the international law of occupation in the israeli ... · the context of the israeli-palestinian...

Jura Falconis Jg. 50, 2013-2014, nummer 4 927

The International law of Occupation in the Israeli-Palestinian Conflict

Nathalie Smuha

Onder wetenschappelijke begeleiding van Mevr. Hanne Cuyckens 1. INTRODUCTION Israel’s occupation of the West Bank and Gaza is the longest occupation in modern international relations and acquired a central place in the literature on the law of belligerent occupation.1 Various media instruments, often offering a distorted and incomplete picture of the situation, demonstrate the consequenc-es and the impact of this occupation. Although many facts about the Israeli-Palestinian conflict are contested and many sources concerning the conflict are anything but neutral, the analysis of the subject from a mere legal point of view is necessary to thoroughly scrutinize the legal consequences, justifica-tions and remedies of the situation. While my original plan for the paper envisaged an examination of the viola-tions of international law by Israel on a global scale, I decided to narrow the scope of the paper down to the international law of occupation, since the per-sistent occupation of the Palestinian Territories by Israel lies at the heart of the conflict. The guiding questions of this paper are “what is occupation law?”, “is the occupation of the Palestinian Territories legal?”, “what is Palestine’s legal status?” and “which moral implications does the occupation have?” Firstly, the history of the Israeli-Palestinian conflict shall briefly be discussed, to present the reader with a wider context concerning the issues of the on-going occupation. Secondly, the modern law of belligerent occupation shall be outlined, by ex-amining its material, temporal and personal scope. Thirdly, the Israeli-Palestinian conflict shall be discussed in the context of the International occupation law while looking more closely at particular issues such as the question of the legality of the occupation and the case law of the

1 D. Kretzmer, “The Law of Belligerent Occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross, 2012, 208.

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Israeli Supreme Court with regards to the use of the international law of bellig-erent occupation and its violation. Fourthly, the legal status of Palestine shall be sketched, bearing in mind the recent support from the General Assembly of the United Nations to allocate the “observer state” status to Palestine. Lastly, since occupation law is part of the broader international law of war, and since many issues have arisen concerning the morality of the occupation, some remarks shall be made about the modern just war doctrine before the conclu-sion shall offer some overall reflections on the application of occupation law in the context of the Israeli-Palestinian conflict. 2. A VERY BRIEF HISTORY OF THE CONFLICT The state of Israel became independent in 1948, after the expiration of the British Mandate over Palestine. A day after Israel’s independence declaration, the armed forces of Egypt, Trans-Jordan, Syria, Lebanon and Iraq invaded the new-born State. This war of independence ended with Armistice Agreements with all the adversaries but Iraq.2 The former Mandatory territory was partitioned in three parts: Israel (including West Jerusalem), the West Bank of the Jordan river (including East Jerusalem and occupied by Trans-Jordan) and the Gaza Strip occupied by Egypt. The Armistice demarcation lines between those three parts became known as the “Green Line”.3 In 1967 the six-day war broke out when Egypt, Jordan and Syria launched an attack on Israel. After the war ended, Israel occupied the West Bank and the Gaza strip, thus taking over the task of respectively Jordan and Egypt who were the former occupiers of those territories. Over time, armistice agree-ments, peace treaties, intifada’s and other wars have developed the situation further, yet the occupation of both the West Bank and the Gaza is still a fact today.

2 Y. Dinstein, The International law of Belligerent Occupation, Cambridge, Cambridge University Press, 2009, 13. 3 Ibid. Thus in its Advisory Opinion on the Wall, the International Court of Justice took this “Green Line” for granted as the boundary between Israel and the West Bank.

THE INTERNATIONAL LAW OF OCCUPATION IN THE ISRAELI-PALESTINIAN CONFLICT


3. MODERN LAW OF BELLIGERENT OCCUPATION 3.1. CONCEPT Since the nineteenth century international law started to regulate the behaviour of occupying forces via military manuals, multilateral treaties, state practices and judicial decisions.4 The idea behind those rules was the developing Euro-pean norm that sovereignty may not be alienated by use of force. The founda-tion of the law of occupation is the principle of inalienability of sovereignty through unilateral action of a foreign power. It is thus forbidden for the occu-pying force to annex the occupied territory or to unilaterally change its politi-cal status. Effective control by a foreign military force, with actual or merely threatened use of force, can never by itself bring about a valid transfer of sov-ereignty. Although occupation separates the link between sovereignty and effective control in the occupied territory, the occupant must respect and maintain the political and other institutions in that territory and is responsible for the local population, the ousted government, third parties and the management of public order and civil life. The occupant’s status is similar to that of a trustee. The notion of occupation as a temporary regime that does not confer sover-eignty on the occupying authority finds its origin in the long process that estab-lished the modern concept of sovereignty. The evolution of the concept of occupation can be seen as the mirror-image of the development of the sover-eignty-concept.5 Thus the shift from the understanding of sovereignty as vested in the state to sovereignty as vested in the people greatly influenced occupation law; what limits the sovereign also affects the occupant.6 Moreover, principles of self-determination, democracy and human rights as developed and changed in the last century have affected the Westphalian idea of sovereignty, which affected the law of occupation as well.7 The law of occupation developed as part of the law of war, but the link be-tween the two is not fundamental. Originally occupation was seen as a possible by-product of military actions during war, which is why legal literature re-ferred to it as “belligerent occupation”. A form of occupation that happened with the consent of the sovereign was called “pacific occupation”. However, throughout history many examples have shown that occupation can also occur without the involvement of any fighting. A threat to use force can be enough to

4 E. Benvenisti, The International law of Occupation, Oxford, Oxford University Press, 2012, 1. 5 E. Benvenisti, “The Origins of the Concept of Belligerent Occupation”, 26 Law and History Review, 623. 6 E. Benvenisti, The International law of Occupation, Oxford, Oxford University Press, 2012,1. 7 Ibid., 2.

