* Professor of Law, Tel Aviv University; Director of the Cegla Center for Interdisciplinary Research of the Law. I thank Renana Kedar for her excellent research assistance

1 SC Res. 1483 (May 22, 2003), 42 ILM 1016 (2003).

2 Using sophisticated claims, all occupants in the past three decades avoided acknowledging that their presence on foreign soil was in fact an occupation subject to the Hague Regulations or Fourth Geneva Convention (except for Israel, on a de facto basis, in parts of the areas occupied in June 1967). The shunning of the rules of the Hague Regulations and the Fourth Geneva Convention by most occupants is reflected in contemporary legal discourse which, by and large, has also failed to apply them to recent practices. For surveys of occupations during the twentieth century, see Eyal, Benvenisti, The International Law of Occupation (1993)Google Scholar (hereinafter Benvenisti, Occupation) ; Adam, Roberts, What Is a Military Occupation? 1984 Brit. Y.B. Int’l L. 249 Google Scholar.

3 Iran is also a riparian to the most southern tributaries of the river system. The relations between Iraq and Iran related to these tributaries do not impinge on Iraq’s claims vis–à–vis Syria and Turkey and are not discussed in this essay.

4 During the fighting, the U.S. military was of the opinion that the areas that were occupied were still not occupied in the legal sense, perhaps implying that the determination of an area as occupied requires something more than a factual test. See Briefing on Geneva Convention, EPW’s and War Crimes (Apr. 7, 2003) (Q&A with W. Hays Parks, Special Assistant to the Army Judge Advocate General’s Office), DefenseLINK, available at < [hereinafter Parks statement].

5 Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/538.

6 SC Res. 1483, supra note 1, pmbl. (first emphasis added), para. 5.

7 Regulations Respecting the Laws and Customs of War on Land, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, Art. 42, 2 AJIL Supp. 90 (1908), [hereinafter Hague Regulations]. The article further states: “The occupation extends only to the territory where such authority has been established and can be exercised.” Cf. Parks statement, supra note 4.

8 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 1(4), 1125 UNTS 3, 7, 16 ILM 1391. The provision states:

9 See id. In addition, a number of UN documents explicitly include occupations among the unlawful modalities of governance similar to colonialism and apartheid. See Charter of Economic Rights and Duties of States, GA Res. 3281, Art. 16(1) (Dec. 12, 1974)Google Scholar (“It is the right and duty of all States, individually and collectively, to eliminate colonialism, apartheid, racial discrimination, neo–colonialism and all forms of foreign aggression, occupation and domination, and the economic and social consequences thereof, as a prerequisite for development”); Permanent Sovereignty over Natural Resources, GA Res. 3171, 2 (Dec. 17, 1973)Google Scholar (“[s]upports resolutely the efforts of the developing countries and of the peoples of the territories under colonial and racial domination and foreign occupation in their struggle to regain effective control over their natural resources”).

10 On this doctrine and its demise, see Benvenisti, Occupation, supra note 2, at 92–96.

11 Hague Regulations, supra note 7, Art. 43: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

12 SC Res. 1483, supra note 1, pmbl.

13 Benvenisti, Occupation, supra note 2, ch. 2.

14 SC Res. 1483, supra note 1, pmbl.

15 See, e.g., Esther, Cohen, Human Rights in the Israeli–Occupied Territories 1967–1982, 28–29 (1985)Google Scholar; Benvenisti, Occupation, supra note 2, at 187–89; Adam, Roberts, Prolonged Military Occupation: The Israeli–Occupied Territories Since 1967, 84 AJIL 44, 70 (1990)Google Scholar (“the scope–of–application provisions of human rights accords do not exclude their applicability in principle, even if they do, as noted below, permit certain derogations in time of emergency”). But see Yoram, Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, in Human Rights in International Law 345, 350–52 (Theodor, Meron ed., 1985)Google Scholar (most human rights exist in peacetime but may disappear completely in wartime.)

16 Basic Principles for the Protection of Civilian Population in Armed Conflicts, GA Res. 2675 (Dec. 9, 1970)Google Scholar. The first “basic principle” for the protection of civilian population states: “Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict.” The vote was 109 to 0, with 8 abstentions.

17 Concluding Observations of the Human Rights Committee: Israel, Aug. 18, 1998, available at < notes that

See also, in the same vein, Eyal, Benvenisti, The Applicability of Human Rights Conventions to Israel and to the Occupied Territories, 26 Isr. L. Rev. 24 (1992)Google Scholar.

18 Loizidou v. Turkey, 23 Eur. H.R. Rep. 513 (1996) (merits) (the European Convention on Human Rights applies to the part of Cyprus occupied by Turkey).

19 SC Res. 1483, supra note 1, para. 4.

20 Id., para. 8(g).

21 Id., para. 4.

22 Benvenisti, Occupation, supra note 2, at 29–31,105–06.

23 See, for example, the claim of the British occupation government in post–World War II Tripolitania that the law of occupations precluded it from ameliorating the living conditions in the occupied area. Id. at 79–80.

