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Yael Ronen, Ono Academic College finds some illegal occupation, blames Israel for the problems of the world

  http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=yael_ronen


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ILLEGAL OCCUPATION AND ITS CONSEQUENCES
ABSTRACT
The term ‘illegal occupation’ has in various cases been used in both political and legal texts to the term ‘illegal occupation’. Yet the meaning and significance of this legal category has never been
systematically investigated. This article offers such an investigation, with reference to UN practice in which specific situations of occupation have been declared ‘illegal’.
The first issue examined is the parameters for the illegality of an occupation. The article proposes that an occupation may be considered illegal if it is involves the violation of an international legal norm that operates erga omnes and is related to territorial status, when that violation is innate to the occupation. Illegal occupations are primarily those achieved through violation of the prohibition on the use of force and of the right to selfdetermination.
The second issue examined is the consequences of an occupation’s illegality, in view of the political and legal objectives of determining such illegality. Although in principle the maxim ex injuria ius non oritur suggest that the status of occupation should be denied in the circumstances, caution is necessary in applying the maxim, particularly with regard to the applicability of the law of occupation. Too formalistic an approach may result in injury to the same population that international law, through the law of occupation, attempts to protect.
Against these findings and in view of current practice, the article assesses whether ‘illegal occupation’ is a useful legal category or whether its implications are sufficiently covered by existing law.
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ILLEGAL OCCUPATION AND ITS CONSEQUENCES
Dr. Yael Ronen, Ono Academic College1
I. INTRODUCTION – THE QUESTION
Occupation has traditionally been regarded as a factual matter. Under Article 42 of the 1907 Hague Regulations on Land Warfare,2 and its precursor the Article 42 of the 1899 Hague Regulations on Land Warfare,3 occupation requires only that territory be ‘actually placed under the authority of a hostile army.’ In recent years the concept of occupation has widened to cover various types of situations where there is ‘effective control of a power…over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory’.4 This definition should perhaps be modified so that occupation imply the absence of any other territorial right or title such as a lease, trusteeship or, in the 1 Highlights of this article were presented in the conference Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Palestinian-Israeli Context, held in Jerusalem and Tel-Aviv on 5-7 June 2007. I am grateful to participants in the conference, particularly Prof. Eyal Benvenisti and Dr. Stefan Talmon, for their comments.
2 Convention respecting the Laws and Customs of War on Land and its annex: Regulations concerning theLaws and Customs of War on Land, 18 Oct. 1907, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S.
227 [hereafter Hague Regulations].
3 Regulations Respecting the Laws and Customs of War on Land annexed to the Convention with Respect to the Laws and Customs of War on Land, 29 July 1899, 26 Martens Nouveau Recueil (ser. 2) 949, 187 Consol.
T.S. 429
4 EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION 4 (1993).
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past, mandate. At any rate, even the modern definition suggested above5 contains only factual requirements.
Nonetheless, the term “illegal occupation” has from time to time appeared in international discourse. When used by partisan States,6 it might be dismissed as an attempt to render it a pejorative connotation, as if ‘occupation’ alone does not already suffer from that
5 As well as other definitions, e.g. ‘a situation where the armed forces of a country are in control of foreign territory’ Adam Roberts, What is a Military Occupation?, 1984 BYIL 249, 250 (1985).
6 E.g. with regard to the French administration of Mayotte, 1989 UN Yrbk 154; Israel’s occupation of southern Lebanon, 32 UN Yrbk 298 (1978); Israel regarding Jordan’s occupation of East Jerusalem 1948-1967, 32 UN Yrbk 347 (1978); Indonesia’s annexation of East Timor, UN Doc. A/52/152 (20 May 1997); Turkey’s presence
in northern Cyprus, Letter dated 28 May 2004 from the Permanent
Representative of Cyprus to the United Nations addressed to the
Secretary-General A/518/815-S/2004/438 (28 May 2004); the Soviet
annexation of Estonia, Latvia and Lithuania, Latvia in Slivenko v. Latvia, Application no. 48321/99, ECHR (9 Oct. 2003), para. 76, HC Debs., vol. 980, WA, col. 223 5 March 1980; Argentina’s military campaign in the Falkland/Malvinas Islands, Letter Dated 29 April 1982 from the Permanent Representative of the United Kingdom of Great Britain And Northern Ireland to the United Nations Addressed to the President of the Security Council UN Doc. S/15010 (29 April 1982); the Soviet occupation of Afghanistan, Bulletin of the European Communities, 12–1984, p. 111; the Chinese Occupation of Tibet, US S. Res. 271, 102 Cong. (1993); the
Indonesian annexation of East Timor, Information from Non-Self-Governing Territories Transmitted Under Art. 73 (e) of the Charter of the United Nations, UN Doc. A/52/152 (20 May 1997); the Syrian occupation of
Lebanon, US H. Con. Res. 363 108th Cong. (2004); US and UK occupation of Iraq, opinion of the UK General-Attorney, John Kampfner, ‘Blair was told it would be illegal to occupy Iraq’ NEW STATESMAN (26 May 2003), at <http://www.newstatesman.com/200305260010>; Bahrain control of Hawar Islands, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) 2000 ICJ Reps. 40 (16 March 2000), 60, para. 58 and 74, para. 107; US control over Guantánamo Bay, Core documen't forming part of the reports of States Parties: Cuba, UN Doc. HRI/CORE/1/Add.84 (13 Oct 1997), para. 22.
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vice.7 However, its usage in Security Council and General Assembly resolutions indicates that the international community acting collectively acknowledges this concept, even if in a very limited manner. The term has also been mentioned, but rarely explored, by scholars.8
This article’s point of departure is therefore that the juridical category ‘illegal occupation’ exists; yet occupation is not inherently illegal and consequently not all occupations fall within this category.9 References to ‘illegal occupation’ are sufficiently discriminate to refute the
possibility that this usage is arbitrary. After a review of existing practice in Part 2, the article aims first to define the category (in part 3), and then to consider 7 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) (Int’l Ct. Justice 19 Dec 2005) [hereafter DRC v. Uganda] Separate Opinion of Judge Kooijmans, para. 64. The Decisions of the ICJ are available at
<http://www.icj-cij.org>.
8 Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 66 (1990); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 409 (6th edition 2003); ANTONIO
CASSESE SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 99 (1995); CHRISTINE GRAY INTERNATIONAL LAW AND THE USE OF FORCE 101 (2000); Stefan Talmon, The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Ius Cogens
Obligations: An Obligation without Real Substanc?’ in THE FUNDAMENTAL RULES OF THE INTERNATIONAL LEGAL ORDER, IUS COGENS AND OBLIGATIONS ERGA OMNES 99, 117 (Christian Tomschat and Jean-Mark Thouvenin, eds. 2006), but see also Benvenisti, supra n. 4, 187. 9 although there are various docume'nts that suggest otherwise. Docume'nts that refer to colonial domination, occupation and racism, (e.g. the Charter of Economic Rights and Duties of States, GAR 3281(XXIX) of 12 Dec. 1974 Art. 16(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 [hereafter Additional Protocol I] Art. 1(4)) , particularly in the context of the legitimacy of the struggle for self-determination, suggest that just as colonial domination and racism are ipso facto illegal, so is occupation. For some opinions to this effect see Orna Ben-Naftali, Aeyal M. Gross & Keren Michaeli, Illegal Occupation: Framing the Occupied Territories 23 Berkeley Journal of International Law 551, 557 (2005). © Draft, do not quote without author’s permission
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some of its potential consequences under existing international law (in Part 4). Against this background, the usefulness of the category can be assessed.
II. PRACTICE REGARDING ILLEGAL OCCUPATIONS
Declarations
Three general UN docume'nts address the status of occupation. The 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations provides:10 ‘The territory of a State shall not be the object of military occupation resulting from use of force in contravention of the provisions of the Charter.’ This declaration is intended to reflect customary international law. To the extent that it provides that territory may not be occupied through conduct contrary to the prohibition on the use of force, it contains no innovation.
An extra step seems to have been taken in the 1987 Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, which stipulates that an occupation achieved through the violation of ius ad bellum is not to be recognized as legal:11 10 GA Res. 2625(XXV) (24 Oct. 1970) [hereafter 1970 Declaration] principle 1 para. 10.
11 GAR 42/22 (18 Nov. 1987) [hereafter 1987 Declaration] operative para. 10. This drafting echoes the
Helsinki Final Act, Section IV para. 4. which provides that the
participating States ‘… will likewise refrain from making each other’s territory the object of military occupation or other direct or indirect measures of force in contravention of international law… No such
occupation… will be recognized as legal’. Conference on
Security and Co-Operation in Europe: Final Act: Declaration of Principles Guiding Relations Between Participating States, reproduced in 70 AJIL 417 (1976). The Final Act was not intended to be a legally-binding
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Neither acquisition of territory resulting from the threat or use of force nor any occupation of territory resulting from the threat or use of force in contravention of international law will be recognized as legal
acquisition or occupation. This formulation clearly distinguishes a ‘legal occupation’ from an ‘illegal occupation’. An occupation created in violation of the prohibition on the use of force would
not be recognized as a legal occupation. However, the consequences of this refusal of recognition remain unclear. At any rate, the 1987 Declaration did not generate much interest in the United Nations, nor among
scholars.12 The quoted paragraph was the object of some
concern during the Sixth Committee debate on the draft declaration, but that concern revolved only on the consequences of acquisition of territory through illegal use of force and not on the consequences of occupation under the same circumstances. Some delegations used the stipulation on acquisition of territory as an example of the legally non-binding
character of the Declaration;13 yet the emerging category of ‘illegal occupation’ raised no controversy.14
The 1969 Declaration on Social Progress and Development15 explicitly uses the term ‘illegal occupation’. It calls for do'cument. See Harold S. Russell, The Helsinki Declaration: Brobdingnag or Lilliput? 70 AJIL 242, 246-249 (1976);
However, through the years the Helsinki Final Act has accumulated
significant weight as ‘soft law’.