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trigger a government to concede effective control over its territory to a foreign power, or occupation can be the outcome of an armistice or peace agreement. This is why modern legal terminology often uses the term “occupation” rather than “belligerent occupation” to include all forms of situations that lead to the occupation and with a focus on the actual phenomenon of the occupation. Benvenisti defines the phenomenon of occupation as the effective control of a power over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory.8 The need of regulation stems from the fact that the situation of occupation always implies a (potential) conflict of interest between occupant and occupied, since the administration of the affairs of one country is conducted by an entity that is not its sovereign government. This is why international law regulates the relationships between the occupant, the ouster government and the local inhabitants during the occupation. 3.2. SOURCES OF THE LAW OF OCCUPATION Four main sources embody the international law of occupation. The first of these is customary international law of which the definition can be found in article 38 (1)(b) of the Statute of the International Court of Justice: “general practice accepted as law”. Although it has an unwritten nature, it is binding upon all States, whether or not they took part in its creation by general prac-tice. However, it can be quite tricky to proof the existence of a general practice of States accepted by law, especially in the domain of belligerent occupation.9 The more than forty years occupation by Israel is the only extensive and de-tailed contemporary practice, which does not always coincide with what is commonly viewed as customary law. The second and more important sources of law are the Hague Regulations, which stem from the Hague Conventions of 1899 and 1907. Section III of the Regulations Respecting the Laws of Customs of War and Land of 1899, which was later revised and attached as an annex to the Hague Convention of 1907 forms the basis for the law of belligerent occupation. Initially the regulations were meant to be innovative, yet they gradually acquired a declaratory status as a reflection of customary international law as general state practice.10 This has led to the immense consequence that the Hague Regulations are binding on all States, whether or not they are contracting parties to the Hague Conven-tions. This has also led to the fact that Hague Regulations 42 through 56 be-came the main foundation of the law of belligerent occupation. Although the protection they offer to the inhabitants of occupied territories is of great value, the focus lies mainly on property rights while life and liberty of the inhabitants

8 Ibid., 3. 9 Y. Dinstein, The International law of Belligerent Occupation, Cambridge, Cambridge University Press, 2009, 4. 10 Ibid., 5.



are only safeguarded in a more abstract manner. This highlights out a signifi-cant lack of protection whenever there is a savage occupation.11 The third source of occupation law is formed by the four Conventions for the Protection of War Victims as adopted in Geneva in 1949. The fourth Geneva Convention contains a sections which deals with the treatment of aliens in the territory of a Belligerent Party in an armed conflict and the provisions offer protection to the civilian population of occupied territories, thus filling the gap of the Hague Regulations. Article 45 of the Geneva Convention IV (GCIV) states that the Convention is supplementary to the Hague Regulations. The fourth and last source of occupation law is the Additional Protocol Relat-ing to the Protection of Victims of International Armed Conflicts of 1977 (called Protocol I) that was appended to the Geneva Conventions. Some of the Protocol’s provisions concern occupied territories, although the Protocol does not supersede the Geneva Conventions and only complements them unless it explicitly overrides earlier Geneva norms.12 However, although the Geneva Convention is universally accepted, the Protocol is not and states like the US and Israel have rejected it. 3.3. CHARACTERISTICS OF THE OCCUPATION In legal literature, occupation is most commonly defined as the effective con-trol of a power over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory.13 To understand the scope of application of the definition, one must look at the scope ratione mate-riae, ratione temporis and ratione personae of the law of occupation. 3.3.1. Scope of Application Ratione Materiae Article 42 of the 1907 Hague Regulations states that “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 estab-lished and can be exercised.” The question is thus how strictly the effective control or authority by the hostile army must be. When looking at case-law and academic writings, the requirement is revealed as not being too restrictive.14 Thus the US Military Tribunal at Nuremberg found that it is sufficient for the occupying forces to be able to assume physical control of any part of the coun-

11 Ibid., 6 12 Ibid., 7. 13 E. Benvenisti, The International law of Occupation, Oxford, Oxford University Press, 2012, 43. 14 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 6.

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try at any desired time.15 In the Antzar Prison case, decided by the Supreme Court of Israel, it was stated that the temporal duration of the effective control is immaterial to the applicability of the law of occupation.16 Likewise, the fact that the occupying power encounters guerrilla operations, which can exercise a brief control over some parts of the territory, does not alter the legal status of the occupation, unless the outbreak of violence becomes too widespread and persistent to maintain the status.17 Hence the degree of effective control should be evaluated with respect to specific areas in order to assess whether or not the law of occupation can be applied. Another requirement to apply occupation law is the exertion of control over a territory of a foreign state. It is not necessary for the foreign state to be entan-gled in a state of war; occupation of a neutral or co-belligerent territory is equally covered.18 A state must thus exercise control over a territory outside its frontier. Moreover, an official proclamation of occupation is immaterial; there is no need for the occupying force to actually recognize the de facto occupa-tion in order for the occupation law to apply.19 3.3.2. Scope of application Ratione Temporis The start of the application of the law of occupation occurs whenever an ad-verse party establishes effective control over a territory of another state. The approach is thus purely factual; the Hague Regulations are applicable whenev-er territory is actually placed under the authority of the hostile army.20 The applicability ratione temporis lasts as long as the foreign force retains control over the territory. The occupation terminates with the withdrawal of the occu-pying force from the territory, when it is driven out of the territory or when it

15 United States Military Tribunal, Nuremberg, Trial of Wilhelm List and Others (the Hostages Trial), (1949) 8 LRTCWC 34, at 55-56. 16 HCJ 593/82, Tzemel Adv. Et al. V. Minister of Defence & Commander of the Antzar Prison, 13 Israel YbkHR 360, at 363. See also Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 6. 17 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 7. See also M. Zwanenburg, “Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation”, 856 IRRC 2004, 748 and S. Wills, “Occupation Law and Multi-national Operations: Problems and Perspectives”, 77 BYIL 2006, 259. 18 R. Kolb, “Etude sur l’occupation et sur l’article 47 de la IVième Convention de Genève du 12 août 1949 relative à la protection des personnes civiles en temps de guerre: le dégrée d’intangibilité des droits en territoire occupé”, 10 AfYbkIL 267, 2002, 278. 19 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 10. 20 R. Kolb, “Etude sur l’occupation et sur l’article 47 de la IVième Convention de Genève du 12 août 1949 relative à la protection des personnes civiles en temps de guerre: le dégrée d’intangibilité des droits en territoire occupé”, 10 AfYbkIL 267, 2002, 289.



