Published online by Cambridge University Press: 19 March 2012
Various political realities influence the Israeli occupation of the West Bank and the Gaza Strip and, more generally, the vitality of the international law of occupation. The law of occupation—though ill-suited to modern international relations and ill-equipped for prolonged occupation—has been almost universally invoked as applicable to the Occupied Palestinian Territory (OPT). At the same time, international human rights law is increasingly viewed as applicable to occupation. This creates a dilemma for Israel because international humanitarian law and international human rights law contain conflicting prescriptions and policy goals with respect to the administration of occupied territory. In many instances, occupants seek United Nations Security Council action in order to reconcile this tension and to secure legal and political cover for their actions. By acting under Chapter VII of the United Nations Charter; the Security Council can create a select legal patchwork applicable to a particular occupation. This use of Chapter VII resolutions by the Security Council to create international law by fiat is an important trend in modern occupation. Yet geopolitics determines access to—and the content of—such resolutions, and the sensitive political context of the OPT currently makes this avenue unavailable to Israel. For the same reason, opponents of the Israeli occupation are unable to secure Security Council action to clarify and enforce Israeli legal obligations in the OPT. This Article considers these issues from the perspectives of both Israel and Palestinians in order to examine why the relative gain and loss in each case is not immediately clear. This Article also discusses how the legality of Israeli conduct in the OPT may be gauged in light of the conflicting international legal obligations imposed by human rights law and the law of occupation. A broader exploration of the impact of these phenomena reveals that these political realities serve to increase the influence of the Security Council while further undercutting the utility and relevance of the international law of occupation.
1 Though choice of language used to describe actions and events in the Middle East often correlates with political motive, the terms used in this Article carry apolitical intent. The term “Occupied Palestinian Territory” is employed because of its frequent use in United Nations and academic fora, and because the scope of this Article excludes certain issues such as the status of the Golan Heights. Wherever possible, the war over words is sidestepped by using relevant terms interchangeably. For background as to the sensitivity of language in this regard, see, e.g., Myre, Greg, Fencing Off: In the Middle East, Even Words Go to War, N.Y. Times, Aug. 3, 2003, at 3Google Scholar.
2 Convention Respecting the Laws and Customs of War on Land (Hague, IV), art. 43, Oct. 18, 1907, 36 Stat. 2277, 2306, 205 Consol. T.S. 277, 295 [hereinafter Hague Regulation IV]. The bracketed text represents the belief by various scholars that the term “la vie publics” from the (authoritative) French text should be translated as “civil life” instead of “safety,” the word commonly found in English translations. See Schwenk, Edmund H., Legislative Power of the Military Occupant under Article 43, Hague Regulations, 54 Yale L.J. 393, 393 n.1 (1945)CrossRefGoogle Scholar; Benvenisti, Eyal, The International Law of Occupation 7 (2nd ed. 2004)Google Scholar.
3 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].
4 Bouchet-Saulnier, Françoise, The Practical Guide to Humanitarian Law 115 (Brav, Laura ed., trans., 2002)Google Scholar.
5 See, e.g., Green, Leslie C., The Contemporary Law of Armed Conflict 338–39 (2nd ed. 2000)Google Scholar (“It was clearly established at Nuremberg that the Hague Conventions together with the 1929 Geneva Convention had hardened into customary law. The 1949 Conventions are part of the same system and, therefore, the system established thereby has achieved the same level.”); Prosecutor v. Tadic, Case No. IT-94-1-T, ¶ 577 (May 7, 1997), reprinted in 36 I.L.M. 908 (1997) (“Implicit in the Appeals Chamber Decision is the conclusion that the Geneva Conventions are a part of customary international law”). The view of the Supreme Court of Israel on this topic is discussed below in notes 16-18 and accompanying text.
6 See infra notes 142, 144-147 and accompanying text.
7 Fourth Geneva Convention, supra note 3, art. 64; see also International Committee of the Red Cross, Commentary on the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 273–74, 335 (Pictet, Jean ed., 1958)Google Scholar [hereinafter ICRC Commentary] (explaining that Article 64 of the Fourth Geneva Convention “expresses, in a more precise and detailed form, the terms of Article 43 of the Hague Regulations”); see also Benvenisti, supra note 2, at 106 (“[I]t has been generally held that the Geneva rules were in essence little more than a repetition of the Hague Regulations.”).
8 ICRC Commentary, supra note 7, at 335. Express reference was made only to penal law because “it had not been sufficiently observed during past conflicts; there is no reason to infer a contrario that the occupation authorities are not also bound to respect the civil law of the country, or even its constitution.” Id. See also infra note 146 and accompanying text.
10 For background on the function of the Supreme Court sitting as a High Court of Justice, see generally Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 10–11 (2002)Google Scholar.
11 Israeli Min. of Foreign Affairs, Disputed Territories: Forgotten Facts About the West Bank and Gaza Strip (Feb. 1, 2003)Google Scholar at http://www.mfa.gov.i1/MFA/MFAArchive/2000_2009/2003/2/DISPUTED+TERRITORIES-+Forgotten+Facts+About+the+We.htm (last visited May 20,2008); see also U.N. Doc. A/32/PV 27 (Oct. 10, 1977) (describing Israel's view, as presented by Foreign Minister Moshe Dayan in a speech to the United Nations General Assembly, that “Jordan's annexation of Judaea and Samaria, early in 1950, was never recognized by any state besides Pakistan and the United Kingdom” and that “[i]n view of this illegal annexation of the West Bank, the Fourth Geneva Convention is not applicable”).
12 Fourth Geneva Convention, supra note 3, art. 2. The seminal article setting forth this theory is Blum, Yehuda Z., The Missing Reversioner: Reflections on the Status of Judea and Samaria, 3 Isr. L. Rev. 279 (1968)CrossRefGoogle Scholar. For an overview of the arguments against this legal theory, see Roberts, supra note 9, at 64-65.
13 See Roberts, supra note 9, at 64.
15 Kretzmer, supra note 10, at 197.
16 HCJ 606/78 Ayub v. The Minister of Defense (the Beth El case); HCJ 606/78 Matawa v. The Minister of Defense (the Bekaot case)  IsrSC 33(2) 113, as summarized in 9 Isr. Y.B. Hum. Rts. 337, 341 (1979).
17 Kretzmer, David, The Advisory Opinion: The Light Treatment of Intenational Humanitarian Law, 99 Am. J. Int'l L. 88, 90 n.22 (2005)CrossRefGoogle Scholar; see also Kretzmer, supra note 10, at 22-23, 34-35 (“[T]he Supreme Court has held that the Hague Regulations are domestically enforceable, while those provisions of the Geneva Convention that have been relied on in cases presented before the Court have not.”). For criticism of the findings of the Court with respect to the declarative nature of the Hague Regulations, the constitutive nature of the Fourth Geneva Convention, and the lack of differentiation among the status of specific provisions within each convention, see, e.g., Bar-Yaacov, supra note 14, at 496-99.
18 Kretzmer, supra note 17, at 90 n.22 (citing Watson, Geoffrey R., The “Wall” Decisions in Legal and Political Context, 99 Am. J. Int'l L. 6, 22 (2005)CrossRefGoogle Scholar); see also Watson, supra, at 22 (describing the Supreme Court's practice of permitting the parties to stipulate to what law applies with respect to the Fourth Geneva Convention as “puzzling”).
19 See, e.g., S.C. Res. 237, ¶ 2, U.N. SCOR, 1361st mtg., U.N. Doc. S/RES/237 (June 14, 1967) (“Recommend[ing] to the Governments concerned the scrupulous respect of the humanitarian principles governing the treatment of prisoners of war and the protection of civilian persons in time of war contained in the Geneva Conventions of 12 August 1949”); S.C. Res. 446, ¶ 3, U.N. SCOR, 2134th mtg., U.N. Doc. S/RES/446 (Mar. 22, 1979) (“Call[ing] once more upon Israel, as the occupying Power, to abide scrupulously by the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949…”); S.C. Res. 681, ¶¶ 4, 5 U.N. SCOR, 2970th mtg., U.N. Doc. S/RES/681 (Dec. 20, 1990) (“Urging the Government of Israel to accept the de jure applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, to all territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention” and “[c]all[ing] upon the High Contracting Parties to the said Convention to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof”); S.C. Res. 799, ¶ 2, U.N. SCOR, 3151st mtg., U.N. Doc. S/RES/799 (Dec. 18, 1992) (“Reaffirming the applicability of the Fourth Geneva Convention of 12 August 1949 to all the Palestinian territories occupied by Israel since 1967, including Jerusalem”); S.C. Res. 904, ¶ 2, U.N. SCOR, 3351st mtg., U.N. Doc. S/RES/904 (Mar. 18, 1994) (“Reaffirming its relevant resolutions, which affirmed the applicability of the Fourth Geneva Convention of 12 August 1949 to the territories occupied by Israel in June 1967, including Jerusalem, and the Israeli responsibilities thereunder”).
20 See, e.g., G.A. Res. 35/122A, ¶¶ 1,2, U.N. GAOR, 35th Sess., U.N. Doc. A/RES/35/122 (Dec. 11, 1980) (“Reaffirm[ing] that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to Palestinian and other Arab territories occupied by Israel since 1967, including Jerusalem” and “deplor[ing] the failure of Israel to acknowledge the applicability of that Convention to the territories it has occupied since 1967”); G.A. Res. 56/60, ¶¶ 1,2, U.N. GAOR, 56th Sess., U.N. Doc. A/RES/56/60 (Feb. 14, 2002) (“Reaffirm[ing] that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Occupied Palestinian Territory, including Jerusalem, and other Arab territories occupied by Israel since 1967” and “[d]emand[ing] that Israel accept the de jure applicability of the Convention in the Occupied Palestinian Territory, including Jerusalem, and other Arab territories occupied by Israel since 1967, and that it comply scrupulously with the provisions of the Convention”); G.A. Res. 58/97, ¶¶ 1,2, U.N. GAOR, 58th Sess., U.N. Doc. A/RES/58/97 (Dec. 17, 2003) (repeating the language of Resolution 56/60); G.A. Res. ES-10/7, ¶ 6, U.N. GAOR, 10th Emergency Special Sess., U.N. Doc. A/RES/ES-10/7 (Oct. 20, 2000) (“Demand[ing] that Israel, the occupying Power, abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, which is applicable to all territories occupied by Israel since 1967”); G.A. Res. ES-10/16, ¶ 4, U.N. GAOR, 10th Emergency Special Sess., U.N. Doc. A/RES/ES-10/16 (Apr. 4, 2007) (“Call[ing] upon Israel, the occupying Power, to scrupulously abide by its obligations and responsibilities under the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Occupied Palestinian Territory, including East Jerusalem”).
21 See, e.g., Conference of High Contracting Parties to the Fourth Geneva Convention: Statement by the International Committee of the Red Cross, ¶ 2, Dec. 5, 2001, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/5FLDPJ (“[T]he ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel.”). It should be noted that the ICRC is an organization of unique importance with respect to IHL. See Fourth Geneva Convention, supra note 3, art. 142 (“The special position of the International Committee of the Red Cross in this field shall be recognized and respected at all times.”).
22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131, ¶ 101 (July 9) [hereinafter Wall Advisory Opinion].
23 The General Assembly, while meeting in an Emergency Special Session to discuss the OPT, recommended that the High Contracting Parties convene a “conference on measures to enforce” the Fourth Geneva Convention. G.A. Res. ES-10/6, ¶ 6, U.N. GAOR, 10th Emergency Special Sess., U.N. Doc. A/RES/ES-10/6 (Feb. 24, 1999). The states in attendance at that meeting (held in Geneva later that year) issued a declaration that “reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem” and “reiterated the need for full respect for the provisions of the said Convention in that Territory.” Declaration of the Conference of High Contracting Parties to the Fourth Geneva Convention, July 15, 1999. A similar conference held in December 2001 adopted a declaration stating that the Fourth Geneva Convention “has to be respected in all circumstances” and calling on states to take measure to encourage respect for the Fourth Geneva Convention. Declaration of the Conference of High Contracting Parties to the Fourth Geneva Convention, ¶¶ 5, 12 17, Dec. 5, 2001, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/5FLDPJ. The December 2001 declaration was adopted by 114 countries. Israel Castigated for ‘Rights Abuses’, BBC News, Dec. 5, 2001Google Scholar, available at http://news.bbc.co.uk/1/hi/world/middle_east/1693125.stm.
24 Letter from Col. Yoel Singer (International Law Section, Military Advocate General's Corps, Israel Defense Forces) to M. Michel Amiguet (Delegate General of the International Committee of the Red Cross in the Middle East and North Africa) (July 13, 1987), in Bar-Yaacov, supra note 14, at 491; see also Shamgar, Meir, The Observance of Internafional Law in the Administered Territories, 1 Isr. Y.B. Hum. Rts. 262, 266 (1971)Google Scholar.
25 See Bar-Yaacov, supra note 14, at 493 (”[I]t is not clear to which humanitarian provisions the Government of Israel refers.”); Roberts, supra note 9, at 66 (noting that “although the term ‘humanitarian provisions’ is often interpreted to mean all of the provisions, Israel has never definitively clarified this point by specifying which provisions it regards as humanitarian”). According to Roberts, “the hint of ex gratia about Israel's application of the Convention could be construed as carrying an implication that it might unilaterally interpret, or eventually abrogate, its terms.” Id.
27 Law and Administration Ordinance (Amendment No. 11) Law, 5727-1967, 21 LSI 75 (1966-67) (Isr.), reprinted in The Jerusalem Question and Its Resolution: Selected Documents 167 (Lapidoth, Ruth & Hirsch, Moshe, eds., 1994)Google Scholar [hereinafter The Jerusalem Question]; Municipal Ordinance (Amendment No. 6) Law, 5727-1967, 21 LSI 75-76 (1966-67) (Isr.), reprinted in The Jerusalem Question, supra, at 167. There have been many analyses of the relative strength of the competing Israeli and Palestinian legal claims for title to East Jerusalem. For a survey of this discussion, see Jerusalem, Whither? Proposals and Positions Concerning the Future of Jerusalem 15–21 (Hirsch, Moshe et al. , eds., 1995)Google Scholar.
28 See, e.g., G.A. Res. 2253, ¶ 1, U.N. GAOR, 5th Emerg. Spec. Sess., U.N. Doc. A/6798 (July 4, 1967) (“considers that these measures [taken by Israel to change the status of Jerusalem] are invalid”).
29 See, e.g., S.C. Res. 252, ¶¶ 1,2, U.N. SCOR, 1426th mtg., U.N. Doc. S/RES/252 (May 21, 1968) (admonishing Israel for not complying with previous General Assembly resolutions and stating that “all legislative and administrative measures and actions taken by Israel … which tend to change the legal status of Jerusalem are invalid and cannot change that status”); S.C. Res. 267, ¶¶ 1-4, U.N. SCOR, 1485th mtg., U.N. Doc. S/RES/267 (July 3, 1969) (reaffirming and using language similar to Resolution 252); S.C. Res. 271, ¶ 4, U.N. SCOR, 1512th mtg., U.N. Doc. S/RES/271 (Sept. 15, 1969) (“Call[ing] upon Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation”).