12 Koskenniemi notes that it is one of many doc'uments that clearly do not go beyond the UN Charter. Martti Koskenniemi, Police in the Temple, Justice, Order and the UN: a Dialectical View, 6 EUR. J. INT. L. 340, 341 (1995).
13 Delegates to the Security Council debate clarified that the Declaration added nothing and had no law-creating force. A/C.6/42/SR.50, UK para. 5. page 2-3, Israel para. 7 page 3, France para. 12 p. 4, Germany para. 13 page 4-5, possibly arguing that it IS law.
14 This does not mean that it was taken to reflect existing law.
15 GA Res. 2542(XXIV), (11 Dec. 1969) (hereinafter ‘1969 Declaration’). © Draft, do not quote without author’s permission
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Compensation for damages, be they social or economic in nature – including restitution and reparations – caused as a result of aggression and of illegal occupation of territory by the aggressor.
All three doc'uments link the illegality of an occupation to the violation of the prohibition on the use of force. The 1987 Declaration appears to proposes a consequence of illegality in the form of non-recognition, while the 1969 Declaration invokes the responsibility of States for
internationally wrongful acts.
Specific conflicts considered in the United Nations Occupations have been declared illegal in the United Nations in a number of cases.
In none of them was the basis for illegality clearly specified, nor its consequences elaborated Namibia
In 1966, the UN General Assembly in Resolution 2145(XXI) terminated South Africa’s mandate over Namibia, on the ground that South Africa had violated the terms of the mandate. This determination was reaffirmed by the Security Council in Resolution 264(1970). Consequently, the Security Council and General Assembly began referring to Namibia as occupied territory in which South Africa was maintaining an illegal presence.16 In the Namibia Advisory Opinion of 1971, the ICJ confirmed the termination of the mandate,17 the fact that South Africa was illegally present in Namibia, and its status there as occupant. It did not use the term ‘illegal occupation’. It only said that ‘[b]y maintaining the present illegal 16 E.g. SC Res. 264 (22 March 1969) operative para. 2, GA Res. 2403(XXIII) (16 Dec 1968) operative para. 3.
17 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Reps. 16 [hereafter
Namibia] 54, para. 118, details in 50, para. 105.
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situation, and occupying the Territory without title, South Africa incurs international responsibilities…’.18 In subsequent Security Council and General Assembly resolutions the term ‘illegal occupation’ appeared consistently and was used routinely by both individual States and UN organs until the conflict was resolved in 1988.19
Guinea-Bissau
Soon after the Portuguese colony of Guinea-Bissau declared itself an independent State while still fighting the Portuguese colonial government,20 the GA adopted resolution 3061(XXVIII),21 entitled ‘Illegal occupation by Portuguese military forces of certain sectors of the Republic of Guinea-Bissau and acts of aggression committed by them against the people of the Republic’, in which the General Assembly, Recognizing the inalienable right of all peoples to self-determination and independence in accordance with the principles of the Charter of the United Nations and the Declaration on the Granting of Independence to Colonial Countries and Peoples,
Noting with satisfaction that the State of Guinea-Bissau assumes the sacred duty to expel the forces of aggression of Portuguese colonialism from that part of the territory of Guinea-Bissau which they still occupy… 18 Namibia, supra n. 17, para. 118.
19 See, e.g., SC Res. 301 (20 Oct. 1971); SC Res. 366 (17 Dec. 1974); SC Res. 385 (30 Jan. 1976); GA Res. 2871
(XXVI) (20 Dec. 1971); GA Res. 41/39 (20 Nov. 1986); SC Res. 601 (30 Oct. 1987); and GA Res. 43/26 (17
Nov. 1988).
20 Norrie MacQueen, Belated Decolonization and UN Politics against the Backdrop of the Cold War, Portugal, Britain, and Guinea-Bissau’s Proclamation of Independence, 1973–1974, 8 Journal of Cold War Studies 29 (2006).
21 2 Nov. 1973.
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Strongly condemns the policies of the Government of Portugal in perpetuating its illegal occupation of certain sectors of the Republic of Guinea-Bissau… General Assembly and Security Council resolutions22 concerning Portugal’s other colonial holding in Africa do not refer to ‘occupation’ at all Arab and Palestinian territories
In 1975, the General Assembly adopted Resolution 3414(XXX) on the situation in the Middle East, in which it stated23 that
‘Guided by… those principles of international law which prohibit the occupation… of territory by the use of force and which consider any military occupation, however temporary, or any forcible annexation of such territory, or part thereof, as an act of aggression;’
From 1977 until 1980, General Assembly resolutions on the situation in the Middle East contained paragraphs referring to the illegal Israeli occupation of Arab and Palestinian territories. The standard paragraphs provided:24 The General Assembly,…
Deeply concerned that the Arab territories occupied since 1967 have continued, for more than ten years, to be under illegal Israeli occupation and that the Palestinian 22 E.g. GA Res. 3113(XXVIII) (12 Dec. 1973) SC Res. 322 (22 Nov. 1972). 23 5 Dec. 1975, preambular para. 2.
24 GA Res. 32/20 (Nov. 25, 1977) preambular para. 4 and operative para. 1. Virtually identical paragraphs appear in GAR 33/29 (7 Dec. 1978)
preambular para. 4 and operative para. 1, and in GAR 34/70 (6 Dec. 1979) preambular pargraph 5 and operative para. 1. See also GA Res. 35/122E (11 Dec. 1980).
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people, after three decades, are still deprived of the exercise of their inalienable national rights,
In addition, numerous General Assembly resolutions25 condemn …Israel’s continued occupation of Arab territories, in violation of the Charter of the United Nations, the principles of international law and repeated resolutions of the United Nations;
Kampuchea
In 1978 Vietnam invaded and occupied Kampuchea,26 and installed a puppet government which remained in place until 1989. In 1981 the United Nations27 convened an international conference on Kampuchea. In the concluding do'cument of the Conference,
the Declaration on Kampuchea,
3. The Conference expresses its concern that the situation in Kampuchea has
resulted from the violation of the principles of respect for the sovereignty independence and territorial integrity of State, non-interference in the internal affairs and the inadmissibility of the threat or use of force in international relations.
25 GAR 3414(XXX) (5 Dec. 1975), operative para. 2, GA Res. 32/20 operative para. 1, see also GA Res. 33/29,
34/70 common operative para. 1; see also GA Res. 36/226A operative para. 1, GA Res. 40/168A (16 Dec.
1985) operative para. 5; see also GA Res. 45/83A operative para. 5 and GA Res. 35/122E (11 Dec 1980)
preambular para. 2; GAR 43/54A (Dec. 6, 1988) operative para. 5; GA Res. 40/168A operative para. 5 (16
Dec. 1985); GA Res. 44/40A operative para. 5 (4 Dec. 1989).
26 The Kingdom of Cambodia, as it is called today, was called ‘Democratic Kampuchea’ from 1975 until 1979,
and ‘People’s Republic of Kampuchea’ from 1979 until 1989.
27 Acting through an Ad Hoc Committee of the International Conference on Kampuchea.
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The Conference also emphasized the Kampuchea had the right to be ‘free from any external threat or armed aggression’.
General Assembly Resolution 36/5 (21-10-1981) welcomed the Conference and noted that the Conference had deplored the fact ‘that foreign armed intervention
continues’.28
In the following years, the Commission of Human Rights adopted annual resolutions
on Kampuchea, in which it referred to the conference and General Assembly action, and
then29
Deploring the continuance of foreign armed intervention in and occupation of
Kampuchea, which deprive the Kampuchean of their right to the exercise of selfdetermination,…
2. Reaffirms that the continuing illegal occupation of Kampuchea by foreign forces
deprives the people of Kampuchea of the exercise of their right to self-determination
and constitutes the primary violation of human rights in Kampuchea at present;…
Kuwait
Following the Iraqi invasion and purported annexation of Kuwait in August 1990,
the Security Council passed a number of resolutions referring to Iraq’s action as ‘invasion’
and ‘occupation’.30 Resolution 674(1990) of 29 October 1990 focuses on the well-being of
Kuwaiti and third State nationals. It
28 preambular paras. 5 and 6.
29 CHR Res. 1989/23 UN Doc. E/1989/20 (6 March 1989) preambular para. 7, operative para. 2. See also
CHR Res. 1983/5 (15 February 1983); CHR Res. 1985/12 (27 February 1985), affirmed in ECOSOC Res.
1985/155 (30 May 1985) (E/1985/19).
30 E.g. SC Res. 661 (6 August 1990) preambular para. 3, SCR 674 (29 Oct. 1990) preamublar para. 11.
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8. Reminds Iraq that under international law it is liable for any loss, damage or injury
arising in regard to Kuwait and third States, and their nationals and corporations, as a
result of the invasion and illegal occupation of Kuwait by Iraq;
The Democratic Republic of Congo
The armed conflict between the Democratic Republic of Congo (DRC) and Uganda
was of concern to the Security Council, 31 but the occupation of territory was first addressed
in the ICJ Judgment in DRC v. Uganda. In the judgement, the Court found the use of force
by Uganda against the DRC to have been illegal (and a grave breach of 2(4)). It then
determined that Uganda had been, as a matter of fact, in occupation of the Congolese area
of Ituri. After a further finding that Uganda had violated international humanitarian law with
respect to the territory under occupation, the Court examined the consequences of all these
breaches. It noted32 that … given the character of the internationally wrongful acts for which Uganda has
been found responsible (illegal use of force, violation of sovereignty and territorial
integrity, military intervention, occupation of Ituri, violations of international human
rights law and of international humanitarian law, looting, plunder and exploitation of
the DRC’s natural resources), the Court considers that those acts resulted in injury to
the DRC and to persons on its territory.
