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Dr. Robbie Sabel
Hebrew University Faculty of Law
Jerusalem, Israel
JURIST Guest Columnist

Classic international law defines occupied territory as the sovereign territory of a State that is under the military occupation of another State at a time when a state of war exists between them. A required condition is that the "belligerent occupation" prevents the sovereign state from exercising its authorities in said territory. International law forbids the occupying state from annexing the occupied territory, and requires the occupier to set up a military government in the territory. This military government is subject to the restrictions imposed by the laws of occupation of international law. No distinction is made between legal and illegal occupation; international humanitarian law applies equally to the godly and to the sinners.[1]

The laws of occupation are to be found principally in the 1907 Hague Regulations, which have the status of international customary law; the 1949 IVth Geneva Convention, most of which reflects customary law and the 1977 Ist Additional Protocol to the 1949 Geneva Conventions. Many of the rules of the Additional Protocol also reflect customary law. However, the innovative elements of the Additional Protocol have not attained the status of customary law.

The US and the UK are parties to the IVth Geneva Convention, and the UK is party to the 1977 Ist Additional Protocol. Both States are of course bound by customary international law and furthermore customary international law forms part of the law of the land in both the US and the UK.

Yet notwithstanding this legal background, neither the US nor the UK has formally stated that they will be applying the IVth Geneva Convention to their administration of Iraq. In their joint letter to the UN Security Council of 8 May 2003, the two States affirmed that they "will strictly abide by their obligations under international law including those relating to the essential humanitarian needs of the people of Iraq."[2] The Security Council, in the preamble to its subsequent Resolution of 22 May, designated the US and the UK as "occupying powers," but refrained from using the phrase "occupying powers" in the operative part of the Resolution, which calls 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."[3] Explicit mention of the relevant IVth Convention was lacking.

In fact, it appears that no State has ever formally applied the IVth Geneva Convention to territory under its control. The laws of occupation, as they were then, were not applied to the allied occupation of Germany after World War II on the grounds that the Reich no longer existed and therefore there was no previous sovereign whose rights needed protection.

The closest to formal application of the IV Geneva Convention has been Israel, which undertook to apply the "humanitarian provisions" of the Convention to the West Bank and Gaza. The Israeli position was based on the premise that ever since the eclipse of the Ottoman Empire, the territories of the West Bank and Gaza Strip had not been recognized as the sovereign territory of any state. Israel argued that although Jordan acted after 1948 as sovereign in the territories of the West Bank, Jordanian control ended in the 1967 Six-Day War. Since then, Jordan has relinquished its claim to sovereignty, so that the question of whether it was sovereign is now of no significance. Egypt never staked any claim to sovereignty in the Gaza Strip. Although every state in the world, including Israel, recognizes the right of the Palestinians to establish a state in the West Bank and Gaza, no such state has yet been established, and its borders have not been determined. In light of the void of sovereignty in these territories, the Israeli position was that its administration could not be categorized as the occupation of the sovereign territory of another state. Following the Six-Day War, Israel imposed an Israeli military government in the territories, and Israel Defense Forces authorities acted on the assumption that this government was subject to the rules of international law as regards to occupied territories. The phrase "humanitarian provisions" used by Israel was intended to make the statement that Israel would be applying those provisions whose object was the protection of the local population and would not be applying those provisions whose object was to protect the rights of the sovereign state - a status claimed by the Kingdom of Jordan at the time. In practice no such distinction was made and the Israeli Supreme Court enforced all the provisions of the IVth Geneva Convention.

However, the innovative character of Israel's application of the Convention has been clouded by disputes as to interpretation of various provisions of the Convention. A particularly acrimonious dispute has arisen as to Israel's position that the Convention does not prohibit Jewish settlements, an interpretation disputed by, amongst others, the legal advisers of the International Committee of the Red Cross.

The general lack of explicit willingness by States to apply the IVth Convention would seem strange since that treaty is regarded as a basic text of international humanitarian law. The reason for non-application is to be found, I believe, in the dual nature of the law of occupation itself,. The laws of occupation are intended to safeguard the rights of the previous sovereign as well as making humanitarian provisions for the population. Those provisions intended to safeguard the rights of the previous sovereign include provisions prohibiting changing of local laws and prohibiting the altering of the status of local officials and judges. The explicit aim of the US and UK administrations is to change the regime in Iraq, clearly not an aim sanctioned by the laws of occupation.

It would be sad if the local population in Iraq is denied protection under international humanitarian law because of the hybrid nature of the laws of occupation. It might quite well be that the time has come to reexamine the basic norms of the laws of occupation. The rights of the local population should be preserved irrespective of the status of the previous sovereign. The question of preserving the rights of the previous sovereign should be seen as an issue of permissible modes of acquiring territory and not an issue of humanitarian law.

[1] For an apparently different view, see a previous JURIST Forum column by Mary Ellen O'Connell, The Occupation of Iraq: What International Law Requires Now (April 18, 2003).
[2] UN Doc. S/2003/538, 8 May 2003.
[3] UN Security Council Resolution 1483 (2003) of 22 May 2003, UN Doc.S/RES/1483 (2003), preamble and operative para.5.

Dr. Robbie Sabel is a Professor of Law at the Hebrew University in Jerusalem, Israel.

July 16, 2003


JURIST Guest Columnist Dr. Robbie Sabel is a Professor at the Hebrew University Faculty of Law in Jerusalem, Israel. Dr. Sabel has been a Legal Advisor to the Israeli Foreign Ministry for many years. He has also served as a research fellow at George Washington University and as a lecturer at Bar-Ilan University.

Dr. Sabel's area of expertise is International Law. Among his publications: Procedure at International Conferences, L.V.P., The Role of the Legal Advisor, Diplomacy and Statecraft, and Combating Terrorism.