grab_2002.asp [hereinafter Land Grab]. The

settlers and other Israeli citizens working or investing in the settlements are entitled to significant financial

benefits, such as generous loans for the purchase of apartments, part of which is converted to a grant, significant

price reductions in leasing land, incentives for teachers, exemption from tuition fees in kindergartens, free

transportation to school, grants for investors, infrastructure for industrial zones, incentives for social workers,

and reductions in income tax for individuals and companies. The Ministry of the Interior provides increased

grants for the local authorities in the territories relative to those provided for communities within Israel. In the

year 2000, the average per capita grant in the Jewish local councils in the West Bank was approximately

sixty-five percent higher than the average per capita grant in local councils inside Israel. The discrepancy in the

grants for the regional councils is even greater: the average per capita grant in 2000 in the regional councils in

the West Bank was 165 percent of that for a resident of a regional council inside Israel. Id.

n175. See Foundation for Middle East Peace, Statistics, at

http://www.fmep.org/settlement_info/statistics.html; see also B'tselem, Settlements Population By Year, the

West Bank, at http://www.btselem.org/English/Settlements/Settlement_population.xls. Prior to the recent

withdrawal from the Gaza Strip, which totals 140 square miles, less than 10,000 Jews lived on 20% of the land,

and 1.1 million Palestinians in the remaining area. See Foundation for Middle East Peace, Israeli Settlements in

the Occupied Territories: A Guide - A Special Report of the Foundation for Middle East Peace, available at

http://www.fmep.org/reports/special_reports/no11-march2002/index.html. In tandem with the pull-out from

Gaza, Israel dismantled 4 settlements in Northern Samaria in the West Bank, where some 580 settlers lived.

Some of these settlers relocated to Israel while others relocated to other settlements in the West Bank. The area

was not handed over to the Palestinians.

n176. See Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine,

Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the Situation of Human

Rights in the Palestinian Territories Occupied by Israel since 1967. Res. 1993/
2 A, 14, U.N. Doc.

E/CN.4/2004/6, Sep. 8, 2003 [hereinafter 2003 Report on the Situation of Human Rights in the Palestinian

Territories].

n177. See Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine,

Update to the Mission Report on Israel's Violations of Human Rights in the Palestinian Territories Occupied

Since 1967, Submitted by Giorgio Giacomelli, Special Rapporteur, to the Commission on Human Rights at its

Fifth Special Session. U.N. Doc. E/CN.4/2001/30, Mar. 21, 2001 at P 26. For a discussion of the politics of the

geography and planning of the settlements, see Rafi Segal and Eyal Weizman, The Mountain Principle of

Building in Heights, in A Civilian Occupation: The Politics of Israeli Agriculture 79 (Rafi Segal and Eyal

Weizman eds., 2003).

Page 51

23 Berkeley J. Int'l L. 551, *614

n178. Such transfer further constitutes a grave breach of Protocol I. See Protocol I, supra note 27, at art.

85(4)(a). As already noted, Israel is not a party to the Protocol. See supra note 82-84 and accompanying text.

n179. For the Israeli position, see Israeli Settlements and International Law, at

http://www.mfa.gov.il/mfa/go.asp?MFAH0jyz0]; Ayelet Levy, Israel Rejects Its Own Offspring: The

International Criminal Court,
22 Loy. L.A. Int'l & Comp. L. Rev. 207, 230-31 (1999); Jean-Marie Henckaerts,

Deportation and Transfer of Civilians in Time of War,

26 Vand. J. Transnat'l L. 469, 472 (1993).

n180. Pictet, supra note 68, at 283.

n181. See Declaration of the Conference of the Parties to the Fourth Geneva Convention, Dec. 5, 2001,

available at

http://www.eda.admin.ch/eda/e/home/foreign/hupol/4gc/docum2.Par.0006.UpFile.pdf/mg0112054gcdeclarne.pdf];

Gerhard von Glahn, Law Among Nations: An Introduction to Public International Law 675-76 (7th ed. 1996).

n182. Rome Statute of the International Criminal Court, art. 8(2)(b)(viii), July 17, 1998, U.N. Doc.

A/CONF. 183/9;
37 I.L.M. 1002 (1998); 2187 U.N.T.S. 90.

n183. See Statement by Israeli Foreign Ministry Legal Advisor, Allen Baker, Jan. 3, 2001, available at

http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2001/1/International+Criminal+Court+-+Press+Briefing+by+I.htm.

Israel signed the Statute on Dec. 31, 2001, attaching a declaration conveying its disappointment in the

"politicization" of the Statute by the insertion of "formulations tailored to meet the political agenda of certain

states." Id. On Aug. 28, 2002, Israel informed the U.N. Secretary-General of its intention not to ratify the

Statute. For the status of ratifications of the Rome Statute, including declarations made by Israel, see

http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp#N3.

n184. See Catriona Drew, Self-determination, Population Transfer and the Middle East Peace Accords, in

Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories 119, 144-46

(Stephen Bowen ed., 1997). A recent official report presented to the Prime Minister's Office by an attorney

especially hired for this purpose (Talya Sasson) observed that there are at least 105 unauthorized "outposts,"

some of them construed on private Palestinian land, and there is evidence that governmental authorities were

involved in the establishment of many of those. The clear implication is that the rest of the settlements were

indeed "authorized." See Opinion on Unauthorized Outposts, Prime Minister's Office Communication

Department (March 2005), available at

http://www.pmo.gov.il/NR/rdonlyres/0A0FBE3C-C741-46A6-8CB5-F6CDC042465D/0/sason2.pdf.

Page 52

23 Berkeley J. Int'l L. 551, *614

n185. Construction of a Wall, supra note 6, P 119.

n186. Id. at P 120. The Court reached this conclusion based inter alia on U.N. Security Council Resolution

446, supra note 101.

n187. Such expropriation has continued during and after the Oslo process. For a discussion on the

expropriation methods, see generally Raja Shehadeh, From Occupation to Interim Accords: Israel and the

Palestinian Territories 4-35 (1997); Imseis, supra note 96, at 102.

n188. The Construction of a Wall Advisory Opinion does not cite Article 147 of the Fourth Geneva

Convention as relevant to the case at hand. This is due to the Court's interpretation of Article 6 as precluding the

applicability of all but 43 of the Convention's 159 articles, including Article 147. We take issue with this

interpretation, as is discussed at infra section II.A.4.b.

n189. H.C. 390/79, Dewikat v. Government of Israel, 34(1) P.D.1; see also Kretzmer, supra note 87, at

85-89.

n190. For a detailed account of these practices and the complex set of legal mechanisms that enable them,

see Land Grab, supra note 174; Shehadeh, Occupier's Law, supra note 170, at 22-41; Kretzmer, supra note 87, at

89-94.

n191. Kretzmer, supra note 87, at 95.

n192. Israel transferred the planning authority from the Jordanian Ministry of the Interior to the Commander

of the IDF Forces in the region. Following the Oslo Accords, Israel retained this authority over area C,

comprising some 60% of the West Bank territory and some 600,000 Palestinians. See generally Land Grab,

supra note 174.