The dispositif provides that the Court: 33
31 e.g. SC Res. 1234 (9 April 1999) and SC Res. 1304 (16 June 2000). 32 DRC v. Uganda supra n. 7, para. 259
33 My emphasis.
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345(1)Finds that the Republic of Uganda, by engaging in military
activities against the Democratic Republic of the Congo on the latter’s territory, by occupying Ituri…
violated the principle of non-use of force in international relations and the principle
of non-intervention;
III. GROUNDS OF ILLEGALITY OF AN OCCUPATION
Suggested criteria for an illegal occupation
The designation ‘illegal occupation’ concerns the status of the occupant in the
territory. As a status determination, it operates erga omnes. Accordingly, the violation of
international law that renders an occupation illegal ought to be also one that has
consequences erga omnes. Another factor that seems appropriate in the declaration of an
occupation ‘illegal’ is that the illegality must be inherent to the occupation, in the sense that
the very existence of the occupation depends on it and is therefore flawed by it. This
distinguishes an occupation which is accompanied by a violation of international law from
an occupation which rests on a violation of international law. Prima facie, only the former
should be regarded as an illegal occupation. Finally, because the issue is the status of
territory, the existence of a link between the norm and territorial status should also be
considered.
There are two norms whose violations appear to be natural candidates as grounds for
the illegality of an occupation. These are the prohibition on the use of force and the
obligation to respect the rights of peoples to self-determination. Both operate erga omnes and
both are closely related to territorial status. The following sections examine a number of
situations and whether they fulfill the requisites suggested above, focusing on these two
norms in.
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Creation of an occupation through violation of ius ad bellum
The illegal use of force is a violation of a peremptory norm,34 and as such operates
erga omnes. It is also directly related to territorial status, and it is innate to the occupation in
that it was a sine qua non to its creation. In 1984 Adam Roberts wrote that the term ‘illegal
occupation’ is ‘almost invariably used to refer to an occupation which is perceived as being
the outcome of aggressive and unlawful military expansion’.35 Analysis of UN practice
indicates that the violation of ius ad bellum is indeed the main ground for declaring an
occupation illegal, although this conclusion is not always immediately apparent.
In Guinea-Bissau and Namibia, the initial effective control of the territory was not
achieved through illegal use of force, but through an internationally acceptable route
(conquest in the case of Guinea-Bissau, lawful use of force in war followed by an
international mandate by the League of Nations in the case of Namibia).Yet in both cases,
the controlling States failed to withdraw their forces when their title to the territory was
terminated. However, since the prohibition on the use of force covers not only entry into a
territory, but also failure to leave it,36 the continued presence in the territory constituted
34 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. U.S.), Merits, 1986 ICJ Reps. 14
(June 27) 100-101, para. 190. International Law Commission, Draft Articles on State Responsibility for
Internationally Wrongful Acts Report of the International Law Commission on the work of its Fifty-third
session UN Doc A/56/10 (2001) [hereafter ILC], Commentary to Art. 40 para. 4.
35 Roberts, supra n. 5, 293; Benvenisti, supra n. 4, 69. It has been suggested in the past to distinguish between an aggressor-occupant and a lawful occupant, see Alan Gerson,
Trustee-Occupant: The Legal Status of Israel’s Presence in
the West Bank 14 HIJL 1, 3 (1973).
36 The Namibia case concerns the “continued presence”. Dinstein defines as ‘constructive armed attack’ a
situation whereby the forces of one State stationed by permission on another State’s territory refuse to
withdraw upon expiry of the time allotted for their presence. YORAM DINSTEIN, WAR, AGGRESSION
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illegal use of force. That this was the direct basis for the designation of the occupation as
illegal is particularly clear with regard to Portugal’s occupation of Guinea-Bissau. General
Assembly Resolution 3061(XXVIII) repeatedly refers to the aggression by Portugal37,
including in the paragraphs expressly mentioning the illegal occupation. The Declaration of the International Conference on Kampuchea attributed the situation to the violation of the principle of inadmissibility of threat or use of force (implicitly referring to Vietnam’s action).38 Subsequent resolutions rely on the Declaration.
Yet since the Declaration does not refer to occupation, let alone its illegality, the link
between the violation of ius ad bellum and the illegality of the
occupation remains implied.
The reliance on ius ad bellum in declaring an occupation illegal is clearest with regard
to the Iraqi occupation of Kuwait. Resolution 674(1990) expressly links the illegal
occupation to ‘invasion’. References to the ‘invasion’ and to Iraq’s aggressive action in
numerous other resolutions and in surrounding debates,39 make it abundantly clear that the
illegality of the occupation stemmed from the violation of ius ad bellum. Violation of ius ad bellum was also at the heart of the DRC-Uganda conflict.
Nonetheless, the relationship between that use and the illegality of occupation calls for more
detailed analysis. In the DRC v. Uganda Judgment, the Court listed the ‘occupation of Ituri’
AND SELF-DEFENCE 196 (4th edition 2005). See also the definition of aggression in GAR 3314(XXIX) (14
Dec. 1974) para. 3(e).
37 Preambular paras. 2, 3, 5, operative paras. 2, 3.
38 Declaration on Kampuchea, para. 3.
39 e.g. SCR 660 (3 August 1990) operative para.1, SCR 661 (6 August 1990) preambular paras. 2, 3, Res. 677 (28
Nov. 1990) preambular para. 2., S/PV.2951 (29 Oct. 1990), S/PV.2981 (3 April 1991).
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as an ‘international wrongful act’, without clarifying the cause for illegality.40 From the
position of this wrongful act in the list made by the court it remains unclear whether the
illegality of the occupation stems from the violation of ius ad bellum or is inherent to any
occupation ipso facto.41
The dispositif sheds little light on the matter. On the one hand, in stating that Uganda,
‘by occupying Ituri… violated the principle of non-use of force’, the dispositif suggests that
any occupation is ipso facto illegal because it violates the prohibition on the use of force. On
the other hand, just like “engaging in military activities” is implicitly qualified by “without
justification”,42 the phrase “by occupying Ituri” may also be implicitly qualified by a phrase
such as ‘without justification, i.e. not in self-defence’ or
‘aggressively’.
Judge Kooijmans criticizes the designation of the occupation as an independent
violation of the prohibition on the use of force. In his view, ‘the occupation of Ituri should
not have been characterized in a direct sense as a violation of the principle of the non-use of
force.’43 He also regrets that in the first paragraph of the dispositif the Court may have
contributed to the reluctance on the part of belligerent parties to declare the law of
occupation applicable, by strengthening the impression that “occupation” has become
almost synonymous with aggression and oppression.44 However, it is not clear whether Judge
40 The submissions of the DRC also referred to the violation of the right to self-determination. DRC v. Uganda,
supra n. 7, para. 24. The Court did not address this norm.
41 Judge (then Professor) Higgins specifically rejected the notion of occupation being ipso facto illegal, AJIL on
resolution of use of force through sc or some such. Rosalyn Higgins, The Place of International Law in the Settlement
of Disputes by the Security Council, 64 AJIL 1, 8 (1970).
42 As in para. 149.
43 Para. 57
44 parass. 62 and 64 read together.
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Kooijmans regards the majority’s error as one of drafting or of law. From the fact that he
did not dissent on this point but only appended a separate opinion, the former may be
inferred. In that case, the illegality, even under the majority opinion, resulted from the illegal
use of force and is not an inherent characteristic of occupation.
In contrast with other cases, the designation of the Israeli occupation as illegal
cannot easily be explained as the consequence of the violation of ius ad bellum. This is
because the United Nations has never formally denounced Israel’s resort to force as illegal.
Resolution 3414(XXX) and subsequent ones that echo it45 are ambiguous. On the one hand
they refer to ‘those principles of international law which prohibit the occupation… of
territory by the use of force’ and thus imply that the legality of an occupation depends on
compliance with ius ad bellum; on the other hand the said principles apparently ‘consider any
military occupation…, as an act of aggression’.46
Subsequent resolutions concerning the Israeli occupation refer jointly to the illegality
of the occupation and to the deprivation of the Palestinian people of the exercise of the right
to self-determination.47 They shift the doubt from the question whether any occupation is
illegal or only one achieved through violation of ius ad bellum, to the role of selfdetermination.
However, while the illegal occupation according to the resolutions dates to
45 e.g. GA Res. 38/180A preambular para. 5 (19 Dec. 1983); GA Res. 40/168B preambular para. 5 (16 Dec.
1985); GA Res. 43/54B preambular para. 5 (6 Dec. 1988); GA Res. 44/40B preambular para. 5 (4 Dec. 1989);
GA Res. 47/63A preambular para. 5.
46 although even the controversial definition of aggression, adopted the preceding year in GA Res. 3414(XXIX)
(14 Dec. 1974), qualified as aggression ‘the invasion or attack by the armed forces of a State of the territory of
another State, or any military occupation, however, temporary, resulting from such invasion or attack…’ (Art.
3(a)), thereby limiting occupation to a violation of ius ad bellum. 47 “their inalienable national right’.
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18
1967, the deprivation of the exercise of the right to self-determination dates to 1948.
Moreover, while it is the Palestinians who are deprived of the right to self-determination, it is
all Arab territories that are occupied illegally. These distinctions appear to sever the illegality
of the occupation from the right to self-determination.
Yet there is also nothing in the resolutions that specifically links the illegality of the
occupation to a violation of ius ad bellum.48 Reliance on such a violation can only be inferred
from the resolutions and the surrounding debates. Those are replete49 with references to
48 GA Res. 32/20 takes into account the resolutions of the Fifth
Conference of Heads of State or Government of Non-Aligned Countries, held at Colombo on 16-19 August 1976, concerning the situation in the Middle East and the question of Palestine (NAC/Conf.5/S/Res.8 and Res.9 contained in UN Doc. A/31/197), in which there is reference to Israeli aggression. However, the usage of the term “aggression” in these resolutions is not clearly in the context of ius ad bellum, and can be linked to claims of violation of international humanitarian law, international human rights and denial of self-determination. Res. 33/29 takes into account the decisions of the Conference of Ministers for Foreign Affairs of Non-Aligned Countries held at Belgrade on 25-30 July 1978 concerning the situation in the Middle East and the Question of Palestine. These resolutions refer to the illegality of Israel’s exploitation of Palestinian resources (Res. NAC/Conf.5/FM/PC/L.1. para. 12
contained in UN Doc. A/33/206). However, in the Final Declaration of the Conference (to which Res. 33/29
does not refer), the Foreign Ministers confirm the need for concern ‘in view of Israel’s expansionist policy and
attempts at procrastination which aim at continuing its illegal occupation of Palestinian and Arab territories…’.