24 Letter of May 8, 2003, supra note 5.

25 SC Res. 1483, supra note 1, para. 20.

26 See discussion infra notes 70–78 and corresponding text.

27 SC Res. 1483, supra note 1, para. 8.

28 Id., para. 12.

29 Id., para. 20.

30 On the lack of such tools as a significant flaw in the law see Benvenisti, Occupation, supra note 2, ch. 7.

31 SC Res. 1483, supra note 1, para. 4.

32 See John, Bulloch & Adel, Darwish, Water Wars: Coming Conflicts in the Middle East 137–38 (1993)Google Scholar. On the life and culture of the marsh people in southern Iraq, see Wilfred Thesiger, The Marsh Arabs (1964).

33 Peter, Clark, The Iraqi Marshlands: A Pre–War Perspective, Crimes of War Project (Mar. 7, 2003), available at <Google Scholar; United Nations Environment Programme, Division of Early Warning and Assessment, “Garden of Eden” in Southern Iraq Likely to Disappear Completely in Five Years Unless Urgent Action Taken (Mar. 22, 2003), available at <Google Scholar.

34 Do They Want to Go Back in Time? Economist, June 7, 2003 (U.S. ed.), at 41 Google Scholar.

35 On the utilization of water in this basin see, for example, Stephen C., Mccaffrey, The Law of International Watercourses 279–84 (2001)Google Scholar; Thomas, Naff & Ruth C., Matson, Water in the Middle East: Conflict or Cooperation 83–113 (1984)Google ScholarPubMed; Joseph W., Dellapenna, The Two Rivers and the Lands Between: Mesopotamia and the International Law of Transboundary Waters, 10 Byu J. Pub. L. 213 (1996)Google Scholar; Yonatan, Lupu, International Law and the Waters of the Euphrates and Tigris, 14 Geo. Int’l Envtl. L. Rev. 349 (2001)Google Scholar; Todd E., McDowell, Water Conflict and the Tigris– Euphrates Water Basin: A Status Report, 1997 Colo. J. Int’l Envtl. L. Y.B. 202 Google Scholar.

36 GA Res. 51/229, annex (May 21, 1997), 36 ILM 700 (1997) [hereinafter Watercourses Convention].

37 Id., Art. 2(a).

38 Id. Article 5 stipulates:

• 1.

  1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.

• 2.

  2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.

39 On July 9, 2001, and April 2, 1998, respectively. Status of Multilateral Treaties Deposited with the Secretary–General, available at < (visited Oct. 3, 2003).

40 Id.

41 Gabčíkovo–Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7 (Sept. 25).

42 Id., para. 85.

43 Id., para. 147; see also, Lac Lanoux (Fr. v. Spain), 12 R.I.A.A. 281 (1957), translated in 24 ILR 101 (1957).

44 The 1966 Helsinki Rules on the Uses of the Waters of International Rivers have long been accepted as reflecting customary law. 52 International Law Association, Conference Report 484 (1966); see Eyal, Benvenisti, Sharing, Transboundary Resources 82 (2003)Google Scholar (hereinafter Benvenisti, Resources); Patricia, Birnie & Alan, Boyle, International Law and The Environment, 298–305 (2d ed. 2002)Google Scholar.

45 For a detailed analysis of the Watercourses Convention and the duties it imposes, see MCCaffrey, supra note 35, pt. IV; see also, Benvenisti, Resources, supra note 44, ch. 7.

46 Watercourses Convention, supra note 36, Art. 3(5).

47 Id., Art. 7(1).

48 MCCaffrey, supra note 35, at 370–71.

49 Watercourses Convention, supra note 36, Art. 7(2).

50 On the diplomatic relations between these neighbors during the 1990s, see particularly MCCaffrey, supra note 35, at 281–83; McDowell, supra note 35.

51 See supra notes 22–23 and corresponding text.

52 See supra note 23 and corresponding text.

53 Hague Regulations, supra note 7, Art. 43. “Public order and civil Life” is a translation of the term “ordre et la vie publics” which has been interpreted to refer to “the whole social, commercial and economic life of the community.” See Grahame v. Director of Prosecution, 1947. AD Case No. 103, 228, at 232 (Germany, British Zone, Control Comm. Crim. App.).

54 Myres S., Mcdougal & Florentino P., Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 746 (1961)Google Scholar; see also Morris, Greenspan, The Modern Law of Land Warfare 225 (1959)Google Scholar.

55 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 27, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva IV].

56 Id., Art. 51.

57 Id., Art. 52.

58 Id., Art. 55.

59 Id., Art. 56.

60 Id., Art. 59.

61 See supra notes 15–18 and corresponding text.

62 See Benvenisti, Resources, supra note 44, at 119–23; Philip, Alston, International Law and the Human Right to Food, in The Right To Food 9, 24–25 (Philip, Alston & Katarina, Tomaševski eds., 1984)Google Scholar; Stephen S., McCaffrey, A Human Right to Water: Domestic and International Implications, 5 Geo. Int’l Envtl L. Rev. 1, 12 (1992)Google Scholar; Dinah, Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 Stan. J. Int’l L. 103 (1991)Google Scholar.

