1 Regulations concerning the Laws and Customs of War on Land, annex to the Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, available at: http://www.icrc.org/ihl.nsf/WebART/195–200053?OpenDocument. The authentic text of the Convention and the Regulations is the French one.

2 ICTY, The Prosecutor v. Mladen Naletilic and Vinko Martinovic, Case No. IT-98-34-T, Judgment (Trial Chamber), 31 March 2003, para. 214. Eyal Benvenisti defines occupation as ‘a situation where the forces of one or more States exercise effective control over a territory of another State without the latter State's volition’: Benvenisti, Eyal, ‘Occupation, belligerent’, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, 2012, p. 920Google Scholar, para. 1.

3 For more information on this topic, see the contribution to this volume by Tristan Ferraro, as well as Roberts, Adam, ‘What is a military occupation?’, in British Year Book of International Law, Vol. 55, 1985, pp. 249–305CrossRefGoogle Scholar; Kolb, Robert and Vité, Sylvain, Le droit de l'occupation militaire: perspectives historiques et enjeux juridiques actuels, Bruylant, Brussels, 2009, pp. 61–114Google Scholar; Arai-Takahashi, Yutaka, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Martinus Nijhoff, Leiden and Boston, 2009, pp. 3–54CrossRefGoogle Scholar; Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 31–49CrossRefGoogle Scholar; Koutroulis, Vaios, Le début et la fin de l'application du droit de l'occupation, Pedone, Paris, 2010, pp. 19–94Google Scholar.

4 See, mainly, Roberts, Adam, ‘Prolonged military occupation: the Israeli-occupied territories since 1967’, in American Journal of International Law, Vol. 84, No. 1, 1990, pp. 44–103CrossRefGoogle Scholar; Y. Dinstein, above note 3, pp. 116–120; Falk, Richard, ‘Some legal reflections on prolonged Israeli occupation of Gaza and the West Bank’, in Journal of Refugee Studies, Vol. 2, No. 1, 1989, pp. 40–51CrossRefGoogle Scholar.

5 Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, Geneva, 1958, p. 275Google Scholar (hereafter Commentary GC IV); Roberts, Adam, ‘Transformative military occupation: applying the laws of war and human rights’, in American Journal of International Law, Vol. 100, No. 3, 2006, p. 582CrossRefGoogle Scholar; Kelly, Michael J., ‘Critical analysis of the International Court of Justice ruling on Israel's security barrier’, in Fordham International Law Journal, Vol. 29, 2005–2006, p. 223Google Scholar; Benvenisti, Eyal, ‘Origins of the concept of belligerent occupation’, in Law and History Review, Vol. 26, No. 3, 2008, pp. 621CrossRefGoogle Scholar and 623.

6 Supreme Court of Israel, Beit Sourik Village Council v. The Government of Israel et al., Case No. HCJ 2056/04, Judgment, 30 June 2004, para. 27; Supreme Court of Israel, Zaharan Yunis Myhammad Mara'abe et al. v. The Prime Minister of Israel et al., Case No. HCJ 7957/04, Judgment, 15 September 2005, para. 22 (with further references to Israeli case law); the judgments are available at: http://elyon1.court.gov.il/Files_ENG/04/560/020/A28/04020560.A28.pdf and http://elyon1.court.gov.il/Files_ENG/04/570/079/A14/04079570.A14.pdf (last visited 30 August 2012).

7 See Article 47 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, U.N.T.S., No. 973, 1950, p. 318 (hereafter GC IV), as well as Article 43 of the Hague Regulations, stating that, in situations of occupation, ‘[t]he authority of the legitimate power ha[s] in fact passed into the hands of the occupant …’. See also, UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, p. 278Google Scholar, para. 11.9 (hereafter UK, Military Manual); Federal Republic of Germany, Federal Ministry of Defence, Humanitarian Law in Armed Conflicts – Manual, VR II 3, August 1992, paras. 529–530 (hereafter Germany, Military Manual); Canada, Law of Armed Conflict at the Operational and Tactical Levels, National Defence, Chief of Defence Staff, Office of the Judge Advocate General, 13 August 2001, B-GJ-005-104/FP-021, p. 12–2, paras. 1205–1206 (hereafter Canada, Military Manual); United States, The Law of Land Warfare, Department of the Army Field Manual, FM 27-10, 1956, pp. 138, 140, paras. 353 and 358 (hereafter US, Law of Land Warfare); Commentary GC IV, above note 5, p. 275; Gasser, Hans-Peter, ‘Protection of the civilian population’, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 2nd edition, Oxford University Press, Oxford, 2008, pp. 277–278Google Scholar; David, Eric, Principes de droit des conflits armés, 4th edition, Bruylant, Brussels, 2008, pp. 562–565Google Scholar; E. Benvenisti, above note 5, p. 623.

8 See, e.g., Fox, Gregory H., Humanitarian Occupation, Cambridge University Press, Cambridge, 2008, pp. 233–237CrossRefGoogle Scholar; A. Roberts, above note 5, p. 580; Boon, Kristen E., ‘Obligations of the new occupier: the contours of a jus post bellum’, in Loyola of Los Angeles International and Comparative Law Review, Vol. 31, No. 1, 2009, p. 60Google Scholar.

