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The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War

  • Theodor Meron (a1)
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The West Bank and the Settlements, again? Readers may have had enough of this subject. But these are exceptional times. The adoption by the Security Council of Resolution 2334 on December 23, 2016, the unprecedented speech by Secretary Kerry delivered shortly thereafter, and the immediate rejection of both by Prime Minister Netanyahu, combined with the approach of the fiftieth anniversary of the Six-Day War in June 2017 and the continued march toward an inexorable demographic change in the West Bank, not to mention the nomination as U.S. Ambassador to Israel of a person reportedly supporting an active settlement policy and annexation: the confluence of these events demands our renewed attention. And while these developments undoubtedly have powerful political dimensions, they also call upon those of us who care about international law to speak up in support of its requirements and application.

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1 SC Res. 2334 (Dec. 23, 2016).

2 See Kessler, Glenn, Fact-Checking John Kerry's Speech on the Israeli-Palestinian Conflict, Wash. Post (Jan. 3, 2017), at https://www.washingtonpost.com/news/fact-checker/wp/2017/01/03/fact-checking-john-kerrys-speech-on-the-israeli-palestinian-conflict/?utm_term=.03500f6e609f.

3 See Beaumont, Peter, Israel Rejects ‘Shameful’ UN Resolution Amid Criticism of Netanyahu, Guardian (Dec. 24, 2016), at https://www.theguardian.com/world/2016/dec/24/israel-rejects-shameful-un-resolution-amid-criticism-of-netanyahu.

4 See Diaz, Daniella & Kopan, Tal, Trump Picks Campaign Adviser Friedman as US Ambassador to Israel, CNN Politics (Dec. 16, 2016), at http://edition.cnn.com/2016/12/15/politics/trump-picks-campaign-adviser-friedman-as-us-ambassador-to-israel.

5 I also note that in recent years Palestine has gained recognition of attributes of statehood and has formally adhered to the Geneva Conventions. See, e.g., GA Res. 67/19, para. 2 (Dec. 4, 2012); International Committee of the Red Cross, Treaties, States Parties and Commentaries: Palestine (online database), at https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=PS&nv=4.

6 See generally Theodor Meron, A Life of Learning (Charles Homer Haskins Prize Lecture, ACLS, Occasional Paper 65, 2008).

7 See Gorenberg, Gershom, Israel's Tragedy Foretold, N.Y. Times (Mar. 10, 2006), at http://www.nytimes.com/2006/03/10/opinion/israels-tragedy-foretold.html. Excerpts from the Opinion, in Gorenberg's translation, are contained in Gorenberg's book: Gershom Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967–1977, at 99 (2006).

8 See Gorenberg, supra note 7, at 101.

9 See id.

10 See id. at 101–02.

11 See id. at 102.

12 The League of Nations, The Palestine Mandate, June 24, 1922, available at http://avalon.law.yale.edu/20th_century/palmanda.asp.

13 Id.

14 See Gorenberg, supra note 7, at 101.

15 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, Art. 55, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Convention No. IV]. References to the Hague Convention No. IV here include references to articles of the annexed regulations.

16 Memorandum from Theodor Meron, Legal Adviser, Ministry of Foreign Affairs of Israel to Director General, Prime Minister's Office on Geneva Convention: Blasting Homes and Deportation (Mar. 12, 1968), translation provided by HaMoked: Center for the Defence of the Individual, at http://www.hamoked.org/files/2015/1159122_eng.pdf [hereinafter Memorandum from Theodor Meron].

17 Id.

18 Gorenberg, Gershom, Israel Knew All Along that Settlements, Home-Demolitions Were Illegal, Haaretz (May 19, 2015), at http://www.haaretz.com/opinion/.premium-1.657167 (last accessed May 19, 2015) [hereinafter Gorenberg, Israel Knew All Along].

19 See, e.g., Farrell, Brian, Israeli Demolition of Palestinian Houses as a Punitive Measure: Application of International Law to Regulation 119, 28 Brook. J. Int'l L. 871, 885–87 (2002); B'Tselem, Punitive House Demolitions from the Perspective of International Law (Jan. 1, 2011), at http://www.btselem.org/punitive_demolitions/legal_basis.