Page 53

23 Berkeley J. Int'l L. 551, *614

n193. Id.

n194. Id.; Amnesty International, Demolition and Dispossession: The Destruction of Palestinian Homes,

MDE 15/059/1999 (Dec. 1999), at

http://web.amnesty.org.library.index/ENGMDE150591999?open&of=ENG-ISR.

n195. The average Palestinian in the West Bank residing in communities connected to a water network

consumes sixty liters of water per day. The consumption of water by people not thus connected, while unknown,

is certainly lower. The average consumption per capita in Israel as well as in the settlements is almost six times

higher, that is, 350 liters a day. In practical terms this discrepancy means that settlements enjoy an unlimited

supply of running water which allows for swimming pools and green lawns, while their neighboring Palestinians

often lack drinking and bathing water. See Yehezkel Lein, Not Even A Drop: The Water Crisis in Palestinian

Villages Without a Water Network (2001); Yehezkel Lein, Thirsty for a Solution: The Water Crisis in the

Occupied Territories and Its Resolution in the Final Status Agreement (2002), at

http://www.btselem.org/Download/engwater.doc; Yehezkel Lein, Disputed Waters: Israel's Responsibility for

the Water Shortage in the Occupied Territories (1998), at

http://www.btselem.org/Download/Disputed_Waters_Eng.doc.

n196. See S.C. Res. 471, 5 June 1980, U.N. SCOR 35th Sess., 2226th mtg., U.N. Doc. S/RES/36 (1980);

S.C. Res. 904, 18 March 1994, U.N. SCOR 49th Sess., 3351th mtg., U.N. Doc. S/RES/50 (1994) (calling on

Israel to assume its obligation to protect the civilian population and to take measures, including the confiscation

of arms, to prevent illegal acts of violence by Israeli settlers). According to B'tselem, Israeli civilians killed 145

Palestinians in the OPT: among them, 25 children. Other activities against the Palestinian inhabitants include

setting up roadblocks to disrupt normal Palestinian life, shooting at roof-top water heaters, burning cars,

smashing windows, destroying crops and uprooting trees, and harassing merchants and owners of stalls in the

market. See B'tselem, Violence of Settlers Against Palestinians, available at

http://www.btselem.org/english/Settlers_Violence/Settlers_Violence.asp; Ron Dudai, Free Rein: Vigilant

Settlers and Israel's Non-Enforcement of the Law (2001), at

http://www.btselem.org/Download/Free_Rein_Eng.doc; Yhezkel Lein, The Performance of Law Enforcement

Authorities in Responding to Settler Attacks on Olive Harvesters, at

http://www/bstelem.org/Download/2002_Olive_Harvest_Eng.doc. This violence is particularly prevalent in

Hebron, a city where 180,000 Palestinians live, and where a population of approximately 450 Jewish settlers is

effectively allowed to humiliate, threaten, and exercise violence against Palestinian property and people. See

Shlomo Swissa, Hebron, Area H2: Settlements Cause Mass Departure of Palestinians, at

http://www.btselem.org/Download/2003_Hebron_Eng.doc.; Breaking the Silence: Soldiers Speak Out about

their Service in Hebron (5 Nov. 2004), available at http://www.breakingthesilence.org.il/what_we_did_en.asp.

In May 2005, the HCJ rejected a petition by Palestinian residents of Hebron asking for the enforcement of

criminal law against the Jewish settlers of Hebron. See H.C.J. 454/03, Halabi v. Prime Minister, available at

http://www.court.gov.il.

Page 54

23 Berkeley J. Int'l L. 551, *614

n197. Imseis, supra note 96, at 106.

n198. Law for the Extension of Emergency Regulations (Judea, Samaria and the Gaza Strip - Judging for

Offences and Legal Aid) 1971.

n199. Other regulations allow Israeli courts in civil suits to engage with matters relating to residents of the

OPT. Civil Procedure Regulations (Issuing of Documents to the Occupied Territories) 1969.

n200. The Law of Return of 1950 gives, in Article 1, the right to immigrate to Israel to Jews (defined in

Article 4B as a person who is the offspring of a Jewish mother, or converted to Judaism, and is not a member of

another religion); and also to children, grandchildren, and spouses of Jews; and to spouses of children and

grandchildren of Jews, unless they were born Jews and willingly converted to another religion (Article 4A). Law

of Return, 1950, 4 L.S.I. 114 (1950).

n201. This law does not apply in areas under the control of the Palestinian Authority, a fact that has no

practical effect as Israelis and Jews do not reside in these areas.

n202. Election Law (Consolidated Version) 1969, at art. 147.

n203. Israeli law does not allow Israeli citizens, with the exception of diplomats and similar official groups

of people, to vote outside the geographic boundaries of Israel. See id. at art. 6.

n204. For an analysis of the Israeli legislation applying Israeli law on a personal basis to Israelis in the

territories, see Amnon Rubinstein, The Changing Status of the "Territories" (West Bank and Gaza): From

Escrow to Legal Mongrel, 8 Tel Aviv University Studies in Law 59, 68-72 (1988). For a discussion of the

significance of the difference in suffrage, see Oren Yiftachel, "Ethnocracy': The Politics of Judaizing

Israel/Palestine, 6 Constellations 364, 377 (1999).

n205. Order Regarding Management of Regional Councils (No. 783) and Order Regarding Management of

Local Council (No. 892), in Land Grab, supra note 174.

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23 Berkeley J. Int'l L. 551, *614

n206. Order Concerning Security Instructions (Judea and Sameria) (No. 378) 1970 - Announcement on a

Closed Area (Israeli settlements), in Land Grab, supra note 174. For a discussion of the military legislation

applying Israeli law on the settlements on a territorial basis, see Rubinstein, supra note 204, at 72-79.

n207. H.C.J. 1661/05, Regional Council Gaza Beach v. The Knesset, at PP 78-80 (unpublished), available at

www.court.gov.il. The question of the applicability of the Basic Law to the rights of Palestinians was also left

open by the HCJ in an earlier decision that dealt with the detention conditions of Palestinians in the OPT. H.C.J.

3278/02, The Center for the Defense of the Individual v. Commander of the IDF Forces in the West Bank, 57(1)

PD 385.

n208. Rubinstein, supra note 204, at 59.

n209. Id. at 67.

n210. The different treatment is evident in numerous situations, primarily in relation to land, water,

planning, protection from violence and the rule of law. Note that the HCJ recently acknowledged that "the Israeli

settlements (in Judea and Samaria) received special benefits, and the State invested in their construction and

expansion many resources, a treatment that was not accorded to the local population." See H.C.J. 548/04, Amna

v. IDF Commander in Judea and Samaria (Feb 26, 2004) (unpublished) (on file with authors).

n211. Kretzmer, supra note 87, at 75, 197. Kretzmer notes the significance, in this context, of Israel's

invocation of the law of occupation in order to thus justify the limitations on the rights of the Palestinians. For a

discussion of this position, see Yaffa Zilbershatz, The Control of the IDF in the Judea, Samaria and Gaza:

Belligerent Occupation or Colonial Take-Over, 20 Bar-Ilan Stud. 547 (2004).

n212. International Convention on the Elimination of All Forms of Racial Discrimination, opened for

signature Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter CERD]. Article 1 defines the term "racial discrimination"

as "any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin

which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal

footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field

of public life." Id. at art. 1. It is interesting to mention in this context that in the Construction of a Wall Advisory

Opinion, supra note 6, the Court noted that the construction of the Wall was accompanied by the creation of a

new administrative regime and that under this regime, the part of the West Bank lying between the Green Line

Page 56

23 Berkeley J. Int'l L. 551, *614

and the Wall had been designated as a "Closed Area": "Residents of this area may no longer remain in it, nor

may non residents enter it, unless holding a permit or identity card issued by the Israeli authorities ... . Israeli

citizens, Israeli permanent residents and those eligible to immigrate to Israel in accordance with the Law of

Return may remain in, or move freely to, from and within the Closed Area without a permit." Construction of a

Wall Advisory Opinion, supra note 6, P 85. The Court returned to this point in the application part of the

Opinion, when it determined that "that construction, the establishment of a closed area ... and the creation of

enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the

Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto)." Id. at P

133. These references to a regime which operates on the basis of ethnic distinctions seem to suggest the prima

facie relevance of the CERD, and it is therefore surprising that the Court failed to refer to it when it enumerated

the human right treaties to which Israel is a party and which are, at least potentially, applicable to the issue at

hand. See Ben-Naftali & Shany, Living in Denial, supra note 98.

