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Resistance to Military Occupation: An Enduring Problem in International Law

  • Adam Roberts (a1)
Abstract

The fiftieth anniversary of Israel's occupation of certain Arab-inhabited territories following its victory in the June 1967 war is a good time to reflect on the question of how international law addresses resistance to military occupation. This issue—and its counterpart, the rights of an occupying power vis-à-vis resistance—has arisen repeatedly in connection with this occupation. It has been at the center of polemical debates involving Israel, neighboring states, and the Palestine Liberation Organization, in a wide range of international fora including the United Nations. It has also arisen in numerous other conflicts in the past half-century, including in Namibia before it achieved independence in 1990, and in Iraq following the 2003 U.S.-led intervention. The legal focus of this contribution is on the jus in bello. Certain jus ad bellum and human rights issues raised by occupation and resistance that inevitably intrude at certain points will be mentioned in passing.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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2 U.S. War Department, General Orders No. 100, Apr. 24, 1863 [Lieber Code], reprinted in The Laws of Armed Conflicts 3 (Dietrich Schindler & Jiri Toman eds., 4th rev. ed. 2004).

4 Geneva Convention relative to the Treatment of Prisoners of War art. 4A(2), Aug. 12, 1949, 75 UNTS 135 [hereinafter Third Geneva Convention]. The same wording is in the First Geneva Convention, Article 13, and the Second Geneva Convention, Article 13.

5 A term introduced by Richard R. Baxter in his examination of the 1949 Geneva Conventions in Richard R. Baxter, So-called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs, Brit. Y.B. Int'l L. 1951, 337.

6 Resolution on “Respect for and implementation of human rights in occupied territories”, May 7, 1968, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, at 5 UN Doc. A/CONF.32/41.

7 Definition of Aggression art. 7, Annex to GA Res. 3314 (XXIX) (Dec. 14, 1974). Of course, this was an annex to a General Assembly resolution, not a legally binding document as such; and it was not part of the laws of war.

9 As in, for example, HJC 769/02 Public Committee against Torture in Israel v. Government of Israel paras. 4, 20, and 33–4 (Dec. 13, 2006) (Isr.). The case concerned the lawfulness of the Israeli use of targeted killings against terrorist operatives.

10 Palestine's accession to these treaties is noted on the ICRC's IHL database at Treaties, States Parties and Commentaries, Palestine, International Committee of the Red Cross.

11 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 2004 (July 9). See also, David Kretzmer, Settlements in the Supreme Court of Israel, 111 AJIL Unbound 41 (2017).

12 Sir Arthur Watts, Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), in Max Planck Encyclopedia of Public International Law para. 42 (Rüdiger Wolfrum ed., 2007). Judges Higgins, Kooijmans, and Owada drew attention to various aspects of these problems in their separate opinions, and criticized the position taken by the ICJ.

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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