This single reference to the illegality of the occupation grammatically assumes illegality prior to the claimed
violations of the right to self-determination, but substantively may link the two. Both resolutions, however,
contain various statements that are hard to reconcile with prevalent international law (e.g. that occupation is in
violation of international law) Their legal significance should therefore not be overestimated.
49 UN Yrbk 1977 Ch. XI, YN Yrbk 1978 Ch. XII.
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aggression,50 but also to ‘creeping annexation’ and violations of the right to selfdetermination,
51 and violations of international humanitarian law.
To summarize, in almost all the cases where an occupation has been declared illegal,
the matter could be explained in terms of the violation of ius ad bellum, although this may not
be the exclusive ground for illegality Violation of Ius in Bello in the Creation or Conduct of an Occupation An occupation can also be established by violation of ius in bello. For example,
territory may be occupied through the use of weapons which are prohibited under customary
international law. Alternatively, territory may be occupied through violation of the principles
of distinction and proportionality. This proposition raises questions exceeding the current
discussion, such as whether territory is by definition a necessary military objective and
whether the act of occupation is subject to the same tests of proportionality as other attacks,
namely that incidental injury expected to civilians and civilian objects is measured against the
oncrete and direct military advantage anticipated gained by the control of the territory.52
There is no international practice regarding an occupation achieved directly and exclusively
through violation of ius in bello of any kind.
50 1978 UN Yrbk Ch. XII, e.g. Benin, p. 269; Syria, p. 290; USSR, p. 297. Albania referred to Israel as the
‘invader’, p. 311; it is not clear from these statements whether the aggression refers to the event leading to
occupation or to the conduct of occupation. Sri Lanka referred expressly to ‘territories occupied by force’ p.
337;
51 e.g. UN Yrbk 1977 Ch. XI, e.g. Syria, p. 286; Yugoslavia, p. 300; Report of the Special Committee to
Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, p. 306;
Jordan, p. 314; and others, p. 316. US, p. 317.
52 Additional Protocol I art. 51(5)(b).
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The ICJ has more than once stated that some international humanitarian law norms
are regarded as having an erga omnes character.53 It has not indicated which are the norms.
Moreover, violation of ius in bello, unless it amounts to violation of the right to selfdetermination,
does not relate directly to the status of territory. Finally, as a matter of fact it
may be difficult to determine whether the violation of ius in bello was a sine qua non for the
attainment of occupation. thus, while theoretically the violation of ius in bello may be a
ground for illegal occupation, in practice it is hard to establish. In contrast to the creation of occupation through violation of ius in bello, the violation of ius in bello during occupation has been considered by the ICJ, in the Wall Advisory Opinion and in the DRC v. Uganda Judgment. In both the Court determined that
international humanitarian law had been violated;54 yet in neither did this lead to the
declaration of the occupation itself as illegal.
This practice is consonant with the parameters suggested above. As pointed out, at
least some international humanitarian law violations operate erga omnes, they do not affect
status directly. In the present context it is also important that the violations are not innate to
the occupation. In theory, at least, they can be rectified; the occupation, if it originated from
legal action, can once again be irreproachable. Accordingly, conduct in violation of ius in bello
is not, on its own, an appropriate ground for declaring an occupation illegal.
53 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 ICJ Reps. 136 (9 July) [hereafter Wall], 199, para. 155, 157. Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, 1996 ICJ Reps. (8 July) 226, 257 para. 79; ILC, supra n. 34, commentary to Art. 40
para. 5; but see President (then Judge) Higgins in her separate opinion in Wall, supra n.53, 154, para. 39
54 DRC v. Uganda supra n. 7, para. 259; Wall, supra n.53, 184-187, paras. 123-126.
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The right to self-determination
The right to self-determination (or its absence) is linked to occupation in a number
of ways. First, it may cause a situation to become one of occupation. Conceptually, this is
distinct from the question of the occupation’s legality. A separate question is the effect of
the right to self-determination (or its absence) on the legality of the occupation. Occupation
involving the violation of the right to self-determination is a likely candidate for the category
of illegal occupation. The right to self-determination operates erga omnes, 55 and it is closely
linked to territorial status. The question is whether the violation is inherent to the
occupation. In this context it is useful to distinguish between the creation of the occupation
and its maintenance.
Self-determination and the existence of occupation
With regard to both Guinea-Bissau and Namibia, the right to self-determination had
an important role in bringing the question of territorial status onto the international legal
plane, and rendering the use of force by the controlling States subject to international legal
regulation. The right of the Guineans to self-determination led to recognition of Guinea-
Bissau’s independence,56 and its violation led to the disentitlement of Portugal. As a result
Guinea-Bissau became ‘foreign’ territory with respect to Portugal. These legal changes – not
55 ILC, supra n. 34, commentary to Draft Art. l40 para. 5.
56 Other colonies did not become “occupied” precisely because were not recognized as independent and
therefore foreign. JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 137
(2nd edition 2006).
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reflected on the ground – transformed Portugal’s status in Guinea-Bissau from sovereign to
occupant.57
Namibia’s ‘foreign’ nature with respect to South Africa was never disputed,58 as
South Africa held Namibia under an international mandate. The violation by South Africa of
the right of Namibians to self-determination led to the termination of the mandate,
depriving South Africa of the right to control the territory. In the absence of right, South
Africa’s status changed from one of mandatory power to one of occupant. In both cases, the
right to self-determination was the grounds, directly or indirectly, for depriving the
controlling States of the right under international law to control the territory. It thus
established their status as occupants.
3.4.2 Violation of the right to self-determination in creating the occupation
Gray notes that many States regarded the use of force by Portugal, South Africa and
Israel as illegal because it was directed against the legitimate struggle of a people with the
right to self-determination.59 While this is an accurate description of States’ positions, theirs
is an incomplete application of international law. Arguably, occupation is an interference
with the right to self-determination, at least when it concerns a
self-determination unit.60 Yet this does not seem a satisfactory interpretation of the legal
instruments.61
57 For a comparison in this context of Guinea-Bissau with other Portuguese colonies see Crawford, supra n. 56,
137
58 Except possibly by South Africa, whose attitude towards Namibia was unclear and inconsistent. At times
South Africa appeared to claim that Namibia had been incorporated into it. 59 Gray, supra n. 8, 102.
60 Crawford, supra n. 56, 115.
61 Cf. Benvenisti, supra n. 4, 187.
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Even if a right is interfered with, it is not necessarily violated.62 What must be
ascertained is the ground for interference. In the case of Namibia and Guinea-Bissau, there
was no internationally-acceptable justification for the interference. Accordingly the
occupation was illegal because it violated the right to self-determination: self-determination
is a norm that operates erga omnes,63 it is closely linked to the status of the territory, and its
violation was inherent to the occupation.
The case of the Israeli occupation is different because there is a credible claim that
the occupation was a result of action in self-defence. If a State occupies territory while acting
in self-defence, the fact that the territory happens to be a self-determination unit need not
operate against it. The right to self-defence is assessed in view of the attack against and
threat to the self-defending State, not to the status of territory it may potentially occupy.
There is no difference, for example, between the occupation of the West Bank (as a selfdetermination
unit) and the occupation of the Golan Heights (not a self-determination unit).
With regard to both, either the occupation was a result of lawful
self-defence or it was not.
The status of the territory is irrelevant.
The resolutions on Kampuchea suffer from ambiguity in the context of selfdetermination.
The terminology ‘illegal occupation’ appears only in the work of the Commission of Human Rights and ECOSOC. These UN organs are mandated with issues
of human rights and self-determination and not with the regulation of the use of force.
62 Otherwise any occupation would be illegal per se because it violates the right of States to sovereignty and nonintervention.
63 East Timor Case (Portugal v. Indonesia) 1995 ICJ Reps. 90 (30 June) 102, para. 29; 1970 Declaration on
Principles of International Relations annexed to GAR 2625, 5th principle; ILC, supra n. 34, commentary to Art.
40 para. 5
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Indeed, the item was considered under the title of ‘The right of peoples to self-determination
and its application to peoples under colonial or alien domination or foreign occupation’.64
These factors strengthen an interpretation of the illegality of the occupation as related to
self-determination. However, although these resolutions in these bodies refer to selfdetermination,
they regard the deprivation of self-determination as a result of illegal occupation, rather than as its cause.
Finally, the violation of self-determination in the creation of an occupation is always
accompanied by use of force, in the form of either forcible entry into the territory or refusal
to leave it. In the absence of justification for such conduct under the right to self-defence,65
the situation can also be characterized as a violation of ius ad bellum. Accordingly, while the
violation of self-determination is a ground for illegality of occupation, it is unlikely to be the
only ground.