n213. Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, 1015

U.N.T.S. 243. Article II(a)(3) defines Apartheid, inter alia, as "Any legislative measures and other measures

calculated to prevent a racial group or groups from participation in the political, social, economic and cultural

life of the country and the deliberate creation of conditions preventing the full development of such a group or

groups, in particular by denying to members of a racial group or groups basic human rights and freedoms,

including the right to work, the right to form recognized trade unions, the right to education, the right to leave

and to return to their country, the right to a nationality, the right to freedom of movement and residence, the

right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association." Id.

at art. II(a)(3). Article II(a)(4) also incorporates into the definition "Any measures, including legislative

measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for

the members of a racial group or group ... the expropriation of landed property belonging to a racial group or

groups or to members thereof." See also Samira Shah, On the Road to Apartheid: The Bypass Road Network in

the West Bank,
29 Colum. Hum. Rts. L. Rev. 221, 283 (1997). While there are many differences between the

former regime of Apartheid in South Africa and the occupation regime of the OPT, it is interesting to note here

that a prevailing discourse regarding the Israeli-Palestinian peace process in Israel is one of "separation." The

question arises whether this "separation" may not resemble the separation entailed in the regime of "apartheid."

This discussion brings up complex questions about the possible solutions to the Israeli-Palestinian conflict and

the viability of the "separation" thesis that does not amount to apartheid. The problem of resemblance to

apartheid, thus, did not go away but to some extent extenuated during the years of the Oslo process. See Aeyal

M. Gross, The Constitution, Reconciliation, and Transitional Justice: Lessons from South Africa and Israel,
40Stan. J. Int'l. L. 47 (2004). In this sense, it is interesting to compare the peace processes in Israel/Palestine and in

South-Africa. Both processes probably continued traditional approaches toward the solution of these conflicts:

incorporation in South Africa and partition in the Israeli-Palestinian context. The question for the

Israeli-Palestinian situation is how to create partition that does not entail apartheid. For a perspective on why

these two conflicts took such different turns despite their similar roots, see generally Ran Greenstein,

Genealogies of Conflict: Class, Identity and State in Palestine/Israel and South Africa (1995).

n214. Article 7(2)(h) defines the crime of apartheid as "inhumane acts of a character similar to those

referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and

domination by one racial group over any other racial group or groups and committed with the intention of

maintaining that regime." Supra note 182. For a discussion of the customary status of the crime of apartheid, see

Antonio Cassese, International Criminal Law 25 (2003), suggesting that while apartheid constitutes a state

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23 Berkeley J. Int'l L. 551, *614

delinquency under customary international law, it does not yet entail individual criminal responsibility under

that law. For an extensive discussion of the illegality of apartheid, see also Separate Opinion of Vice President

Ammoun in Continued Presence of South Africa in Namibia Advisory Opinion, supra note 21, at 77-88.

n215. It is worthwhile to note here that the Israeli Supreme Court contributed to the undermining of Article

43 when it allowed large scale changes in local law and included the settlers as part of the local population for

the purposes of Article 43. See Kretzmer, supra note 87, at 187.

n216. See Michael Walzer, Arguing About War, 162-65 (2004). Walzer posits that the political direction of

the occupation is to steadily "empower the locals," and the benefits are to be "widely distributed," for the

occupation to be just. Such empowerment may necessitate changes in local law, especially in cases where the

occupation purports to serve as a transitional regime from a dictatorial to a democratic form of government.

Such changes, while ostensibly conflicting with the language of various provisions of the law of occupation,

may nevertheless be permissible if they promote its overall purposes in a manner that advances, rather than

violates, its basic tenets. See Benvenisti, Preface, supra note 99.

n217. 2003 Report on the Situation of Human Rights in the Palestinian Territories, supra note 176, at 9-10.

n218. Id. at 9.

n219. 2002 Report on the Violations of Human Rights in the Occupied Arab Territories, supra note 31, at 8.

See also Drew, supra note 184, at 146-54 (providing a detailed argument on the ways the settlements violate the

Palestinian right to self determination).

n220. B'tselem, Freedom of Movement, available at

http://www.btselem.org/english/Freedom_of_Movement/index.asp; 2003 Report on the Situation of Human

Rights in the Palestinian Territories, supra note 176, at 9 (noting the slight decrease in the number of

Palestinians thus affected by curfews from approximately 520,000 in 2002 to 390,000 in 2003).

n221. The World Bank (West Bank and Gaza Office, Jerusalem), Twenty-Seven Months - Intifada,

Closures, and Palestinian Economic Crisis: An Assessment, ch. 2, P 2.5. (May, 2003) [hereinafter World Bank

Report].

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23 Berkeley J. Int'l L. 551, *614

n222. See Combined Report of B'tselem and Physicians for Human Rights-Israel, Harm to Medical

Personnel (Dec. 2003), available at http://www.phr.org.il/Phr/Pages/PhrArticles_index.asp?Cat=13.

n223. 2003 Report on the Situation of Human Rights in the Palestinian Territories, supra note 176, at 10.

n224. Such other measures include, for example, targeted killings. Out of 2,305 Palestinians killed by

Israel's security forces during the Al-Aqsa Intifada, 181 were specifically targeted by Israel and 111 bystanders

were killed in the course of these operations. B'tselem, Fatalities in the Al-Aqsa Intifada: 29 September 2000-20

April 2005, available at http://www.btselem.org/English/Statistics/Casualties.asp. 377 Israeli citizens were killed

by Palestinians within Israel and another 198 were killed in the OPT. See generally Amnesty International, Israel

and the Occupied Territories: State Assassinations and Other Unlawful Killings 9 (2001), available at

http://web.amnesty.org/library/Index/engMDE150052001. For a comprehensive analysis of the legality of the

policy, see Ben-Naftali & Michaeli, Targeted Killings, supra note 91. The execution of the policy has been

suspended since the Feb. 2005 cease-fire agreement. Another measure of dubious legality is administrative

detention. In the beginning of March 2003, Israel held more than one thousand Palestinians in administrative

detention, i.e. detention without charge or trial, authorized by administrative order rather than by judicial decree.

See B'tselem, Administrative Detention, available at

http://www.btselem.org/english/Administrative_Detention/index.asp. Throughout the years, this measure was

exercised against Palestinian voicing their opposition against the Israeli occupation and as a substitute for

criminal trials in cases where the evidence could not substantiate criminal charges. See Amnesty International,

Israel and the Occupied Territories: Despair, Uncertainty and Lack of Due Process (1997), available at

http://web.amnesty.org/library/index/engmde150031997; B'tselem, Administrative Detention in the Occupied

Territories, available at http://www.btselem.org/english/Administrative_Detention/Occupied_Territories.asp.