9 Supreme Court of Israel, Jamayat Askan Alma'Almun Althaunia Almahduda Almasaulia, Lawfully registered Cooperative in regional Command of Judea and Samaria v. Commander of IDF Forces in the Judea and Samaria region – the Superior Planning Council for the Judea and Samaria region, Case No. HCJ 393/82, Judgment, 12 December 1983, p. 13, para. 12 (on file with the author) (hereafter Askan case).

10 Palestine: International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, advisory proceedings (hereafter Wall advisory proceedings), Oral Statement by counsel Georges Abi-Saab, 23 February 2004, CR 2004/1, p. 46; also ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 9 July 2004, ICJ Reports 2004 (hereafter ICJ, Wall advisory opinion), Separate Opinion of Judge Al-Khasawneh, p. 237, para. 9.

11 South Africa: ICJ, Wall advisory proceedings, Written Statement Submitted by the Government of the Republic of South Africa, 30 January 2004, p. 15, para. 37; Democratic Republic of the Congo (DRC): ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits, Written Proceedings, Reply of the Democratic Republic of the Congo, 29 May 2002, pp. 240–242, paras. 3.173–3.176. Cassese, Antonio, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press, Cambridge, 1995, p. 99Google Scholar; Gray, Christine, International Law and the Use of Force, 3rd edition, Oxford University Press, Oxford, 2008, pp. 154–155Google Scholar.

12 A. Roberts, above note 4, p. 47. Cf. International Committee of the Red Cross (ICRC), First meeting of experts in Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by T. Ferraro, ICRC, Geneva, April 2012, pp. 72–78 (a chapter referring to prolonged occupations, which has no discussion of the definition of this notion).

13 UNSC Res. 471, 5 June 1980, p. 2, para. 6; UNSC Res. 476, 30 June 1980, p. 1, para. 1.

14 A. Roberts, above note 4, p. 47.

15 Y. Dinstein, above note 3, p. 116.

16 Ibid.

17 Ibid., pp. 116–117.

18 Supreme Court of Israel, The Christian Society for the Sacred Places v. Minister of Defence, cited by Benvenisti, Eyal, The International Law of Occupation, Cambridge University Press, Cambridge, 2004, p. 146Google Scholar. In the same vein, Dinstein cites Singapore, Original Civil Jurisdiction, Public Trustee v. Chartered Bank of India, Australia and China, 1956, in International Law Reports, Vol. 23, pp. 693–694 (Y. Dinstein, above note 3, p. 117).

19 The duration of the occupation was five years starting from the date of the withdrawal of the DRC's consent concerning the presence of Ugandan forces inside Congolese territory (August 1998) and ending with the withdrawal of the Ugandan forces (June 2003); see ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, ICJ Reports 2005, pp. 254–255, para. 254 (hereafter DRC v. Uganda, Judgment). In any case, the relevant territory was considered occupied at least since the creation of a new province in Congolese territory and its administration by Uganda in June 1999: see ibid., p. 230, para. 175.

20 The ICJ found that Uganda violated, among others, Articles 43, 46, and 47 of the Hague Regulations and Article 53 of GC IV: ibid., p. 244, para. 219.

21 Uganda rejected the DRC claim that its forces occupied DRC territory, and did not elaborate on the application of occupation law: ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits, Written Proceedings, Counter-Memorial submitted by the Republic of Uganda, Vol. 1, 21 April 2001, mainly pp. 180 ff., paras. 329 ff.; ibid., Rejoinder Submitted by the Republic of Uganda, Vol. 1, 6 December 2002, pp. 75–78, 86–91, 181–182, paras. 170–174, 198–210, 407.

22 ICJ, DRC v. Uganda, Judgment, above note 19, pp. 284 ff. Judge Parra-Aranguen was the only judge to refer to an adjustment of the interpretation of Article 43 of the Hague Regulations. However, his critique against the majority was that it did not take into consideration geographical – not temporal – characteristics in the appreciation of the conformity of Ugandan actions with Article 43 of the Hague Regulations: see ibid., separate Opinion of Judge Parra-Aranguren, p. 305, para. 48.

23 See the analysis under the heading ‘International humanitarian law applies in its entirety to prolonged occupations’ (below pp. 172–176).

24 A. Roberts, above note 4, p. 51. Despite this warning, Dinstein reads Roberts as ‘com[ing] up with the notion that prolonged occupation should be regarded as a distinct and special category within the law of belligerent occupation’: see Y. Dinstein, above note 3, p. 120.