Violation of the right to self-determination during occupation
An occupation may come to exist lawfully, as a result of the exercise of self-defence
and not in violation of self-determination, yet once in place, be
conducted in violation of the obligation to respect the right of self-determination. Such a violation can take a variety of forms. At one end are individual acts that adversely affect the right to self-determination,
such as the violations attributed to Israeli in the Wall Advisory Opinion. For example, the
Court found that by altering the demographic composition of the West Bank, the
construction of the wall ‘severely impedes the exercise by the Palestinian people of its right
to self-determination, and is therefore a breach of Israel’s obligation to respect that right.’66
64 CHR Res. 1989/20 operative para. 10.
65 If there were a justification this would not be a violation of the right to self-determination.
66 Wall, supra n. 53, 184, para. 122.
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At the other end is an extreme form of denial of self-determination through purported
annexation, considered in the next section. In between is conduct such as a veiled
annexation. This is a situation whereby the occupant formally acknowledged it status as
occupant and makes no claim of sovereignty over the territory, but creates faits accomplis on
the ground that effectively amount to annexation,67 particularly when combined with a
refusal to negotiate withdrawal from the territory.68
The difference between violations of international humanitarian law and a veiled
annexation is one of degree. There are international humanitarian law violations that by
nature may affect the realization right to self-determination, especially when considered
cumulatively. Such are requisitioning of real property for non-military purposes, population
transfers to and from the territory, and extension of the occupant’s law to the territory.69
Other violations may not have this effect, such as arbitrary arrests, violation of family rights,
failure to compensate for requisition or to pay usufruct.70
In view of the parameters suggested above, it seems that the justification for
regarding an occupation illegal on grounds of violation of self-determination grows as the
reversibility of the acts diminishes, and as their adverse effect on self-determination grows. If
at issue are individual acts that can be rectified, there is no reason to regard them differently
from violations of international humanitarian law. But if the emerging situation becomes
67 This is the thesis put forward by Ben-Naftali, Gross & Michaeli, supra n. 9.
68 Benvenisti, supra n. 4, 187.
69 Violations of Hague Regulation 52; Geneva Convention Relative to the Protection of Civilian Persons in
Time of War 12 Aug. 1949 75 UNTS 287 [hereafter Geneva Convention IV] Art. 49; and Hague Regulation 43
and Geneva Convention IV Art. 64, respectively.
70 Violations of Geneva Convention IV Arts. 42 and 27, Hague Regulations 52, 55.
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irreversible as between the occupant and the territory, namely a veiled annexation of the
territory takes place, the violation becomes innate to the occupation.71 The issue is pertinent principally with regard to a prolonged occupation. In other circumstances there is hardly time to violate effectively the right to self-determination, especially not through veiled annexation. Indeed, to date there is only one case of a longterm
occupation that was created compliant to ius ad bellum but has been criticized as adverse
to the right to self-determination – the Israeli occupation of the West Bank.72
As noted above, it is difficult to ascertain to what extent the
declaration of the Israeli occupation as illegal relied on the violation of the right to
self-determination. Had the resolutions been adopted immediately following the 1967 war, it could have been argued that the illegality could only relate to the creation of the occupation. However, the first
resolution referring to the legality of the occupation was adopted eight years later, by which
time a claim were being made that Israel’s conduct of the occupation (regardless of how it
was achieved) was prejudging the future status of the territories and as such was in violation
the right to self-determination of the Palestinians.73 In the Wall Advisory Opinion the Court
found ‘that the construction of the wall and its associated régime 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.’74
71 Ben-Naftali, Gross & Michaeli, supra n. 9, 559-605
72 The status of the Golan Heights and East Jerusalem is regulated under the category of purported annexation.
The status of the Gaza Strip, while currently under debate, is not one of an illegal occupation. There is no claim
that Israel is trying to annex the territory de facto or otherwise, but that it is violating its international
humanitarian legal obligations towards the population of the area. 73 e.g. GA Res. 3236 XXIX) (22 Nov. 1974) preambular para. 6.
74 Wall, supra n.53, 184, para. 121.
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The Court thus clearly found that the occupying power was violating the right to selfdetermination.
But there is no determination that the occupation itself is illegal. In this the
Advisory Opinion supports the proposition that individual acts that adversely affect the right
to self-determination do not render an occupation illegal; a violation of greater severity is
necessary. Such severity is found when the situation amount to a de facto annexation. The
Court addressed this possibility when it referred to a situation
‘tantamount to de facto annexation’. But by qualifying the situation as one that ‘could well become permanent’ it
stopped short of determining that a veiled annexation was already taking place. This leaves
open the question as to the illegality of occupation in that event.75 The illegality of an occupation in which veiled annexation takes place can also be formulated in terms of the prohibition on the use of force. Such an occupation exceeds the limits of permissible self-defence. Under such circumstances, the
occupant’s presence in the territory becomes an act of aggression.76
Occupants that do not acknowledge their status
In most of the cases examined here, as indeed in many other cases of occupation, the
occupant did not acknowledged it status as such. Instead, in some cases it claimed
sovereignty over the territory (as in Iraq and Israel with regard to Jerusalem and the Golan
heights). In others it initiated the establishment of an indigenous government, supposedly
operating independently (as in Kampuchea and the Turkish Republic of Northern Cyprus
(TRNC)).
75 Ben-Naftali, Gross and Michaeli, supra n. 9, reach a different result because it assesses the facts differently
(more widely than the Court, especially with regard to the role of Israeli settlement in the West Bank.
76 Benvenisti, supra n. 4, 187.
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Where the occupant purports to annex the territory, the matter becomes governed
by the inadmissibility of acquisition of territory by use of force. Politically this situation is the
gravest, but legally it is the clearest. It has long been regulated by the customary prohibition
on the acquisition of territory through use of force;77 since any
occupation and subsequently any purported annexation is accompanied by the use of force, there is no need to rely on the right to self-determination in this context.
When control of the territory is maintained through a local agent, the legal regulation
of the situation is regulated initially through the status of that agent. However, if it is not
recognized for what it claims to be, the question reverts to the status of the unacknowledged
occupant. Thus, for those states that did not regard the Vietnamese-backed Kampuchean
government as legitimate, in the absence of a legitimate local government the status of
Vietnam in Kampuchea remained pertinent. Similarly, since the TRNC is not recognized as a
State, Turkey’s status as the controlling state remains pertinent. An occupation in which the occupant denies its status can be regarded as illegal under the parameters suggested here. It can also be formulated in terms of the prohibition on the use of force, since it exceeds the limits of permissible
self-defence and becomes an act of aggression. It is also implicated in the violation of the right to self-determination, either externally, through annexation, or internally, by preventing the population from
making a free choice as to the form and identity of its government. Under the circumstances,
the violation of the norms is innate to the occupation. At the same time, the phenomenon
raises particular issues, because it purports to exist outside the reach of the law of
occupation.
77 E.g. Anti-War Treaty of Non-Aggression and Conciliation (Saavedra Lamas Treaty), 10 Oct. 1933, 49 Stat.
3363, United States Treaty Series 906, Art. II; 1970 Declaration,
Principle 10 para. 10.
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Conclusion
This part proposes criteria for the illegality of an occupation. These are the violation
of a norm that operates erga omnes, is related to territorial status, and is innate to the
occupation. Together these criteria create the ‘ius ad occupationem’. The principal situations
that fulfill these criteria are the violation of ius ad bellum and the violation of the right to selfdetermination.
There is a link between the violation of the prohibition on the use of force and the
violation of the right to self-determination. As note above, the latter is normally linked up
with the former (but not always vice versa). This statement must be qualified since violation
of the right to self-determination is linked with aggression, a term that is even more
controversial than self-determination, particularly when the reliance on it is based on the
violation of self-determination. If all illegal occupations are the result of the violation of the
prohibition on the use of force, then the category ‘illegal occupation’ is simply the one of
many consequences of that violation. The question arises whether there is merit in
maintaining such a category. The answer may depend on the consequences of this singling
out, a matter addressed in Part 4. There may also be additional grounds for illegality of an
occupation, such as the violation of ius in bello in its creation. © Draft, do not quote without author’s permission
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IV. THE CONSEQUENCES OF ILLEGAL OCCUPATION
General
For the category ‘illegal occupation” to be meaningful, it must have consequences.78
The consequences of any illegality should advance its removal. This section examines some
possible consequences of illegality.
Practice has proven little helpful in determining the consequences of an illegal
occupation, for various reasons. First, the determination of the
illegality of an occupation by the General Assembly carries limited legal weight. Moreover, in practice the resolutions themselves do not consider at length the legal consequences of the illegality beyond calling
for the removal of the occupation. Finally, except for the Israeli occupation of the West
Bank and Gaza Strip, in none of the cases where an occupation was labeled illegal, either by
the United Nations or unilaterally by individual States, did the occupants acknowledge their
status as such. Instead they claimed either sovereignty or some other title to the territory.79
The international censure concerned the status that the occupant purported to attach to the
78 Cf. Namibia, supra n. 17, 54 para. 117, Wall, supra n. 53, 197, paras. 147-148.
79 Portugal claimed sovereignty over its African holdings; South Africa’s position as to its status in Namibia was
vague and changeable. At times it claimed to continue holding the mandate (e.g. Binga v Administrator-
General, South West Africa, and Others South Africa 1988(3) SA 155); at times it claimed that the mandate was
no longer in effect; and at times it assumed sovereignty over the territory; Iraq purported to annex Kuwait;
Israel purported to annex East Jerusalem and the Golan Heights. The controversy on its status revolved round
the applicability of Geneva Convention IV, and not on its status as belligerent occupant, at least under the
Hague Regulations; Vietnam and Uganda denied their status as occupants on the ground that they did not
exercise effective control over Kampuchea and The DRC, respectively.

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situation,80 rather than the consequences of occupation. In the absence of an occupant
claiming to rely on the law of occupation, the analysis of the consequences of illegality has
remained mostly academic.
Consequence for the Illegal Occupant – International Responsibility for the
Wrongful Act
It is well established in general international law that a State which bears
responsibility for an internationally wrongful act is under an obligation to make full
reparation for the injury caused by that act.81 First, it must cease the violation. Since the
violations at issue are inherent to the occupation, cessation means termination of the
occupation.82 While every occupation must end at some point, an illegal occupation must be
terminated immediately and without prior negotiations.