30 Basic Law: Jerusalem, Capital of Israel, 1980 S.H. 980, at 186, an English translation is available at http://www.mfa.gov.il/MFA/MFAArchive/1980_1989/Basic+Law-+Jerusalem-+Capital+of+Israel.htm.
31 See, e.g., Roberts, supra note 26, at 584 (“The overwhelming tendency of states and international bodies has been not to recognize these purported annexations [in East Jerusalem and the Golan Heights] but, rather, to view the law on occupations as remaining applicable to the situation.”); Quigley, John, The Oslo Accords: More than Israel Deserves, 12 Am. U.J. Int'l L. & Pol'y 285, 290 n.32 (1997)Google Scholar (“These claims [to annexation of East Jerusalem and the Golan Heights] have been condemned by the international community as violations of the legal regime of belligerent occupation.”); Wall Advisory Opinion, supra note 22, ¶¶ 75, 78, 120 (stating that East Jerusalem remains occupied territory and “conclud[ing] that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law”). For additional background on the illegality of annexation, see infra note 49 and accompanying text.
32 See, e.g., G.A. Res. 35/169, ¶ 8, U.N. GAOR, 35th Sess., U.N. Doc. A/RES/35/169 (Dec. 15, 1980) (“Demand[ing] the complete and unconditional withdrawal by Israel from all the Palestinian and other Arab territories occupied since June 1967, including Jerusalem, in conformity with the fundamental principle of the inadmissibility of the acquisition of territory by force”); G.A. Res. 37/88C, ¶ 7, U.N. GAOR, 37th Sess., U.N. Doc. A/RES/37/88 (Dec. 10, 1982) (condemning various Israeli policies as “grave breaches” of the Fourth Geneva Convention); G.A. Res. 49/87A, pmbl., ¶ 1, U.N. GAOR, 49th Sess., U.N. Doc. A/RES/49/87A (Dec. 16, 1994) (citing to previous resolutions and “[d]etermin[ing] that the decision of Israel to impose its laws, jurisdiction and administration on the Holy City of Jerusalem is illegal and therefore null and void and has no validity whatsoever”).
33 See, e.g., S.C. Res. 476, pmbl., ¶¶ 3-5 U.N. SCOR, 2242nd mtg., U.N. Doc. S/RES/476 (June 30, 1980) (“Reconfirm[ing] that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation” of the Fourth Geneva Convention); S.C. Res. 478, pmbl., ¶¶ 2,3 U.N. SCOR, 2245th mtg., U.N. Doc. S/RES/478 (Aug. 20, 1980) (quoted presently); S.C. Res. 672, ¶¶ 3,4, U.N. SCOR, 2948th mtg., U.N. Doc. S/RES/672 (Oct. 12, 1990) (“call[ing] upon” Israel to abide by the Fourth Geneva Convention with respect to all occupied territories (implicitly including Jerusalem)).
34 S.C. Res. 478, supra note 33, pmbl., ¶ 2 (adopted 14-0 with the U.S. abstaining).
36 See supra notes 19-20 for examples of U.N. resolutions that specifically (and separately) name East Jerusalem as within the intended purview of their relevant declarations.
37 For instance, the term “Occupied Territories,” when used by the Israeli Supreme Court, does not include East Jerusalem or the Golan Heights. As an example of such use, see Barak, Aharon, Human Rights in Israel, 39 Isr. L. Rev. 12, 23 (2006)Google Scholar (“It is impossible to discuss the status of human rights in Israel without examining the human rights of the Arab residents of the Occupied Territories, occupied by Israel in 1967. Israeli law was not applied to them, and, with the exception of East Jerusalem and the Golan Heights, they were not annexed to Israel. The law that applies is the international law of belligerent occupation.”) (At the time of writing, Aharon Barak was President of the Israeli Supreme Court). For background as to Israel's claim to have annexed the Golan Heights, see Golan Heights Law, 5742-1981, 36 LSI 7 (1981-82) (Isr.), translated and reprinted in 21 I.L.M. 163 (1982). Both the Security Council and the General Assembly condemned the purported annexation. See, e.g., S.C. Res. 497, ¶¶ 1-3, U.N. SCOR, 2319th mtg., U.N. Doc. S/RES/497 (Dec. 17, 1981) (“decid[ing]” that Israel's action was “null and void” and that the Fourth Geneva Convention continued to apply); G.A. Res. 36/226A, ¶ 8, U.N. GAOR, 36th Sess., U.N. Doc. A/RES/36/226 (Dec. 17, 1981) (declaring Israel's actions in the Golan Heights “null and void” in contravention of the Fourth Geneva Convention).
38 See Benvenisti, Eyal, The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective, 1 I.D.F. L. Rev. 19, 34 (2003)Google Scholar (“Careful analysis reveals that in post World War II cases of occupation, except for the Israeli control over the West Bank (not including East Jerusalem) and Gaza, the framework of the law of occupation was not followed even on a de facto basis”); see also Benvenisti, supra note 2, at 6, 107, 149-90, 211-12; Roberts, supra note 9, at 63 (listing examples of occupants that “avoided expressing any view on the applicability of international legal agreements” regarding occupation, including “the Soviet Union in Hungary (1956), Czechoslovakia (1968) and Afghanistan (1979)[,] and South Africa in Namibia”); Scheffer, David J., Beyond Occupation Law, 97 Am. J. Int'l L. 842, 846 (2003)CrossRefGoogle Scholar (“Typically, governments have sought to deny their legal status as occupying powers on foreign territory.”).
39 See Benvenisti, supra note 2, at 211.
40 See generally Roberts, Adam, What is a Military Occupation?, 55 Brit. Y.B. Int'l L. 249, 301 (1985)Google Scholar (describing “occupation” as a “politically and emotionally laden term”); Benvenisti, supra note 2, at 211-12 (examining occupants' reasons for their general distaste of the term “occupation”); Harris, Grant T., The Era of Multilateral Occupation, 24 Berkeley J. Int'l L. 1, 12–14 (2006)Google Scholar (explaining the goals of modern occupying powers in the context of transformative occupation following humanitarian and regime change intervention).
41 For instance, United Nations missions in Cambodia in 1991 and Bosnia in 1995 technically constituted instances of occupation by consent (also termed, inter alia, “occupation by agreement,” treaty-based occupation survived the merger of belligerent and non-belligerent occupation by the Fourth Geneva Convention). Kelly, Michael J., Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework 178 (1999)Google Scholar. Nonetheless, such instances of territorial administration by the U.N. are often referred to by other names (e.g., “civil administration” or “peacebuilding” exercises), and commentators often shy away from the term “occupation” because they see the political goals of such missions as differing from those of the classic model of belligerent occupation. That may be, and these terms may indeed be better descriptions of the activities of the U.N. missions but, as a factual matter, such missions may nonetheless constitute “occupation” in the eyes of the international law of occupation. For related background, see generally id., at 130-56, 162-81 (explaining the roots of non-belligerent occupation and how “the Fourth Geneva Convention brought together for the first time the evolutionary strands of the law of occupation—belligerent and non-belligerent (except pacific occupation)”); ICRC Commentary, supra note 7, at 60 (explaining that the Fourth Geneva Convention applies “[i]n all cases of occupation, whether carried out by force or without meeting any resistance” and therefore the word “occupation,” as used in the Convention “has a wider meaning than it has in Article 42 of the [Hague] Regulations”); Roberts, supra note 40, at 301, 276-79 (discussing peacetime occupation by consent and, separately, how the negative connotation of the term “occupation” has led to a “widespread use of terms with a supposedly better ring: protectorate, fraternal aid, rescue mission, technical incursion, peacekeeping operation, military administration, civil administration, liberation and so on”). Roberts also correctly notes that, though one should “not seek to attach any exaggerated importance to the question of how military occupations are either defined or classified,” the “formal designation of territory as occupied does have substantial practical and legal consequences,” including with respect to responsibility for war crimes. Id. at 250-51, 303.
42 For instance, the principal legal obligations pertinent to Iraq following the U.S. and British invasion in 2003, as set forth by the Security Council, effectively displaced the substance of the law of international occupation. Nonetheless, the situation was often referred to as one of “occupation.” See infra note 213 and accompanying text. Iraq also exemplifies how situations that would traditionally be thought of as instances of debellatio are often referred to as “occupations” instead. Debellatio, a doctrine related to occupation that has withered in light of changes in international law, is discussed infra in notes 48-51 and accompanying text.
43 See infra Section IV.A.
44 This point is discussed in greater detail infra in note 216.
45 Benvenisti, supra note 2, at 190.
47 Israel-Palestine Liberation Organization: Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, reprinted in 32 I.L.M. 1525 (1993) [hereinafter DOP].
48 See generally Benvenisti, supra note 2, at 92 (“As it is generally understood, ‘debellatio,’ also called ‘subjugation,’ refers to a situation in which a party to a conflict has been totally defeated in war, its national institutions have disintegrated, and none of its allies continue militarily to challenge the enemy on its behalf.”); Feilchenfeld, Ernst H., The International Economic Law of Belligerent Occupation 7 (1942)Google Scholar (“If one belligerent conquers the whole territory of an enemy, the war is over, the enemy state ceases to exist, rules on state succession concerning complete annexation apply, and there is no longer any room for the rules governing mere occupation.”).
49 See, e.g., Fox, Gregory H., The Occupation of Iraq, 36 Geo. J. Int'l L. 195, 265 (2005)Google Scholar (“Annexation is, of course, profoundly condemned by contemporary international law.”).
50 See, e.g., Benvenisti, supra note 2, at 95 (explaining that debellatio is “inconsistent with contemporary law and political philosophy”).
51 See, e.g., Reisman, W. Michael, Sovereignty and Human Rights in Contemporary International Law, in Democratic Governance and International Law 243 (Fox, Gregory H. & Roth, Brad R. eds., 2000)Google Scholar (describing the “contemporary change in content of the term ‘sovereignty’”).
52 See generally International Covenant on Civil and Political Rights, art. 1, Dec. 19, 1966, 999Google Scholar U.N.T.S. 171 [hereinafter ICCPR] (“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”); International Covenant on Economic, Social and Cultural Rights, art. 1, Dec. 16, 1966, 993Google Scholar U.N.T.S. 3 [hereinafter ICESCR] (stating language identical to that in Article 1 of the ICCPR); Jung, Youngjin, In Pursuit of Reconstructing Iraq: Does Self-Determination Matter?, 33 Denv. J. Int'l L. & Pol'y 391, 406Google Scholar (arguing that “given that self-determination is a principal factor undermining the legitimacy of belligerent occupation, the final result of occupation should be to lay down the necessary conditions under which the people in the occupied territory can build their own government—one based on a freely expressed will”).
53 As originally conceived, the law of occupation was in many ways a type of self-interested pact between state elites wanting to protect their respective interests in case their territory was occupied. See, e.g., Benvenisti, supra note 2, at 6 (noting that state elites were seen as “the primary beneficiaries” of the international law of occupation as grounded in the Hague Regulations). Some scholars (including Benvenisti) hold that the Fourth Geneva Convention radically altered this assumption. See, e.g., id. In contrast, it is suggested that the Convention added important humanitarian protections for occupied populations, but they were grafted onto a regime that continues to tightly circumscribe an occupant's power to make changes to society and does not provide meaningful guidance to occupants as to the exercise of power in light of the sovereignty and self-determination of the people. The safeguards are important, but they are precisely that—additional humanitarian protections added to a system that is fundamentally grounded in temporary custodianship and deference to preexisting law and institutions. See supra notes 7-8; see also ICRC Commentary, supra note 7, at 273-74 (explaining that “the traditional concept of occupation (as defined in Article 43 of the Hague Regulations of 1907) according to which the occupying authority was to be considered as merely being a de facto administrator … does not become in any way less valid because of the existence of the [Fourth Geneva Convention], which merely amplifies it so far as the question of the protection of civilians is concerned”).
54 The author has discussed this phenomenon more extensively in a separate article. See Harris, supra note 40, at 19-23.
55 For background on the Palestinian claim to self-determination, see generally Dajani, Omar M., Stalled Between Seasons: The International Legal Status of Palestine During the Interim Period, 26 Denv. J. Int'l L. & Pol'y 27, 29–48 (1997)Google Scholar.
56 Benvenisti, supra note 46, at 863.
57 Here again, some may claim that the Fourth Geneva Convention wrought changes that make this no longer true. This is not the case, for the Convention does not provide the leeway that an occupant would need to satisfy these changed expectations. See supra notes 7-8, 53 and accompanying text; infra notes 142, 144-148 and accompanying text.
58 Whereas the occupation of territory was traditionally a byproduct of war, contemporary regime change and humanitarian interventions make it the end goal. See Harris, supra note 40, at 12; Goodman, Davis P., Note, The Need for Fundamental Change in the Law of Belligerent Occupation, 37 Stan. L. Rev. 1573, 1592–93 (1985)CrossRefGoogle Scholar; Fox, supra note 49, at 263.
59 Goodman, supra note 58, at 1607.
60 Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories 1967-1988, in International Law and the Administration of Occupied Territories 25, 28 (Playfair, Emma ed., 1992)Google Scholar.
61 Hague Regulation IV, supra note 2, art. 43.
63 See Roberts, supra note 9, at 83 (providing the 1967 figure, as cited to Central Bureau of Statistics, Statistical Abstract of Israel 1988, at 705); CIA, The World Factbook, Rank Order: Population, https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (last visited May 20,2008) (estimating the populations of the West Bank and Gaza as of July 2007 to be 2,535,927 and 1,482,405, respectively).
64 The Supreme Court of Israel has taken the view that the prolonged nature of the Israeli occupation gives rise to greater legislative powers on the part of the occupying power. See, e.g., HCJ 337/71 Christian Soc'y for the Holy Places v. The Minister of Defense  IsrSC 26(1) 574, as summarized in 2 Isr. Y.B. Hum. Rts. 354, 355 (1972) [hereinafter Christian Soc'y]. The Israeli Supreme Court's interpretation of certain provisions of occupation law is discussed in greater detail below in notes 174-178 and accompanying text.
65 Benvenisti, supra note 2, at 144-45. Article 6 of the Fourth Geneva Convention delimits a reduced set of provisions of the Convention (including Article 64) that would apply to an occupation “one year after the general close of military operations.” Fourth Geneva Convention, supra note 3, art. 6. However, “[m]ost of the articles dealing with occupation, including the important Article 64, which deals with the occupant's prescriptive powers, are enumerated as the exceptions that are retained as long as the occupation lasts.” Benvenisti, supra note 2, at 144. Moreover. “the ‘one year after’ rule is widely seen as bearing little or no relevance to actual occupations, and it was effectively rescinded by a provision of [1977 Additional Protocol I to the Geneva Conventions of 1949], as between states parties to the latter.” Roberts, supra note 26, at 582; see also 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. 3(b), 1125 U.N.T.S. 3. It should be noted, however, that Israel is not a party to Additional Protocol I.