25 See the precedents cited by A. Roberts, above note 4, pp. 48–51; Y. Dinstein, above note 324, p. 117.

26 The present author believes that Gaza continues to be under belligerent occupation, despite the 2005 Israeli disengagement. Without entering into a detailed presentation of relevant arguments, it is submitted, first, that the presence of enemy troops inside the occupied territory is not a conditio sine qua non for the existence of a belligerent occupation; second, that Article 42 of the Hague Regulations does not require the Occupying Power to be the sole authority in the occupied territory or to fully administrate it; and, third, that Israel exercises the necessary control over the Gaza Strip for it to be considered occupied. For more details, see V. Koutroulis, above note 3, pp. 181–189; Vaios Koutroulis, ‘Of occupation, jus ad bellum and jus in bello: a reply to Solomon's, Solon “The great oxymoron: jus in bello violations as legitimate non-forcible measures of self-defense: the post-disengagement Israeli measures towards Gaza as a case study”’, in Chinese Journal of International Law, Vol. 10, No. 4, 2011, pp. 900–906Google Scholar and the references cited therein. The qualification of Gaza as occupied territory has been accepted by the vast majority of states: see UN GA Res. 64/94, 10 December 2009, paras. 4 and 10 (adopted by 162 votes in favour, 9 against and 5 abstentions); UN GA Res. 65/105, 10 December 2010, paras. 5 and 10 (165 votes in favour, 9 against, 2 abstentions); UN GA Res. 66/79, 9 December 2011, paras. 5 and 10 (159 votes in favour, 9 against, 4 abstentions). All these resolutions explicitly recognize Israel as the occupying power of the Gaza Strip. For the view that Gaza is not occupied, see R. Kolb and S. Vité, above note 3, pp. 177–182; Shany, Yuval, ‘Faraway, so close: the legal status of Gaza after Israel's disengagement’, in Yearbook of International Humanitarian Law, Vol. 8, 2005, pp. 369–383CrossRefGoogle Scholar.

27 See the UN Security Council resolutions cited above note 13. See also statements by: Azerbaijan, UN Security Council, 6706th meeting, 24 January 2012, UN Doc. S/PV.6706, p. 25; Cuba, UN GA, Special Political and Decolonization Committee (Fourth Committee), Summary Record of 8 November 2011, UN Doc. A/C.4/66/SR.22, p. 2; Iran, UN GA, Third Committee, Summary Record of the 37th meeting, 2 November 2009, UN Doc. A/C.3/64/SR.37, p. 5; Bahrain, UN GA, Special Political and Decolonization Committee (Fourth Committee), Summary Record of the 23rd meeting, 14 November 2007, UN Doc. A/C.4/62/SR.23, p. 3; Indonesia, UN GA, 2nd Committee, Summary Record of the 12th meeting, 22 October 2007, UN Doc. A/C.2/62/SR.12, p. 5 and Summary Record of 20 October 2006, UN Doc. A/C.2/61/SR.17, p. 6; Saudi Arabia, UN GA, 66th plenary meeting, 2 December 2003, UN Doc. A/58/PV.66, p. 1; Cyprus, UN GA, 66th plenary meeting, 3 December 2002, UN Doc. A/57/PV.66, p. 8; Jamaica, UN GA, 65th plenary meeting, 2 December 2002, UN Doc. A/57/PV.65, p. 13; Sri Lanka, UN GA, Fourth Committee, Summary Record of the 17th meeting, 6 November 2000, UN Doc. A/C.4/55/SR.17, p. 3; Bangladesh, UN GA, Fourth Committee, Summary Record of the 18th meeting, 7 November 2000, UN Doc. A/C.4/55/SR.18, p. 7 and 13 October 1999, UN Doc. A/C.4/54/SR.9, p. 4. Finally, see Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, annex to Situation of human rights in the Palestinian territories occupied since 1967, Note by the Secretary-General, 13 September 2011, UN Doc. A/66/358.

28 Separate Opinions of Judge Al-Khasawneh and Judge Elaraby, ICJ, Wall advisory opinion, above note 10, p. 237, para. 9, and pp. 255 ff. respectively, as well as the judgments by the Supreme Court of Israel cited or referred to below in notes 73–75 and 95.

29 See, among many, the authors cited above notes 3 and 4.

30 For the qualification of the presence of Turkish forces in Cyprus as an occupation, see UN GA Res. 33/15, 9 November 1978, preambular para. 6 (110 in favour, 4 against, 22 abstentions); UN GA Res. 34/30, 20 November 1979, preambular para. 9 (99 in favour, 5 against, 35 abstentions); UN GA Res. 37/253, 13 May 1983, preambular para. 8 and para. 8 (103 in favour, 5 against, 20 abstentions). See also European Court of Human Rights (ECHR), Loizidou v. Turkey (Preliminary Objections), Judgment, 23 March 1995, Appl. no. 15318/89, paras. 62–64; ECHR, Loizidou v. Turkey, Judgment, Merits, 18 December 1996, Appl. no. 15318/89, paras. 42–44, 56–57; ECHR, Cyprus v. Turkey, Judgment, 10 May 2001, Appl. no. 25781/94, paras. 75–76; all available at http://www.echr.coe.int (last visited 5 July 2012).

31 See UN GA Res. 34/37, 21 November 1979, preambular para. 9 and paras. 5 and 6 (85 in favour, 6 against, 41 abstentions); UN GA Res. 35/19, 11 November 1980, preambular para. 7 and para. 3 (88 in favour, 8 against, 43 abstentions).