20 Memorandum from Theodor Meron, supra note 16.

21 International Committee of the Red Cross, Commentary on the Geneva Convention IV of 12 August 1949 Relative to the Protection of Civilian Persons in Time of War 336 (Jean Pictet ed., 1958) [hereinafter 1958 Commentary IV]; Memorandum from Theodor Meron, supra note 16.

22 Memorandum from Theodor Meron, supra note 16.

23 Id.

24 Gorenberg, Israel Knew All Along, supra note 18; see also Memorandum from Theodor Meron, supra note 16.

25 B'Tselem, 17,898 Days: Almost Fifty Years of Occupation 4 (June 2016), at http://www.btselem.org/publications/201606_reality_check.

26 Id. at 4.

27 Id. at 6.

28 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, 2004 ICJ Rep. 136, para. 120 (July 9).

29 See, e.g., HCJ 7015/02, Ajuri v. The Commander of IDF Forces in the West Bank, 56(6) PD 352, paras. 13, 21, 22 (2002) (Isr.); HCJ 2056/04, Beit Sourik Village v. The Government of Israel and the Commander of the IDF Forces in the West Bank, 58(5) PD 805, para. 1 (2004) (Isr.).

30 Blum, Yehuda, The Missing Reversioner: Reflections on the Status of Judea and Samaria, 3 Isr. L. Rev. 279, 293 (1968).

31 Shamgar, Meir, The Observance of International Law in the Administered Territories, 1 Isr. Y.B. Hum. Rts. 262, 266 (1971) [hereinafter Shamgar, Observance of International Law].

32 Cf. Ronen, Yael & Shany, Yuval, Israel's Settlement Bill Violates International Law, Just Security Blog (Dec. 20, 2016), at https://www.justsecurity.org/35743/israels-settlement-regulation-bill-violates-international-law; Fisher, Ian, Israel Passes Provocative Law to Retroactively Legalize Settlements, N.Y. Times (Feb. 6, 2017), at https://www.nytimes.com/2017/02/06/world/middleeast/israel-settlement-law-palestinians-west-bank.html?smid=nytcore-ipad-share&smprod=nytcore-ipad; see generally Regulation of Settlement in Judea and Samaria Law, 5777-2017, Sefer HaHukim, No. 2604, p. 394, Art. 3, available at http://www.justice.gov.il/Units/Reshomot/publications/Pages/BookOfLaws.aspx (stating, inter alia, that the custodian of government property in the Judea and Samaria shall acquire the rights of private land on which a settlement has been built in cases where: (1) the settlement was built in good faith or built with the state's approval; and (2) the military authorities found that the costs invested in building the settlement were greater than the value of the private land at the time of building).

33 The Golan Heights and the Sinai Peninsula were, of course, under undisputed Syrian and Egyptian sovereignty, respectively. As regards Gaza, with the withdrawal of Israeli settlements and Israeli military presence there, most of the relevant questions related to settlements have become moot.

34 Theodor Meron, The Humanization of International Law 104 (2006).

35 See, e.g., Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgment, para. 147 (Int'l Crim. Trib. for the Former Yugoslavia July 29, 2004) (“[a]cts of plunder, which have been deemed by the International Tribunal to include pillage, infringe various norms of international humanitarian law. Pillage is explicitly prohibited in Article 33 of Geneva Convention IV … .”).

36 Blum, supra note 30, at 293; Shamgar, Observance of International Law, supra note 31, at 265–66; Shamgar, Meir, Legal Concepts and Problems of the Israeli Military Government: The Initial Stage, in Military Government in the Territories Administered by Israel, 1967–1980: The Legal Aspects 13, 3243 (Shamgar, Meir ed., 1982) [hereinafter Shamgar, Legal Concepts and Problems].

37 Shamgar, Legal Concepts and Problems, supra note 36, at 42–43.

38 Id. at 37–40.

39 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, supra note 28, para. 78.