67 Israel-Palestine Liberation Organization: Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, reprinted in 36 I.L.M. 551 (1997) [hereinafter Interim Agreement]. Both the DOP and the Interim Agreement set aside the status of Jerusalem as one of various issues left for permanent status negotiations (as opposed to the more immediate negotiations on interim arrangements). DOP, supra note 47, art. V; Interim Agreement, supra, art. XXXI(5).
68 Interim Agreement, supra note 67, ch. 2, art. XI; Annex I, art. V; Annex III, art. IV.
69 See generally Hague Regulation IV, supra note 2, art. 42 (“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”); see also Kelly, supra note 41, at 154 (“The test is whether the force present is not just passing through, is not engaged in actual combat and is, in effect, the sole authority capable of exercising control over the civilian population, or any remaining authority requires the approval or sanction of the force to operate.”); Benvenisti, supra note 2, at 4 (defining occupation as “the effective control of a power (be it one or more states or an international organization, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory”); Roberts, supra note 40, at 300-01 (setting forth various “markers” that may indicate the existence of an occupation, including: (1) presence of a military force “whose presence in a territory is not sanctioned or regulated by a valid agreement, or whose activities there involve an extensive range of contacts with the host society not adequately covered by the original agreement under which it intervened;” (2) “the military force has either displaced the territory's ordinary system of public order and government, replacing it with its own command structure, or else has shown the clear physical ability to displace it;” (3) the military force and inhabitants of the territory are of different nationalities (with the local population owing no allegiance to the military force); and (4) “within an overall framework of a breach of important parts of the national or international legal order, administration and the life of society have to continue on some legal basis, and there is a practical need for an emergency set of rules…”).
70 Benvenisti, Eyal, Responsibility for the Protection of Human Rights Under the Interim Israeli-Palestinian Agreements, 28 Isr. L. Rev. 297, 312 (1994)Google Scholar. Aside from arguments based in the notion of “effective control,” certain scholars opined that the Egyptian-Israeli Treaty of Peace of 1979, the Jordanian-Israeli Treaty of Peace of 1994, and the DOP and subsequent agreements changed the technical status of the occupation. See, e.g., Benvenisti, Eyal, The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement, 4 Eur. J. Int'l. L. 542, 551 (1993)CrossRefGoogle Scholar (“Such a situation, in which one state controls a territory during a stage of transition from hostile to peaceful relations, is recognized in international legal literature as a situation of ‘armistice occupation.’”); Kelly, Michael J., Non-Belligerent Occupation, 28 Isr. Y.B. Hum. Rts. 17, 33–34 (1999)Google Scholar (arguing that the situation became a non-belligerent occupation following the peace treaties with Egypt and Jordan and remained one of occupation following the DOP but took on “characteristics of a pacific occupation”); Dinstein, Yoram, The International Legal Status of the West Bank and the Gaza Strip—1998, 28 Isr. Y.B. Hum. Rrs. 37, 41–44 (1999)Google Scholar (referring to the situation in the West Bank and the Gaza Strip as one of “post-belligerent occupation”). Such technical designations would have no practical effect on the issues discussed in this Article.
71 See, e.g., Imseis, Ardi, Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion, 99 Am. J. Int'l L. 102, 107 n.21 (2005)CrossRefGoogle Scholar (arguing that “Israel's status as the occupying power in the whole of the OPT was not extinguished by the Oslo Accords”); Wall Advisory Opinion, supra note 22, ¶ 78 (stating that “[s]ubsequent events” in the West Bank had not ended the occupation and that “Israel has continued to have the status of occupying Power”).
72 For additional background and arguments proffered in this regard, see Dajani, supra note 55, at 61 (explaining that the West Bank and the Gaza Strip “remain under Israeli occupation, even if Palestinians are now afforded a broader role in their administration” because the Interim Agreement “makes no fundamental change to the legal status of the OPT and … explicitly limits its effect to the interim period”); Malanczuk, Peter, Some Basic Aspects of the Agreements Between Israel and the PLO from the Perspective of International Law, 7 Eur. J. Int'l. L. 485, 497 (1996)CrossRefGoogle Scholar (“In effect, Israel is therefore still an occupant with regard to the fields which it has not transferred to the Palestinians for self-government. A different conclusion would lead to the absurd result of legalizing the current status quo, including the Israeli settlements, from the viewpoint of international law.”); Abouali, Gamal, Natural Resources Under Occupation: The Status of Palestinian Water Under International Law, 10 Pace Int'l L. Rev. 411, 465 n.301 (1998)Google Scholar (noting that the “Israeli army does not withdraw from the OPTs, but merely re-deploys” as per the terminology used in the Interim Agreement); Zemach, Ariel, Taking War Seriously: Applying the Law of War to Hostilities Within an Occupied Territoly, 38 Geo. Wash. Int'l L. Rev. 645, 662–63 (2006)Google Scholar (opining that, once a situation comprises occupation, “the application of the effective control standard in determining whether the occupation continues is much more liberal”).
73 Nolte, Georg, Preventive Use of Force and Preventive Killings: Moves Into a Different Legal Order, 5 Theoretical Inquiries L. 111, 126 (2004)Google Scholar; see also Dajani, supra note 55, at 65-69 (describing how the functional jurisdiction of the PA is “limited to an array of municipal powers and responsibilities”). Israel also retained control over who could enter and leave the areas in question. Kretzmer, David, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16 Eur. J. Int'l. L. 171, 206 (2005)CrossRefGoogle Scholar.
74 Nolte, supra note 73, at 126.
75 See, e.g., Imseis, supra note 71, at 107 n.21 (“This status [of occupation] remains unchanged even when the belligerent occupant evacuates parts of the territory, so long as it is able ‘at any time’ to reassume control over those parts.”) quoting from United States v. Wilhelm List (United Nations Military Tribunal at Nuremberg, Feb. 19, 1908), United Nations War Commission, Law Report of Trial of War Criminals 34, 56 (1949)Google Scholar [hereinafter List]; Zemach, supra note 72, at 662 (citing the List case and stating that “[i]n order for a state of occupation to exist, it suffices that the occupant has the military ability to exercise control over the territory in question; there is no need for the occupant to actually exercise such control”); but see Letter from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General, U.N. Doc. A/C.3/60/7 (Nov. 3, 2005) (arguing that the List case had been quoted in a “misleading manner” in the report submitted by John Dugard, Special Rapporteur of the Commission on Human Rights).
76 See Zemach, supra note 72, at 663. For geographical background, see Fischbach, Michael R., Population Reference Bureau, The West Bank and Gaza: A Population Profile (Apr. 2002)Google Scholar at http://www.prb.org/Articles/2002/TheWestBankandGazaAPopulationProfile.aspx (last visited May 20,2008) (“Gaza is separated from the West Bank, while in the West Bank, Areas A and B are themselves divided among 227 separate areas (199 of which are smaller than 2 square kilometers) that are separated from one another by Israeli-controlled Area C.”).
77 Green, supra note 5, at 258.
78 Zemach, supra note 72, at 663. For estimates of the division of territory among the three types of areas, see, e.g., Dajani, supra note 55, at 63 (estimating that Area A represented a total of approximately three percent of the West Bank; Area B represented approximately twenty-seven percent; and Area C included approximately seventy percent of the West Bank and approximately thirty-five to forty percent of the Gaza Strip); U.S. State Department, Country Reports on Human Rights Practices—2002, Occupied Territories (Mar. 31, 2003), available at http://www.state.gov/g/drl/rls/hrrpt/2002/18278.htm [hereinafter U.S. Human Rights Report] (approximating slightly higher percentages for each area). In subsequent agreements, Israel agreed to further redeployments to increase the amount of territory constituting Areas A and B. See Israel-Palestine Liberation Organization: Wye River Memorandum, art. I(A)(l), Oct. 23, 1998, reprinted in 37 I.L.M. 1251, 1251 (1998) [hereinafter Wye River Memorandum]; Israel-Palestine Liberation Organization: Sharm el-Sheikh Memorandum, art. 2, Sept. 4, 1999, reprinted in 38 I.L.M. 1465, 1465 (1999) [hereinafter Sharm el-Sheikh Memorandum]; see also Mark, Clyde R., Congressional Research Service Issue Brief No. IB82008, Israeli-United States Relations 6 (Apr. 28, 2005)Google Scholar, available at http://fpc.state.gov/documents/organization/47089.pdf [hereinafter CRS Issue Brief] (“After Israel completed the withdrawals called for in the October 1998 Wye Agreement, the Palestinians controlled about 18% of the West Bank, the Israelis and Palestinians shared control over about 22%, and Israel controlled the remaining 60%”); Fischbach, supra note 76 (“By 2000, 17 percent of the West Bank was classified as Area A, 29 percent as Area B, and 59 percent as Area C.”). Redeployment from the city of Hebron was dealt with in a separate agreement.
79 Ben-Naftali, Orna & Shany, Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17, 98–100 (2003–2004)Google Scholar. Kathleen Cavanaugh drew a similar conclusion:
In the wake of Operation Defensive Shield, the Israeli government reoccupied seven of the eight major West Bank towns. The reoccupation, combined with the significant damage to the infrastructure of the PA, rendered the arguments regarding the question of who exercises authority and “effective control” essentially moot. There is little question that since March 2002, the [Palestinian Authority] has been reduced to a mere spectator.
Cavanaugh, Kathleen A., Selective Justice: The Case of Israel and the Occupied Territories, 26 Fordham Int'l L.J. 934, 954 (2003)Google Scholar. Interestingly, “neither the ICJ [in the Wall advisory opinion] nor the Israeli Supreme Court [in the Beit Sourik decision] relied to any significant extent on the Oslo Accords, not even as guides to interpretation of other instruments.” Watson, supra note 18, at 24. The Wall advisory opinion and the Beit Sourik case are discussed below in notes 102-104 and 193-194, respectively, and accompanying text.
80 Ariel Sharon, Address to United Nations General Assembly (Sept. 15, 2005), available at http://www.mfa.gov.il/MFA/Peace+Process/Key+Speeches/PM+Sharon+addresses+the+UN+General+Assembly+15-Sep-2005.htm; see also Myre, Greg, As Israelis Pull Out, the Question Lingers: Who'll Control Gaza?, N.Y. Times, Sept. 11, 2005Google Scholar, at 1, 8 (quoting Daniel Taub, deputy legal adviser in Israel's Foreign Ministry as saying that “[t]he dismantling of the Israeli military government brings to an end Israeli authority over the area and transfers its responsibility to the Palestinians”).
81 Government of Israel, Decision of 6 June 2004 on the Revised Disengagement Plan, ¶ 3(One) (1) (June 6, 2004), available at www.mfa.gov.i1/MFA/Peace+Process/Referenc+Documents/Revised+Disengagement+Plan+6-June-2004.htm. The Disengagement Plan also makes clear that “the economic arrangements currently in operation between the State of Israel and the Palestinians shall remain in force,” including with respect to: “[t/he entry and exit of goods between the Gaza Strip, the West Bank, the State of Israel and abroad[,] [t]he monetary regime …[t]ax and customs envelope arrangements,” and “[p]ostal and telecommunications arrangements.” Id. ¶ 10. It should be noted as well that the Disengagement Plan set forth certain steps to increase the contiguity of Palestinian-controlled territory in the West Bank. Id. ¶¶ 2(A), 3.2(5).
82 See, e.g., Stephanopoulos, Nicholas, Recent Development, Israel's Legal Obligations to Gaza After the Pullout, 31 Yale J. Int'l L. 524, 524 (2006)Google Scholar (”Israel still occupies Gaza for two reasons: first, because it retains effective control over the territory, and second, because agreements between Israel and the Palestinian Authority (PA) prohibit unilateral changes to the legal status of Gaza and the West Bank.”); Mari, Mustafa, The Israeli Disengagement From the Gaza Strip: An End of the Occupation?, 8 Y.B. Int'l Humanitarian L. 356, 366–68 (2005)Google Scholar (arguing that “Israel has intentionally designed the disengagement in order to reduce friction with the population of the Gaza Strip but without [losing] ‘effective control’”).
83 DOP, supra note 47, art. IV. This statement was repeated almost verbatim in the Interim Agreement. Interim Agreement, supra note 67, art. 6, para. 1. The parties have also agreed and repeatedly affirmed that “neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” Id. arts. XI(1), XXXI(7); see also Wye River Memorandum, supra note 78, art. 5 (“Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Ship in accordance with the Interim Agreement.”); Sharm el-Sheikh Memorandum, supra note 78, art. 10 (same).
84 Zemach, supra note 72, at 665.
85 See id. (arguing that policy reasons weigh “against allowing an occupant to pick and choose small, densely populated areas within the occupied country in which it may relieve itself of its obligations under the law of occupation”).
86 Dinstein, supra note 70, at 48.
87 Shany, Yuval, Far Away, So Close: The Legal Status of Gaza After Israel's Disengagement, 8 Y.B. Int'l Humanitarian L. 369, 381 (2005)Google Scholar; but see Watson, supra note 18, at 23 (arguing that the DOP and related agreements remain legally binding).
88 Shany, supra note 87, at 380-81. Indeed, the Israeli Supreme Court held in 2008 that “since September 2005 Israel no longer has effective control over what takes place within the territory of the Gaza Strip” because the military government was abolished and “Israeli soldiers are not present in that area on a permanent basis and do not direct what occurs there.” HCJ 9132/07 Jaber al-Basyuni Ahmad et al. v. The Prime Minister [Jan. 30, 2008] (unpublished), ¶ 12 translation of the Israeli Ministry of Foreign Affairs, available at http://www.mfa.gov.il/NR/rdonlyres/938CCD2E-89C7-4E77-B071-56772DFF79CC/0/HCJGazaelectricity.pdf (last visited June 5, 2008). Instead, the Court found that Israel's obligations vis-à-vis residents of the Gaza Strip are derived primarily “from the state of warfare that currently ensues between Israel and the Hamas organization which controls the Gaza Strip.” Id. Nonetheless, the Court also noted that certain obligations spring “from the degree of control that the State of Israel has at the border crossings between it and the Gaza Strip” as well as “from the situation that was created between the State of Israel and the territory of the Gaza Strip after years of Israeli military control in the area, following which the Gaza Strip is now almost totally dependent on Israel for its supply of electricity.” Id. The Court set forth its conclusion with respect to the law of occupation in a single paragraph as it went on to decide that the amounts of fuel and electricity supplied by Israel to the Gaza Strip were sufficient to meet the essential humanitarian needs of Gaza residents. See id. ¶¶ 12, 22. The Court did not address possible counterarguments to its holding with respect to the legal status of Gaza or the scope or extent of obligations imposed on Israel due to Israel's control over border crossings and the history of occupation to which the Court referred. For criticism of the Court's analysis, see, e.g., Gisha-Legal Center for Freedom of Movement, Briefing: Israeli High Court Decision Authorizing Fuel and Electricity Cuts to Gaza (HCJ 9132/07), 3-4 at http://www.gisha.org (last visited June 5, 2008) (noting as well that the Israeli Supreme Court is also considering the legal status of Gaza as part of a separate case, HCJ 10265/05 Physicians for Human Rights-Israel v. The Defense Minister, which is pending before the Court at the time of writing).