32 E. Benvenisti, above note 18, pp. 189–190, and the state practice cited therein. This is in line with the general ‘disinclination of states to consider occupation law relevant even when the conditions for its applicability are met’: Ferraro, Tristan, ‘Enforcement of occupation law in domestic courts: issues and opportunities’, in Israel Law Review, Vol. 41, Nos 1–2, 2008, p. 338CrossRefGoogle Scholar.

33 See, e.g., Benvenisti, Eyal, ‘Judicial misgivings regarding the application of international law: an analysis of attitudes of national courts’, in European Journal of International Law, Vol. 4, No. 1, 1993, pp. 160CrossRefGoogle Scholar ff. Along the same lines, Tristan Ferraro argues that: ‘enforcement of occupation law by domestic courts … does not seem to actually provide for an adequate system of implementing control and review of occupants’ measures’: T. Ferraro, above note 32, p. 337. Finally, according to Guy Harpaz and Yuval Shany, ‘The jurisprudence of the Supreme Court during all these years may be seen as an exercise in judicial acrobatics, simultaneously regulating and legitimizing the occupation’: Harpaz, Guy and Shany, Yuval, ‘The Israeli Supreme Court and the incremental expansion of the scope of discretion under belligerent occupation law’, in Israel Law Review, Vol. 43, 2010, p. 515CrossRefGoogle Scholar.

34 See also ICJ, Wall advisory opinion, above note 10, Separate Opinion Judge Elaraby, p. 255; V. Koutroulis, above note 3, pp. 274–276; Greenwood, Christopher, ‘The administration of occupied territory in international law’, in Playfair, Emma (ed.), International Law and the Administration of Occupied Territories, Clarendon Press, Oxford, 1992, p. 263Google Scholar.

35 Hague Regulations, articles 42–56.

36 V. Koutroulis, above note 3, pp. 156–157.

37 ICJ, DRC v. Uganda, Judgment, above note 19, pp. 228, 231, and 254–255, paras. 167, 178–179, and 254. The Court considered that Uganda was responsible for violations of IHL (including the Hague Regulations) until 2 June 2003, the date of the final withdrawal of the Ugandan forces from DRC territory.

38 GC IV, p. 292.

39 E. David, above note 7, p. 263; Bothe, Michael, Partsch, Karl J., and Solf, Waldemar A., ‘Article 3’, in New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague/Boston/London, 1982, p. 59Google Scholar; Kolb, Robert, ‘Deux questions ponctuelles relatives au droit de l'occupation de guerre’, in Revue Hellénique de Droit International, Vol. 61, 2008, pp. 358–360Google Scholar; Ben-Naftali, Orna, ‘“A la recherche du temps perdu”: rethinking Article 6 of the Fourth Geneva Convention in the light of the legal consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion’, in Israel Law Review, Vol. 38, 2005, p. 217CrossRefGoogle Scholar; Alonzo-Maizlish, David, ‘When does it end? Problems in the law of occupation’, in Arnold, Roberta and Hildbrand, Pierre-Antoine (eds), International Humanitarian Law and the 21st Century's Conflicts, Changes and Challenges, Editions interuniversitaires suisses – Edis, Lausanne, 2005, p. 106Google Scholar (with some doubts).

40 ICJ, Wall advisory opinion, above note 10, p. 185, para. 125.

41 V. Koutroulis, above note 3, pp. 163–179. For a critical assessment of the application of GC IV, Art. 6, para. 3 by the ICJ, see Imseis, Ardi, ‘Critical reflections on the international humanitarian law aspects of the ICJ Wall advisory opinion’, in American Journal of International Law, Vol. 99, No. 1, 2005, pp. 105–109CrossRefGoogle Scholar; O. Ben-Naftali, above note 39, pp. 214–220.

42 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (AP I), UNTS, Vol. 1125, No. I–17512, 1979, p. 8, Art. 3(b).

43 According to the ICRC's list of States Parties to the main IHL treaties, last updated 4 June 2012, available at: http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf (last visited 5 July 2012).

44 These states are: Andorra, Azerbaijan, Bhutan, Eritrea, India, Indonesia, Iran, Israel, Kiribati, Malaysia, Marshall Islands, Myanmar, Nepal, Niue, Pakistan, Papua New Guinea, Singapore, Somalia, South Sudan, Sri Lanka, Thailand, Turkey, Tuvalu, and the United States.

45 Draft API, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977)Google Scholar (hereafter Official Records of the 1974–1977 Diplomatic Conference), Bern, Federal Political Department, 1978, Vol. I, Part Three, p. 4. See also ibid., Vol. VIII, CDDH/I/SR.8, 8th meeting, 18 March 1974, p. 60, para. 9; ibid., Vol. III, pp. 16 and 17. Pakistan and the US were among the states that proposed relevant amendments. For the opinions expressed by delegations see, e.g., ibid., Vol. VIII, CDDH/I/SR.10, 10th meeting, 19 March 1974, p. 73, paras. 21 and 25, and p. 74, para. 35; ibid., Vol. VIII, CDDH/I/SR.21, 21st meeting, 13 February 1975, p. 196, para. 33. An overview of the amendments concerning Article 3 shows that the abolition of the time limit imposed by Article 6, para. 3 of GC IV was not called into question: see ibid., Vol. III, pp. 15–18.