loses effective control over the territory.21 The formerly occupied territory will then be restored to the displaced sovereign. Although the general rule of the GCIV concerning the temporal period entails that the application of its provisions ends one year after the general close of military operations, the Additional Protocol I of 1977 (API) reverts to the traditional and factual approach of the Hague Regulations.22 The safeguard for detained persons in occupied territory however continues to operate until their final release, repatriation or re-establishment, even if this happens after termi-nation of the occupation.23 The end of the occupation is determined by the handover of governmental control, which falls together with the timing of democratic elections by the local population in the occupied territory, based on the principle of self-determination of people.24 3.3.3. Scope of Application Ratione Personae Article 4 of the Fourth Geneva Convention (GCIV) defines the concept of “protected persons” which fall under the protective provisions of the Conven-tion in general. However, this concept does not completely overlap with the personal scope of application of the rules specifically governing occupation.25 The International Committee of the Red Cross stated in its Commentary on GCIV that the guarantees that must be afforded to protected persons under the GCIV are not dependent on the definition of occupation as specified in Article 42 of the Hague Regulations.26 Accordingly, the meaning of the word “occupa-tion” in GCIV is broader than the one used in the Hague Regulations, since the CCIV applies whenever civilians “fall into the hands of an enemy”, which

21 L. Oppenheim, International law: A Treatise (ed. H. Lauterpacht), London, Longmans, 1952, 436. See also G. Schwarzenberger, International law as Applied by International Courts and Tribunals, Vol. II: The Law of Armed Conflict, London, Stevens, 1968, 317. 22 API, Article 3(b). See also Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 17. 23 Ibid. 24 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 20. However, Sassòli states that the simple fact of holding elections can some-times be an insufficient indication of legitimacy and that unless the consent for continued presence of foreign troops is freely given, the legitimacy of a new government in itself can remain contro-versial. He suggests that Un Security Council resolutions can provide a clearer guideline, although these are often drafted by dominant Western powers and their legitimacy as thus can be called into question when they violate the principle of self-determination of peoples. See M. Sassòli, “Legis-lation and Maintenance of Public order and Civil Life by Occupying Powers”, 16 EJIL 661, 2005, at 683 and Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 21. 25 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 12. 26 See Commentary on GCIV of the ICRC at 60 (http://www.icrc.org/ihl/COM/380-600007).

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displays a maximalist approach and does not require a link to nationality. Alt-hough this implies that those civilians must be part of a party to the conflict or must have a certain allegiance, the concept is very inclusive which according to Benvenisti can be explained by the shift of focus to the question whether there is a conflict of interest between the occupant and the occupied.27 In each case the factual situation of the individuals must be assessed. 4. ISRAEL AND THE OCCUPIED PALESTINIAN TERRITORIES 4.1. THE LEGALITY OF THE ISRAELI OCCUPATION Although many aspects of the occupation have been the subject of legal writ-ings, most of them concern Israel’s compliance or noncompliance with its obligations as an occupying power while the question of the legality of the occupation itself is hardly ever raised. The focus usually lies on the specific actions undertaken within the occupation, as distinct from the nature of the occupation as a normative regime. 28 According to Ben-Naftali, Gross and Michaeli, this is due to the fact that the occupation is perceived as a factual rather than a normative phenomenon.29 The normative result of the fact of occupation leads to the application of the international law of occupation, but the fact itself does not seem to be part of this normative order. Ben-Naftali, Gross and Michaeli however conclude that the factual occupation by Israel is illegal, after an examination of the – in their opinion - three fundamental legal principles relating to the phenomenon of occupation. Firstly, the sovereignty and title in an occupied territory cannot be vested in the occupying power since the principle of inalienability of sover-eignty persists. International law states that sovereignty is vested in the popula-tion under occupation, based on the rule of self-determination.30 Secondly, the occupying power should be entrusted with the management of public order and

27 E. Benvenisti, The International law of Occupation, Oxford, Oxford University Press, 1993, 4. See also Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 15. 28 O. Ben-Naftali, A.M. Gross and K. Michaeli, “Illegal Occupation: Framing the Occupied Pales-tinian Territory”, 23 Berkeley J. Int’l Law 2005, 552. See also the advisory opinion of the Interna-tional Court of Justice, “Legal consequences of the Construction of a Wall in the Occupied Pales-tinian Territory”, which does not question the legality of the occupation as such, but only points out the illegality of specific actions by Israel. 29 O. Ben-Naftali, A.M. Gross and K. Michaeli, “Illegal Occupation: Framing the Occupied Pales-tinian Territory”, 23 Berkeley J. Int’l Law 2005, 552. 30 Ibid, 554. Interestingly, this indicates a shift in perception since traditionally sovereignty was seen as vested in the state that held the title to the territory before the occupation, and not in the people. See J. Crafword, “The Right to Self-determination in International law: Its Development and Future” in P. Alston (ed.), People’s Rights, Oxford, Oxford University Press, 2001, 7-67.