90 Kahn, Paul W., The War Powers Resolution and Kosovo: War Powers and the Millennium, 34 Loy. L.A. L. Rev. 11, 41 (2000)Google Scholar; see also Donnelly, Jack, Universal Human Rights in Theory and Practice 38 (2nd ed. 2003)Google Scholar (“Both nationally and internationally, political legitimacy is increasingly judged by and expressed in terms of human rights.”).
91 See, e.g., U.S. Dep't of Defense, Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations 6 (April 4, 2003)Google Scholar, available at http://www.au.af.mil/au/awc/awcgate/dod/d20040622doc8.pdf (“The United States has maintained consistently that the [ICCPR] does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict.”). With respect to occupation, see Kelly, Michael J., Critical Analysis of the International Court of Justice Ruling on Israel's Security Barrier, 29 Fordham Int'l L.J. 181 (2005)Google Scholar (opining that less than a majority of states would favor application of human rights instruments to occupation).
92 See generally Roberts, supra note 26, at 597 (“In many statements the Israeli authorities have denied that human rights law is formally applicable to the territories occupied since 1967.”); Ben-Naftali & Shany, supra note 79, at 26 (“Although [Israel] is a party to the leading human rights treaties, consecutive Israeli governments have steadfastly objected to their application in the Occupied Territories.”); infra notes 302-303 and accompanying text.
93 Grenier, Jeremie Labbe, Extraterritorial Applicability of Human Rights Treaty Obligations to United Nations-mandated Forces, in Int'l Comm. of the Red Cross, Expert Meeting on Multilateral Peace Operations 79, 79 (Faite, Alexandre & Grenier, Jeremie Labbe eds., 2004)Google Scholar; see also Frowein, Jochen Abr., The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation, 28 Isr. Y.B. Hum. Rts. 1, 9–11, 16 (1998)Google Scholar (providing scholarly support for this view of jurisdiction).
94 See, e.g., Cerone, John, Human Dignity in the Line of Fire: The Application of International Human Rights Law During Armed Conflict, Occupation, and Peace Operations, 39 Vand. J. Transnat'l L. 1447, 1478–98 (2006)Google Scholar (explaining that “[b]oth the Inter-American and European human rights bodies have found that regional human rights treaties apply to extraterritorial conduct”). According to Ben-Naftali and Shany:
[T]here seems to be solid support in the case law of the various international organs responsible for the application of human rights conventions for the proposition that extraterritorial applications of governmental authority, including the exercise of control over occupied territories, should be viewed as falling under the jurisdiction of the state parties to the relevant convention.
Ben-Naftali & Shany, supra note 79, at 87. A survey of such jurisprudence, which has received extensive attention elsewhere, is beyond the scope of this Article.
95 See Meron, Theodor, The Humanization of Humanizatian Law, 94 Am. J. Int'l L. 239, 268 (2000)CrossRefGoogle Scholar (citing numerous examples of the Security Council's “parallel application of human rights law and humanitarian law in situations of armed conflicts”). With respect to the topic at hand, a preambular paragraph of a 1967 resolution stated that “essential and inalienable human rights should be respected even during the vicissitudes of war.” S.C. Res. 237, pmbl., U.N. SCOR, 1361st mtg., U.N. Doc. S/RES/237 (June 14, 1967).
96 See, e.g., G.A. Res. 2675, ¶ 1, U.N. GAOR, 25th Sess., U.N. Doc. A/RES/2675 (Dec. 9, 1970) (vote: 109 for, 0 against, 8 abstaining) (“fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict”).
97 See, e.g., World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, ¶ 29, U.N. Doc A/CONF.157/23 (July 12, 1993), reprinted in 32 I.L.M. 1661, 1671 (1993) (“Call[ing] upon States and all parties to armed conflicts strictly to observe international humanitarian law … as well as minimum standards for protection of human rights, as laid down in international conventions …“).
98 Harris, supra note 40, at 16; see also Roberts, supra note 26, at 599, 620 (“Human rights norms are increasingly recognized as applicable in military occupations.”); Gross, Aeyal M., Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?, 18 Eur. J. Int'l L. 1, 4 (2007)CrossRefGoogle Scholar (“[T]he current direction of international law is to apply human rights norms to situations of armed conflict in general and to situations of belligerent occupation in particular, as evident in the interpretation of human rights treaties, in the decisions of treaty bodies, and in the rulings of the courts that interpreted them ….”); Ratner, Steven R., Foreign Occupation and International Territorial Administration: The Challenges of Convergence, 16 Eur. J. Int'l L. 695, 704 (2005)CrossRefGoogle Scholar (“There is no longer any doubt that human rights law applies during occupations”); Benvenisti, supra note 46, at 862-63 (“The principle that human rights remain applicable in a certain territory despite occupation of that area and that these rights may complement the law of occupation regarding specific issues has become widely accepted.”); Sassòli, supra note 62, at 666 (“Although both the US and Israel deny it, UN practice and judicial decisions clearly indicate that international human rights law binds an occupying power with respect to the population of an occupied territory.”); Paust, Jordan J., The United States as Occupying Power Over Portions of Iraq and Special Responsibilities Under the Laws of War, 27 Suffolk Transnat'l L. Rev. 1, 4–5 (2003)Google Scholar (“[H]uman rights law … applies to all persons at all relevant circumstances, whether in time of war or relative peace.”); Ben-Naftali & Shany, supra note 79, at 40 (opining that “human rights law is applicable to territories subject to belligerent occupation” and that such a proposition “is a fortiori the case in instances of a prolonged occupation”); Roberts, supra note 40, at 305 (“[T]he parallel stream of the international law of human rights has not only influenced the recent development of the laws of war in the shape of the 1977 Geneva Protocol I, but has also been increasingly recognized as having some applicability to occupations in its own right.”); Human Rights Committee, Report of the Human Rights Committee, ¶ 652, U.N. Doc. A/46/40 (Oct. 10, 1991) (stating that Iraq had “clear responsibility under international law for the observance of human rights during its occupation of [Kuwait]”).
99 See, e.g., G.A. Res. 2443, ¶ 1, U.N. GAOR, 23rd Sess., U.N. Doc. A/RES/2443 (Dec. 19, 1968) (“[d]ecid[ing] to establish a Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories”); G.A. Res. 2546, ¶¶ 1, 2, U.N. GAOR, 24th Sess., U.N. Doc. A/RES/2546 (Dec. 11, 1969) (“[r]eaffirm[ing] its resolutions relating to the violations of human rights in the territories occupied by Israel,” and “[e]xpress[ing] its grave concern at the continuing reports of violation of human rights in those territories”); G.A. Res. 2727, U.N. GAOR, 25th Sess., U.N. Doc. A/RES/2727 (Dec. 15, 1970) (calling upon Israel to, inter alia, comply with the Universal Declaration of Human Rights). Additional background may be found in the documents produced in connection with the Special Committee to Investigate Israeli Practices affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, available at http://www.unhchr.ch/html/menu2/7/a/moatsc.htm (last visited May 20, 2008). Also of note, the United Nations Conference on Human Rights held in Tehran in 1968 called on Israel “to respect and implement the Universal Declaration of Human Rights … in occupied territories.” Resolution I (Respect and Enforcement of Human Rights in Occupied Territories), Final Act of the International Conference on Human Rights, May 13, 1968, ¶ 3, U.N. Doc. A/Conf. 32/4 (1968), reprinted in 63 Am. J. Int'l L. 677, 678 (1969) (resolution adopted on May 7, 1968).
100 See, e.g., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, U.N. Hum. Rts. Comm., 78thSess., 2128th-2130th mtgs., ¶ 11, U.N. Doc. CCPR/CO/78/ISR(2003), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/7121cbf0578c594ec1256da5004b25e8?Opendocument (“reiterat[ing]” that “the provisions of the [ICCPR] apply to the benefit of the population of the Occupied Territories, for all conduct … [that] fall[s] within the ambit of State responsibility of Israel under the principles of public international law”); Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, ¶ 31, U.N. Doc. E/C.12/1/Add. 90 (May 23, 2003). available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C. 12.1.Add.90.En?Opendocument (stating that Israel's obligations under the ICESCR “apply to all territories and populations under its effective control”); Consideration of Reports Submitted by States Parties Under Article 9 of the Convention, U.N. CERD, 70th Sess., 1810th and 1813th mtgs., ¶ 32, U.N. Doc. CERD/C/ISR/CO/13 (2007), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/25b04cc5637c586bc1257307005263ce?Opendocu1nent (“reiterat[ing]” that Israel's position that the International Convention on the Elimination of all Forms of Racial Discrimination does not apply in the OPT and the Golan Heights “cannot be sustained under the letter and spirit of the Convention, or under international law, as also affirmed by the international Court of Justice”).
101 Interim Agreement, supra note 67, art. XIX.
102 Wall Advisory Opinion, supra note 22, ¶¶ 106, 111-13 (“[T]he Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation.”); see also Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116, ¶¶ 217-20 (Dec. 19) (holding that various international human rights instruments applied to Ugandan-occupied territory in the Democratic Republic of the Congo) [hereinafter Armed Activities]; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 25 (July 8) [hereinafter Nuclear Weapons Advisory Opinion] (“The Court observes that the protection of the International Covenant of Civil and Political rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.”); Benvenisti, supra note 2, at xvi (explaining that the Wall advisory opinion “confirms the applicability of human rights law to occupied temtories”).
103 Wall Advisory Opinion, supra note 22, ¶¶ 147, 162.
105 In addition to IHRL, David Scheffer notes that applicable principles from such bodies of international law as atrocity law and environmental law also inform the legal obligations surrounding occupation. Scheffer, supra note 38, at 843, 849.
106 As examples of such criticism, see generally Dennis, Michael J., ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 Am. J. Int'l L. 119 (2005)CrossRefGoogle Scholar; Kelly, supra note 91; Kretzmer, supra note 17, at 88-89. The Court's treatment of the co-application of IHL and IHRL is discussed infra in notes 158-161 and accompanying text.
107 A certain level of abstraction is required for purposes of the exercise at hand, so it is therefore unnecessary to examine in detail the complexities inherent in rights analysis. Nevertheless, it should be kept in mind that it is sometimes difficult to ascertain where a particular legal obligation begins and ends in IHRL. What specific rights are included in the ambit of “international human rights,” and what is the legal status of each? To begin with, it can be difficult to parse the obligatory from the hortatory in the universe of human rights, thus making it all the more difficult to specify a particular legal responsibility. Each treaty, each provision, and each international actor requires contextual legal analysis in order to understand the status, nature, and reach of the relevant obligations. To what treaties is the state in question a party? To what length must a state go to safeguard each right? Is there a relative priority among various human rights? Which rights may be considered jus cogens or customary international law and, in the case of the latter, when may a state be considered a persistent objector? Which rights may be considered erga omnes? In examining treaty commitments, may certain types of reservations be deemed “invalid?” Which provisions are subject to derogation, under what circumstances, and to what extent? This is not to suggest that human rights are illusory, but rather that application of IHRL is not without complication, and it is sometimes difficult in practice to determine the force and requirements of particular obligations.
108 Roberts, supra note 26, at 593; see also Frowein, supra note 93, at 2 (“There are some clear contradictions between human rights treaties, on the one hand, and humanitarian law on the other.”); Kelly, supra note 91, at 203 (explaining that occupation law is in certain respects in “direct contradiction to the ICCPR”).
109 Benvenisti, supra note 2, at 16. For further discussion of the differences between IHL and IHRL regarding freedom of assembly and expression, see generally Quigley, John, The Relation Between Human Rights Law and the Law of Belligerent Occupation: Does an Occupied Population Have a Right to Freedom of Assembly and Expression?, 12 B.C. Int'l & Comp. L. Rev. 1, 14–17 (1989)Google Scholar.
110 ICCPR, supra note 52, art. 25; see also infra notes 133-134 and accompanying text.
111 Kelly, supra note 91, at 194; see also Benvenisti, supra note 2, at 16, 189.
112 See Quigley, supra note 109, at 14-15.
113 Kelly, supra note 91, at 220-21; see also ICCPR, supra note 52, art. 19; Hague Regulation IV, supra note 2, arts. 43, 53; Fourth Geneva Convention, supra note 3, arts. 27, 64.
114 Roberts, supra note 26, at 593; see also Frowein, supra note 93, at 9, Roberts, supra note 9, at 73.
115 Universal Declaration of Human Rights, G.A. Res. 217A(III), art. 13, ¶ 1, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948); see also ICCPR, supra note 52, art. 12(1), (3) (providing that “[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence” while providing for certain exceptions as necessary for national security and public order).
116 ICCPR, supra note 52, art. 9(1)-(2).
117 Roberts, supra note 26, at 593.
118 Fourth Geneva Convention, supra note 3, art. 78; see also ICRC Commentary, supra note 7, at 207. The relevant paragraph of Article 78 states in full: “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.” Though the second paragraph requires that such decisions be made “according to a regular procedure,” Roberts argues that this provision is insufficient to stem the conflict with IHRL. Roberts, supra note 26, at 593.
119 Watkin, supra note 66, at 32.
121 ICESCR, supra note 52, art. 4.
122 Kelly, supra note 91, at 215.
123 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, supra note 100, ¶ 19.
124 Ben-Naftali & Shany, supra note 79, at 102; see also Hague Regulation IV, supra note 2, arts. 48-49, 51-52.
125 ICCPR, supra note 52, art. 23. Israel could conceivably choose to derogate this provision (though it has not to date), but the point is broader than this particular example.
126 Kelly, supra note 91, at 222.
127 Id. (“The only possible basis for interference in this area would be if the laws were a source of racial discrimination or genocide, such as the Nazi family laws.”); see also Hague Regulation IV, supra note 2, art. 43; Fourth Geneva Convention, supra note 3, art. 27 (providing in part that “[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs”); supra notes 7-8 and accompanying text (discussing Article 64 of the Fourth Geneva Convention).
128 See The Office for the High Commissioner of Human Rights, The Nature of States Parties Obligations (art. 2, par.1): 14/12/90, CESCR General Comment 3, ¶ 3, U.N. Doc. E/1991/23, annex III at 86 (1991) (explaining that legislation may be an “indispensable element” with respect to “health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9” of the ICESCR), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument; see also Sassòli, supra note 62, at 676 (“Human rights, e.g. the right to a fair trial, women's rights, and in particular social and economic rights often require the state to take a positive (including legislative) action.”); Kelly, supra note 9 1, at 215-17 (discussing the example of education).