46 Ibid., vol. VIII, CDDH/I/SR.26, 26th meeting, 13 March 1975, pp. 247–248, para. 4; ibid., Vol. VI, CDDH/SR.36, 36th plenary meeting, 23 May 1977, p. 57.

47 For a list of participants see ibid.,Vol. II, pp. 29 ff.

48 The 2005 US Law of War Handbook cites AP I, Art. 3, among the rules regulating the end of the application of the Geneva Conventions; Maj. Puls, K. E. (ed.), Law of War Handbook (2005), JA 423Google Scholar, International and Operational Law Department, The Judge Advocate General's Legal Center and School, Charlottesville, VA, 2005, p. 149, available at: http://www.loc.gov/rr/frd/Military_Law/pdf/law-war-handbook-2005.pdf (last visited 5 July 2012). The Supreme Court of Israel has not invoked Article 6, para. 3 of GC IV, and has referred to articles whose application does not extend beyond the ‘one-year’ time limit: Supreme Court of Israel, Ajuri v. IDF Commander, 3 September 2002, HCJ 7015, 7019/02 (citing Article 78); Marab v. IDF Commander, 5 February 2003, HCJ 3239/02, pp. 11–12, 16, 24–25, paras. 21–22, 28, 42 (citing Articles 78 and 113); Yassin v. Commander of Kziot Military Camp, 18 December 2002, HCJ 5591/02, pp. 17–18, para. 17 (citing Article 85); all available at: http://elyon1.court.gov.il/eng/home/index.html (last visited 5 July 2012). See also Kretzmer, David, ‘The Advisory Opinion: the light treatment of international humanitarian law’, in American Journal of International Law, Vol. 99, No. 1, 2005, p. 91CrossRefGoogle Scholar, note 23; G. Harpaz and Y. Shany, above note 33, p. 539 (noting that Israel has never openly objected to Article 3 of AP I). The High Contracting Parties to GC IV called upon Israel to ‘fully and effectively respect’ that convention: the declaration ‘reflects the common understanding reached by the participating High Contracting Parties’ to the conference. The text of the declaration is reproduced in Fux, Pierre-Yves and Zambelli, Mirko, ‘Mise en oeuvre de la Quatrième Convention de Genève dans les territoires palestiniens occupés: historique d'un processus multilatéral (1997–2001)’, Annex 1: Conference of High Contracting Parties to the Fourth Geneva Convention, Geneva, 5 December 2001, in International Review of the Red Cross, Vol. 84, No. 847, 2002, pp. 683–686Google Scholar. Aside from Israel, the US, and Australia, all the other States Parties to GC IV subscribed to the declaration (see Communiqué de presse, Swiss Federal Department of Foreign Affairs, 5 December 2001). Moreover, in the context of the Wall advisory procedure before the ICJ, no state invoked Article 6, para. 3 of GC IV as limiting the application of occupation law. Malaysia and the League of Arab States invoked GC IV articles not listed among those applicable beyond the ‘one-year’ time limit: Malaysia, ICJ, Wall advisory proceedings, Written Statement of Malaysia, 30 January 2004, pp. 48 and 49, paras. 134 and 137; League of Arab States, ibid., Written Statement of the League of Arab States, 28 January 2004, paras. 9.7 and 9.10.

49 Emphasis added. The relevant resolutions are: UN GA Res. 60/107, 8 December 2005, pp. 1, 3; UN GA Res. 61/119, 14 December 2006, pp. 1, 3; UN GA Res. 62/109, 17 December 2007, pp. 1, 3; UN GA Res. 63/98, 5 December 2008, pp. 2, 4; UN GA Res. 64/94, 10 December 2009, pp. 2, 4; UN GA Res. 65/105, 10 December 2010, pp. 2, 4; UN GA Res. 66/79, 9 December 2011, pp. 2, 4.

50 The states that did not vote in favour of either of the aforementioned resolutions were the US, Israel, and the Marshall Islands; Niue and Kiribati did not take part in the vote. See UN GA, A/60/PV.62, 8 December 2005, p. 16; UN GA, A/61/PV.79, 14 December 2006, p. 10; UN GA, A/62/PV.75, 17 December 2007, pp. 10–11; UN GA, A/63/PV.64, 5 December 2008, pp. 10–11; UN GA, A/64/PV.62, 10 December 2009, p. 12; UN GA, A/65/PV.62, 10 December 2010, p. 11; UN GA, A/66/PV.81, 9 December 2011.

51 The first draft of GC IV stipulated that the Convention would remain applicable until the end of an occupation: Draft Convention for the Protection of Civilian Persons in Time of War, in Final Record of the Diplomatic Conference of Geneva of 1949, Federal Political Department, Berne (n.d.), Vol. I, p. 114 (Art. 4). It was the United States that proposed an amendment introducing the ‘one-year’ time limit to the application of the Convention, justified by the fact that occupation leads to a progressive return of governmental responsibilities to local authorities and that, following such a return, the Occupying Power should not be subject to the relevant obligations of the Convention: ibid., Vol. II-A, p. 623.