40 Roberts, Adam, What Is a Military Occupation?, Brit. Y.B. Int'l L. 249, 253 (1984); see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, supra note 28, para. 95 (“The Court notes that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has arisen between two contracting parties. If those two conditions are satisfied, the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.”); International Committee of the Red Cross, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 104, para. 286 (2016) [hereinafter 2016 Commentary I]. References to the general clauses of the Geneva Conventions draw on the 2016 Commentary I to the First Geneva Convention.

41 Jordan Kingdom-Israel: General Armistice Agreement, Rhodes, Apr. 3, 1949.

42 See, e.g., HCJ 393/82, Jam'iat Iscan v. Commander of the IDF in Judea and Samaria, 37(4) PD 785, 792, para. 11 (1983) (Isr.).

43 Shamgar, Legal Concepts and Problems, supra note 36, at 38–40.

44 1958 Commentary IV, supra note 21, at 21.

45 2016 Commentary I, supra note 40, at 69, para. 193.

46 Roberts, supra note 40, at 253.

47 2016 Commentary I, supra note 40, at 106–07, para. 296. Article 42 of the Hague Convention No. IV defines territory as occupied when it is actually placed under the authority of the hostile army, without any reference to the legal status of the occupied territory.

48 2016 Commentary I, supra note 40, at 115, para. 324.

49 Id., para. 327.

50 E.E. Levy, Tehiya Shapira, Alan Baker (the Levy Commission), The Levy Commission Report on the Legal Status of Building in Judea and Samaria 12–13, para. 9 (June 21, 2012), translation provided by Regavim, available at http://www.regavim.org/levy-report-translated-into-english [hereinafter The Levy Commission Report].

51 Regulation of Settlement in Judea and Samaria Law, supra note 32, Art. 3. Yael Ronen and Yuval Shany write: “Article 46 of the Hague Regulations not only expressly prohibits confiscation, but also obligates the occupant to respect private property. While this does not preclude the imposition of limitations on the right, such limitations must meet, according to the jurisprudence of the Israeli Supreme Court, tests of necessity and proportionality. Discriminatory legislation which, in effect, authorizes the taking of land only from residents of the occupied territory for the benefit of nationals of the occupant (Article 1 of the Regulation Bill states that its purpose is ‘to regulate settlement in Judea and Samaria and enable the continuation of its establishment and development’) does not plausibly meet such requirements.” Supra note 32.

52 Fisher, supra note 32 (reporting that “Israel's Parliament passed a provocative law late Monday that would retroactively legalize Jewish settlements on privately owned Palestinian land, pressing ahead with a statement of right-wing assertiveness despite the likelihood that the country's high court will nullify the legislation.”).

53 Meron, supra note 34, at 10.

54 Jam'iat Iscan v. Commander of the IDF in Judea and Samaria, supra note 42, para. 11.

55 Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 63 (1990).

56 Hague Convention No. IV, supra note 15, Art. 42.

57 See generally Kretzmer, David, The Law of Belligerent Occupation in the Supreme Court of Israel, 94 Int'l Rev. Red Cross 207, 219–22 (2012); Roberts, supra note 55; see also Jam'iat Iscan v. Commander of the IDF in Judea and Samaria, supra note 42, para. 22.

58 This provision should be read together with Article 6(3) of the Fourth Geneva Convention, which provides that the occupying power shall be bound for the duration of the occupation by most of the substantive provisions of the Convention (thus including the Convention's general clauses as well as Articles 4 and 49).

59 Ronen & Shany, supra note 32.

60 B'Tselem, Expel and Exploit: The Israeli Practice of Taking Over Rural Palestinian Land 14 (Dec. 2016), at http://www.btselem.org/publications (documenting the use of privately owned land for the construction of a road to serve settlers’ interests); id. at 18 (documenting the cultivation of plots of privately owned Palestinian land by a number of settlements).