Detainees are further deprived of due process rights. See Imseis, supra note 96, at 119-20. In addition to all the

above, Israel has been carrying out, until recently, a policy of house demolition, destroying close to 1,000 houses

since 1987. See B'tselem, House Demolitions-Statistics, available at

http://www.btselem.org/english/HouseDemolitions/Statistics.asp. This means is justified by Israel as necessary

to prevent the houses from becoming a haven for militants against the IDF and the settlement and as a

punishment against those who committed crimes against Israel as well as for deterrence purposes. See 2003

Report on the Situation of Human Rights in the Palestinian Territories, supra note 176, at 13-14. As far as this

means is exercised for deterrence purposes and for the punishment of families of suicide bombers, it might

amount to prohibited reprisals and collective punishment and extensive property damage unwarranted by

military necessity by Articles 33 and 53 of the Fourth Geneva Convention, respectively. See Fourth Geneva

Convention, supra note 67, at arts. 33, 53.

n225. The Construction of a Wall Advisory Opinion, supra note 6, PP 123-37. The Court held that the

consequences for the occupied population amount to breaches of their rights to privacy and freedom of

movement, as guaranteed by Articles 17 and 12 respectively of the ICCPR, supra note 78; the right of access to

holy places enshrined in G.A. Resolution 181 (II), the Armistice Agreement as well as the subsequent peace

treaty between Israel and Jordan; the rights to work, to an adequate standard of living, to health and to education

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23 Berkeley J. Int'l L. 551, *614

under Articles 6, 7, 11, 12, 13 respectively of the ICESCR, supra note 78, as well as Articles 16, 24, 27 and 28

of the Convention on the Rights of the Child. G.A. Res. 44/25, annex 44, U.N. GAOR Supp. (No. 49) at 167,

U.N. Doc. A/44/49 (1989).

n226. See Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine,

Report of the Special Rapporteur of the Commission of Human Rights on the Situation of Human Rights in the

Palestinian Territories Occupied By Israel Since 1967, Addendum: Note by the Secretary-General

(A/57/366/Add.1), P 2 (Sep. 16, 2003).

n227. Construction of a Wall, supra note 6, P 122.

n228. See Amnesty International, without Distinction - Attacks on Civilians by Palestinian Armed Groups

(July, 2002), available at http://www.amnesty.org.

n229. See, e.g., Israel's Response to the Report Submitted by the Special Rapporteur on the Right to Food,

submitted to the Commission on Human Rights, 60th Sess., E/CN.4/2004/G/14, PP 5, 6 (Nov. 26, 2003)

(indicating the Rapporteur's failure to take account of the Palestinians' responsibility for the encouragement of

terror attacks against Israel, which form the basis of Israel's actions taken in self defense).

n230. Note From Israel to the U.N., supra note 32, at sec. 2.

n231. 2002 Report on the Violations of Human Rights in the Occupied Arab Territories, supra note 31, at 4.

n232. Note From Israel to the U.N., supra note 32, at sec. 3.

n233. See H.C.J. 10356/02, Hess v. Commander of the IDF Forces in the West Bank, 58 (3) P.D. 443;

H.C.J. 7957/04 Mara'abe case, supra note 103. In the first of these cases, the rationale stated in the text was

accepted by the HCJ as a basis for authorizing the Israeli army to seize land owned by Palestinians and destroy

structures in Hebron for the purpose of allowing the settlers safe access to the Cave of the Patriarchs. In the latter

case, the Court determined that the military commander is authorized to construct the separation barrier in the

occupied area for the purpose of defending the lives and safety of the Israeli settlers. While the HCJ held that the

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23 Berkeley J. Int'l L. 551, *614

injury to the rights of the Palestinians in the specific segment of the barrier before it in this case was

disproportionate, its principled position illustrates how the settlements and their incorporation into the military

commander's security considerations in a way that upsets the balancing act as envisaged in international law, are

part of the breach of trust discussed in this section. See Aeyal Gross, The Construction of a Wall Between the

Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation

(forthcoming).

n234. Graber, supra note 41, at 37 (emphasis added).

n235. Lieber Code, supra note 40.

n236. Id. at art. 31.

n237. Brussels Declaration, supra note 15.

n238. 1907 Hague Convention of 1907, supra note 51, at art. 43.

n239. Everett P. Wheeler, Government de facto,
5 Am. J. Int'l. L. 66, 70 (1911); Oppenheim, supra note

113, at 437; Graber, supra note 41, at 68-69; von Glahn, Occupation, supra note 64, at 31.

n240. Gasser, supra note 63, at 254.

n241. Arnold D. McNair, Municipal Effects of Belligerent Occupation,

57 L. Q. Rev. 33, 35 (1941).

According to Benvenisti, the drafters of Article 43 viewed military necessity as the sole ground preventing the

occupant from maintaining the old order. Benvenisti, Law of Occupation, supra note 33, at 14. This has changed

over the course of the twentieth century and scholars began to ponder other legitimate grounds for legislation as

the safeguarding of the welfare of the occupied population. Von Glahn, Occupation, supra note 64, at 97.

Page 61

23 Berkeley J. Int'l L. 551, *614

n242. The Judge Advocate General School, Law of Belligerent Occupation: Text No. 11, 35-37 (1944).

n243. Gasser, supra note 63, at 246.

n244. Fourth Geneva Convention, supra note 67.

n245. See supra notes 67-83 and accompanying text.

n246. Pictet, supra note 68, at 274; Benvenisti, Law of Occupation, supra note 34, at 99.

n247. Gasser, supra note 63, at 246; Pictet, supra note 68, at 283. This prohibition could also be understood

as designed to prevent a situation wherein citizens of the occupying power reside in the occupied area and are

subject to a different legal regime. See discussion accompanying notes 195-214.

n248. Fourth Geneva Convention, supra note 67, at art. 54.

n249. Gasser, supra note 63, at 257.

n250. Fourth Geneva Convention, supra note 67, at art. 64.

n251. Benvenisti, Law of Occupation, supra note 34, at 101-02.

n252. Pictet, supra note 68, at 335.

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23 Berkeley J. Int'l L. 551, *614

n253. Benvenisti, Law of Occupation, supra note 34, at 104.

n254. Benvenisti has recently argued that "Article 64 retains little of Hague's Article 43's strong bias against

modifying local law," as the occupant under the Geneva Convention "is no longer the disinterested watch guard,

but instead a very involved regulator and provider," granted with "wide legislative powers under Article 64."

This change in the role of the occupant, says Benvenisti, is due to the focus of the Geneva regime on the

population under occupation. See Benvenisti, Resolution 1483, supra note 14, at 28-30. The legislative powers

of the occupying power are thus designed to advance only its legitimate functions.

n255. Construction of a Wall, supra note 6, P 125. In para. 126, the Court proceeded to identify Articles 47,

49, 52, 53, and 59 of the Fourth Geneva Convention as relevant to the question at hand. For a similar

interpretation, see Yoram Dinstein, The International Legal Status of the West Bank and the Gaza Strip - 1998,

28 Isr. Y.B. Hum. Rts. 37, 42-44 (1998) [hereinafter Dinstein, Legal Status].

n256. For a critical review of this aspect of the Advisory Opinion, see Orna Ben-Naftali, "A La Recherche

du Temps Perdu': Rethinking Article 6 of the Fourth Geneva Convention in the Light of the Legal Consequences

of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 38(1-2) Isr. L. Rev. 211

(2005) [hereinafter Ben-Naftali, Temps Perdu].

n257. Construction of a Wall, supra note 6, P 125. Note paragraph 135, where, in the context of addressing

the term "military operations" in Article 53 in order to determine the existence of military exigencies, the Court

said that such exigencies "may be invoked in occupied territories even after the general close of military

operations that led to their occupation." Id. at P 135 (emphasis added).

n258. While 43 of the 159 Articles of the Conventions continue to apply, the emphasis is on Articles 47-78

comprising the relevant Section III.

n259. Fourth Geneva Convention, supra note 67, at art. 50.

n260. Id. at art. 55.