civil life of which the people under occupation are the beneficiaries and cannot be subjugated. Thirdly, the occupation must be temporary to be legal, which means it cannot be permanent or indefinite.31 Violating any of the three princi-ples automatically results in a per se illegal occupation and, according to Ben-Naftali, Gross and Michaeli, a close examination of these principles, applied to the Israeli occupation, clearly demonstrates its illegality.32 Another paradigm concerning the tension between self-determination and the legality of occupation is expressed by Antonio Cassese. He states that self-determination is violated whenever there is a military invasion or belligerent occupation of a foreign country – which makes every occupation inherently unlawful – but if the occupation is of a minimal duration or solely intended as a measure of repelling an armed attack initiated by the vanquished Power and is not protracted (under Article 1 of the UN Charter) it can be legally justi-fied.33 Considering the concept of occupation as politically unlawful is an increasingly occurring phenomenon amidst the ascendancy of the principle of self-determination of people.34 Contrary to this is Benvenisti’s view that an occupation is legally valid unless it is abused in the way that the occupier uses the modality of occupation as an indefinite grant of power and refuses to negotiate his withdrawal.35 This is a rather limited notion of illegality, which is supported by the Security Council Resolution 1483 of May 22, 2003.36 In this Resolution, a neutral connotation of the doctrine of belligerent occupation was reinstalled, thus relieving it of its derogatory undertone. Dinstein follows Benvenisti’s view and claims that international law recognizes the recurrence of belligerent occupation and regu-lates its application without stigmatizing it with illegality. Like Benvenisti, he finds support for this approach in Resolution 1483, since the Security Council makes a matter-of-fact reference to occupying powers in Iraq, without stating that an occupation is illegal as such.37

31 O. Ben-Naftali, A.M. Gross and K. Michaeli, “Illegal Occupation: Framing the Occupied Pales-tinian Territory”, 23 Berkeley J. Int’l Law 2005, 555. 32 Ibid., 556. The International Court of Justice once already determined the illegality of a historic occupation, namely the presence of South Africa in Namibia following the revocation of the mandate by the General Assembly. See the ICJ Advisory opinion of the Continued Presence of South Africa in Namibia in 1970. 33 A. Cassese, Self-determination of Peoples; a Legal Reappraisal, Cambridge, Cambridge Uni-versity Press, 1995, 99. 34 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 4. 35 E. Benvenisti, “The Security Council and The Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, 1 IDF L. Rev. 19, 2003, 33. 36 See also O. Ben-Naftali, A.M. Gross and K. Michaeli, “Illegal Occupation: Framing the Occu-pied Palestinian Territory”, 23 Berkeley J. Int’l Law 2005, 558. 37 Y. Dinstein, The International law of Belligerent Occupation, Cambridge, Cambridge Universi-ty Press, 2009, 2.

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From the above it can be concluded that there is a polarization of positions (the occupation is either seen as inherently legal or inherently neutral) and that there is a need to clarify and develop the legal discourse and the measures regarding the legality of an occupation.38 4.2. LEGAL STATUS OF THE OCCUPIED TERRITORIES The Israeli occupation started in June 1967 when the Israeli Defence Force (IDF), while being under attack by different Arab countries, occupied the Sinai Peninsula and the Gaza Strip from Egypt, the West Bank from Jordan and the Golan Heights from Syria. The Gaza Strip and the Golan Heights remain oc-cupied territory till today. The Sinai Peninsula and the Gaza Strip, although both occupied by Israel, were always seen as two distinct territorial units since Sinai was part of Egypt, and the Gaza Strip was part of the British Mandate over Palestine. Although Egypt had authority over the Gaza strip after the British Mandate and until 1967, it never annexed it and the international frontier between the Gaza Strip and Israel was maintained.39 When Israel and Egypt concluded a Treaty of Peace in 1979, Israel undertook to withdraw from the Sinai Peninsula over a period of three years.40 However, no such obligation was imposed with regards to the Gaza Strip. The Treaty stipulated a transition period of five years for self-governing autonomy in the West Bank and the Gaza Strip. The time frame was illusionary, but this demarcated the formal disengagement of Egypt from the Gaza Strip. In 2005, Israel withdrew unilaterally from Gaza thus claiming that the occupation came to a close.41 Nonetheless, the overall occupation did not end and military clashes between the Gaza Strip and Israel – especially since the takeover by Hamas of Gaza in 2007 – have gone on. Moreover, Israel re-served the right to re-enter Gaza whenever and wherever military necessary and it made use of that “right” several times. The West Bank was part of the Kingdom of Jordan (back then called Trans-Jordan) when it was occupied in 1967, since Jordan occupied it in 1948 at the same time when Egypt occupied the Gaza Strip. In 1950, Jordan merged the East and the West Banks of the Jordan river into a single State (renamed the Hashemite Kingdom of Jordan).42 This entailed that the Palestinians living in the Kingdom became Jordanian citizens. However, the Palestinians retained the aspiration to secede from Jordan and create an independent State exercising 38 Ibid., 559. 39 C. Farhi, “On the legal status of the Gaza Strip” in M. Shamgar (ed.), Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects, Tel Aviv, Hemed Press,1982, 74. 40 Y. Dinstein, The International law of Belligerent Occupation, Cambridge, Cambridge Universi-ty Press, 2009, 14. See also Israel-Egypt, Treaty of Peace, 1979, 18 ILM 362, 1979, Article I (2). 41 Y. Dinstein, The International law of Belligerent Occupation, Cambridge, Cambridge Universi-ty Press, 2009, 15. 42 Ibid.



their right to self-determination, which is why in 1988 Jordan decided to sever the legal and administrative bonds between the two Banks of the river. In a Peace Treaty between Israel and Jordan, concluded in 1994, the international boundary between the two countries was drawn along the Jordan River, split-ting the two banks of the river (while stipulating, just as in the Israeli-Egyptian Peace Treaty, that this happened without prejudice to the status of any territo-ries that came under Israeli military government control in 1967). In light of the above, it can be observed that both Jordan and Egypt concluded Peace Treaties with Israel wherein they acknowledge the occupation by Israel of the Gaza Strip and the West Bank and wherein they express their hope, in the spirit of the Oslo Accords concluded after the first intifada, that Israel and Palestine could negotiate about the actual establishment of Palestinian auton-omy in those territories. The Oslo Accords were a series of agreements be-tween Israel and the Palestinians concluded in the nineties concerning the rights and responsibilities of both parties and allowing the Palestinians a large degree of autonomy despite the fact that they remained subject to overall Israe-li belligerent occupation.43 The fact that Israeli forces and Palestinian terrorist groups have often been engaged in violent clashes and intense fighting, which may even require a limited application of a set of rules relating to conduct of hostilities rather than rules dealing witch occupation per se does not undermine the legal status of the occupied territory; one can still speak of sufficient effective control to fall under the scope of occupation law ratione materiae.44 4.3. THE ISRAELI SUPREME COURT’S APPROACH 4.3.1 Jurisdiction of the Court and Applicable Law The Supreme Court of Israel has played a major role in the legal debate on the Israeli occupation of the West Bank and Gaza since the 1967 War. It has con-sidered thousands of petitions relating to acts of the Israeli authorities in the occupied territories and it offered some important interpretations of the rele-vant international law to the conflict.45 After the war in 1967 ended, Palestini-an residents of the occupied territories petitioned the Supreme Court of Israel to challenge the acts of the Israeli (military) authorities in these territories. Although the Attorney General could have contested the Court’s jurisdiction to deal with these petitions, since they were submitted by enemy aliens or since