61 Prosecutor v. Blaškić, supra note 35, paras. 144–49.

62 On the notion of “usufruct,” see U.S. Dep't of Defense, Law of War Manual, para. 11.18.5.2 (June 2015), available at archive.defense.gov/pubs/Law-of-War-Manual-June-2015.pdf (“The term usufruct means literally ‘to use the fruit.’ The Occupying Power may use and enjoy the benefits of public real (immovable) property belonging to an enemy State, but does not have the right of sale or unqualified use of such property. As administrator or usufructuary, the Occupying Power should not exercise its rights in such a wasteful and negligent manner as seriously to impair the property's value. The Occupying Power may, however, lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend beyond the conclusion of the war.”); see also Human Rights Watch, Occupation, Inc.: How Settlement Businesses Contribute to Israel's Violations of Palestinian Rights 22 (Jan. 19, 2016), at https://www.hrw.org/report/2016/01/19/occupation-inc/how-settlement-businesses-contribute-israels-violations-palestinian [hereinafter Human Rights Watch, Occupation, Inc.] (“In almost all cases, settlements entail an additional international humanitarian law violation: Israel's confiscation of Palestinian land and other resources in violation of the Hague Regulations of 1907. Article 55 of the Hague Regulations makes public resources in occupied territory, including land, subject to the rules of usufruct. A generally accepted legal interpretation of these rules is that ‘the occupying power can only dispose of the resources of the occupied territory to the extent necessary for the current administration of the territory and to meet the essential needs of the [occupied] population.’”); Scobbie, Iain, H2O After Oslo II: Legal Aspects of Water in the Occupied Territories, 8 Palestine Y.B. Int'l L. 79, 92 (1995) (“The doctrine of usufruct is derived from Roman law, and may be defined as the right to enjoy and take the fruits of another's property, but not to destroy it or fundamentally alter its character. Some implications of the doctrine for the purposes of Article 55 are clear: while the occupant must respect the substance or capital of publicly owned immoveable property, it also has the right to the proceeds or produce the property provides. Accordingly, the occupant may lease or use State buildings, sell or consume the crops grown on public land, and fell and sell the timber of State forests. On the other hand, the doctrine of usufruct prohibits the destruction of publicly owned immoveable property.”); Eyal Benvenisti, The International Law of Occupation 76–77, 81–82 (2012).

63 Vienna Convention on the Law of Treaties, Art. 60(5), May 23, 1969, 1155 UNTS 331 [hereinafter Vienna Convention on the Law of Treaties].

64 Meron, supra note 34, at 38.

65 See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Arts. 7, 8, 27, 38, Aug. 12, 1949, 75 UNTS 287 [hereinafter Fourth Geneva Convention].

66 Stephen Boyd, The Applicability of International Law to the Occupied Territories, 1 Isr. Y.B. Hum. Rts. 258, 260 (1971).

67 Roberts, supra note 40, at 279.

68 Meron, supra note 34, at 6.

69 See, e.g., Convention Relative to the Treatment of Prisoners of War, Geneva, Arts. 42, 62, 64, July 27, 1929, 118 LNTS 343.

70 International Committee of the Red Cross, Commentary on the Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 82 (Jean S. Pictet ed., 1952).

71 See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Arts. 6, 7, 40, Aug. 12, 1949, 75 UNTS 31 [hereinafter First Geneva Convention]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Seas, Arts. 6, 7, Aug. 12, 1949, 75 UNTS 85 [hereinafter Second Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of War, Arts. 6, 7, 57, Aug. 12, 1949, 75 UNTS 135 [hereinafter Third Geneva Convention]; Fourth Geneva Convention, supra note 65, Arts. 7, 8.

72 Meron, supra note 34, at 38.

73 Id. at 38–40.

74 1958 Commentary IV, supra note 21, at 70.

75 Meron, supra note 34, at 39.

76 1958 Commentary IV, supra note 21, at 71.

77 2016 Commentary I, supra note 40, at 361, para. 988.

78 Id. at 365, para. 998.

79 Kretzmer, supra note 57, at 220.

80 2016 Commentary I, supra note 40, at 362, para. 990.

81 See, e.g., First Geneva Convention, supra note 71, Arts. 6, 7, 40; Second Geneva Convention, supra note 71, Art. 42; Third Geneva Convention, supra note 71, Arts. 33, 68, 105; Fourth Geneva Convention, supra note 65, Arts. 5, 20.

82 1958 Commentary IV, supra note 21, at 47.