In addition, international law may require other reparation, such as compensation for
injury caused by the occupation. This is reflected, for example, in the 1969 Declaration. In
DRC v. Uganda the Court found Uganda responsible for the occupation of Ituri as an
independent injury. By the time the Judgment was given, Uganda had already withdrawn
from the DRC. Nonetheless the Court required Uganda to make reparation for the
80 E.g. in terms of claim of sv in the cases of Namibia and Guinea-Bissau, annexation in the case of Kuwait,
and change of government in the case of Kampuchea. The exceptions are the Israeli occupation and the
Ugandan occupation of The DRC. Details below
81 see Factory at Chorzów, Jurisdiction, 1927 PCIJ, Series A, No. 9, 17, 21; DRC v. Uganda, supra n. 7, para. 259.
82 E.g. SC Res. 301(1971) operative para. 6 (Namibia); GA Res.
3061(XXVIII) operative para. 3 (Guinea-
Bissau); Ga Res. 32/20 and 33/29 common preambular para.s 5, GA Res. 45/83 operative para. 5 (territories
occupied by Israel). GAR 34/22 (14 Nov. 1979) operative para. 7; SC Res. 660 (3 August 1990 operative para.
2, SC Res. 661 (6 August 1990) preambular para.3.
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occupation, separately from other wrongful acts.83 At the time of writing there is not yet any
concrete expression to this obligation.
Consequences for other states - the status of the occupation and
applicability of the law of occupation
The proposition
Once the fact of occupation has been established, it gives rise to certain rights and
obligations. The question may arise whether these rights and obligations should be modified
when the occupation has been established illegally. In other words, is an ‘illegal occupation’
normatively different from an ordinary occupation?
Article 41 of the ILC Draft Articles on Responsibility of States for Internationally
Wrongful Acts84 codifies the general principle ex injuria ius non oritur. It requires that no State
shall recognize as lawful a situation created by a serious breach of international law within
the meaning of Draft Article 40, nor render aid or assistance in
maintaining that situation.
Draft Article 40 defines a serious breach as the gross or systematic failure by the responsible
State to fulfill an obligation arising under a peremptory norm of general international law.
The objective of the refusal to recognize as lawful a situation created through a violation of a
peremptory norm, usually referred to as the obligation of non-recognition, is to induce the
responsible State to revert to a legal situation. An alternative policy would constitute
legitimization of the acts of the wrong-doing State.
The practical consequences of non-recognition is that rights and powers that are
inherent to the status of occupant – and only they – should be denied to the illegal occupant.
83 DRC v. Uganda, supra n. 7, paras. 259, para. 345(5).
84 ILC, supra n. 34.
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If non-recognition precludes the status claimed by the illegal actor, the territory cannot be
regarded as under occupation. Instead it is regarded as subject to de facto control, outside
the established legal framework of territorial regimes. Although far from clearly defined, this
is not a situation of total legal vacuum. A de facto regime is normally regarded as incapable
of or prohibited from85 introducing any legal changes to the territory, and whatever changes
it purports to make are not recognized internationally; at the same time, the regime is bound
by at least some human rights and international humanitarian law. In addition, acts of a de
facto regime may be given effect where non-recognition would be
detrimental to the population.86
The 1987 Declaration, although prima facie adding nothing to existing law, in practice
declares not only the prohibition on aggressive occupation, but also its consequences – the
obligation not to recognize its legal effect:87
Neither acquisition of territory resulting from the threat or use of force nor any
occupation of territory resulting form the threat or use of force in contravention of
international law will be recognized as legal acquisition or occupation. Although this is simply the implementation of the principle underlying ILC Draft
Article 41, the Declaration is the only general UN docum'ent concerning illegal occupation
that goes so far with respect to occupation. It puts an illegal occupation on par with an illegal
claim of sovereignty, to which non-recognition – as a policy and later as an obligation under
85 Stefan Talmon, The Constitutive Versus the Declaratory Theory of Recognition: Tertium non Datur?, 2004 101 BYIL (2005).
86 Namibia, supra n. 17, 56, para. 125.
87 1987 Declaration, para. 10.
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general international law – has been applied numerous times.88 Since most cases of illegal
occupation have consisted of purported annexation, the two situations have in practice
overlapped quite often.89 The Israeli occupation of the West Bank remains to date the only
potential case for examining the implications of an illegal occupation that is not accompanied
by a claim of annexation.
An illegal occupation falls within the scope of the obligation of
non-recognition.
Illegal use of force and the violation of the right to self-determination are both serious
breaches under Draft Article 40. Draft Article 41 therefore requires States not to recognize
the consequences such breaches as lawful.90 Indeed, in DRC v. Uganda Judge Kooijmans
took for granted that ex injuria ius non oritur: ‘It goes without saying that the outcome of an
unlawful act is tainted with illegality.’91 It is however not clear what the implication of this
statement was.
The two breaches must be distinguished. When the violation is of the prohibition on
the use of force, the occupation is the consequences of the violation, and as such it is illegal.
The consequences of the occupation are an additional link in the chain. It may be regarded
as too far from the original violation to be tainted by the flaw and therefore not subject to a
88 E.g. with regard to Manchukuo, Rhodesia, Namibia, the South African Bantustans. JOHN DUGARD,
RECOGNITION AND THE UNITED NATIONS (1987).
89 E.g. in the cases of Manchukuo, the Baltic States Namibia, East Timor, Western Sahara, Kuwait, Israel and
the Golan Heights.
90 There is controversy whether the obligation applies to violations of all types of ius cogens. Stefan Talmon supra
n. 8 at 103. This controversy is partly conflated with the question as to the meaning of the obligation where the
violation results in a purely factual situation, see below. In any case, the obligation undoubtedly applies to
violations of the prohibition on the use of force.
91 Separate Opinion of Judge Kooijmans in DRC v. Uganda, supra n. 7, para. 60.
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35
policy of non-recognition.92 Moreover, under the current international law of armed conflict
there is a distinction between the legality of the original acts and the regime governing its
consequences, namely between ius ad bellum and ius in bello. As Judge Kooijmans also noted,
‘no distinction in made in the ius in bello between an occupation resulting from a lawful use of
force and one which is the result of aggression.’93 Judge ad hoc Verhoeven emphasized that
particularly in the case of violation of ius ad bellum, the obligations under international
humanitarian law and human rights apply to the occupant, explaining that the aggressor must
take responsibility for the disorder and chaos that result from its military intervention
caused.94 The distinction between ius ad bellum and ius in bello may take precedence over the
obligation of non-recognition, as it is lex specialis.
If the illegality of the occupation is regarded as based on the violation of the right to
self-determination, the occupation is the violation itself. Its
consequences are the first link in the chain, and as such clearly fall within the scope of non-recognition. Moreover, the distinction between ius ad bellum and ius in bello is inapplicable. In this context, therefore,
recourse to non-recognition may be more appropriate.
92 Y. Jennings, Nullity and Effectiveness in International Law, in CAMBRIDGE ESSAYS IN INTERNATIONAL
LAW (ESSAYS IN HONOUR OF LORD MCNAIR) 75 (1965) Crawford, supra n. 56, 162, but see Judge ad
hoc Verhoeven para. 5.
93 Separate Opinion of Judge Kooijmans in DRC v. Uganda, supra n. 7, para. 58 but also para. 60. This clear
statement casts doubt on the import on the one previously quoted.
94 Declaration of Judge ad hoc Verhoeven’s in DRC v. Uganda, supra n. 7, para. 4. This statement can be
reconciled with his statement on the illegality of all consequences of the violation of the prohibition on the use
of force because he applies to the occupant only the obligations under international humanitarian law, and not
the rights. The severability of the former from the latter is considered in section Protecting the population.
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36
Arguably, the consequences of illegality should be the same, regardless of the ground
or illegality, particularly when in practice the two often converge. Moreover, coherency
requires that the consequences of an illegal occupation echo those of other illegal territorial
regimes such as purported annexation. Does this lead to the conclusion that non-recognition
should apply to situations of illegal occupation? Caution should be taken with regard to such
a sweeping conclusion. The following are some arguments against the application of the
obligation of non-recognition to an illegal occupation. Importantly, they concern the
relationship between the occupation and the population in the territory. In other contexts,
there may be other pertinent considerations.
Occupation as a factual or legal situation
One argument against applying the obligation of non-recognition to illegal occupation is based on the rationale for the obligation itself. Occupation does not reflect any
legal claim of the occupant but a factual situation. The law of occupation balances the
absence of title to territory with the effectiveness of the territorial control, not with any claimed
rights of the controlling State. The illegality of the means in which the occupation is achieved
or conducted does not enter into this equation, because the occupation is no less effective
when it is illegal. Since the law of occupation does not reflect recognition of any legal claim
of the occupant, its application cannot legitimize any claim. There is therefore no reason to
deny the occupant’s status as such.
The similarity between an illegal occupation and a de facto regime In order to compare the law of de facto regimes with the law of occupation as applicable to illegal occupation, a few words are necessary on the powers of an occupant.
The powers of an occupant are limited. The law of occupation allows the occupant powers
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37
to respond to its military necessity and powers necessary for the
discharge of its obligations towards the population.95 Article 43 of the Hague Regulations requires the occupant not to intervene in the internal conduct of the territory unless absolutely prevented (by military
necessity or by the needs of the population). Article 64 of Geneva Convention IV is drafted
more permissively, leaving the occupant greater discretion in changing the legal situation.96
Yet formally, whether the benchmark is Article 43 or Article 6497, the powers are still bound
by military necessity and by the needs of the population.
The law of occupation and the law of de facto regimes are therefore similar in that
both obligate the controlling State to ensure the welfare of the
population. The obligations under the two bodies of law are not identical. For example, the law of occupation is
prescriptive, while the law of de facto regimes only gives the acts ex post facto effect. Also, the
standard of rights may be different. For example, a more stringent human rights standard is
likely to apply under a de facto regime, because it is not privileged by the law of occupation
which may in some cases serve as lex specialis and lower the standards of certain rights.98 The
scope of human rights obligations may differ, as Article 43 may set a higher standard of
95 E.g. the obligations listed in Geneva Convention IV Arts. 27, 38, 39, 40, 50, 55, 56, 59.
96 Benvenisti, supra n. 4, 102.
97 On the relationship between the two sets see Benvenisti, supra n. 4, 103, 106; DRC v. Uganda, supra n. 7, para.
178.