52 For example, the delegates of Bulgaria (ibid., Vol. II-A, p. 624) and Norway (ibid.).

53 See the comments on Article 6 by Committee III to the Plenary Assembly of the 1949 Diplomatic Conference: ibid., p. 815.

54 Ibid., p. 625.

55 The relevance of the distinction between the articles listed in Art., 6 para. 3 of GC IV and the ones excluded from the provision has also been challenged. Roberts notes that the great majority of the GC IV articles pertaining to occupation remain applicable even after the ‘one-year’ time limit: see A. Roberts, above note 4, pp. 55–56. Comparing Articles 49 and 53, which remain applicable even after the ‘one-year’ limit, with Article 50, whose application is excluded, Kolb correctly notes that the reasons for the distinction between the two categories of rules are not always clear: see R. Kolb, above note 39, pp. 355–356.

56 V. Koutroulis, above note 3, pp. 168–169.

57 R. Kolb, above note 39, p. 359.

58 This contribution will not deal with the possibility of adapting IHL occupation law through the adoption of binding Security Council resolutions.

59 The expression is used in Chinkin, Christine, ‘Laws of occupation’, in Botha, Neville, Olivier, Michele, and Van Tonder, Delarey (eds), Multilateralism and International Law with Western Sahara as a Case Study, Unisa Press, Pretoria, 2010, p. 178Google Scholar.

60 A. Roberts, above note 4, pp. 52–53. See also C. Chinkin, above note 59, p. 178: ‘In a prolonged occupation there may be strong reasons for recognizing the powers of an occupant in certain specific respects – for example, because there is a need to make drastic and permanent changes in the economy or the system of government. At the same time, there may be strong reasons for limiting the occupant's powers in other respects’.

61 Y. Dinstein, above note 3, p. 120.

62 O. Ben-Naftali, above note 39, pp. 218–219.

63 Y. Dinstein, above note 3, p. 120.

64 Hague Regulations, Art. 43: ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’.

65 GC IV, Art. 64, p. 328: ‘The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.’ See, in this respect, the discussion in T. Ferraro, above note 12, pp. 72–74.

66 See also, Sassòli, Marco, ‘Legislation and maintenance of public order and civil life by Occupying Powers’, in European Journal of International Law, Vol. 16, no. 4, 2005, pp. 663–680CrossRefGoogle Scholar; Yoram Dinstein, ‘Legislation under Article 43 of the Hague Regulations: belligerent occupation and peacebuilding’, Program on Humanitarian Policy and Conflict Research (HPCR), Harvard University, Occasional Paper Series, Fall 2004, p. 8, available at: http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper1.pdf (last visited 5 July 2012); Schwenk, Edmund H., ‘Legislative power of the military occupant under Article 43, Hague Regulations’, in Yale Law Journal, Vol. 54, 1944–1945, pp. 395Google Scholar ff.

67 M. Sassòli, above note 66, pp. 663–664; Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, State University of New York Press, Albany, NY, 2002, pp. 58–59Google Scholar; E. H. Schwenk, above note 66, p. 393.

68 Court of Criminal Appeal established at the British Zone of Control in Germany, Grahame v. The Director of Prosecutions, British Zone of Control, Control Commission, 26 July 1947, Annual Digest and Reports of Public International Law Cases, Vol. 14, 1947, p. 232. The Supreme Court of Israel, Askan case, above note 9, p. 19, para. 18, states that Article 43 ‘extends to the public order and life in all their aspects … such as economic, social, educational, hygenic [sic], medical, traffic and similar matters that are connected with life in a modern society’.

69 Commentary GC IV, above note 5, p. 335; M. Sassòli, above note 66, pp. 669–671; Y. Dinstein, above note 66, pp. 4–6. Schwenk's analysis confirms that the exceptions introduced by Article 64 of GC IV were in conformity with the interpretation of the phrase ‘unless absolutely prevented’ before the adoption of GC IV, Art. 64: see E. H. Schwenk, above note 66, pp. 399–402.

70 See GC IV, Art. 64, para. 2, above note 65. For an analysis of the scope of this provision see M. Sassòli, above note 66, pp. 674–675 and 678–679. Penal legislation is specifically regulated by GC IV, Art. 64, para. 1.

71 It has, for example, been considered that an Occupying Power would be absolutely prevented from applying local legislation contrary to international law in general, with particular reference to human rights norms. See UK, Military Manual, above note 7, pp. 278–279, para. 11.11; M. Sassòli, above note 66, pp. 676–678; Robert Y. Jennings, ‘Government in commission’, in British Year Book of International Law, Vol. 23, 1946, p. 132, n. 1; Mann, F. A., ‘The present legal status of Germany’, in International Law Quarterly, Vol. 1, No. 3, 1947, p. 321Google Scholar.