129 Holmes, Stephen, Constitutionalism, Democracy, and State Decay, in Deliberative Democracy and Human Rights 116, 120–22 (Koh, Harold Hongju & Slye, Ronald C. eds., 1999)Google Scholar.
130 Teitel, Ruti, Millennial Visions: Human Rights at Century's End, in Human Rights in Political Transitions: Geettysburg to Bosnia 339, 340 (Hesse, Carla & Post, Robert eds., 1999)Google Scholar.
131 See Harris, supra note 40, at 15-19.
132 See infra Section III.C.
133 Universal Declaration of Human Rights, supra note 115, art. 21, ¶¶ 1, 3.
134 ICCPR, supra note 52, art. 25(a) and (b); see also Same Varayudej, , Right to Democracy in International Law: Its Implications for Asia, 12 Ann. Surv. Int'l & Comp. L. 1, 8 (2006)Google Scholar (noting that language similar to Article 25 of the ICCPR is also present in Article 3 of Protocol I of the European Convention on Human Rights and in Article 23 of the America Convention on Human Rights).
135 U.N. Commission on Human Rights, General Comment No. 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Art. 25). ¶ 1, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (July 12, 1996), available at http://www.unhchr.ch/tbs/doc.nsf/0/d0b7f023e8d6d9898025651e004bc0eb?Opendocument.
136 Donnelly, supra note 90, at 186; see also Teson, Fernando R., Humanitarian Intervention: An Inquiry Into Law and Morality, 141–46 (2nd ed. 1997)Google Scholar (“There can be little doubt that a principle of democratic rule is today part of international law.”); Agenda for Democratization, Report of the Secretary General, U.N. GAOR, 51st Sess., Agenda Item 41, ¶ 15, U.N. Doc. A/51/761 (1996) (“While differences … will continue between democracy as viewed by one society and democracy as viewed by another, democracy is increasingly being recognized as a response to a wide range of human concerns and as essential to the protection of human rights.”). For additional background on democracy in international law, see generally Democratic Governance and International Law, supra note 51; Franck, Thomas M.. Fairness in International Law and Institutions 83–139 (1995)Google Scholar; Franck, Thomas M., The Emerging Right to Democratic Governance, 86 Am. J. Int'l L. 46 (1992)CrossRefGoogle Scholar; Koh, Harold Hongju, A United States Human Rights Policy for the 21st Century, 46 St. Louis U. L.J. 293, 324–26 (2002)Google Scholar (explaining efforts by the Clinton Administration to enshrine democracy as a human right).
137 U.N. Commission on Human Rights (UNCHR) Res. 1999/57,55th Sess., 57th mtg.. ¶ 1, U.N. Doc. E/CN.4/RES/1999/57 (Apr. 27, 1999); see also U.N. Commission on Human Rights (UNCHR) Res. 2000/47, 55th Sess., 57th mtg., ¶ 1, U.N. Doc. E/CN.4/RES/2000/47 (Apr. 27, 1999).
138 Communique, Towards a Community of Democracies Conference, Warsaw, Poland, ¶ 5 (June 27, 2000), available at http://www.demcoalition.org/pdf/toward_comm_of_demo.pdf.
139 G.A. Res. 96, U.N. GAOR, 55th Sess., Agenda Item 114(b), ¶ 1, U.N. Doc. A/RES/55/96 (Feb. 28, 2001). The General Assembly has also promoted democracy in other contexts. See, e.g., G.A. Res. 107, U.N. GAOR, 55th Sess., Agenda Item 114(b), pmbl., U.N. Doc. A/RES/55/107 (Mar. 14, 2001) (“Reaffirming that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing”).
140 See Fox, Gregory H., Democratization, in The UN Security Council 69–82 (Malone, David M. ed., 2004)Google Scholar (noting that democracy is one of the “policy objectives regularly pursued” by the Security Council); David M. Malone, Conclusion, in The UN Security Council, id. at 617, 628-29 (describing how the Security Council has been “increasingly engaged in the promotion of democracy” since the conclusion of the Cold War).
141 See Harris, supra note 40, at 18. The occupation of Iraq serves as an important example of this phenomenon. See S.C. Res. 1483, pmbl., ¶ 9, U.N. SCOR, 4761st mtg., U.N. Doc. S/RES/1483 (May 22, 2003) (“encouraging efforts … to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens”); see also Kirgis, Frederic L., Security Council Resolution 1483 on the Rebuilding of Iraq, ASIL Insights (2003)Google Scholar, available at http://www.asil.org/insights/insigh107.htm#_edn3 (“Resolution 1483 may be seen as a further step in the development of the principle” of “what may be an emerging right under international law to a democratic form of government”).
142 See Brown, Bartram S., Intervention, Self-Determination, Democracy and the Residual Responsibilities of the Occupying Power in Iraq, 11 U.C. Davis J. Int'l L. & Pol'y 23, 60 (2004)Google Scholar (“International humanitarian law requires the maintenance of the existing legal system and international human rights law requires the promotion of democracy and the rule of law.”); Scheffer, supra note 38, at 849-51 (“The fundamental premise of occupation law has been to confine the occupying power to humanitarian objectives that essentially preserve the status quo, not to entitle the occupying power to transform the territory it holds,” including through “rigorous implementation of international human rights standards”); see also Dinstein, Yoram, The International Law of Belligerent Occupation and Human Rights, 8 Isr. Y.B. Hum. Rts. 104, 116 (1978)Google Scholar (“The government of an occupied territory by the occupant is not the same as a State's ordinary government of its own territory: a military occupation is not tantamount to a democratic regime and its objective is not the welfare of the local population.”); Benvenisti, supra note 2, at 189 (“Realistically, one cannot expect occupants to endanger the security of their forces for the purpose of allowing local residents to enjoy political rights that are usually granted in democracies in peacetime.”).
143 See supra Sections II.A and II.C.1.
144 Roberts, supra note 26, at 582 (emphasis added).
145 Fox supra note 49, at 162, 199 (supporting this conclusion with a survey of support for this proposition in the military manuals of the U.S., Canada, and New Zealand); see also Feilchenfeld, supra note 48, at 89 (“Since a belligerent occupant is not a permanent sovereign, it is deemed to be beyond his competence to engage in permanent changes in regard to fundamental institutions.”); Greenwood, Christopher, The Administration of Occupied Territory in International Law, in International Law and the Admnistration of Occupied Territories, supra note 60, at 241, 257Google Scholar (explaining that “any attempt at effecting permanent reform or change” in the legal and political structures of the occupied territory “will be unlawful”); Scheffer, supra note 38, at 851 (explaining that the international law of occupation is “not a license to transform” society and, at best, “permits tinkering on the edges of societal reform”).
146 Fox supra note 49, at 199.
147 von Heinegg, Wolff Heintschel, The Rule of Law in Conflict and Post-Conflict Situations: Factors in War to Peace Transitions. 27 Harv. J.L. & Pub. Pol'y 843, 862 (2004)Google Scholar; see also supra notes 7-8 and accompanying text; Benvenisti, supra note 2, at 105 (explaining that the “bill of rights” contained in the Fourth Geneva Convention “is a major improvement over the Hague Regulations” but that “the guarantees inscribed in it are minimal” and (i) do not “direct the occupant to treat the occupied people with standards similar to the ones employed for its own nationals;” and (ii) “stop short of requiring the occupant to develop (not just maintain) the economic, social, and educational infrastructures”).
148 See Sassòli, supra note 62, at 673; Benvenisti, supra note 46, at 868, 871; see also infra note 279.
149 Ratner, supra note 98, at 708
151 See Kelly, supra note 91, at 203-04.
152 See Ben-Naftali, Orna, Gross, Aeyal M., & Michaeli, Keren, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 Berkeley J. Int'l L. 551, 576 (2006)Google Scholar; Meron, supra note 95, at 267; Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict, 87 Int'l Rev. Red Cross 737, 737–38 (2005)CrossRefGoogle Scholar; Ben-Naftali & Shany, supra note 79, at 22, 103-06 (presenting various “modalities” by which to reconcile IHRL and IHL).
153 Cerone, supra note 94, at 1509 (asking: “Does it essentially mean that where the norms overlap, the norms of humanitarian law prevail? If so, does the assertion that human rights law continues to apply lose much of its legal significance?”).
154 The practice of the Israeli Supreme Court in this regard is discussed infra in notes 204-205 and accompanying text.
155 Nuclear Weapons Advisory Opinion, supra note 102, ¶ 25.
158 Wall Advisory Opinion, supra note 22, ¶ 106.
159 Dennis, supra note 106, at 133.
160 See Ben-Naftali & Shany, supra note 79, at 116-17 (explaining that “the Court's reference to the situation where both apply, IHL being the lex specialis, fails to explain its own implications” and “ignores altogether the interpretative consequences of their co-application”).
162 Armed Activities, supra note 102, ¶ 178.
165 See supra Section III.A.
166 See supra note 150 and accompanying text.
167 See supra Section II.C.2. For additional discussion of the rationale behind application of IHRL to prolonged occupation as well as the fact that the drafters of the Fourth Geneva Convention did not anticipate prolonged occupation see Ben-Naftali, Orna & Michaeli, Keren R., “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int'l L.J. 233, 289–90 (2003)Google Scholar; Ben-Naftali & Shany, supra note 79, at 97.
168 See infra note 208 and accompanying text.
169 Hague Regulation IV, supra note 2, art. 43; see also supra note 2 and accompanying text. Interpretation of Article 43 by the Israeli Supreme Court is discussed below in notes 174-178 and accompanying text.
170 Fourth Geneva Convention, supra note 3, art. 64(1) and (3); see also supra notes 7-8 and accompanying text. For discussion of related suggestions, see Ratner, supra note 98, at 710 (contending that “the greater the incompatibility of extant domestic law with the basic human rights of the population, the greater should be the ability of occupying forces to change the status quo as a means of carrying out its duties to protect that population” and that IHL should therefore “be interpreted to give leeway to … occupying forces to amend local law that is particularly harmful to human rights. …”); Sassòli, supra note 62, at 676 (arguing that the occupying power “has an obligation to abolish legislation and institutions which contravene international human rights standards”). For background as to the “reformist reading of occupation law” used in the occupation of Iraq, see generally Fox supra note 49, at 270-97.
171 See supra Section II.A., notes 142-148 and accompanying text; see also ICRC Commentary, supra note 7, at 336 (explaining that the exceptions to Article 64 of the Fourth Geneva Convention “are of a strictly limitative nature” and that the “occupying authorities cannot abrogate or suspend the penal laws for any other reason—and not, in particular, merely to make it accord with their own legal conceptions”).
172 For additional discussion of why the wholesale application of IHRL to occupied territory would be inappropriate, see infra Section V.A.3.
173 This jurisprudential discussion does not apply to East Jerusalem or the Golan Heights, which Israel purports to have annexed. See supra notes 26-37 and accompanying text. For additional background as to the Israeli Supreme Court's posture toward East Jerusalem, see, e.g., HCJ 4185/90 Temple Mount Faithful v. The Attorney General  IsrSC 47(5) 221, ¶ 34, translated and reprinted in 45 Cath. U. L. Rev. 861 (1996)Google Scholar (citing previous Israeli laws that “have established the sovereignty of the State of Israel over whole and united Jerusalem, as the capital of Israel”); Lapidoth, Ruth, Jerusalem—Some Jurisprudential Aspects, 45 Cath. U. L. Rev. 661, 675–76 (1996)Google Scholar (explaining that Israeli courts “have held that the eastern sectors of Jerusalem had become part of the State of Israel”).
174 See, e.g., Christian Soc'y, supra note 64, at 355 (concluding that the military governor could amend the process of appointment of representatives to an arbitration council under Jordanian Labor Law); HCJ 202/81 Tabib v. The Minister of Defense  IsrSC 36(2) 622, as summarized in 13 Isr. Y.B. Hum. Rts. 364, 365-66 (1983) (opining that “‘the prevention’ mentioned at the end of Article 43 is not absolute at all” and that if “achievement of [the public order] requires a deviation from the existing laws, there is not only a right but, indeed, a duty to deviate from them”). In Christian Sociey, the Court explained:
A prolonged military occupation brings in its wake social, economic and commercial changes which oblige [the occupant] to adapt the law to the changing needs of the population. The words “absolutely prevented” in Article 43 should, therefore, be interpreted with reference to the duty imposed upon him vis-à-vis the civilian population, including the duty to regulate economic and social affairs.
Christian Soc'y, supra note 64, at 355.
175 Kretzmer, supra note 10, at 59, 63. As examples of this point, see, e.g., HCJ 69/81 Abu Itta v. The Commander of the Judea and Samaria Region  IsrSC 37(2) 197, 309, available at http://elyon1.court.gov.il/Files_ENG/81/690/000/z01/81000690.z01.pdf(justifying the imposition of an excise tax in the OPT as serving the interests of the local population); Kretzmer, supra note 10, at 68-71 (explaining that, in HCJ 393/82 Ja'amait Ascan v. The IDF Commander in Judea and Samaria  IsrSC 37(4) 785, 809 the Court held that construction by military authorities of a network of highways in the OPT was justified by its supposed benefit to the local population despite evidence that the planning was based on Israeli interests).
176 Kretzmer, supra note 10, at 63.
177 See Playfair, Emma, Playing on Principle? Israel's Justification for its Administrative Acts in the Occupied West Bank, in International Law and the Administration of Occupied Territories, supra note 60, at 205,222Google Scholar (explaining that the Court has included Israeli settlers within its analysis of Article 43 in various instances, including in a 1971 decision in which the Court examined an electricity concession and held that the residents of Kiryat Arba “should be viewed as persons added to the local population” whose needs should therefore be considered) (quoting HCJ 256/72 Electricity Company for Jerusalem Ltd v. The Minister of Defense  IsrSC 27(1) 124), for a summary in English see 5 Isr.Y.B. Hum. Rts. 381 (1975); see also Gross, supra note 98, at 23-25 (examining subsequent Supreme Court case law on this point); Kretzmer, supra note 10, at 64-65, 187 (“Given the dubious legal status of the civilian settlements … regarding settlers as part of the local population for the purposes of article 43 is highly problematical. Its implications are far-reaching.”).
178 See Kretzmer, supra note 10, at 64-65, 187 (“If the test is the interests of the local population and the Israeli settlers in the area become part of that population, the potential for changing the law becomes almost unlimited.”); Gross, supra note 98, at 23-25 (explaining how “interpreting Article 43 as granting the military commander the authority—and imposing the duty—to provide for the settlers is sufficient to upset the balance struck in IHL to the detriment of the local population”).