98 The relationship between international human rights law and
international humanitarian law remains a hotly
debated issue. However, since it is not suggested that international humanitarian law should be entirely replaced
by human rights law, some differences are bound to remain between a regime under which only human rights
apply and a regime where international humanitarian law also plays a role, however limited.
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38
positive obligation than exists outside it.99 Nonetheless, the basic parameter – providing for
the needs of the population – is the same.
As for the role of military necessity, in this the law of occupation clearly differs from
that of de facto regimes which allows no such right. However, an illegal occupant cannot rely
on military necessity. If the occupation is a violation of ius ad bellum, the occupant has never
had any necessity. If the occupation is regarded as being maintained in violation of selfdetermination,
it is precisely because it has already exceeded the limits of necessary action.
Accordingly, rights based on military necessity are reduced to nothing. This result is reached
by applying the ordinary law of occupation to the specific circumstances of an illegal
occupation. It does not require that the applicability of the law of occupation as such be
denied.
The emerging picture is that whether we apply non-recognition or the law of
occupation as applicable to an illegal occupation, the outcome is
virtually the same. An
illustration of this argument is available with regard to the right to self-defence. It has often
been suggested that in a situation of illegal occupation, the occupant has no right of selfdefence
with respect to the territory under illegal occupation.100 This argument can be
expressed in terms of the obligation of non-recognition, as well as in terms of the right to
self-defence.
99 John Cerone, Human Dignity in the Line of Fire: The Application of International Human Rights Law During Armed
Conflict, Occupation, and Peace Operations 39 VANDERBILT J. OF
TRANSNATIONAL L. 1447, 1500 (2006).
100 This is a separate question of whether there is a right to
self-defence against action emanating from within
the territory, a matter addressed in the Wall, supra n. 53Error! Bookmark not defined.. For the purposes of
the current discussion it may be assumed that the threat emanates from outside the occupied territory.
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39
Christine Gray presents the argument based on the obligation of
non-recognition.
She argues that as a matter of principle, the right to self-defence cannot in principle be
invoked by an illegal occupant. This argument is supported by statements rejecting claims by
South Africa, Portugal and Israel101 to self-defence with respect to the territories under their
control.102
When the laws of self-defence are applied to such a situation, the emphasis is on
necessity as a requisite for a lawful claim of self-defence. If a
territory is held in breach of a
peremptory norm of international law, its maintenance by the occupant cannot be regarded
as necessary, not least by force. Accordingly, the laws of self-defence do not allow a claim of
self-defence when the occupation is illegal. Dinstein argues similarly that an armed attack on
forces of a State would be grounds for an action in self-defence if the forces are legally
stationed outside their home territory. This precludes a claim of
self-defence if the forces are
stationed at the same place illegally, as they are when the territory is under illegal
occupation.103
The above would be true regardless of the identity of the attacking party. But when
the claim of self-defence is raised against an attack by indigenous forces, another argument
101 Which she characterizes as an illegal occupant because of its illegal use of force, 102.
102 Gray, supra n. 8, 101. for statements see e.g., S/PV.2706 (20 Sept. 1985) France p. 10 para. 127: ‘We cannot
accept the pretexts put forward by the South African Government, according to which this attack is to be
viewed as preventive action against the forces of SWAPO. They do not threaten the territory of South Africa,
and nothing authorizes Pretoria to conduct military operations in Angola in the name of the inhabitants of
Namibia’; Similarly US p. 11 para. 130: ‘…we are not sympathetic to South .African assertion of any right to
conduct military expeditions into Angola under the theory of defending its illegal presence in Namibia.’ And
see also the statement by Trinidad and Tobago, p. 5 para. 47.
103 Dinstein, supra n. 36, 197.
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40
precludes self-defence by the occupant from within this substantive body of law. If the
occupation was achieved through violation of ius ad bellum, the indigenous forces can be
regarded as the ones acting in self-defence.104 The occupant obviously does not have a right
of self-defence against self-defence.105 Again, the situation can be analyzed in terms of selfdefence
only, there is no need to apply the law of non-recognition. The situation is slightly
different if the occupation is illegal because of the occupant’s veiled annexation. The
occupant may be regarded as an aggressor,106 but this does not necessarily mean that it had
carried out an armed attack which triggers the right to self-defence.107 Then the legality of
military opposition by indigenous forces depends on the relationship between the right to
self-determination and the prohibition on the use of force. Either the right to selfdetermination
takes precedence over the prohibition on the use of force, in which case the
occupant is denied the right to self-defence, or the prohibition on the use of force takes
precedence, in which case there is no right to use force even in pursuance of the right to
self-determination.108 Either way, the situation can be analyzed in terms of the substantive
104 assuming they comply with the requisites of the right. For example, if an indigenous uprising begins well
into the occupation, would that fulfill the requirement of immediacy? 105 Dinstein, supra n. 36, 178.
106 This is Benvenisti’s approach, supra n. 4, 216.
107 Leaving aside the question whether non-State entities have such a right. Cf. Richard A. Falk and Burns H.
Weston, ‘The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada 32 HILJ 155 (1991).
108 The debate was almost revived following the US and UK’s occupation of Iraq in 2003. However, SCR 1483
of 22 May 2003 confirmed that the occupation of Iraq does not entitle the local population to struggle against
it. Whether this is a basic principle of the contemporary law on
occupation as argued by Eyal Benvenisti, The
Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective 1 IDF LAW REVIEW 19,
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41
law that applies, namely self-defence or self-determination, and there is no need to apply the
principles of non-recognition.
To conclude, similar results are reached whether the law applied to the illegal
occupation is that or non-recognition or the law of occupation, as long as the illegality of the
occupation is taken into account. This raises doubt whether the imposition of a new body of
law is necessary or useful.
Protecting the population
The power of the law of occupation lies in the clarity of the rules and in its wide
application. It is therefore important to leave it as simple as possible and not to over-legalize
the framework, including the circumstances of its applicability.
Particularly given the refusal of occupants to even acknowledge their status as such, we should be careful not to provide either side with the means of any further manipulation of the law. Wherever the law of
occupation can apply, the welfare of the population requires that priority be given to that
body of law. Applying the law of de facto regimes would render the population hostage to
the slow elaboration of this still-emerging body of law.
To demonstrate this, it is proposed to examine the question of damages for acts
carried out in accordance with ius in bello. Normally, a belligerent is exempt under the laws of
war from responsibility for measures taken in accordance with ius in bello. Against this
background, it has been suggested that as part of the denial of the illegal occupant’s rights,
the illegal occupant should be denied the privilege of exemption, and instead it should be
37 (2003), or simply an instruction by the Security Council depends on one’s interpretation of the role of the
Security Council in shaping international law.
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42
held liable for injury or loss caused by measures taken in the course of occupation, even if
these measures are in accordance with the law of occupation and ius in bello in general.109
This measure has in fact been taken against Iraq, following its occupation of Kuwait.
Security Council Resolution 674(1990) provided: 110
Iraq is liable for any loss, damage or injury arising in regard to Kuwait and third
States, and their nationals and corporations, as a result of the invasion and illegal
occupation of Kuwait by Iraq’.
Resolution 687(1991), which established the United Nations Compensation Commission
(UNCC), reaffirmed that Iraq would be liable under international law for any direct loss,
damage or injury ‘as a result of its unlawful invasion and occupation of Kuwait’.111
The UNCC established its own criteria for eligibility for compensation. Among the
acts entitling claimants to compensation was112
(c) actions by officials, employees or agents of the Government of Iraq or its
controlled entities during that period in connection with the invasion or occupation.
Liability thus attached even where the conduct in question would not have been a violation
of international law had it not been for the invasion and occupation. A general explanation
for the mechanism was noted by the US: ‘Baghdad must hear from us clearly: unprovoked
aggression entails crippling costs, and Iraq must not be allowed to profit from its
109 Talmon, supra n. 8, 117, and sources mentioned there.
110 29 Oct. 1990, operative para. 8.
111 SCR 687 (3 April 1991) operative para. 16
112 UN Doc. S/AC.26/1991/1 concerning criteria for expedited processing of urgent claims, circulated as
Annex I to UN Doc S/22885 (2 Aug. 1991) para. 18(c).
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43
unacceptable disregard for the sovereignty and territorial integrity of another State.’113 In the
debate preceding the adoption of Resolutions 674114 and 687,115 numerous speakers referred
to the losses incurred by Kuwaiti civilians and third nationals through violations of
international humanitarian law. None of the speakers addressed the possibility of liability for
acts that had not been illegal per se. In the circumstances, since Iraq acted as sovereign, its
acts actually constituted violations of ius in bello. Nonetheless the disregard for the distinction
in resolution 687 and the UNCC criteria between ius ad bellum and ius in bello is striking.
Denying the illegal occupant’s exemption means that the illegality of the use of force
carries not only to the occupation but also to the consequences of the occupation. Unlike
the denial of self-defence, this result cannot be reached from within the laws on the use of
force - which clearly distinguish the initial use of force from subsequent developments. It is
a question of policy, whether this extension of the principle is
desirable. If the illegal occupant is denied the exemption, it has no incentive to abide by ius in bello. The immediate victim is the population subject to that occupant. Since the distinction is intended to ensure
that the population not be held hostage to the legal dimensions of the conflict as a whole,
doing away with it does not seem a satisfactory situation.