83 See, e.g., HCJ 785/87, Afu et al. v. Commander of IDF Forces in the Judea and Samaria et al., 42(2) PD, para. 106 (1988) (Isr.), discussed in Kretzmer, supra note 57, at 215.

84 U.S. Dep't of State, Bureau of Democracy, H.R. and Lab., Israel 2015 Human Rights Report 108 (2015), at https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dynamic_load_id=252929&year=2015#wrapper (“Many NGOs alleged Israeli actions in the West Bank and Gaza amounted to racial and cultural discrimination, citing legal differences between the treatment of Palestinians and Jewish settlers in the West Bank.”); id. at 116 (“Access to social and commercial services in Israeli settlements in the West Bank, including housing, education, and health care, was available only to Israelis. Israeli officials discriminated against Palestinians in the West Bank and Jerusalem regarding access to employment and legal housing by denying Palestinians access to registration paperwork. In both the West Bank and Jerusalem, Israeli authorities often placed insurmountable obstacles in the way of Palestinian applicants for construction permits, including the requirement they document land ownership in the absence of a uniform post-1967 land registration process, high application fees, and requirements that new housing be connected to often unavailable municipal works.”); see also Human Rights Watch, Occupation, Inc., supra note 62, at 2 (“Israel's settlement project violates international human rights law, in particular, Israel's discriminatory policies against Palestinians that govern virtually every aspect of life in the area of the West Bank under Israel's exclusive control, known as Area C, and that forcibly displace Palestinians while encouraging the growth of Jewish settlements.”); id. at 6 (“Israel's confiscation of land for settlements and settlement businesses violates international law, regardless of whether the land was previously privately held, ‘absentee land’ or so-called ‘state land.’ Businesses operating on these unlawfully confiscated lands are inextricably tied to the ongoing abuses perpetuated by such confiscations.”); see generally Human Rights Watch, Separate and Unequal: Israel's Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories (Dec. 2010), at https://www.hrw.org/report/2010/12/19/separate-and-unequal/israels-discriminatory-treatment-palestinians-occupied.

85 Fourth Geneva Convention, supra note 65, Art. 47; 1958 Commentary IV, supra note 21, at 272.

86 1958 Commentary IV, supra note 21, at 274.

87 Shamgar, Observance of International Law, supra note 31, at 263.

88 Id. at 266.

89 Id.

90 Id. at 272.

91 Theodor Meron, Human Rights And Humanitarian Norms as Customary law 48–49 (1989).

92 See Kretzmer, supra note 57, at 215; Afu v. Commander of IDF Forces in the Judea and Samaria, supra note 83, discussed in Kretzmer, supra note 57, at 215.

93 Kretzmer, supra note 57, at 215.

94 1958 Commentary IV, supra note 21, at 16.

95 Roberts, supra note 40, at 283.

96 HCJ 1661/05, Gaza Coast Regional Council v. Knesset, PD 59(2) 481 (2005) (Isr.).

97 Id. at 517.

98 Gorenberg, supra note 7, at 101.

99 See, e.g., The Levy Commission Report, supra note 50, para. 5; see also Shamgar, Observance of International Law, supra note 31, at 272–73.

100 1958 Commentary IV, supra note 21, at 283.

101 See Benvenisti, supra note 62, at 240.

102 The Levy Commission Report, supra note 50, para. 5.

103 Israel Ministry of Foreign Affairs, Israeli Settlements and International Law (Nov. 30, 2015), at http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israeli%20settlements%20and%20international%20law.aspx.

104 Benvenisti, supra note 62, at 240 (“The settlement policy has been criticized as a breach of international law by the ICJ, the Security Council, the ICRC, and various countries and commentators. On the other hand, an Israeli interpretation of this Article asserted that the settlements did not contravene the GCIV since ‘Arab inhabitants have not been displaced by Israeli settlements,’ and that the Article ‘refers to State actions by which the government in control transfers parts of its population to the territories concerned. This cannot be construed to cover the voluntary movement of individuals … not as a result of State transfer but of their own volition and as an expression of their personal choice.’ This interpretation is doubtful, since the purpose of the Article must be to protect the interests of the occupied population—rather than the population of the occupant—and therefore whether the settlers move freely to the occupied territory is beside the point.”).