43 E. Benvenisti, “The Status of Palestinian Authority”, in E. Cotran and C. Mallat (eds.), The Arab-Israeli Accords: Legal Perspectives, London, Kluwer, 1996, 47. 44 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 7. 45 Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross 885, 2012, at 207.

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they related to acts which were performed outside Israeli territory, he accepted that the government’s consent of these acts was a sufficient basis for the Court’s jurisdiction.46 In a later stage, the Court declared that the basis of its jurisdiction was rather lying in statutory power of the Court to give orders against all bodies which perform public functions under law, which means it has jurisdiction over all acts and decisions of governmental authorities such as the Israeli Defence Force, wherever those acts take place.47 After the 1967 war, a military order established military tribunals in the occu-pied territories to try local residents, under the explicit application of the provi-sions of the GCIV, thus considering the occupied territories to be subject to the law of belligerent occupation.48 Nonetheless, some months after the war the military commanders amended the military order and deleted the provision that required an application of the GCIV, since some influential political and aca-demic figures denied the status of “occupied territory” to the Gaza Strip and West Bank but found the situation unclear.49 The Government however de-clared that the Israeli Defence Force would abide with the humanitarian provi-sions of the convention.50 Moreover, when the petitions challenged the acts of military authorities in the occupied territories they used the CVIV and the provisions of belligerent occupation to base their arguments, upon which the Court accepted this framework as the standard to assess the actions of the authorities in the occupied territories, which led to the de facto application of the GCIV. And although Israel did not ratify the Protocol 1, the Supreme Court expressly acknowledged that several of the Protocol’s provisions enshrine customary international law in the Targeted Killings51 case and in the Fuel and Electricity52 case.53 The International Court of Justice stated in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Terri-tory that Israel must apply the human rights treaties alongside the law of bel-ligerent occupation. The Israeli government however never accepted this and

46 Ibid., 208. 47 See for example HCJ 102/82, Tzemel et al., v. Minister of Defence et al., 37(3) PD, 1983, p 365, para. 11, where the Court confirmed that it had competence to examine acts of the Israeli Defence Force during the war with Lebanon in 1982-1983. See also Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 International Review of the Red Cross 885, 2012, at 209. 48 Security Provisions Order (West Bank), 1967, Art. 35 in 1 Proclamations, Orders and Appoint-ments of West Bank Command 5. 49 Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross 885, 2012, at 210. 50 Shamgar, M., “The observance of International law in the Administered Territories”, in Israel Yearbook on Human Rights, Vol. 1, 1971, 262-277. 51 HCJ 769/02, Public Committee against Torture in Israel et al. v. Government of Israel et all., 37 IYHR 305, 2007, para. 29. 52 HCJ 9132/05, Ahmed et al. v. Prime Minister et al., paras. 13-14. 53 Y. Dinstein, The International law of Belligerent Occupation, Cambridge, Cambridge Universi-ty Press, 2009, 8.



the Supreme Court avoided ruling on the formal applicability of human right treaties, although it often relied on their provisions in its judgments by claim-ing that these provisions are part of the law of belligerent occupation.54 The actual application of the norms of belligerent occupation depend however of the status of the application of international law in the Israeli domestic courts. Israel follows the approach that domestic courts will only enforce norms of customary international law as long as they are compatible with pri-mary Israeli legislation. Thus the court interprets legislation according to the presumption of compatibility with Israel’s international obligations, and when-ever a clash occurs between primary legislation and customary or conventional international law, the primary legislation prevails. The provisions of interna-tional treaties are not enforced by the courts until they become an integral part of international customary law or they have been converted into domestic law.55 Concerning the law of belligerent occupation, the Court declared that the Hague Regulations are part of customary law but that the same cannot be said for all the provisions of the Geneva Convention.56 However, the provi-sions of the CVIV did become part of the Court’s standard practice.57 Alt-hough most states are reluctant to recognise their control of the territory of another State as “occupation”, Israel is one of the few occupying powers that recognized the application of the norms of belligerent occupation to its situa-tion.58 However, politics often get in the way of the legal framework of occu-pation law and many acts of the government have not been in accordance with the international norms, like for example the establishment of settlements in the occupied territories. The Supreme Court has been avoiding issuing any substantive judgments concerning the settlements until today. 59

4.3.2. Interpretation of the law of belligerent occupation

Although the court often avoided contributing to the development of the law of occupation by rather applying Israeli Administrative Law or focusing on the facts instead of the legal principles, in certain issues it has clearly taken a posi-tion on the applicable law in the occupied territories.

54 See for example HCJ 3239/02, Marab et al., v IDF Commander in the West Bank et al., 28 July 2002. 55 Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross 885, 2012, at 212. 56 Israel ratified the Geneva Convention but never incorporated it in domestic law. See Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 International Review of the Red Cross 885, 2012, at 212. 57 See for example HCJ 2690/09, Yesh Din et al., v Commander of the IDF Forces in the Judea and Samaria et al., 28 March 2010. 58 Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humani-tarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, 4. See also Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 International Review of the Red Cross 885, 2012, at 213. 59 See Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 International Review of the Red Cross 885, 2012, at 213.