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23 Berkeley J. Int'l L. 551, *614

n261. See 2a Final Record of the Diplomatic Conference of Geneva 1949, 623-25; Pictet, supra note 68, at

63; Green, supra note 43, at 258 (2d ed., 2000); Roberts, Prolonged Military Occupation, supra note 33, at 56

(advancing four arguments for the inapplicability of Article 6).

n262. Protocol I, supra note 27. See also Commentary on The Additional Protocols, supra note 120, at 66;

Roberts, Prolonged Military Occupation, supra note 33, at 56. Admittedly, the language of Article 3(b) is

unclear and could be construed as suggesting that it applies the Fourth Geneva Convention subject to its own

terms. For this construction, see Dinstein, Legal Status, supra note 255. Such reading, however, defies both the

drafters' intention and the teleological test of international humanitarian law.

n263. For example, Article 78 of the Fourth Geneva Convention was recently applied by the HCJ in Ajuri,

supra note 103. For reviews of this judgment, see Daphne Barak-Erez, Assigned Residence in Israel's

Administered Territories: The Judicial Review of Security Measures, 33 Isr. Y.B. Hum. Rts. 303 (2003); Eyal

Benvenisti, Ajuri et al. - Israel High Court of Justice, 3 September 2002, 9 Eur. Pub. L. 481 (2003) [hereinafter

Benvenisti, Ajuri]; Orna Ben-Naftali & Keren Michaeli, The Call of Abraham: Between Man and "Makom':

Following HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, 15 Hamishpat 56 (2003) (Hebrew). Note

that while Article 78 provides less for the obligations and more for the rights of the Occupying Power, endowing

it with the power to subject protected persons to assigned residence and to internment, the fact remains that the

Court applied this provision, regardless of Article 6.

n264. Roberts, Prolonged Military Occupation, supra note 33, at 55.

n265. On the customary status of most of the Protocol I provisions, see supra note 85.

n266. For instance, Article 50, protecting children's right to education, does not apply, but this very same

right as it appears in Article 28 of the Convention on the Rights of the Child and Articles 10, 13, and 14 of the

ICESCR, supra note 78, does apply. Similarly, Articles 55 and 56, which stipulate the duty of the occupant to

ensure the population's health through provision of food and medical supplies and the maintenance of medical

and hospital establishments, have no applicability while similar duties, far less specific, clear, and legally

binding, enshrined in Articles 11 and 12 of the ICESCR (the right to an adequate standard of living and the right

to health respectively) and Articles 24 and 27 of the CRC (the rights to health and adequate standard of living

and development respectively) do apply.

n267. The ICJ itself determined that, while international human rights law is applicable to situations of

armed conflicts, international humanitarian law is the lex specialis. See Construction of a Wall, supra note 6, PP

Page 64

23 Berkeley J. Int'l L. 551, *614

104-06. A similar determination was made by the ICJ in its Nuclear Weapons Advisory Opinion, supra note 52,

P 25. On the co-application of human rights law and humanitarian law to occupied territories, see Ben-Naftali &

Shany, Living in Denial, supra note 98.

n268. Roberts, Prolonged Military Occupation, supra note 33, at 57.

n269. See Construction of a Wall, supra note 6, Separate Opinion of Judge Elaraby, P 3.1; Separate Opinion

of Judge Koroma, P 2.

n270. Shamgar, Legal Concepts, supra note 88, at 43. Justice Shamgar served as a judge in the Israeli

Supreme Court since 1975 and as its Chief Justice since 1983.

n271. Ecclesiastes 3:1.

n272. William H. Rehnquist, Successful Lawyers Pay the Price,

82 A.B.A. J. 100 (1996).

n273. On the ways time is conceived by law, see generally Carol J. Greenhouse, Just in Time: Temporality

and the Cultural Legitimation of Law,
98 Yale L. J. 1631 (1989); David M. Engel, Time and Community, 21 L.& Soc'y Rev. 605 (1987); Rebbeca R. French, Time in the Law, 72 U. Col. L. Rev. 663 (2001); Todd Rakoff,

The Law of Social Time: A Time for Every Purpose: Law and the Balance of Life (2002); Jed Rubenfeld,

Freedom and Time: A Theory of Constitutional Self-Government (2001).

n274. Statutes of limitations; jurisdictional time limits; civil and criminal procedure laws; the laws of

evidence, intellectual property protections; the rule against perpetuities; and sentencing are but examples that

immediately come to mind and all embody legal assumptions about human interaction with time.

n275. For example, the principle of nullum crimen sine lege, that is, of non-retroactivity, is meaningful only

due to the centrality of the concept of time. Similarly, any legal presumption would have been rendered

meaningless were it not for the temporal dimension which allows for its refutation.

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23 Berkeley J. Int'l L. 551, *614

n276. Even the Israeli Military Order Number 1229 provides that a period of detention shall not exceed six

months, although it may be extended in light of security considerations. While Order No. 1229 does not mandate

that the detainee be brought before a judge prior to his detention, it does allow detainees to appeal their detention

or extension of detention before a military judge. See B'tselem, available at

http://www.btselem.org/english/Administrative_Detention/Israeli_Law.asp.

n277. The principle of reasonableness is a general principle of international law. Its application has

generated the conclusion that a right cannot be exercised in a wholly unreasonable manner causing harm

disproportionate to the right holder's interests. See Bin Cheng, General Principles of Law: As Applied by

International Courts and Tribunals 121-23 (1987); See also WTO, Report of the Appellate Body in United States

- Standard for Reformulated and Concentrated Gasoline and Like Products of National Origin, reprinted in
35

I.L.M. 603, 626 (1996).

n278. For example, the Uniform Negotiable Instruments Law sets standards for the measurement of

"reasonable time." See Richard Speidel & Steve H. Nicks, Negotiable Instruments and Check Collections (The

New Law) in a Nutshell 60, 61, 148, 149, 152 (4th ed. 1993). Similarly, the "reasonable time" for taking an

action is contemplated in the Uniform Commercial Code (Colorado) as depending "on the nature, purpose and

circumstances of such action." See http://www.law.du.edu/russell/contracts/ucc/4-1-204.htm. The Israeli

Supreme Court has itself resorted to the principle of reasonable time in order to determine the time limits of a

judicial institutionalization order. See C.A. 3845/02, Anonymous v. The District Adult Psychiatric Committee

(unpublished). This determination relied on a similar decision by the U.S. Supreme Court,
Jackson v. Indiana,

406 U.S. 715, 738 (1972).

n279. U.N. Charter, supra note 13, at art. 2(3).

n280. See supra section II.A.2.b. The fact that current international law legitimizes an armed struggle by

occupied people attempting to realize their right to self-determination and emerge as a new sovereign state

attests to the importance attached to the realization of this right.

n281. See supra notes 152-55 and accompanying text.

n282. Roberts, Prolonged Military Occupation, supra note 33, at 52. See also supra note 213 and

accompanying text.

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23 Berkeley J. Int'l L. 551, *614

n283. To use Dworkin's reference to a formal and a substantive conception of the rule of law: the former is

interested in the enforceability of law regardless of its content, that is, in order; the latter is interested in the

substance, nature and justification of the order, determined by the balance thereby achieved between the

individual and society; between liberty and security. See generally Ronald Dworkin, A Matter of Principle 11

(1985).

n284. See 2002 Report on the Violations of Human Rights in the Occupied Arab Territories, supra note 31,

at 12 ("the rule of law is one casualty of the conflict in the occupied Palestinian Territory, but the main

casualties are the people of both Palestine and Israel").

n285. See supra notes 173-77; 187-95; 217-27 and accompanying text.

n286. See supra note 185, 227 and accompanying text.

n287. Internal pressures emanate from the settlers who are represented in the Government, on the one hand,

and from the Israeli High Court of Justice, on the other hand. The Court, having determined that the current

route in sections of the Wall that were the subject of the appeal fails to meet the proportionality test of both

international humanitarian law and Israeli administrative law, ordered the re-routing of a 20-mile section of what

is termed in Israel the "separation fence." See H.C. 2056/04, Beit Surik case, supra note 103. The same rationale,

generating similar results, was applied in H.C. 7957/04, Mara'abe case, supra note 103. Similar appeals

pertaining to other segments of the wall are currently pending before the HCJ.

n288. The most notable external pressure stems from the Construction of a Wall, supra note 6. The opinion,

which was rendered pursuant to a request submitted by the U.N. General Assembly, G.A. Res. A/RES/ES-10/14,

U.N. GAOR, 10th Emer. Sess. 23d Plen. Mtg. (Dec. 8, 2003), held that the construction of the Wall in any part

of the OPT is illegal and specified the legal consequences emanating from said illegality. The Opinion was

adopted by the General Assembly in GA Res. A/ES-10/L.18/Rev. 1 (July 20, 2004) (150 votes in favor, 6

against and 10 absentees).

n289. It should, however, be noted that this kind of effect on Palestinian villages is taken into consideration

by the HCJ in determining whether the route of the wall meets the standard of proportionality and accounts for

the recent decision ordering the state to change its course. See H.C. 7957/04, Mara'abe case, supra note 103.