63 Benvenisti, Resources, supra note 44, at 106–07.

64 On property use limitations, see infra notes 66–72, 74–78 and corresponding text.

65 On the time limitation, see infra notes 87 and corresponding text.

66 Hague Regulations, supra note 7, Art. 46 (providing that “private property... must be respected. Private property cannot be confiscated.”)

67 Id., Art. 53(2).

68 Id., Art. 53 (“An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.”).

69 Ernst H., Feilchenfeld, The International Economic Law of Belligerent Occupation 30–61 (1942)Google Scholar; Julius, Stone, Legal Controls of International Conflict 714–16 (1954)Google Scholar.

70 U.S. Dept. of State, Memorandum of Law on Israel’s Right to Develop New Oil Fields in Sinai and the Gulf of Suez, 16 ILM 733, 743 (1977)Google Scholar (“property can be taken only for the purposes of the occupation itself).

71 See supra notes 24, 26, and corresponding text.

72 Antonio, Cassese, Powers and Duties of an Occupant in Relation to Land and Natural Resources, in International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of The West Bank and Gaza Strip 419, 422 (Emma, Playfair ed., 1992)Google Scholar; Brice M., Clagett & Thomas Johnson, O. Jr., May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Oil Resources of the Gulf of Suez? 72 AJIL 558, 580–81 (1978)Google Scholar.

73 Hague Regulations, supra note 7, Art. 55.

74 Stone, supra note 69, at 714.

75 This was also the position with respect to the water in the West Bank and Gaza. See Cassese supra note 72, at 431; Harold, Dichter, The Legal Status of Israel’s Water Policies in the Occupied Territories, 35 Harv. Int’l L.J. 565, 592–93 (1994)Google Scholar.

76 Watercourses Convention, supra note 36. In particular, Article 29 of the Watercourses Convention stipulates that “[i]nternational watercourses and related installations, facilities and other works shall enjoy the protection accorded by the principles and rules of international law applicable in international and non–international armed conflict and shall not be used in violation of those principles and rules.”

77 While the Watercourses Convention mentions the principle of reasonable and equitable use in the relations between riparian states, the Fourth Geneva Convention stipulates a duty to treat all individuals subject to the occupant’s control “with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.” Geneva IV, supra note 55, Art. 27.

78 On the duties under the Fourth Geneva Convention, see Greenspan, supra note 54 and corresponding text. Article 10, paragraph 2 of the Watercourses Convention, supra note 36, mentions the need to give “special regard... to the requirements of vital human needs.”

79 Hague Regulations, supra note 7, Art. 43 (emphasis added).

80 2 Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals 201 (1968).

81 See discussion supra notes 53–54 and corresponding text.

82 Subject to the question of the durability of the occupant’s commitments vis-à-vis other states. On this question, see infra note 87 and corresponding text.

83 Watercourses Convention, supra note 36, Art. 5(1).

84 Benvknisti, Resources, supra note 44, at 101.

85 The more complicated question relates to the responsibility of the occupant for the acts or omissions of individuals in the occupied territory who are neither members of its forces nor its own nationals. The logic of the law of occupation in allocating responsibilities to states requires that the occupant be held responsible as if it were the lawful government. This responsibility is in itself a reason for assigning the occupant the authority to utilize these resources in the first place.

86 On water-related issues raised by this occupation, see MCCaffrey, supra note 35, at 275–79; Gamal, Abouali, Natural Resources Under Occupation: The Status of Palestinian Water Under International Law, 10 Pace Int’l L. Rev. 411 (1998)Google Scholar; Eyal, Benvenisti & Haim, Gvirtzman, Harnessing International Law to Determine Israeli–Palestinian Water Rights , 33 Nat. Resources J. 543 (1993)Google Scholar; Dichter, supra note 75.

87 Feilchenfeld, supra note 69, at 55.

88 The 1969 Vienna Convention on the Law of Treaties regards a treaty as “an international agreement concluded between states,” but in this case it will be the occupant, which is distinct from the state, that will be a party to the agreement. See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969 Google Scholar, Art. 2, para. 1(a), 1155 UNTS 331, reprinted in 8 ILM 679 (1969) (entered into force Jan. 27, 1980). But even if the Vienna treaty does not apply, this does not in itself impinge on the legal force of agreements between the occupant—a subject of international law—and other states. Id., Art. 3.

89 On this serious gap see Benvenisti, Occupation, supra note 2, ch. 8.

* Professor of Law, Tel Aviv University; Director of the Cegla Center for Interdisciplinary Research of the Law. I thank Renana Kedar for her excellent research assistance.