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4.3.3. Exercise of Power The general approach of the Court is one that allows a broad degree of discre-tion for the government. Thus in the Afu60 case, the GCIV was interpreted in a way that is least restrictive of the state’s sovereignty, although this entailed an interpretation that goes completely against the spirit of international conven-tions which concern human rights or humanitarian law and which try to offer a protection – as wide as possible – for the protected persons against abuse by the state of its powers. 61 Instead of focusing on a maximum protection of the rights of protected individuals, the Court often favours the interpretation that supports the position of the government. Concerning the exercise of power in occupied territory, the Court established that the military commander must always consider two things; firstly, he needs to ensure the military or security needs in the area and secondly, he needs to ensure the welfare of the local population.62 The ensuring of military and secu-rity needs is however interpreted very broadly. Thus in the Beth El case which concerned the requisition of private land for the establishment of a settlement in a strategic position, the Court relied on Article 52 of the Hague Regulations which permits the requisition of property for the needs of the army of occupa-tion in a wide sense – contrary to the demand of the petitioners who claimed that it had to be understood in a restricted sense without including the wider security interests of the occupying power.63 The Court stated that the occupied power has the responsibility to enforce public order and security in the occu-pied territory, which includes dealing with dangers from that territory towards the occupied territory and towards the territory of the occupant. Moreover, the Court stated that anything needed in order to achieve this objective is anyhow needed for the purposes of the occupying army, thus justifying the protection of wider military needs. The establishment of a civilian settlement in a strate-gic position, which could facilitate the defence of the area, was seen as a mili-tary need that could justify requisition of a private land.64

60 HCJ 785/87, Afu et al., v Commander of the IDF Forces in the Judea and Samaria et al., 42(2) PD, 1988, 17. 61 See Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 International Review of the Red Cross 885, 2012, at 215. See also HCJ 73, 87/53, Kol Ha’am v. Minister of Interior, 7 PD, 1953, 871. 62 See HCJ 393/82, Jami’at Ascan et al., v. IDF Commander in Judea and Samaria et al., 37(4) PD, 1983, 785. See also HCJ 2056/04, Beit Soerik Village Council v. The Government of Israel et al., 48(5) PD, 2004, 827. 63 Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross 885, 2012, at 217. See HCJ 606/78 Ayyub v. Minister of Defence 33(2) PD, 1978, 113. 64 HCJ 606/78 Ayyub v. Minister of Defence 33(2) PD, 1978, 131.



a. Compliance with obligations Article 43 of the Hague Regulations enumerates the duties of the occupying power towards the occupied and is consequently considered as a mini-constitution of an occupation regime.65 It states that the occupying power must firstly take all measures to restore and ensure public order and safety, and secondly respect the laws in force in the country unless absolutely prevented from doing so. The restoring and ensuring of the public order has been interpreted very widely since according to the Court it includes “conducting a proper administration on all its branches accepted nowadays in a well-functioning country, including security, health, education, welfare, quality of life, transportation…”66 The fact that the occupation is of long-term and that Israeli settlers are present in the occupied territories, makes it difficult to assess the attitude of the Court towards this duty. The court for example states that no military government can create in its area projects for its military purposes that are intended from the start to continue to exist even after the termination of the military rule of that area, when the fate of the territory after termination of the military rule is unknown.67 This principle is however not applicable when the project benefits the needs of the local population, even if the project is of long-term.68 The Court thus tries to fit the laws of occupation to the reality on the ground, since the case of the Israeli occupation is – due to its considerable length in time – an unusual one and not always fitting the spirit of the international norms of belligerent occupation, which were written with short-term occupation in mind. The clearest example of the above is the Court’s dealing with the question of the settlements and their effect on the interests of “protected persons” under article 4 GCIV, which are all persons who find themselves in the hands of the Occupying Power with the exception of its own nationals. When it first con-sidered who was included in the local population, the Court completely ig-nored the notion of “protected persons”.69 Thus it considered Israeli settlers as part of the local population, as in the Hebron Electricity case, and the Court retained this position in later years.70 Often the argumentation of the authori-ties entailed that whenever a decision was made for the benefit of the settlers, this was also to the benefit of the local Palestinian population.71 However, in

65 E. Benvenisti, The International law of Occupation, Oxford, Oxford University Press, 1993, 9. 66 HCJ 202/81, Tabeeb et al., Minister of Defence et al., 36(2) PD, 1981, 629. 67 HCJ 390/79, Dweikat et al., v Government of Israel et al., 34(1) PD, 1979, 22. 68 HCJ 393/82, Jami’at Ascan et al., v. IDF Commander in Judea and Samaria et al., 37(4) PD, 1983, 785. 69 Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross 885, 2012, at 222. 70 HCJ 256/72, Electricity Company for Jerusalem District v. Minister of Defence et al., 27(1) PD, 1972, 138. 71 Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross 885, 2012, at 223.