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23 Berkeley J. Int'l L. 551, *614

n290. See 2003 Report on the Situation of Human Rights in the Palestinian Territories, supra note 176, at

15.

n291. Construction of a Wall, supra note 6, P 121.

n292. While it is virtually impossible to calculate the total investment, as it runs the whole gamut from

military expenditure to monetary incentives to settlers, some figures are sufficiently telling for the present

discussion: during the last decade, the Israeli Government invested $ 2.5 billion in constructing new houses in

the OPT, 50% of which was public, compared with 25% public financing inside the green line. During the same

period, the Government allocated to municipalities an average of NIS 5,428 per settler, a year, compared to

3,807 per citizen in Israel. See Shlomo Svirski et al., Governmental Funding of Israeli Settlement In Judea and

Samaria and the Golan Heights in the Nineties: Municipalities, Housing and Roads Construction (Jan. 2002)

(Hebrew), available at http://www.adva.org/ivrit/diur.html. Just the cost of constructing the by-pass roads in the

OPT since Oslo has been estimated at more than $ 265 million. See Ze'ev Schiff, The March of Folly of the

By-Pass Roads, Ha'Aretz, Feb. 15, 2002, at B1. The projected cost of the Wall is $ 1.4 billion. 2003 Report on

the Situation of Human Rights in the Palestinian Territories, supra note 176, at 8.

n293. See supra notes 185, 287-91 and accompanying text.

n294. Unlike the de jure annexation of East Jerusalem, the actions described in the text lack the official act

of annexation, but nevertheless amount to a de facto annexation, effected without giving the Palestinians the

rights of citizenship, made visibly and materially clear by the planned path of the Wall. As noted by the Special

Rapporteur of the UN Commission on Human Rights, John Dugard, "Language is a powerful instrument. This

explains why words that accurately describe a particular situation are often avoided." Focusing merely on the

Wall, the Special Rapporteur observed that "The Wall that Israel is presently constructing within the territory of

the West Bank ... goes by the name of "Seam Zone,' "Security Fence' or "Separation Wall'. The word

"annexation' is avoided as it is too accurate a description and too unconcerned about the need to obfuscate the

truth ... . The fact must be faced that what we are presently witnessing in the West Bank is a visible and clear act

of territorial annexation under the guise of security ... . Annexation of this kind goes by another name in

international law - conquest." 2003 Report on the Situation of Human Rights in the Palestinian Territories, supra

note 176, at 6, 8.

n295. Ze'ev Schiff, a leading commentator in Ha'Aretz newspaper, contemplating merely the cost of the

by-pass roads, concluded that:

three explanations stand behind this reality. The first is that these expenditures express an intention never to give

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23 Berkeley J. Int'l L. 551, *614

up the territories and all the rest is an illusion. The second is that we have decided to build, step-by-step, the road

system of the Palestinian State that will be established in the territories, at the expense of the Israeli taxpayer.

The third possible explanation is that the governmental systems of Israel have been dragged into this as if forced

by a demon and without anyone being able to stop the March of Folly.

Schiff, supra note 292. Given that governments are not presumed to be possessed by demons, the obvious

cynicism of the second explanation, and the broader context and raison d'etre of the by-pass roads, that is, the

settlements' enterprise, the first explanation is clearly the only reasonable conclusion. See also Ran HaCohen,

Letter from Israel, Mar. 1, 2002, available at http://antiwar.com/hacohen/pf/p-h030102.html. The concern that

the Wall is tantamount to annexation was the focus of the debate held during the 4841th Security Council

meeting on October 14, 2003. See U.N. Press Release SC/7895, In Day-Long Security Council Meeting,

Palestine Observer Says Israeli Seecurity Wall Involves De Facto Annexation of Occupied Land (Oct. 14, 2003),

available at http://www.un.org/News/Press/docs/2003/sc7895.doc.htm.

n296. See 2003 Report on the Situation of Human Rights in the Palestinian Territories, supra note 176, at

14. The ICJ reiterated this position in Construction of a Wall, supra note 6, P 122.

n297. S.C. Res. 1397, supra note 140 (envisioning "a region where two states, Israel and Palestine, live side

by side within secure and recognized borders").

n298. Construction of a Wall, supra note 6, P 116.

n299. See supra notes 161-69 and accompanying text.

n300. Construction of a Wall, supra note 6, P 135.

n301. Land Grab, supra note 174.

n302. Comm. App./2597, Kafr "Aqeb Development Committee et al. v. Ministry of Defense et al.,

Response of the State, at sec. 33/c, reproduced in Behind the Barrier, B'tselem Human Rights Violation As a

Result of Israel's Wall: Position Paper (April, 2003) [hereinafter Kafr "Aqeb Development Committee],

available at http://www.diak.org/Roadmap/2003_Behind_The_Barrier_Eng.htm#_ftnref84. The HCJ itself had,

in the past, accepted this logic when it contemplated, and authorized, the temporary seizure of Palestinian land

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23 Berkeley J. Int'l L. 551, *614

for the building of permanent settlements. See H.C. 610/78, Ayun v. Minister of Defense, 33(2) P.D. 113, 131

(Opinion of Judge Landau); Id. at 134 (Opinion of Judge Ben-Porat).

n303. H.C.J. 1661/05, Regional Council Gaza Beach case, supra note 207, PP 8-9, 115, 126.

n304. The use of the term "nomos" in the section's title encompasses its varied meanings for Cover, for

Schmitt and for Agamben. For Cover, it indicates a normative universe, comprising both rules and the narratives

that give them meaning. See Robert Cover, Nomos and Narrative,
97 Harv. L. Rev. 4 (1983). For Schmitt, it

meant that right as original violence, as difference, rather than universalistic rationality being the foundation of

law. See Carl Schmitt, Der Nomos Der Erde (1974), discussed in Carlo Galli, The Critic of Liberalism: Carl

Schmitt's Antiliberalism: Its Theoretical and Historical Sources and Its Philosophical and Political Meaning,
21Cardozo L. Rev. 1597, 1601 (2000). Giorgio Agamben's analysis brings Schmitt's theory of the exception,

explicated in this section, to its logical conclusion by stating that the concentration camp - as a paradigmatic

structure - has become the modern political nomos: the space where the exception and the rule, the fact and the

norm, are indistinguishable and law becomes meaningless. See Giorgio Agamben, Homo Sacer: Sovereign

Power and Bare Life 166, 167-80 (Daniel Heller-Roazen trans., 1988).

n305. See Theodor E. Mommsen, The History of Rome 325, 326 (1908). For later references to this

classical model, see, for example, Nicolo Machiavelli, The Discourses 194, 198 (Bernard Crick ed. & Leslie

Walker trans., 1970); Jean Jacques Rousseau, The Social Contract and Discourses 293, 294-96 (G.D.H. Cole

trans., Alfred A. Knopf 1993).

n306. For the essential features of the traditional model of emergency powers, see Oren Gross, Exception

and Emergency Powers: The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency

Powers and the "Norm-Exception" Dichotomy,
21 Cardozo L. Rev. 1825, 1836-39 (2000) [hereinafter Exception

and Emergency Powers].