179 Kretzmer, supra note 10, at 163, 194 (emphasis added) (“[E]ven when the Court has been prepared to extend the scope of its review over security matters, it has rarely been prepared to rule that insufficient weight has been given to basic individual rights in decisions relating to use of security measures against members of the Arab minority in Israel itself and against Palestinian residents of the Occupied Territories.”); see also Benvenisti, supra note 2, at 120 (“[T]he fact that the Court almost always upheld the administration's security considerations led some to conclude that the Court's principal function was to bestow an aura of legitimacy, in Israeli public opinion, upon the occupation.”). To be fair, it is important to keep in mind that the Court's intervention on certain issues (or even just the prospect of intervention) has sometimes influenced government policies to be more favorable to the local Palestinian population than they might have been otherwise. Kretzmer, supra note 10, at 3, 189-91 (explaining that “the restraining influence of the Court has been far greater than can be gleaned from its actual decisions”); see also Benvenisti, supra note 2, at 121.
180 Kretzmer, supra note 10, at 187-88.
181 Ben-Naftali & Shany, supra note 79, at 91-96.
182 See Gross, supra note 98, at 12 (noting that certain Supreme Court decisions, particularly those considering the wall, “generally cited to the rights of the local Palestinian population recognized in international law without detailing their source”); Ben-Naftali & Shany, supra note 79, at 88 (noting that, in Supreme Court jurisprudence, “there has been very little discussion of the weight to be given to [IHRL] in the interpretation of relevant IHL norms”).
183 Ben-Naftali & Shany, supra note 79, at 87-88 (“While it has, on numerous occasions, though by no means as a matter of course, referred in its decisions to [IHRL] … very few decisions relating to the Occupied Territories have been rendered on the basis of this law.”).
185 Kretzmer, supra note 10, at 188, 194.
186 See id. at 194 (“The Court's main role has been bolstering procedural requirements and interfering on the margins so as to prevent ‘excesses.‘”); Gross, supra note 98, at 26-27, 29 (“[T]he [Supreme Court's] infrequent intervention in decisions concerning the OPT have usually been restricted to issues of procedural rights and due process.”)
187 For a more comprehensive look at Supreme Court jurisprudence on this topic, see generally Ben-Naftali & Shany, supra note 79, at 87-96; Gross, supra note 98, at 9-28.
188 HCJ 3239/02 Mar'ab v. The IDF Commander in Judea and Samaria  IsrSC 57(2) 349.
191 The Court held that: (i) internal Israeli law, IHL, and IHRL all provided support for the authority of respondents to detain; (ii) both international and internal Israeli law were transgressed by the specific detention periods in question; and (iii) both Israeli and international law (to the extent international law addresses such issues) coincided in upholding the prevention of meetings with lawyers for the relevant time periods in question. Id. ¶¶ 19-24, 32, 43.
192 Gross supra note 98, at 10-12, 20, 26 (“Ma'arab is the [Supreme Court] case regarding the OPT which relies most extensively, expressly, and directly on IHRL, with a positive determination about its application in the context of occupation. At a later stage, the [Supreme Court] replaced this determination with an agnostic position.”). Gross also argues that, “although the turn to IHRL in Ma' arab can be viewed as a significant expansion of the sources for Palestinians' rights, it should be read within the [Supreme Court's] general willingness to intervene in” issues of procedural rights and due process. Id. at 26.
193 HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel  IsrSC 58(5) 807, at ¶ 42 [hereinafter Beit Sourik]. An English translation is available in H.C.J. 2056/04 Beit Sourik Village v. Government of Israel 58(5) PD. 807, 38 Isr. L. Rev. 83 (2005) and also available on the Israel Supreme Court website, http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.htm(last visited May 18, 2008).
194 Id.¶¶ 59-60, 70, 76; see also HCJ 7957/04 Mara'abe v. The Prime Minister of Israel  IsrSC 38(2) 393, ¶ 35, an English translation is available at http://elyon1.court.gov.il/fi1es_eng/04/570/079/a14/04079570.a14.pdf.
195 Mara'abe, supra note 194.
197 Id. ¶¶ 27-28; see also HCJ 1890/03 Bethlehem Municipality v. The State of Israel  IsrSC 39(4), ¶ 15 (using a similar formulation and stating: “We emphasize, that due to the stances of the parties in their arguments before us, we need not decide whether, or to what extent, the principles of Israeli constitutional law and the international conventions on human rights apply in the Judea and Samaria area”). The Court has used similar caveats with respect to the Fourth Geneva Convention but has gradually reduced its repetition (and, arguably, its reliance) on such statements in the context of application of that Convention. See supra note 18 and accompanying text. It will be interesting to see if, over time, the Court takes a similar tack with respect to the application of certain international human rights conventions to the OPT.
198 Mara'abe, supra note 194, ¶ 27.
202 See, e.g., id. ¶¶ 113, 115-16; see also Beit Sourik, supra note 193, ¶¶ 13, 20, 74, 84 (employing the same term).
203 HCJ 769/02 Public Committee Against Torture in Israel v. The Government of Israel [Dec. 13, 2006] (unpublished). An English translation is available at http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf.
205 See Gross, supra note 98, at 12 (“The [Supreme Court] did not elaborate when IHL would be considered ‘lacking’ in a way that warranted turning to IHRL, and it did not turn to IHRL in this case.”).
206 This acknowledgement does not include East Jerusalem or the Golan Heights for the reasons described above. See supra notes 26-37, 173 and accompanying text.
207 See supra notes 38-40, 45 and accompanying text.
208 See Harris, supra note 40, at 12-14.
209 In an advisory opinion in 1971, the International Court of Justice indicated that a Security Council resolution might have a binding effect on states even if not adopted under Chapter VII of the Charter. See 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 I.C.J. 16, ¶¶ 113-116 (June 21) [hereinafter Namibia Advisory Opinion]. However, the majority of scholars consider Chapter VI resolutions to be nonbinding. See, e.g., Reisman, W. Michael, The Constitutional Crisis in the United Nations, 87 Am. J. Int'l L. 83, 93 (1993)CrossRefGoogle Scholar (explaining that “[r]esolutions under chapter VI are recommendatory” but that Article 39 of the Charter “permits the Council, when exercising chapter VII powers, to make either recommendations or decisions as it sees fit”). This Article need not attempt to survey the debate as a whole because, as will be explained below, previous Security Council resolutions regarding the OPT have been recommendatory. See infra notes 221-223 and accompanying text.
210 See U.N. Charter art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”); id. art. 103 (“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”); see also Reisman, supra note 209, at 93 (“The synergy of Articles 25 and 103 … trumps all contrary non-Charter legal obligations.”); Zwanenburg, Martin, Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation, 86 Int'l Rev. Red Cross 745, 759–63 (2004)Google Scholar, available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/692EHY/$File/irrc_856_Zwanenburg.pdf (discussing the legal reach of Security Council decisions enacted under Chapter VII); Fox, supra note 49, at 255-57 (providing instances in which the Security Council trumped or altered preexisting international legal obligations through Chapter VII action). Determination of what, if any, legal principles may limit action taken by the Security Council is not pertinent to the argument made herein and is beyond the scope of this Article. This issue is inapposite because Security Council action in the manners described herein (e.g., favoring IHRL over the tenets of occupation law with regard to an occupant's ability to intervene in daily life in occupied territory) would not be ultra vires the Charter and would not run afoul of any peremptory or other norms believed by some to limit the reach of Security Council action. Even assuming arguendo that the international law of occupation contains certain peremptory norms (a debatable presumption), they would be principles such as those of humane treatment, due process, and the provision of humanitarian relief. Such norms would not be undermined by the various permutations of possible Chapter VII action discussed below (e.g., increased reliance on IHRL instead of IHL as the guiding principles for Israeli actions in the OPT). It should also be recalled that occupation law has been rarely applied in recent history (which further calls into question whether it contains any peremptory norms), and there is ample precedent for the Security Council to displace the law of occupation in favor of IHRL in the administration of territory (as discussed presently). For general background on these issues, see, e.g., Reisman, supra note 209, at 93 (explaining that the results of those seeking “substantive limitations elsewhere in the Charter on actions taken by the Security Council when it is operating under chapter VII … often say far more about the interpreter's yearnings and interpretive creativity than about the intentions of the drafters or the contemporary expectations of the relevant parties or the community”); Scheffer, supra note 38, at 843 n.5, 852 (opining that “principles of jus cogens or erga omnes obligations pertaining to occupation law have never been conclusively established, but one would expect them to include the overarching principles of humane treatment and judicial due process that appear in various codified provisions of occupation law”); de Wet, Erika, The Chapter VII Powers of the United Nations Security Council 215 (2004)Google Scholar (arguing that the enforcement powers of the Security Council are limited by jus cogens norms and the “principles and purposes of the United Nations”).
211 See Patrik Johansson & Ramses Amer, The United Nations Security Council and the Enduring Challenge of the Use of Force in Inter-State Relations, Umeå Working Papers in Peace and Conflict Studies (3), Umeå University, at 6 (2007), available at http://www.pol.umu.se/papers/ISSN1654-2398_no3_JohanssonAmer.pdf (“Of all Security Council Resolutions adopted during the Cold War only 2.6 percent were adopted under Chapter VII. During the period 1990-2006, more than one-third of all Security Council Resolutions have been adopted under Chapter VII.”); Wallensteen, Peter & Johansson, Patrik, Security Council Decisions in Perspective, in The UN Security Council supra note 140, at 17, 19Google Scholar (“Ninety-three percent of all Chapter VII resolutions passed from 1946 to 2002 have been adopted since the end of the Cold War.”); see also Ratner, Steven R., Image and Reality in the UN's Peaceful Settlement of Disputes, 6 Eur. J. Int'l L. 426, 429 (1995)CrossRefGoogle Scholar (explaining that most Security Council resolutions passed in the first forty-five years of the history of the U.N. “consisted of some type of benign recommendation urging restraint upon the parties and suggesting methods or, at times, principles for resolving a dispute” and that “[g]overnment and academic observers of the UN typically consider the rebirth of Chapter VII as the most significant manifestation of the revived role for the UN after the Cold War”).
212 See, e.g., Brown, supra note 142, at 60 (arguing that action by the Security Council under Chapter VII “provides the best path towards reconciling” IHL and IHRL in occupation).
213 See S.C. Res. 1483, supra note 141, pmbl., ¶¶ 1, 4, 5, 8(c)-(d), 8(i), U.N. SCOR, 4761st mtg., U.N. Doc. S/RES/1483 (May 22, 2003) (“recogniz[ing] the specific authorities, responsibilities, and obligations under applicable international law of [the U.S. and UK] as occupying Powers” and “[c]all[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” while also setting out a mandate that included, inter alia, “reforming” Iraqi institutions, “facilitating the reconstruction of key infrastructure,” “working towards … the creation of conditions in which the Iraqi people can freely determine their own political future,” and “working … to restore and establish national and local institutions for representative governance”); S.C. Res. 1546, pmbl., U.N. SCOR, 4987th mtg., U.N. Doc. S/RES/1546 (June 8, 2004) (“Affirming the importance of … respect for human rights including the rights of women, fundamental freedoms, and democracy including free and fair elections”); see also Brown, supra note 142, at 61-62 (“Since there was no ‘representative government’ in Iraq before the invasion, [Resolution 1483] in effect calls on the occupying powers to promote a radical transition to democratic governance. This goal is reaffirmed in subsequent Security Council resolutions on Iraq.”); Dorosin, Joshua L., Jus in Bello: Occupation Law and the War in Iraq, 98 Am. Soc'y Int'l L. Proc. 117, 119 (2004)Google Scholar (explaining that Resolution 1483 “provided authorities that supervene any inconsistent limitations that may be contained in other bodies of international law, including occupation law” because it was passed under Chapter VII of the UN Charter). For background as to the political reasons that explain why the law of occupation was invoked, see Harris, supra note 40, at 58-61.
214 Benvenisti, supra note 38, at 35-36. See also Scheffer, supra note 38, at 852-53 (explaining that “there normally is not explicit recognition in UN-authorized operations (peacekeeping or enforcement) that occupation law applies in its totality, or in any substantial respect, to the mission mandated by the Security Council,” including in Haiti in 1994, “various UN-authorized deployments of military forces into Bosnia and Herzegovina prior to and after the Dayton Peace Accords of 1995,” Kosovo in 1999, East Timor in 1999, and Afghanistan in 2002).
215 Scheffer, supra note 38, at 852.
216 Returning to the issue of nomenclature, certain commentators would disagree with reference to these UN missions as “occupations,” either in certain cases or across the board. As a technical matter, there are various instances in which the law of military occupation or the law of pacific occupation would, in theory, apply to UN missions. IHL applies to UN peace enforcement missions and also to peacekeeping missions to the extent the latter become engaged in armed conflict or face certain circumstances such as the collapse of state control. See, e.g., Roberts, supra note 40, at 289-91. Separately, a UN peacekeeping mission may constitute occupation by consent. See generally Harris, supra note 40, at 26-32 (discussing circumstances and law surrounding the administration of territory by the UN). It must be kept in mind that occupation is dependent on a factual test based on effective control and is not dependent on the intentions or objectives of the foreign force or even the presence of armed conflict. See supra note 69. Thus, many of these UN missions might meet the factual test implying that the international law of application should formally apply at some point in or throughout their lifecycles. Nonetheless, they are instead, almost without exception, not subject (either in whole or in part) to the international law of occupation precisely because they are products of UN Chapter VII resolutions setting forth alternate legal obligations. See Vité, Sylvain, L 'applicabilité du droit international de l'occupation militaire aux activités des organisations internationales, 86 Int'l Rev. Red Cross 9, 28–29 (2004)Google Scholar; see also Greenwood, Christopher, International Humanitarian Law and United Nations Military Operations, 1 Y.B. Int'l Humanitarian L. 3, 28 (1998)Google Scholar. Here again, the term “occupation,” as examined above, may be used to generically describe the control of territory by foreign forces without implyng a legal designation of “occupation” or application of the international law of occupation. See supra note 41-44; see also Ratner, supra note 98, at 696-97 (using “the word ‘occupation’ in a functional sense to describe control of territory by outside entities” in assessing the similarities between occupations by states and administration of territory by international organizations). Some may object that the term “occupation” should only be used to formally designate situations to which the law of occupation applies. Those who apply such a heightened standard of use choose to fall on their sword; they deny the reality that the term is often used as a descriptor in scholarly works and common parlance. Moreover, such linguistic purity would essentially relegate the word to desuetude in light of the dearth of instances of formal designation of territory as “occupied” and the concomitant application of the international law of occupation. In sum, it is suggested that the term “occupation” retains utility but that context is everything; the term may be helpful in describing a type of situation (and there exists no clearly superior alternative term), but its invocation requires a separate analysis of whether the international law of occupation is applicable in theory and/or in practice (which is not the case when supplanted by alternate legal principles set forth by the Security Council).
217 See S.C. Res. 1031, pmbl., ¶ 12, U.N. SCOR, 3607th mtg., U.N. Doc. S/RES/1031 (Dec. 15, 1995) (supporting the General Framework Agreement for Peace in Bosnia and Herzegovina and establishing a NATO implementation force); see also General Framework Agreement for Peace in Bosnia and Herzegovina (Agreement on Civilian Implementation), Annex 10, art. 10, Dec. 14, 1995, reprinted in 35 I.L.M. 75, 147 (1996) (detailing that the peace settlement will include, inter alia, “rehabilitation of infrastructure and economic reconstruction; the establishment of political and constitutional institutions in Bosnia and Herzegovina; promotion of respect for human rights and the return of displaced persons and refugees; and the holding of free and fair elections …”).