Granted, this was not a problem with Iraq. First, it did not claim exemption from
liability or any benefit under the law of occupation because it did not regard itself subject to
this body of law. Second, by the time the UNCC criteria were established, Iraq had already
been ousted from Kuwait. On either count, maintaining the exemption would not have
induced Iraq to act one way or another. Indeed, it is doubtful whether any State
113 UN Doc. S/PV.2951 (29 Oct. 1990) p. 91.
114 S/PV.2951 (29 Oct. 1990) Ethiopia, p. 47; Finland, p. 86; Canada, p. 87; UK p. 92-93.
115 S/PV.2981 (3 April 1991)US p. 87, France p. 93, China, p. 96, UK p. 114.
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44
contemplating invasion and occupation would reconsider its strategy only because of a
precedent in which liability was attached for acts such as those falling within UNCC criterion
(c). However, as a matter of doctrine, the leap from ius ad bellum to ius in bello did not receive
any attention.
The matter was also mentioned with regard to Uganda and the DRC. In his declaration, Judge ad hoc Verhoeven stated that the extension of
responsibility for all acts
linked to the original illegal use of force is lex lata, since ‘it is impossible to see how a State
which uses armed force outside the scope of legitimate defence could avoid its obligation to
make reparation for the injury it has caused’.116 On the one hand, unlike Iraq, Uganda did
not claim sovereignty and there was no dispute that international
humanitarian law applied to the situation.117 Therefore the denial of exemption was pertinent to the occupant’s policy.
On the other hand, the Judgment was given after Uganda had already withdrawn from the
DRC, so the statement could not have had any immediate practical impact. To demonstrate the problem, suppose a similar measure were adopted today with regard to the Israeli occupation. Israel does claim the benefits of ius in bello. If it is denied them, would it continue to abide by ius in bello to the extent that it does? It would have no incentive to do so.
To conclude, the denial of exemption from liability of an illegal occupant for injury
or loss caused through an act carried out in compliance with ius in bello is a possible
consequence of applying a policy of non-recognition to illegal occupation, which varies
116 Judge ad hoc Verhoeven’s declaration, DRC v. Uganda, supra n. 7, para. 5 (translated by the author).
117 Uganda did not acknowledge its status as occupant. However, the applicability of international humanitarian
law is not limited to situations of occupation. Also, once the Court determined that Uganda had been in
occupation of Ituri, it could proceed to examine its actions in that context.
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45
significantly from the law of occupation. It also demonstrates the hazard in replacing the law
of occupation by any other law. This problem is particularly blatant when the illegality of the
occupation stems from the violation of ius in bellum. If a link is maintained between the
violation of ius in bellum and the reign of ius in bello. Otherwise States will have no incentive to
abide by ius in bello.
Conclusion
Whether the controlling State has the status of an occupant that cannot rely on
military necessity or of a de facto regime, its powers are virtually the same. Where the two
bodies of law differ, the law of occupation clearly makes concessions towards the illegallyacting
State. But it does not go so far as to privilege it and reward its illegal action. In any
case, detraction from its rights or status would not necessarily induce it to rectify the illegality
by withdrawing from the territory. At the same time, such detraction is prone to cause
uncertainty as to the rights of the population.
A clear set of rules should apply with respect to the population in the territory,
namely the full law of occupation. The illegality of the occupation will inevitably find
expression in the application of the law of occupation, for example in the dismissal of
arguments based on military necessity, rather than in a blanket rejection of the occupant’s
status.
At the same time, there is undoubtedly some difficulty in situations when the
occupant does not acknowledge its status. Applying a body of law (the law of occupation) to
a situation which in practice is governed by an entirely different body of law (the territorial
law of the occupant) may result in greater harm than benefit to the population. Accordingly
there may be room for some modification of the strict application of the law of occupation.
In practice, questions often arise only after the occupant has been ousted. By then a
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46
returning or new sovereign is in place, who can adopt a variety of policies. Other States may
take the cue from that sovereign in order to minimize the variance between the formalist and
the realistic approaches.
Practice
Since the Second World War,118 a policy of non-recognition has not been adopted
towards any occupation as such. Indeed, until 1990, Israel was the only occupant
acknowledging its status. Yet in a singular resolution concerning the Israeli occupation, GAR
2949(XVIII) of 1972, the General Assembly invited States ‘to avoid actions, including
actions in the field of aid, that could constitute recognition of that occupation’.119 The
express inclusion of aid as subject to the policy of non-recognition is particularly interesting
as it is generally accepted that non-recognition should not be exercised to the detriment of
the population.120 At any rate, not only was this call not headed to,121 it is also not clear what
its legal import is, given that the Resolution does not declare the occupation illegal, and that
the call for non-recognition was in direct response to the violations of Geneva Convention
IV.122
Where the illegal occupation was followed by a claim of sovereignty and thus
consisted of purported annexation, the law of occupation was not applied. Instead a policy
of non-recognition was implemented. Examples of such cases are the Iraqi occupation of
118 The Nuremberg tribunal expressly affirmed right to collect tax and requisition. Roberts, supra n. 5, 293-4.
119 GA Res. 2949(XXVII) (8 Dec. 1972) operative para. 8.
120 Namibia, supra n. 17, 117, para. 125.
121 Some States do not recognize Israel. No State recognizes the
annexation by Israel of East Jerusalem and the
Golan Heights. But no States recognizes Israel yet refuses to recognize its occupation over the West Bank.
122 GA Res. 2949(XXVII) (8 Dec. 1972) operative paras. 7-8.
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47
Kuwait and the establishment of the TRNC under Turkish occupation. Only in 2004,
however, did it put forward the demand that the law of occupation be applied to the
TRNC.123 This was not the result of denying the controlling State the rights of an occupant
because of the illegality of the occupation. The possibility of applying the law of occupation
and the practical significance of such a measure were not even
considered.124 Instead it
reflected the notion that when there is a claim of sovereignty, the situation is addressed in
terms of the inadmissibility of acquisition of territory through force. This situation is, as
noted above, clearly regulated by the obligation of non-recognition. Moreover, Security Council resolutions concerning the illegal occupation of Namibia
and Kuwait as well as General Assembly resolutions on the illegal occupation by Israel
repeatedly reaffirmed the applicability of Geneva Convention IV.125 In all three cases this
reaffirmation was an element in denying the territorial claim of the controlling State, and
emphasizing that it was merely an occupant; it is difficult to interpret this reaffirmation as a
statement as to the consequences of the illegality of the occupation. In DRC v. Uganda the
Court examined in detail the compliance with international humanitarian law, including the
Hague Regulations of 1907 and Geneva Convention IV. It seems to have no doubt as to the
applicability of international humanitarian law or of any of its parts, despite the implied
illegality of the occupation.
123 In Xenides-Arestis the Cypriot government claimed that the
interference of Turkey with property in the
TRNC was in violation of the obligations imposed on it by the Hague Regulations and the Geneva
Convention. Myra Xenides-Arestis v. Turkey, application 46347/99, ECHR (14 March 2005) 42. The Judgment
does not address this question.
124 e.g. Kuwait Airways Corporation v. Iraqi Airways Company and the Republic of Iraq [2002] UKHL 19.
125 e.g. GA Res. 2678(XXV) (9 Dec. 1970) operative para. 11; SC Res. 674 (29 Oct. 1990) preambular paras. 3
and particularly 5; GA Res. 35/122E operative paras. 1-3, 45/83 perambular para. 11.
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V. CONCLUSION
Part 2 of this article examines a number of cases where occupations have been
declared illegal. These are certainly not the only ones where such a declaration was legally
defensible. These cases stand out only in that the political will and power existed to declare
them illegal. In most of them, the illegality of the occupation was determined by the General
Assembly. Particularly where illegality stemmed from violation of ius in bellum, this is not
surprising, as the Security Council is generally reluctant to attach responsibility for armed
conflict.126
Part 3 suggests a legal framework for determining the illegality of an occupation. It
posits three criteria: that the violation in question is of a norm that operates erga omnes, that
the norm be related to territory, and that the violation be innate to the occupation. On this
basis it identified two main categories of occupations that can be characterized as illegal. One
is an occupation achieved through violation of ius ad bellum. This is the situation commonly
addressed by UN organs and in scholarly literature. The other is an occupation maintained in
violation of the right to self-determination. Such a violation can take many forms. The most
extreme is when the occupant denies its status. Many illegal occupations have taken this
form, and where accompanied by annexation, were ordinarily regulated through the
inadmissibility of the acquisition of territory through use of force. A more moderate version
of such illegality is when the occupant admits its status but acts in excess of its powers. Of
the latter there is at present a single potential case, namely the Israeli occupation of the West
Bank. There may be other grounds for illegality, although to this date they remain
hypothetical, such as the violation of ius in bello.
126 Gray, supra n. 8, 85.
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49
Part 4 considers the consequences of illegality as between the occupant and the
population in the territory, with particular reference to the character of the norms in
question, namely their ius cogens status. It suggests that these
consequences should not echo
those of other illegal territorial regimes. The special circumstances of occupation require that
as a matter of principle, the law of occupation be maintained in its entirety, regardless of the
specific basis for the illegality of the occupation. The occupant should be regarded as fully
subject (and empowered) by the law of occupation. However, the illegality of the occupation
does play a role in determining the powers of the occupant in specific situations. At the same
time, it generates the international responsibility of the occupant. The occupant must
withdraw from the territory immediately and unconditionally.
In view of these findings, the question arises whether the category ‘illegal occupation’
is at all necessary. Some scholars propose that international law be developed further to
address the phenomenon.127 The question, however, is not whether existing law provides for
responses for the phenomenon but whether it is at all advisable to designate a specific
response to it. Undoubtedly, situations that are characterized as ‘illegal occupation’ must be
confronted with legal tools; but as the examples demonstrate, it is debatable whether it is
necessary or useful to introduce a new juridical category, that of ‘illegal occupation’. It may
be that over-compartmentalization is counterproductive. Instead it may be appropriate to
elaborate the significance of existing, established categories.
127 Ben-Nafatali, Gross and Michaeli, supra n. 9, 612-614 suggest
mechanisms for termination of such occupation, for example.

 

 

 

 


 
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