n307. Id.

n308. See supra section II.A.1-4.

n309. Study of the Implications for Human Rights of Recent Development Concerning Situations Known as

State of Siege or Emergency, U.N. ESCOR, 35th Sess., Agenda Item 10, 69 U.N. Doc. E/CN.4/Sub.2/1982/15

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23 Berkeley J. Int'l L. 551, *614

(1982) (N. Questiaux). See also Oren Gross & Fionnuala Ni Aolain, To Know Where We Are We Need To

Know Where We Are: Revisiting States of Emergency, in Human Rights: An Agenda for the 21st Century 79

(Angela Hegarty & Siobhan Leonard eds., 1999).

n310. Giacomo Marramo, Schmitt and the Categories of the Political: The Exile of the Nomos: For a

Critical Profile of Carl Schmitt,

27 Cardozo L. Rev. 1567 (2000).

n311. Schmitt, Political Theology, supra note 16, at 15.

n312. Heiner Bielefeld, Carl Schmitt's Critique of Liberalism: Systemic Reconstruction and

Countercriticism,

10 Can. J. L. & Juris. 65, 68 (1997).

n313. Schmitt was fascinated with Hobbes and regarded himself as his heir, ending his commentary on

Hobbes' Leviathan with the words: "You shall no longer teach in vain, Thomas Hobbes." See Carl Schmitt, The

Leviathan in the State Theory of Thomas Hobbs: Meaning and Failure of a Political Symbol (George Schwab &

Erna Hilfstein trans., 1996). On the affinity between Schmitt and Hobbes, see David Dyzenhous, Now the

Machine Runs Itself: Carl Schmitt on Hobbes and Kelsen,
16 Cardozo L. Rev. 1 (1994); John P. McCormick,

Fear, Technology and the State: Carl Schmitt, Leo Strauss and the Revival of Hobbes in Weimar and National

Socialist Germany, 22 Pol. Theory 619 (1994).

n314. For Schmitt's "friend'/'enemy' distinction, see Carl Schmitt, The Concept of the Political, 25-37 (J.

Harvey Lomax trans., 3rd ed. 1996). For an analysis, see Andrew Norris, Carl Schmitt on Friends, Enemies and

the Political, Telos 68 (Summer 1998). On the odd history of Schmitt's reception in the Anglo-American

academia, see Emanuel Richter, The Critic of Liberalism: Carl Schmitt: The Defective Guidance for the Critique

of Political Liberalism,

21 Cardozo L. Rev. 1619 (2000).

n315. This was the political theology of the Third Reich. On Schmitt's defense of the President's action in

July 1932 in Prussia v. Reich, which was based on his construction of emergency, see David Dyzenhaus,

Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar 70-85 (1997).

n316. Harold Lasswell noted that "an insidious outcome of continuing crisis is the tendency to slide into a

new conception of normality that takes vastly extended control for granted, and thinks of freedom in smaller and

smaller dimensions." Harold D. Lasswell, National Security and Individual Freedom 29 (1950), quoted in Gross,

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23 Berkeley J. Int'l L. 551, *614

Exception and Emergency Powers, supra note 306, at n.155.

n317. Agamben, supra note 304, at 166-68.

n318. Id. at 126-31, 174-76. Agamben, noting the very ambiguity of the title "Declaration des droits de

l'Homme et du Citoyen" refers in this context to Arendt's discussion of the paradox wherein "The Conception of

human rights, based upon the assumed existence of a human being as such, broke down at the very moment

when those who professed to believe in it were for the first time confronted with people who had indeed lost all

other qualities and specific relationships - except that they were still human." See Hannah Arendt, The Origins

of Totalitarianism 299 (1979). Thus, in the nation-state system, human rights that are considered inalienable

have become meaningless once they cannot be attached to the citizens of a nation-state. The refugee, the person

who was supposed to be the "human rights" person par excellence has thus become the paradigm of "bare life.'

n319. A term coined by Gross in his analysis of Schmitt's theory of the exception. See Gross, Exception and

Emergency Powers, supra note 306.

n320. Agamben, supra note 304, at 187-88.

n321. Without Distinction, supra note 228.

n322. This issue has been discussed supra in section II.4.d.iv.

n323. The essential features of the occupation regime of the OPT date back to at least 1977, thus preceding

both the second and the first intifadas, and making the assignment of blame for the failure of the peace process

to the Palestinians, its accuracy notwithstanding, irrelevant to the present discussion. Note further that the period

of the occupation consists of four segments: (1) 1967-1987 (first period); 1987-1993 (first Intifada); 1993-2000

(the Oslo peace process); 2000-present (the collapse of the peace process and the second Intifada). The

establishment of the Palestinian Authority did not alter the fact of occupation, not least because Israel neither

ceased to exercise effective control over the territories nor to allow the expansion, or "natural growth," of the

settlements. See Construction of a Wall, supra note 6, P 78. These facts have led some observes to compare the

creation of the Palestinian Authority to the creation of Bantustans in Apartheid South Africa. See, e.g., Christine

Bell, Peace Agreements and Human Rights 189, 190 (2000).

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23 Berkeley J. Int'l L. 551, *614

n324. On the state's resort to the Geneva Conventions as a basis for exercising its powers, see generally the

n325. On the jurisprudence of the HCJ, see Kretzmer, supra note 87, at 38. Two major issues where the

court rejected Palestinian petitions and allowed the army to act in ways that de facto negated protections that the

Geneva Convention sought to give, are deportations, and home demolitions. Id. at 49-52, 165-86, 145-63. In the

context of both issues, the HCJ interpreted the Geneva Convention in a way that allowed the Israeli army to use

these measures notwithstanding the specific prohibitions on them in the text of the Convention. This

interpretation has been highly controversial. On the legitimizing funct'ion of the HCJ in rejecting over 99% of

Palestinians petitions but accepting some which thereby become symbolic "Landmark cases," which legitimizes

the authority of the HCJ without significantly affecting the rights of the Palestinians, see Ronen Shamir,

Landmark Cases and the Reproduction of Legitimacy: the Case of Israel's High Court of Justice, 24 L. & Soc'y

Rev. 781 (1990). A recent change in the direction of this jurisprudence should however be noted as it may well

indicate a trend towards greater recognition of the humanitarian and human rights plight of the Palestinians, as is

evidenced in the HCJ's analysis of the proportionality requirement in connection with the construction of the

Wall. See H.C. 2056/04, Beit Surik case, supra note 103; H.C. 7957/04, Mara'abe case, supra note 103; H.C.

3239/02, Mar'ab. v. The IDF Commander in Judea and Samaria (not yet published) (applying human rights

instruments to the occupied territories).

n326. A credit noted particularly for its rarity, insofar as it has been the practice of occupying powers to

deny the very applicability of the law of occupation. See Baxter, Some Existing Problems, supra note 35, at 288;

Roberts, Prolonged Military Occupation, supra note 33, at 46. There is a difference, however, between admitting

the relevance of and referring to international humanitarian law and applying it in a manner consistent with its

purpose. While the HCJ does apply this law in a manner that occasionally has favored a Palestinian petition

directly (and especially recently in the context of petitions against specific segments of the Wall) and, perhaps

more significantly, indirectly, by exercising its "shadow" func'tion to encourage the state to retreat from a

contested action before a decision is rendered, it has not, in the main, applied this law in a manner that advances

its main purpose. For an analysis of the "shadow funct'ion" of the court in this context, see Yoav Dotan, Judicial

Rhetoric, Government Lawyers and Human Rights: the Case of the Israeli High Court of Justice During the

Intifada, 33 L. & Soc'y Rev. 319 (1999); Kretzmer, supra note 87, at 189-91. For an example of a recent decision