218 See S.C. Res. 1244, ¶¶ 5, 10-11, U.N. SCOR, 4011th mtg., U.N. Doc. S/RES/1244 (June 10, 1999) (deploying to Kosovo “international civil and security presences” and establishing the UN Mission in Kosovo to “provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo”). The first regulation promulgated by the Special Representative of the Secretary-General set forth that “[a]ll legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in [the UN Interim Administration Mission in Kosovo].” Regulation No. 1999/1 on the Authority of the Interim Administration in Kosovo, UNMIK/REG/1999/1, art. 1(1) (July 25, 1999), available at http://www.unmikonline.org/regulations/1999/reg01-99.htm. Moreover, “internationally recognized human rights standards” would bind those performing public duties in Kosovo and trump preexisting law in so far as it was inconsistent with such standards. Id. arts. 2,3.
219 See S.C. Res. 1272, ¶¶ 1,2,8, U.N. SCOR, 4057th mtg., U.N. Doc. S/RES/1272 (Oct. 25, 1999) (establishing the United Nations Transitional Administration in East Timor and empowering it to “exercise all legislative and executive authority, including the administration of justice” and to “support capacity-building for self-government”). As was the case in Kosovo, the first regulation issued by the Special Representative of the Secretary-General made clear that all persons exercising public functions in East Timor were to comply with “internationally recognized human rights standards” (as reflected in the various international human rights conventions named in the regulation) and that such standards displaced all prior law to the contrary. Regulation No. 1999/1 on the Authority of the Transitional Administration in East Timor, UNTAET/REG/1999/1, arts. 2, 3 (Nov. 27, 1999), available at http://www.un.org/peace/etimor/untaetR/etreg1.htm.
220 Jones, Bruce D., The Middle East Peace Process, in The UN Security Council supra note 140, at 391, 400Google Scholar.
221 See, e.g., Wallensteen & Johansson, supra note 211, at 21 (“[O]f all resolutions that have been adopted on the Arab-Israeli conflict, only one has been adopted under Chapter VII—Resolution 54 (1948), which … ordered the parties concerned to issue cease-fire orders”); Patrik Johansson, UN Security Council Chapter VII resolutions, 1946-2002: An Inventory, Department of Peace and Conflict Research, Uppsala University (Sept. 21, 2005) available at http://www.pcr.uu.se/publications/UCDP_pub/Chapter%20VII%20Resolutions_050921.pdf (listing Security Council resolutions passed under Chapter VII of the Charter); Bourloyannis, Christiane, The Securiy Council of the United Nations and the Implementation of International Humanitarian Law, 20 Denv. J. Int'l L. & Pol'y, 335, 353 (1993)Google Scholar (“The Security Council … monitored developments in specific cases, such as the occupied territories in the Middle East, but it did not resort to Chapter VII of the Charter of the United Nations to achieve respect for international humanitarian law until the invasion of Kuwait.”); Straw, Jack, statement during the debate on Iraq and Weapons of Mass Destruction, Hansard, House of Commons, pt. 187, col. 32, Sept. 24, 2002Google Scholar, available at http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo020924/debtext/20924-09.htm (“There is a hierarchy of resolutions. … Chapter 6, under which all resolutions relating to [Israel] have been issued, relates to the pacific resolution of disputes. Above that, there are the mandatory chapter 7 resolutions, which impose … mandatory obligations.”) (At the time of the statement, Jack Straw was the Secretary of State for Foreign and Commonwealth Affairs in the British Government); Double standards—Iraq, Israel and the UN, Economist, Oct. 12, 2002 (“None of the resolutions relating to the Israeli-Arab conflict comes under Chapter Seven.”); Vera Gowlland-Debbas, Foreword, in Negotiations Affairs Department, Palestine Liberation Organization, Double Standards: How the International Community has Taught Israel that it is Above the Law, at 3 (Sept. 24, 2002) (“[I]n stark contrast to the … enforcement action taken under Chapter VII in other similar types of situations, no enforcement action or any other action to implement UN resolutions and international law has been ordered by the Security Council in respect of the Palestinian-Israeli conflict.”).
222 More to the point, the Security Council has, almost without exception, relied exclusively on IHL in its resolutions pertaining to the OPT. Only on rare occasion has the Security Council even referred to human rights law with respect to these issues (and, when doing so, the invocation has been generic in nature). In one such example, the preamble of Resolution 605 referenced the human rights contained in the U.N. Charter and the Universal Declaration of Human Rights. S.C. Res. 605, pmbl., U.N. SCOR, 2777th mtg., U.N. Doc. S/RES/605 (Dec. 22, 1987). However, its operative paragraphs made clear the resolution's reliance on IHL. The resolution “strongly deplored those policies and practices of Israel, the occupying Power, which violate the human rights of the Palestinian people in the occupied territories, and in particular the opening of fire by the Israeli army, resulting in the killing and wounding of defenceless Palestinian civilians.” Id. ¶ 1. Rather than elaborate on or define Israel's obligations under IHRL, the resolution simply reiterated previous calls for Israel to abide by the Fourth Geneva Convention. Id. ¶ 2, 3.
223 Previous Security Council resolutions on this topic have used, to borrow the relevant phrase from the ICJ, “exhortatory rather than mandatory language.” Namibia Advisory Opinion, supra note 209, ¶ 114. Their context, intent, and language indicate they were not meant to be legally binding.
224 See supra notes 19-23, 28-35 and accompanying text.
225 See supra Section III.A.
226 See supra Section II.C.3.
227 Though not directly related, Security Council action vis-à-vis the occupation of Iraq provides some precedent for decreeing specific changes to the parameters of occupation. Security Council Resolution 1483 determined that certain forces in Iraq would not be considered to be “occupying powers,” and Resolution 1546 decreed the end of the occupation as of a specific date (June 30, 2004). S.C. Res. 1483, supra note 141, pmbl.; S.C. Res. 1546, supra note 213, pmbl., ¶ 2.
228 See supra notes 11-13, 19, 24-25 and accompanying text.
229 See Cassese, Antonio, Legal Considerations on the International Status of Jerusalem, 3 Pal. Y.B. Int'l L. 13, 14–15 (1986)Google Scholar (noting that the U.N. has so far taken a “very cautious stand” by not pronouncing on possible solutions or on relative claims to legal title regarding Jerusalem).
230 See infra note 278 and accompanying text.
231 See, e.g., S.C. Res. 446, supra note 19,¶ 1 (“Determin[ing] that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab terrtories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East,” and establishing a commission to examine the situation relating to the settlements); S.C. Res. 452, pmbl., ¶ 3, U.N. SCOR, 2159th mtg., U.N. Doc. S/RES/452 (July 20, 1979) (“Considering that the policy of Israel in establishing settlements in the occupied Arab territories has no legal validity and constitutes a violation” of the Fourth Geneva Convention); S.C. Res. 465, ¶ 5, U.N. SCOR, 2203rd mtg., U.N. Doc. S/RES/465 (Mar. 1, 1980) (“Determin[ing] that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof have no legal validity and that Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the [Fourth Geneva Convention] and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East”) (adopted unanimously).
232 See, e.g., S.C. Res. 468, pmbl., ¶ 1, U.N. SCOR, 2221st mtg., U.N. Doc. S/RES/468 (May 8, 1980) (noting with deep concern the “expulsion by the Israeli military occupation authorities of the Mayors of Hebron and Halhoul and of the Sharia Judge of Hebron” and “[c]all[ing] upon the Government of Israel, as the occupying Power, to rescind these illegal measures”); S.C. Res. 469, pmbl., ¶ 2, U.N. SCOR, 2223rd mtg., U.N. Doc. S/RES/469 (May 20, 1980) (“Call[ing] again upon the Government of Israel, as the occupying Power, to rescind the illegal measures taken by the Israeli military occupation authorities in expelling the Mayors of Hebron and Halhoul and the Sharia Judge of Hebron”); S.C. Res. 641, ¶ 1, U.N. SCOR, 2883rd mtg., U.N. Doc. S/RES/641 (Aug. 30, 1989) (“Deplor[ing] the continuing deportation by Israel, the occupying Power, of Palestinian civilians”); S.C. Res. 799, ¶¶ 1, 2, U.N. SCOR, 3151st mtg., U.N. Doc. S/RES/799 (Dec. 18, 1992) ((i) “Strongly condemn[ing] the action taken by Israel, the occupying Power, to deport hundreds of Palestinian civilians, and express[ing] its firm opposition to any such deportation by Israel;” and (ii) “[r]eaffirm[ing] the applicability of the Fourth Geneva Convention of 12 August 1949 to all the Palestinian territories occupied by Israel since 1967, including Jerusalem, and affirm[ing] that deportation of civilians constitutes a contravention of its obligations under the Convention”).
233 See supra notes 29, 33-35 and accompanying text.
234 S.C. Res. 478, supra note 33, ¶ 5 (calling on “[t]hose States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City”); see also supra notes 33-35 and accompanying text (discussing other provisions of Resolution 478).
235 Bourloyannis, supra note 221, at 354-55. As an example of such a Chapter VI resolution, see S.C. Res. 471, ¶ 5, U.N. SCOR, 2226th mtg., U.N. Doc. S/RES/471 (June 5, 1980) (“[c]all[ing] once again upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in occupied territories”).
236 See Wall Advisory Opinion, supra note 22, ¶159 (concluding that states were obligated: (i) “not to recognize the illegal situation resulting from the construction of a wall in the Occupied Palestinian Territory, including in and around East Jerusalem;” (ii) “not to render aid or assistance in maintaining the situation created by such construction;” (iii) “to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end;” and (iv) for those states parties to the Fourth Geneva Convention to ensure Israel's compliance with IHL).
237 Reisman, supra note 209, at 88.
239 Kahn, supra note 90, at 35. According to Kahn, “the same characterization became true” in the General Assembly as the majority in that body “shifted in response to decolonization throughout the 1950s and early 1960s.” Id.
240 Wallensteen & Johansson, supra note 211, at 22.
242 See supra notes 214-219 and accompanying text.
243 See, e.g., Editorial, Five years on: The World Since September 11th, Economist, Sept. 2, 2006.
244 See McGoldrick, Dominic, From “9-11” to the “Iraq War of 2003” 11–16 (2004)Google Scholar (describing the “public and institutional opposition” to the U.S.-led military intervention and how “[d]ivisions within the UN were widespread and very public”).
245 See Harris, supra note 40, at 44, 66, n.260, n.277.
246 For background as to the popularity of intervention to stem the ethnic cleansing in Kosovo, see, e.g., Haass, Richard N., Darfur, Rwanda and Future Tragedies, Jakarta Post, Nov. 2, 2004, at 7Google Scholar; Kaiser, Robert G., U.S. Risks Isolation, Breakdown of Old Alliances in Case of War, Wash. Post, Mar. 16, 2003, at A12Google Scholar (quoting Zbigniew Brzezinski); Slevin, Peter, Policing of Iraq to Stay U.S. Job, Wash. Post, June 22, 2003, at A20Google Scholar.
247 For general background on the magnitude of the sensitivities at play, see, e.g., Korobkin, Russell & Zasloff, Jonathan, Roadblockr to the Road Map: A Negotiation Theory Perspective on the Israeli-Palestinian Conflict After Yasser Arafat, 30 Yale J. Int'l L. 1, 79 (2005)Google Scholar (“A conflict that can be alternately described as national, ethnic, or religious, that has existed in its present form for thirty-eight years and has centuries-old roots, that has repeatedly defied resolution by Nobel Peace laureates and leaders from every corner of the globe, quite obviously lacks any easy solutions.”); The Jerusalem Question, supra note 27, at xxix (“Jerusalem has been situated at the focus of the Israel-Palestinian conflict. … Both peoples have regarded it as their national, cultural as well as social centre, and as the natural location for their national institutions.”); Lewis, Samuel W., Reflections on the Future of Jerusalem, 45 Cath. U.L. Rev. 695, 697 (1996)Google Scholar (calling the status of Jerusalem the “third rail” of the Arab-Israeli peace process) (Lewis served as United States Ambassador to Israel from 1977-1985); Gazit, Shlomo, Israel and the Palestinians: Fifty Years of Wars and Turning Points, 555 Annals 82, 87 (1998)Google Scholar (“Israel's annexation of East Jerusalem has offended the deepest Palestinian sensitivities in every sphere: religious, emotional, political, symbolic, and even administrative and economic.”) (Gazit has served in various high-level capacities for Israel with respect to the OPT).
248 Franco, Andrés, Armed Nonstate Actors, in The UN Security Council supra note 140, at 117, 126Google Scholar.
249 Curtis, Michael, International Law and the Territories, 32 Harv. Int'l L.J. 457, 462 (1991)Google Scholar.
250 Levy, Ayelet, Comment, Israel Rejects Its Own Offspring: The International Criminal Court, 22 Loy. L.A. Int'l & Comp. L. Rev. 207, 247 (1999)Google Scholar; see also Permanent Mission of Israel to the United Nations, Israel-UN Relations: An Uneasy Relationship, at 1 (July 2007), available at http://israel-un.mfa.gov.il/mfm/Data/120725.pdf (arguing that “a systematic discrimination campaign gradually emerged” at the U.N. and that a “litany of one-sided, discriminatory, and anti-Israel resolutions, over time, led to the establishment of mechanisms and agenda items inside the UN system which served to institutionally discriminate against Israel”).
251 For background on the US.-Israel relationship, see generally CRS Issue Brief, supra note 78 (surveying the relationship over time); Baranes, Yair, The Motivations and the Models: A Comparison of the Israel-U.S. Free Trade Agreement and the North American Free Trade Agreement, 17 N.Y.L. Sch. J. Int'l & Comp. L. 145, 147–48 (1997)Google Scholar (explaining various reasons for U.S. support for Israel and describing the U.S. as Israel's “most important as well as visible political and military ally”); McArthur, Shirl, A Conservative Total for U.S. Aid to Israel: $91 Billion—and Counting, Washington Report on Middle East Affairs 15, 15 (Jan.-Feb. 2001)Google Scholar, available at http://www.wrmea.com/backissues/010201/0101015.html (detailing how “Israel is the largest cumulative recipient of U.S. aid since World War II”).