72 See E. David, above note 7, pp. 567–568 and 571–572; D. Kretzmer, above note 67, pp. 62 ff.; Dinstein, Yoram, ‘The Israel Supreme Court and the law of belligerent occupation: Article 43 of the Hague Regulations’, in Israel Yearbook on Human Rights, Vol. 25, 1995, pp. 12–16Google Scholar. For an extensive analysis of the scope of Article 43, including reference to the travaux préparatoires of the provision, see E. H. Schwenk, above note 66, pp. 395 ff.

73 Supreme Court of Israel, Bassil Abu Aita et al. v. The Regional Commander of Judea and Samaria and Staff Officer in Charge of Matters of Custom and Excise – Omar Abdu Kadar Kanzil et al. v. Officer in Charge of Customs, Gaza Strip Region and the Regional Commander of the Gaza Strip, HC 69/81 – HC 493/81, 5 April 1983, pp. 133–134, para. 50, available at: http://elyon1.court.gov.il/files_eng/81/690/000/z01/81000690.z01.pdf (last visited 5 July 2012). We are not commenting here on the subordination of Articles 48 and 49 of the Hague Regulations to Article 43, since the duration of the occupation has not been invoked as an argument in favour of this subordination. For a comment, see Y. Dinstein, above note 72, pp. 16–20.

74 Supreme Court of Israel, Askan case, above note 9, p. 39, para. 36.

75 See the case law cited in Y. Dinstein, above note 3, pp. 118–119.

76 See ‘Statement by the International Committee of the Red Cross, Geneva, 5 December 2001’, Conference of High Contracting Parties to the Fourth Geneva Convention, para. 3, available at http://www.icrc.org/eng/resources/documents/misc/57jrgw.htm (last visited 5 July 2012): ‘the Occupying Power … must ensure the protection, security and welfare of the population living under occupation. This also implies allowing the normal development of the territory, if the occupation lasts for a prolonged period of time’. See also Cuba, Wall advisory proceedings, Written Statement of the Republic of Cuba, 30 January 2004, p. 12.

77 Supreme Court of Israel, Askan case, above note 9, p. 17, para. 16.

78 Ibid., pp. 23–24, para. 22.

79 Ibid., p. 24, para. 22.

80 Ibid., p. 25, para. 22.

81 Ibid.

82 Ibid., pp. 28–29, para. 26.

83 Ibid., p. 27, para. 23.

84 Ibid., pp. 30–31, para. 27.

85 Ibid., p. 31, para. 27.

86 Ibid., p. 33, para. 29 (emphasis added).

87 Ibid., p. 33–34, para. 29.

88 Ibid.

89 Ibid., pp. 34–37, para. 31 and pp. 39–41, paras. 35–37.

90 Ibid., p. 25, para. 22.

91 Hague Regulations, Art. 46: ‘Private property cannot be confiscated’.

92 See above note 85. The Court allowed for one exception to this rule, in cases where the local institutions are opposed ‘in their substance to fundamental notions of justice and morality’ (Askan case, above note 9, p. 27, para. 23). Although this exception is formulated in broad and vague terms, it is submitted that it should be read as referring to the cases covered by Hague Regulations, Art. 43, read together with GC IV, Art. 64, para. 2 (i.e. legislation contrary to fundamental IHRL rules).

93 Palestine, Wall advisory proceedings, Written Statement Submitted by Palestine, 30 January 2004, p. 274, para. 596; UN Economic and Social Council, Commission on Human Rights, ‘Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine: Report of the Human Rights Inquiry Commission established pursuant to Commission resolution S–5/1 of 19 October 2000’, UN Doc. E/CN.4/2001/121, 16 March 2001, p. 20, para. 68; R. Falk, above note 4, p. 46; Abouali, Gamal, ‘Natural resources under occupation: the status of Palestinian water under international law’, in Pace International Law Review, Vol. 10, No. 2, 1998, p. 508Google Scholar; Editor's Note accompanying the Basic Abu Ita judgment of the Supreme Court of Israel, in Palestinian Yearbook of International Law, Vol. 4, 1987–1988, p. 186; Meron, Theodor, ‘Applicability of multilateral conventions to occupied territories’, in American Journal of International Law, Vol. 72, No. 3, 1978, p. 550CrossRefGoogle Scholar; G. H. Fox, above note 8, p. 235. At the time of Israel's occupation of parts of southern Lebanon, Lebanon had also denounced the link by Israel of ‘the economic and administrative infrastructure of southern Lebanon to its own’ as ‘creeping annexation’: see letter dated 16 July 1990 from the Permanent Representative of Lebanon to the United Nations addressed to the Secretary-General, UN Doc. S/21396, 16 July 1990, p. 1. See also Jordan, Wall advisory proceedings, Written Statement Submitted by the Hashemite Kingdom of Jordan, 30 January 2004, pp. 79–80, para. 5.106 (referring to de facto annexation).

94 See above note 87 and accompanying text.

95 Supreme Court of Israel, ‘Yesh Din’ – Volunteers for Human Rights v. The Commander of IDF Forces in the West Bank and others, HCJ 2164/09, 26 December 2011, available at: http://www.yesh-din.org/userfiles/file/ןיד%20תוערכה/psak.pdf (last visited 5 July 2012).

96 Ibid., pp. 4–5, paras. 2–3. Article 55 of the Hague Regulations reads as follows: ‘The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct’.