Convention authorizes the Military Commander to assign the residence of Palestinians from the West Bank to

the Gaza Strip and that such assignment is distinct from the prohibition on deportation contained in Article 49 of

the same Convention, see Ajuri, supra note 103. For reviews of this judgment, see Barak-Erez, supra note 263;

Benvensiti, Ajuri, supra note 263; Ben-Naftali & Michaeli, The Call of Abraham, supra note 263.

n327. See supra section II.A.3. Indeed, Roberts notes that "Israel may see some advantage in the

continuation of the status of occupied territory, because this arrangement provides a legal basis for treating the

Arab inhabitants of the territories entirely separately from the citizens of Israel: such a view suggests that the

law of occupation could potentially pave the way for a kind of apartheid." Roberts, Military Occupation, supra

Page 73

23 Berkeley J. Int'l L. 551, *614

note 33, at 272-73. For a description of a similar concern, see Roberts, Prolonged Military Occupation, supra

note 33, at 79-80. The law of occupation may indeed pave the way for a kind of apartheid, but only to the extent

that it will be interpreted as excluding the notion of illegal occupation. Indeed, in the context of the OPT, Joseph

Weiler noted that the construction of Israel's control of the territories as a belligerent occupation helped digest

and perhaps prolong "a reality of de facto annexation, of occupation ad infinitum coupled with the luxury of not

having to integrate the local population into the democratic processes of the occupying nation." Weiler explains

this by the fact that the law of occupation was created with short occupation in mind, and thus the present rules

are not fit for an occupation which has lasted for over thirty years. Weiler, supra note 97, at 390. The

legitimization Weiler points to is the consequence of a law of occupation which does not incorporate a notion of

an occupation becoming illegal when it turns into a de facto annexation.

n328. On the "Greater Israel" (Eretz Isreal/Land of Israel) ideology and its implications, see Baruch

Kimmerling, Between the Primordial and the Civil Definitions of the Collective Identity: Eretz Israel or the

State of Israel?, in Comparative Social Dynamics: Essays in Honor of S. N. Eisenstadt 262-83 (Eric Cohen et al.

eds., 1985). The settlement project cannot be understood outside of this context as there is an overlap between

the occupied territories and the historical and religious "Greater Israel." See Baruch Kimmerling, Boundaries

and Frontiers of the Israeli Control System: Analytical Conclusions, in The Israeli State and Society: Boundries

and Frontiers 265, 277 (Baruch Kimmrling ed., 1989).

n329. It is interesting to note in this context that demography plays a significant role within Israel proper,

especially with respect to its Palestinian minority. The latter, while enjoying the myriad of rights associated with

citizenship, are nevertheless discriminated against, most notably with respect to land rights as they most directly

pertain to the "judaization" process of the land of Israel. This process has led to the characterization of the Israeli

regime as an "ethnic democracy" - a concept which appears to be an oxymoron - or as an "ethnocracy." Placed in

this context, the occupation regime attempts to replicate the same process by extending the ethnic regime which

exists within Israel's recognized borders. The result is an Israeli state whose existence as a democracy is put in

doubt. On discrimination of Palestinians citizens of Israel with respect to land rights, see Alexander Kedar, The

Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948-1967,
33 N.Y.U. J.Int'l. L. & Pol. 923 (2001); Aeyal Gross, The Dilemma of Constitutional Property Rights in Ethnic Land

Regimes: Israel and South Africa Compared, 121 S. African L. J. (2004). On the concept of an "ethnic

democracy," see Sammy Smooha, Minority Status in an Ethnic Democracy: The Status of the Arab Minority in

Israel, 13 Ethnic & Racial Stud. 389-413 (1990). On the critique of this concept, see As'ad Ghanem et al.,

Questioning "Ethnic Democracy": A Response to Sammy Smooha, 3 Isr. Stud. 253 (1998). On the alternative

concept of "Ethnocracy," see Oren Yiftachel, "Ethnocracy': The Politics of Judaizing Israel/Palestine, 6

Constellations 364 (1999). For a detailed discussion of this debate, see Aeyal Gross, Democracy, Ethnicity and

Constitutionalism in Israel: Between the "Jewish State" and the "Democratic State", 2 Sotsyologia Israelit 647

(2000).

n330. See supra section II.A.4.

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23 Berkeley J. Int'l L. 551, *614

n331. See supra section II.B.

n332. Continued Presence of South Africa in Namibia Advisory Opinion, supra note 21, at 52.

n333. Draft Articles on State Responsibility, art. 43, Report of the ILC on the Work of its 48th session, U.N.

GAOR, 51th Sess., Supp. No. 10 at 142, U.N. Doc. A/51/10 (1996).

n334. The argument does not propose that actions taken in an armed conflict are to be measured in relation

to the question of whether the original use of force was legal or not. Indeed, such an argument would have

blurred the important distinction between jus ad bellum and jus in bello. It merely argues that actions undertaken

in defense of an illegal occupation are illegal themselves.

n335. Construction of a Wall, supra note 6, P 54.

n336. Id. at P 139. It is this assumption that raised the objection of several judges who felt the Court did not

take fair notice of the illegal acts performed by the Palestinians and thus disregarded the context of the question

at hand. See id. Separate Opinion of Judge Higgins, PP 15-18; Declaration of Judge Burgenthal, PP 3-6;

Separate Opinion of Judge Owada, PP 26-29, 31.

n337. See section II.A.4.b.

n338. See Ben-Naftali, Temps Perdu, supra note 256.

n339. The International law definition of aggression is yet undecided. While criminalized in Article X of the

Nuremberg Charter as a "crime against peace,' see Charter of the International Military Tribunal and Protocol of

6 October 1945, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, it was not properly defined therein. Since then,

the international community has struggled to define the phenomenon. See G.A. Res. 3314, U.N. GAOR, 29th

Sess., Definition of Aggression, Annex, Definition of Aggression, U.N. Doc. A/Res./3314 (XXIX) (1974).

Under Resolution 3314, "aggression is the use of armed force by a State against the sovereignty, territorial

integrity or political independence of another State, or in any other manner inconsistent with the Charter of the

United Nations." Id. This definition, however, applies only as far as state responsibility goes. No consensus

Page 75

23 Berkeley J. Int'l L. 551, *614

exists as to the definition of aggression as a crime. For this reason, while enumerated as one of the crimes under

the jurisdiction of the ICC, as stipulated in Article 5(1)(d) of the Rome Statute, Article 5(2) provides for the

suspension of such jurisdiction until a definition is agreed upon by state parties. See generally Grant M. Dawson,

Defining Substantive Crimes Within the Subject Matter Jurisdiction of the International Criminal Court: What Is

the Crime of Aggression?,

19 N.Y.L. Sch. J. Int'l & Comp. L. 413 (2000).

n340. An aggressive war is "essentially an evil thing ... . To initiate a war of aggression ... is not only an

international crime; it is the supreme international crime differing only from other war crimes in that it contains

within itself the accumulated evil of the whole." See Office of the United States Chief of Council For

Prosecutions of Axis Criminality, 1 Nazi Conspiracy and Aggression 16 (1946) (emphasis added).

n341. Support for this position is found in Separate Opinion of Vice-President Ammoun, Continued

Presence of South Africa in Namibia Advisory Opinion, supra note 22, at 89-92.

n342. See Peter Malanczuk, Akehurst's Modern Introduction to International Law 306, 307-09 (7th ed.

1997). Article 12(1) of the Covenant established a procedure by which parties to a dispute should settle their

differences before resorting to war. They had to submit the dispute to arbitration or judicial settlement or to

inquiry by the Council and "agree in no case to resort to war until three months after the award by the arbitrators

or the judicial decision, or the report by the Council."

n343. In reference to T.S. Eliot's poem which is cited at the beginning of the paper.

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23 Berkeley J. Int'l L. 551, *614

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