#11454 - Occupation - International Humanitarian Law

Source

1. GC articles 47-48?

2. CA 2

3. GC4:27 – the occupying power must provide humane treatment with no discrimination, but the occupying power can take necessary security measures

4. Hague regulataions: define it

Example

1. Israeli Wall case

   1. Advisory Opinion from ICJ (GA asked for advisory opinion)

      1. Applies IHL. Article 2.4 of UN Charter (mandates refraining from the threat or use of force – you can’t gain territory by force).

      2. Applies GC4

         1. CA 2 (IAC and 2 contracting parties)

            1. It was the intent of the drafters to protect civilians (see art. 47)

            2. Travaux – occupation even without combat

            3. Subsequent practice – court takes pragmatic approach: there were 2/more high contracting parties in the 60s war, and now there is an occupation, so Israel is held to GC4

            4. Takeaway: occupation is supposed to be temporary, and the occupying party can’t make permanent changes because you can’t acquire property.

            5. Applies HR conventions re: deprivation of property. Says that these conventions are not lifted during the war. Israel must make restitution.

      3. Applies Hague

      4. Applies Vienna Convention on the Law of Treaties

         1. Article 31: pacta sunt servanda – treaties must be entered into in good faith

         2. Article 32: travauxi – legislative/drafting history – in cases of ambiguous terms, look to historical circumstances of creation. You can also look at subsequent state practice of the parties to the treaty.

      5. Can the military build the wall?

         1. No. The wall’s construction violates the rules and principles that Israel relied upon. The route of the wall proves that the motivation behind the wall is political, and is not security based, and therefore its presence is untenable under IHL.

            1. GC4:49: the occupying power can’t transfer its own population to the occupied territories

            2. Even if Israel says the wall is temporary, and even if it is not political it is a de facto annexation (not allowed, UN Charter 2.4)

         2. ICJ’s concern was that the barrier would hav a tendency to change the boundary.

      6. Looked at this as a question of occupation law.

   2. Israeli Supreme Court

      1. Applies IHL

      2. Finds Israel to be the occupying power (contrary to what Israeli government argued). Finds the occupation belligerent. All provisions of GC4 apply.

      3. Cites Hague law and Geneva law to discuss military necessity.

         1. Hague law applies even tough Israel didn’t exist in 1907 (and so couldn’t have signed the conventions) because it is CIL

         2. Also cites domestic law

      4. Was the military authorized to construct the wall?

         1. Yes, if they’re doing it exclusively for security reasons. They claim to have no reason to doubt the military commander’s claims, which are taken on their face.

      5. Is the location/route of the structure legal?

         1. General consensus that the “green line” is the border, but the fence goes across that border and chops into Palestine side: so some Ps are on I side and some Is are on P side.

         2. Held: Israel has responsibility to construct the wall in a way that doesn’t impinge on others. Israel failed to adequately balance the humane treatment of discrimination and the necessary security measures. Not proportionate because there is too much loss to the Palestinians (trees,...