252 See, e.g., Ortiz, Carlos A., Note and Comment, Does a Double Standard Exist at the United Nations?: A Focus on Iraq. Israel and the Influence of the United States on the UN, 22 Wis Int'l L.J. 393, 406 (2004)Google Scholar (explaining that “since 1967, the United States has vetoed over forty attempts by the Security Council to address the Israeli-Palestinian conflict”); Imseis, Ardi, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int'l L.J. 65, 134 (2003)Google Scholar (lamenting that economic sanctions against Israel to enforce the Fourth Geneva Convention are unlikely because the U.S. veto “presents a considerable political obstacle” in the Security Council); Dugard, John, Enforcement of Human Rights in the West Bank and the Gaza Strip, in International Law And the Administration of Occupied Territories, supra note 60, at 461, 462–63Google Scholar (opining that enforcement of human rights in the OPT by the Security Council acting under Chapter VII of the Charter would be vetoed by the U.S.); Bali, Asli U., Facts, Rights, And Remedies: Implementing International Law in the Israel/Palestine Conflict, 28 Hastings Int'l & Comp. L. Rev. 387, 395 (2005)Google Scholar (arguing that “scores of other draft resolutions reaffirming [Israeli obligations in the OPT] and the illegality of the settlements” would have been passed but for the U.S. veto).
253 See supra notes 29, 33, 231-232, and accompanying text.
254 See supra notes 222-223 and accompanying text.
255 See Ratner, Steven R., The Security Council and International Law, in The UN Security Council supra note 140, at 591, 593Google Scholar (explaining that “when a body as politically significant as the Security Council—one in which the most (or most of the most) powerful states must agree in order for it to decide a matter—addresses, even indirectly, the legal issues underlying many international disputes, it cannot but influence how states regard the contours of the relevant norms”); see also infra note 305 and accompanying text.
256 For examples of the language contained in such resolutions, see supra note 19.
257 See Wallensteen & Johansson, supra note 211, at 24 (explaining that, with respect to items on the Security Council agenda, there is “inertia with respect to how a particular conflict is seen, in spite of what may happen on the ground”).
258 For examples of the almost identical language repeated in Security Council and General Assembly resolutions, respectively, with respect to application of IHL to the OPT, see supra notes 19-20.
259 See supra notes 19-23, 28-35 and accompanying text.
260 See supra notes 99-103 and accompanying text. As an additional example of such criticism, see U.S. Human Rights Report, supra note 78 (“Israel's overall human rights record in the occupied territories remained poor and worsened in several areas as it continued to commit serious human rights abuses.”).
261 On a related note, many Palestinians have long felt that the law of occupation:
has afforded Israel a cloak of legitimacy: while apparently respecting international law, Israel has actually interpreted it to suit its purposes. The Israelis are seen as claiming all the rights of belligerent occupants but shirking some of their legal obligations, and as introducing a system of permanent control under the legal cover that it is temporary.
Roberts, supra note 9, at 98.
262 See supra notes 214-219 and accompanying text.
263 Roberts, supra note 40, at 272-73.
264 See supra notes 28-29, 32-35, 231-236, and accompanying text.
265 This analysis begs the question as to whether Israel (and/or other states) would act in accordance with a Security Council resolution along these lines. As David Malone notes, “[t]here continues to be significant disagreement in the literature over the extent to which member states actually comply with Council decisions, whether or not adopted under Chapter VII.” Malone, David M., Conclusion, in UN Security Council supra note 140, at 617, 634Google Scholar. The answer in this context would again depend on the content of the resolution. Nevertheless, it merits noting that if Security Council resolutions are determined by politics and power, so too is their observance (both in fact and in degree) by states. This applies a fortiori in instances when a resolution does not align with national self-interest. In the situation at hand, various factors would come into play (e.g., whether the resolution included any enforcement measures, the level of international commitment to those measures, and domestic factors such as national politics and the treatment of the resolution by the Israeli Supreme Court). The stance of the U.S. would also be highly important (realizing as well that this entire hypothetical assumes the U.S. had not exercised its veto to prevent a resolution in the first place). A more detailed discussion is better left to a separate paper. Here it is simply noted that multiple factors would determine whether a Security Council resolution (even one based in Chapter VII) would achieve its intended results or instead fall on deaf ears as did previous Chapter VI resolutions regarding issues such as the de jure applicability of the Fourth Geneva Convention and the construction of Israeli settlements.
266 See, e.g., Imseis, Ardi, Facts on the Ground: An Examination of Israeli Municipal Policy in East Jerusalem, 15 Am. U. Int'l L. Rev. 1039, 1047–65 (2000)Google Scholar (arguing that “Israeli municipal authorities have implemented a process designed to impose exclusively Jewish ‘facts on the ground’ to re-engineer the city's demographic and geographic character in the Jewish State's favor” as part of a “concerted effort to establish a fait accompli in the city such that any future question as to its actual status as the ‘capital’ of the Jewish State would be rendered completely academic”); Quigley, John, Sovereignty in Jerusalem, 45 Cath. U.L. Rev. 765, 780 (1996)Google Scholar (arguing that “even since 1991, when the negotiation process began, and since 1993, when Israel agreed to resolve the issue of Jerusalem, Israel has continued to take land in Jerusalem and insert more of its own citizens in an apparent effort to create a situation that will not be reversed”).
267 In an exchange of letters with former Prime Minister Ariel Sharon regarding Israel's proposed Disengagement Plan, President George Bush wrote that “[i]n light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.” Letter from George W. Bush, President, United States of America, to Ariel Sharon, Prime Minister of Israel (Apr. 14, 2004), available at http://www.us-israel.org/jsource/US-Israel/bushletter.html. Israeli Prime Minister Ehud Olmert referred to this concept in his speech at the Annapolis Conference in November 2007 as he stated: “The negotiations will be based on previous agreements between us, UN Security Council Resolutions 242 and 338, the Roadmap and the April 14th 2004 letter from President Bush to the Prime Minister of Israel.” Address by Prime Minister Ehud Olmert at the International Meeting in Annapolis (Nov. 27, 2007), available at http://www.pmo.gov.il/NR/exeres/5FAB3B4A-D448-45FB-B78F-3D2D2637CC54,frameless.htm?NRMODE=Published.
268 The same may be said for whether this ongoing criticism of Israel might affect the positions taken by other players in the peace process, including perhaps the manner in which the U.S. views—and the energy with which it defends—certain points or positions. The role of legal norms with respect to the peace process is discussed more generally infra in note 305 and accompanying text.
269 See supra notes 231-232, 252 and accompanying text.
270 Gross, supra note 98, at 4-5.
272 See Gross, supra note 98, at 17 (“Settlers' rights are interchangeably discussed as their human rights and as the military commander's supposedly legitimate security considerations. This framing of the question makes the answer predictable.”)
273 See supra notes 179-180 and accompanying text.
274 See Benvenisti, supra note 2, at 122-23 (explaining the “politically difficult position” of the Supreme Court when confronting the issue of settlements); Mnookin, Robert H. & Eiran, Ehud, Discord “Behind The Table”: The Internal Conflict Among Israeli Jews Concerning the Future of Settlements in the West Bank and Gaza, 2005 J. Disp. Resol. 11, 15–36 (2005)Google Scholar (describing how the conflict over the question of settlements “has profoundly affected Israel's internal politics”).
275 As Benvenisti noted in a different context, “[p]oliticians and soldiers are not saints, and one must expect the occupant to be prejudiced in favor of its own country's interests at the expense of the indigenous community.” Benvenisti, supra note 2, at 147; see also Benvenisti, supra note 38, at 24. This insight applies to judges as well.
276 Gross explains:
My argument here is not essentialist, however, and these are not necessary outcomes. Similar results would probably have been reached without recourse to human rights analysis, given the [Supreme Court's] (mistaken) determination that providing for the settlers and the settlements is part of the military commander's legitimate concerns, security and others. Indeed, many of the problems identified will also emerge through IHL analysis, with its emphasis on proportionality, and especially given the [Supreme Court's] analysis that security considerations can include the security of the settlers and the settlements.
Id. at 27-29.
277 See supra notes 179-205 and accompanying text.
278 Ball, David John, Note, Toss the Travaux?: Application ofthe Fourth Geneva Convention to the Middle East Conflict—A Modern (Re)Assessment, 79 N.Y.U. L. Rev. 990, 1002 (2004)Google Scholar.
279 For background on how the law of occupation treats actions taken by occupants upon the return of the “legitimate power,” see generally Feilchenfeld, supra note 48, at 145-50.
280 The Interim Agreement's treatment of human rights norms is also relevant in this regard. As noted above, the PA committed to act with “due regard to internationally-accepted norms and principles of human rights and the rule of law” in fulfilling its duties under the Interim Agreement. Interim Agreement, supra note 67, art. XIX.
281 See generally Kahn, supra note 90, at 41-59 (explaining that, in cases of humanitarian intervention, “[t]here is no rule to be formulated because every situation will call forth different kinds of reactions” and, ultimately, “we must decide for ourselves whether a use of force is really dedicated to the pursuit of a global order of human rights or is only a military intervention of the old style in pursuit of national interests”).
282 See supra Section III.C. 1.
283 See supra notes 177-178, 271 and accompanying text.
284 See supra note 86-88 and accompanying text.
285 See generally, Sassòli, supra note 62, at 676-77 (opining that an occupant may legislate to implement IHRL but that the occupier should respect local traditions and should not change local legislation for the sake of bringing it into line with its own legal conceptions).
286 See, e.g., Mara'abe, supra note 194, ¶¶ 59-74 (comparing the differing conclusions of the Wall advisory opinion and Beit Sourik and arguing that the primary explanation is because Israel's “security-military necessity” in constructing the separation barrier “is mentioned only most minimally in the sources upon which the ICJ based its opinion”); Wall Advisory Opinion, supra note 22, ¶ 1 (Buergenthal, J., dissenting) (“It may well be … that on a thorough analysis of all relevant facts, a finding could well be made that some or even all segments of the wall … violate international law.… But to reach that conclusion with regard to the wall as a whole without having before it or seeking to ascertain all relevant facts bearing directly on issues of Israel's legitimate right of self-defence, military necessity and security needs … cannot be justified as a matter of law.”); Shany, Yuval, Capacities and Inadequacies: A Look at the Two Separation Barrier Cases, 38 Isr. L. Rev. 230, 235 (2005)Google Scholar (opining that the “sweeping manner in which the Court rejected Israel's factual assertions as to the military necessity of the barrier” in the Wall advisory opinion “is troubling for its lack of transparency”).
287 See generally, Sassòli, supra note 62, at 677-78 (arguing that, in legislating to implement IHRL, the occupier should “be allowed to legislate in order to create conditions necessary to the exercise by that people of its right to self-determination and to abrogate legislation making such an exercise impossible”).
288 Harris, supra note 40, at 25; see also supra notes 245-246 and accompanying text.
289 See supra Section III.B and notes 89, 142-148 and accompanying text.
291 The Israeli Supreme Court's interpretation of Article 43 is discussed above in notes 174-178 and accompanying text. For additional background on the risk that occupiers might “invoke their obligation to restore civil life to justify a broad use of legislative powers,” see Sassòli, supra note 62, at 680.
292 For background on how persistent objectors are not bound by customary international law, see generally Waldock, Humphrey, General Course on Public International Law, 106 Recueil Des Cours 1, 49–50 (1962 II)Google Scholar.
293 See supra note 5 and accompanying text.
294 This phenomenon might also pose coordination problems among national contingents participating in the multinational force.
295 Reisman, supra note 89, at 873.
297 This is all the more true for those occupants that desire UN resources and assistance in administering the occupied territory and/or need the support of other nations (some of which will not assist an occupation conducted without a UN blessing). See Harris, supra note 40, at 25, 41-42, 46-48, 62-63.
298 Kahn, supra note 90, at 45.
299 Security Council Resolution 242 serves as a cautionary tale in this regard. See generally S.C. Res. 242, U.N. SCOR, 1382nd mtg., U.N. Doc. S/RES/242 (Nov. 22, 1967). Though the resolution set forth important principles in the spirit of achieving peace in the Middle East, there has been heated debate with respect to the precise wording of the English version of the resolution and its resultant implications. See, e.g., Dajani, Omar M., Shadow or Shade? The Roles of International Law in Palestinian-Israeli Peace Talks, 32 Yale J. Int'l L. 61, 84-85, 90-91, 95–96 (2007)Google Scholar (describing the different interpretations of Resolution 242 as it applies to the Israeli-Palestinian conflict); Ball, supra note 278, at 1016 (explaining that “[m]uch controversy surrounds the absence of a definite article preceding the word ‘territories”’ in the Resolution's call for the “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict”).
300 Jones, supra note 220 at 402-03 (defining effectiveness as “having a discernible impact on the political or military postures of the parties to the Arab-Israeli conflict”).
301 None of this is to imply that Chapter VI action by the Security Council cannot be constructive in the Arab-Israeli conflict. See generally, id. at 391-405 (noting the importance of “rhetorical and declarative gestures” by the Security Council such as Resolution 1397 (affirming a two-state solution) while also calling for a “degree of skepticism” in evaluating their effectiveness).
302 Roberts, supra note 9, at 72 (quoting Office of the Legal Adviser, memorandum (Sept. 12, 1984)).
304 Interestingly, then Attorney General of Israel (and later President of the Supreme Court) Meir Shamgar began a 1971 article with the following observation: “There is certainly a wide awareness of the great difficulty in approaching problems connected with the actual implementation of the rules of warfare without influence by innate prejudices or a deep-seated subjective outlook.” Shamgar, supra note 24, at 262. On a related note, one scholar lamented that jurists analyzing the legal status of Jerusalem are, with rare exception, “decidedly influenced by political feelings.” Cassese, supra note 229, at 14-15.
305 See generally Dajani, supra note 299 (discussing the “functions of law” in Palestinian-Israeli peace talks and other international peace negotiations); Ratner, Steven R., Land Feuds and their Solutions: Finding International Law Beyond the Tribunal Chamber, 100 Am. J. Int'l L. 808, 822 (2006)Google Scholar (discussing how legal norms and previous Security Council resolutions might set broad parameters that affect the prospect of Israeli annexation of the OPT (including East Jerusalem) and the Golan Heights). There is some disagreement as to how important legal norms will be in political negotiations, particularly with respect to Jerusalem. Compare Hirsch, Moshe, The Legal Status ofJerusalem Following the ICJ Advisory Opinion on the Separation Barrier, 38 Isr. L. Rev. 298, 305–07 (2005)Google Scholar (explaining that “it is reasonable to expect that the legal and normative environment in which the bargaining process take place [regarding the status of East Jerusalem] will affect the parties' bargaining positions as well as the course of the negotiations”), with Lewis, supra note 247, at 695 (quoting and agreeing with a statement of Ruth Lapidoth that “basically, the Jerusalem question is of a political nature, and I … doubt how much law can contribute to the solution”). It is also important to consider how fundamental disagreement as to the legal norms at issue affects the nature of the “shadow” of the law. See Shetreet, Shimon, Negotiations and Agreements are Better than Legal Resolutions: A Response to Professor John Quigley, 32 Case W. Res. J. Int'l L. 259, 263–72 (2000)Google Scholar (emphasizing the importance of political negotiations because, despite law's “shadow,” there are “alternative visions” of the “international legal norms” pertinent to the Israeli-Palestinian conflict).
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