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the Beit Hadasa case a clear clash between the two interests could not be avoided, and the Court explicitly put the interest of the settlers above those of the local Palestinians by claiming that the scope of the authority of the com-mander of the occupied territories is extremely broad and includes everybody who is in the area, whether a permanent or a new resident.72 Nonetheless, the Court has often used the concept of proportionality to grant some protection to the local population. Thus in the Abu Safiyeh case, where the military commander on the West Bank prohibited the use of a highway by Palestinian vehicles – since a number of drive-by attacks and shootings had occurred towards Israeli vehicles on the road, leading to some dead and injured Israeli’s – the Court took the view that by completely banning Palestinian vehicles from using the road the military commander failed to meet the princi-ple of proportionality, even if he had the authority to exclude them in the first place.73 The Court however left it to the military commander to make a new order that would provide security to Israeli drivers and draft a limited provi-sion to allow some Palestinians to use the highway, instead of stating that the road was built for the good of the local Palestinian population and that ensur-ing the welfare of that population must guide the commander in his deci-sions.74 Although the Court maintained this restrictive approach, more recently it al-lowed for proportionality to play a bigger role by adapting the three-pronged proportionality test as developed in German public law.75 In the Beit Sourik case the Court even stated that this test became the general test in both domes-tic law and international law, and particularly in the law of belligerent occupa-tion.76 Thus in the Alphei Menashe case the Court found that the chosen deci-sion of the military commander failed the proportionality test since he had not examined alternative routes which might have been less harmful for the peti-tioners.77 The three-pronged proportionality test became the general principle that con-strains all decisions that rely on military necessity and thus has the possibility to significantly limit the power of the military in occupied territory. 72 HCJ 72/86, Zalum v. Military Commander, 41(1) PD, 1987, 532. 73 HCJ 2150/07, Ali Hussein Mahmoud Abu Safiyeh, Beit Sira Village Council Head, et al., v. Minister of Defence et al., 29 December 2009. See also Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 International Review of the Red Cross 885, 2012, at 225. 74 Kretzmer, D., “The Law of Belligerent occupation in the Supreme Court of Israel”, 94 Interna-tional Review of the Red Cross 885, 2012, at 225. 75 The three questions raised are: wether there is a rational connection between the administrative act and its legitimate purpose, whether it is the least invasise way of achieving that purpose and whether the benefit outweights the harm caused to the interest of others. 76 HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel et al., 48(5) PD, 2004, 827. 77 HCJ 7957/04, Zaharan Yunis Muhammad Mara’abe et al., v. The Prime Minister et al., 60(2) PD, 2005, 477.



5. THE INTERNATIONAL LEGAL STATUS OF PALESTINE The existence of states is regulated by (customary) general international law and in order for a new state to come into existence it must meet the so-called Montevideo criteria.78 The state must have a permanent population, a defined territory, a government and the capacity to enter into relations with other states. This also entails the requirement of independence and the effective control by the government over the territory and its population. Recognition of statehood by other states is not necessary to be a state; this recognition is mere-ly declaratory since a state becomes a state whenever it complies with the Montevideo criteria.79 However, a collective recognition of an overwhelming majority of states can perfect an otherwise imperfect fulfilment of the crite-ria.80 Whether or not Palestine meets these criteria is debatable, yet the recent deci-sion of the United Nations General Assembly to accord to Palestine the status of “observer state” might have an influence on the matter. Although the change from “observer entity” to “observer state” changes little with regard to the legal framework, it has a significant impact on the question of the Statehood of Palestine in international law. Although the issues of statehood and of mem-bership of the United Nations (UN) are distinct and although the UN offers other forms of participation in its activities apart from membership of its or-ganization, the admission of Palestine’s observer state status implies that a majority of states does regard Palestine as a state.81 If Palestine is a state, it is entitled to all of the rights and subject to all of the state duties under international law.82 Thus the state and its officials would enjoy immunity and protection from the use of force by other states. The right of self-defence and collective self-defence in the event of an armed attack would also apply, together with the plenary jurisdiction over its territory and the possibility of membership in other intergovernmental organizations. More-over statehood offers access to the international courts and dispute settlement mechanisms such as the International Court of Justice or the International Criminal Court.

78 J. Cerone, “The UN and the Status of Palestine – Disentangling the Legal Issues”, 15 American Society of International law, 2011, 26. 79 See the 1933 Montevideo Convention on the Rights and Duties of States, 26 December 1933, 49 Stat. 3097, 165 U.N.T.S. 21. See also S. McCaffrey, D. Shelton and J. Cerone, Public Internation-al law: Cases, Problems & Texts, NJ, New Providence, 2010, 439. 80 J. Cerone, “The UN and the Status of Palestine – Disentangling the Legal Issues”, 15 American Society of International law, 2011, 27. 81 The Resolution that granted Palestine the status of “observer state” was voted on 29 November 2009 was supported by138 of the 193 Member States. 82 J. Cerone, “The UN and the Status of Palestine – Disentangling the Legal Issues”, 15 American Society of International law, 2011, 28.

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However, although the president of the Palestinian Authority, Mahmoud Ab-bas, presented an application for Palestine to be admitted to the UN as a Mem-ber State in 2011, the demand has been blocked by the Security Council – who must agree on the matter – and does not seem to move forward anytime soon. Concerning the jurisdiction of the International Criminal Court (ICC), the Office of the Prosecutor released a statement in 2012 declaring that, for the moment, it would not consider allegations of crimes committed in Palestine since the current status granted to Palestine by the United Nations General Assembly is that of “observer” and not of “Non-member State”. The statement also mentions that, should competent organs of the United Nations solve the legal issue concerning Palestine’s statehood, the Office of the Prosecutor would in the future consider allegations of crimes committed in Palestine. This approach significantly adds weight to the decisions of the United Nations Gen-eral Assembly votes on the matter of Palestinian statehood.83 Although the General Assembly has now determined that Palestine is a state, this does not solve the issue of the ICC’s jurisdiction and leaves many other matters unsolved. The 2009 General Assembly resolution increases the ability of Palestine to act like a state, which in its turn will increase the chance that Palestine satisfies the required criteria for statehood. The above also made it clear that the fact that Israel is occupying the Palestinian Territories, has no influence on Palestine’s statehood, although it certainly makes it harder for Palestine to meet the Montevideo criteria. 6. MODERN JUST WAR THEORY The just war tradition is the predominant ethical framework for judging mili-tary action, and strikes a balance between militarism and pacifism. 84 It tries to limit violence by subjecting both jus ad bellum (the decision to go to war) and jus in bello (actions during the war) to specific norms of behaviour. Walzer developed a legal paradigm which claims that states form a stable community and possess particular rights, such as territorial integrity and political sover-eignty, and that violations of these rights must be treated in the same way that communities treat crime.85 War must only be undertaken by a legitimate au-thority for a legitimate cause, and a state may only go to war in response to aggressive actions of another state. Moreover, war can only be considered after all other reasonable means of dispute were attempted and once the harm is redressed the hostilities should cease. The principle of right intention is a cen-tral concept in both jus in bello and jus ad bellum, just as the principle of pro-