105 1958 Commentary IV, supra note 21, at 283.

106 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, supra note 28, para. 120; Benvenisti, supra note 62, at 240 (“While the Israeli authorities did not forcefully deport their nationals to the occupied areas, the movement was not merely voluntary: both the Israeli government and the military commanders were heavily involved in the settlements project.”).

107 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, supra note 28, para. 120. The movement of settlers into the West Bank is not deus ex machina, as proponents of settlements seem to suggest. In criticizing the ICJ's statement on the illegality of settlements, Kontorovich suggests that “encouragement” of civilian settlers is, in itself, insufficient to bring the state into the purview of Article 49(6). See Eugene Kontorovich, Unsettled: A Global Study of Settlements in Occupied Territories, Northwestern University School of Law 11 (Northwestern Public Law Research Paper, No. 16–20, Sept. 7, 2016). As the text above indicates, the ICJ did not limit itself to “encouragement” and mentioned other actions as well. Moreover, in a separate proceeding, the Israeli Supreme Court itself cited a government submission to the Court whereby the establishment of settlements was described as dependent on government authorization, and on budgetary allocations. See Gaza Coast Regional Council v. Knesset, supra note 96, at 524. Even that statement, however, does not fully reflect the massive involvement by the government in promoting settlements.

108 Gaza Coast Regional Council v. Knesset, supra note 96, at 524.

109 Vienna Convention on the Law of Treaties, supra note 63, Art. 31.

110 Meron, Theodor, The Geneva Conventions as Customary Law, 81 AJIL 348, 364 (1987).

111 Benvenisti, supra note 62, at 240.

112 Rome Statute of the International Criminal Court, Art. 8(2)(b)(viii), July 17, 1998, 2187 UNTS 90.

113 HCJ 277/84, Ayreib v. Appeals Committee et al., 40(2) PD, para. 9 (1986) (Isr.).

114 Kretzmer, supra note 57, at 224.

115 See id. at 224; HCJ 4481/91, Bargil et al. v. Government of Israel et al., 47(4) PD (1993) (Isr.), discussed in Kretzmer, supra note 57, at 214.

116 See SC Res. 1483, at 2 ( May 22, 2003) (addressing the situation between Iraq and Kuwait and recognizing “the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the ‘Authority’),” and paragraph 5 “call[ing] upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907”); SC Res. 1546, at 2 (June 8, 2004) (addressing the formation of a sovereign Interim Government of Iraq and noting “the commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law, and to cooperate with relevant international organizations”). In a letter by Colin J. Powell annexed to UN Security Council Resolution 1546, the then U.S. Secretary of State wrote: “In addition, the forces that make up the M[ultinational] F[orce] are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions.”

117 Scheffer, David J., Beyond Occupation Law, 97 AJIL 842, 854–56 (2003); see also Dörmann, Knut & Colassis, Laurent, International Humanitarian Law in the Iraq Conflict, 47 German Y.B. Int'l L. 293, 305 (2004); Roberts, Adam, The End of Occupation: Iraq 2004, 54 Int'l & Comp. L.Q. 27, 28 (2005).

118 See Robert Weiler, Eliminating Success During Eclipse II: An Examination of the Decision to Disband the Iraqi Military 14–18 (Mar. 26, 2009) (Master's Thesis, Marine Corps University).

119 Baxter, Richard, Some Existing Problems of Humanitarian Law, in The Concept of International Armed Conflict: Further Outlook 1, 2 (Proceedings of the International Symposium on Humanitarian Law, Brussels, 1974), cited in Theodor Meron, Human Rights In Internal Strife 43 (1987).

120 Aldrich, George, Human Rights and Armed Conflict: Conflicting Views, 67 ASIL Proc. 141, 142 (1973).

This article is written in the author's personal capacity. All cited websites last accessed March 28, 2017, unless otherwise noted. The author expresses his gratitude to Clara Ludot (BCL Oxon) for excellent research assistance.

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