83 J. Cerone, “The UN and the Status of Palestine – Disentangling the Legal Issues”, 15 American Society of International law, 2011, 30. 84 R. Kuo, “Occupation and the Just War”, 22 International Relations 2008, 299. 85 M. Walzer, Just and Unjust Wars, New York, Basic Books, 1992, 58.



portionality which protects the interest of the civilian population who have non-combatant immunity.86 The just war theory has not really engaged with the practical consequences and moral challenges of an occupation. According to Kuo, so far at least three important issues are overlooked concerning occupation and just war theory.87 Firstly, success in occupation does not only require military superiority, but also an effective ideological campaign to win the “hearts and minds” of the local people. Secondly, the occupation creates new channels of influences and control though the occupier’s administrative apparatus, which often has a mili-tary purpose. Thirdly, the occupier’s civilian administrators can pursue a varie-ty of projects that might be inimical to the local population’s interests, and there have been only very few attempts to systematically examine the ethical boundaries for these activities and what legitimate actions the occupied people can take against them. Kuo claims that it is necessary to extend the just war theory to address these challenges and to develop new moral tests for military conduct, specifically in situations of occupation. According to him the conceptions of force embodied within the just war tradition need to be reframed, particularly when examined in the context of peace research. Since occupations are situated between inter-state war and domestic civil unrest, both military and police power are neces-sary for security. The occupier’s war objectives are mostly pursued through bureaucratic administration of the captured territory rather than through the actual use of violence, which makes the case of occupation unique in terms of just war tradition and moral guidance. Thus it is important to assess the impact of the fact that occupation rather concerns winning the moral or legal argument than winning a war through a decisive victory. Moreover, the obligations of the occupier as established in international occupation law (such as the Hague Regulations and the Geneva Conventions) must be amplified by the moral obligations of the just war doctrine. Several just war theorists have tried to assess the morality of occupation based on the peace that results from it, its success at preventing future wars and meeting the occupied population’s needs.88 Since occupation introduces a new political, economic and social channel to pursue military aims, the conse-quences must be examined in light of the conflict of interest between occupant and occupied. Thus the Israeli occupation therefore demonstrates that both military and po-lice action is needed in terms of occupation, and that it is most important to keep these actions ethically separated since they require a different approach. 86 R. Kuo, “Occupation and the Just War”, 22 International Relations 2008, 301. 87 Ibid., 299. 88 See M. Walzer, Arguing About War, New Haven, Yale University Press, 2004, 165.See also R. Kuo, “Occupation and the Just War”, 22 International Relations 2008, 304.

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Moreover, the impact of administrative control should not be underestimated since, although international law obliges the occupier to install an administra-tive system, this can create an indirect and structural violence by installing changes without great consideration for the local population’s interest.89 An-other occupation strategy in which Israel engaged are the settlements, which were approved retroactively and which go against international law, yet are supported by the Israeli political regime (right-wing parties such as the Nation-al Religious Party and Likud). To halt the guerrilla attacks of the local Pales-tinian population, Israel has engaged in censoring newspapers, imposing ex-tensive curfews, restricting protests and undertaking deportations and housing demolitions. All these examples clearly demonstrate that merely focusing on military en-gagement in a situation of occupation is inadequate to assess the totality of tools of control by the occupier and the occupier’s morality in terms of the just war doctrine since it is such a unique situation. 7. CONCLUSION After analysing the law of belligerent occupation in the context of the Israeli-Palestinian conflict some conclusions can be drawn. Firstly, the question of the legality of the occupation remains unanswered. Depending on one’s academic view, different conclusions are reached. When departing from the perspective that all occupations are a priori illegal, like Ben-Naftali, Gross and Michaeli believe, the Israeli occupation is not justifiable. When departing from a per-spective that considers occupation to be neutral and more of a factual situation, like Benvenisti and Dinstein do, the Israeli occupation is not a priori illegal, but the maintaining of the occupation must still be justified. Secondly, although Israel did not explicitly state that the occupied territories fall under the scope of the law of occupation, the Israeli Supreme Court de facto applies both the Hague Regulations and the Fourth Geneva conventions, and draws arguments from the human right treaties as well. However, an ex-amination of the Supreme Court’s case law demonstrates how the interests of the Israeli government and the Israeli settlers in the occupied territories are often prioritised over the interests of the local Palestinian population, contrary to the protective international provisions. Thirdly, the uncertainty about the international legal status of Palestine is in-fluenced by the occupation. Although a majority of states voted in favour of granting Palestine the status of “observer state” instead of “observer entity” in 2009 in the UN General Assembly, the demand of Palestine to become an official Member State is still blocked by the Security Council, mainly for polit-ical reasons concerning the on-going occupation and the lack of peace volition.

89 R. Kuo, “Occupation and the Just War”, 22 International Relations 2008, 307.



Moreover, the occupation impedes the full compliance with the required Mon-tevideo criteria of becoming a State in international law. However, the political pressure to acknowledge Palestine as a state, occupied or not, becomes higher and higher since ever more Member States are supportive of the Palestinian cause. Lastly, attention must be drawn to the application of the just war doctrine in the context of occupation. A re-assessment of the moral considerations to be taken in times of war is necessary to adapt the doctrine to a long-term occupa-tion such as the one in the Occupied Palestinian Territories. The Israeli au-thorities have engaged in practices which are not explicitly dealt with in inter-national law, but which should fall under the wider scope of the just war doc-trine. An examination of the practical consequences of occupation in terms of moral conduct can offer an extra layer of protection to the civilian population and can restrict the scope of power that the Israeli (military) authorities have over the occupied territories. The Palestinian attacks against Israeli civilians are exceedingly immoral and are not based on proper ethical justifications, yet the Israeli Defence forces frequently violate customary international law and use increasingly more op-pressive measures to try and maintain the territory’s security. Both fight for just causes by unjust means, and the law of occupation is meant to regulate those means and will hopefully be able to, when properly abided with, bring some peace and stability to the region.

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