97 Supreme Court of Israel, Yesh Din Judgment, above note 95, p. 11, para. 7.

98 Ibid.

99 Ibid., pp. 12–14, para. 8. For a persuasive critical analysis of this issue, see Guy Harpaz, Yuval Shany, Eyal Benvenisti, Amichai Cohen, Yael Ronen, Barak Medina, and Orna Ben-Naftali, Expert Legal Opinion, opinion with regard to the issues arising from the Yesh Din judgment in support of the petitioners’ motion for a review of the judgment (En Banc review), January 2012, pp. 38 ff.

100 Supreme Court of Israel, Yesh Din Judgment, above note 95, pp. 14–16 paras. 7 and 9.

101 Ibid., p. 16, para. 10.

102 Ibid., p. 17, paras. 10–12.

103 Ibid., p. 18, para. 13.

104 Ibid., p. 19, para. 13.

105 For a general critical analysis of the judgment, see G. Harpaz et al., above note 99.

106 For example, the meaning of ‘usufruct’ is unlikely to vary according to the duration of the occupation.

107 See, along the same lines, G. Harpaz et al., above note 99, pp. 45–48, who insist that the character of the prohibition to use the capital of the natural resources is an absolute one that admits no exceptions or adjustments of degree.

108 Ministry of Foreign Affairs of Israel, ‘Israel: Ministry of Foreign Affairs memorandum of law on the right to develop new oil fields in Sinai and the Gulf of Suez’, 1 August 1977, in International Legal Materials, Vol. 17, No. 2, 1978, pp. 434–435, paras. 5 and 10.

109 US Department of State, ‘United States: Department of State memorandum of law on Israel's right to develop new oil fields in Sinai and the Gulf of Suez’, 1 October 1976, in International Legal Materials, Vol. 16, No. 3, 1977, pp. 733–753CrossRefGoogle Scholar. The occupation in question dated from 1967.

110 Ibid., p. 746: ‘A rule holding out the prospect of acquiring unrestricted access to and use of resources and raw materials, would constitute an incentive to territorial occupation by a country needing raw materials, and a disincentive to withdrawal’. For a defence of this policy consideration, see Clagett, Brice M. and Johnson, O. Thomas Jr., ‘May Israel as a belligerent occupant lawfully exploit previously unexploited oil resources of the Gulf of Suez?’, in American Journal of International Law, Vol. 72, No. 3, 1978, pp. 577–578CrossRefGoogle Scholar.

111 Israel, Ministry of Justice, HCJ 2164/09 Yesh Din, Response on Behalf or Respondents 1–2, 20 May 2010, para. 52, available at: http://yesh-din.org/userfiles/file/Petitions/Quarries/Quarries%20State%20Response%20May%202010%20ENG.pdf (last visited 5 July 2012): ‘in a state of prolonged belligerent occupation, the prevailing belief is that the military administration acquires additional positive duties in relation to the area it is administering’.

112 Supreme Court of Israel, Yesh Din Judgment, above note 95, p. 18, para. 12.

113 G. Harpaz et al., above note 99, p. 30, para. 84. The experts cite several judgments of the Supreme Court of Israel confirming this position.

114 Ibid., p. 33, para. 92. As the experts correctly underline: ‘the decision adjusts the provisions [i.e. Articles 43 and 55] to accommodate the reality on the ground instead of subjecting that reality to the rule of law and limiting the authorities of the military Commander so as to accord with the provisions of the laws of occupation’.

115 See above notes 111–112.

116 Supreme Court of Israel, Askan case, above note 9, p. 24, para. 22 and pp. 28–29, para. 26; G. Harpaz et al., above note 99, p. 30, para. 84.

117 Supreme Court of Israel, Askan case, above note 9, p. 29, para. 26.

118 As the Supreme Court of Israel suggests: see Supreme Court of Israel, Askan Judgment, above note 9, p. 27, para. 23 and p. 31, para. 27.

119 ICJ, Wall advisory opinion, above note 10, p. 182, para. 116.

120 Ibid., p. 184, para. 121 (emphasis in the original).

121 Supreme Court of Israel, Jaber Al-Bassiouni Ahmed et al. v. Prime Minister and Minister of Defence, HCJ 9132/07, Judgment, 30 January 2008, para. 12; Supreme Court of Israel, A and B v. State of Israel, CrimA 6659/06 and others, Judgment, 11 June 2008, para. 11. Both judgments are available at: http://elyon1.court.gov.il/eng/home/index.html (last visited 5 July 2012). See also Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission), Report, Part One, January 2011, pp. 50–53, paras. 45–47, available at: http://www.turkel-committee.gov.il/files/wordocs/8707200211english.pdf (last visited 5 July 2012).

122 Supreme Court of Israel, Al-Bassiouni Judgment, above note 121, para. 12. See also Supreme Court of Israel, Physicians for Human Rights et al. v. Prime Minister of Israel et al. and Gisha Legal Centre for Freedom of Movement et al. v. Minister of Defence, HCJ 201/09 and 248/09, Judgment, 19 January 2009, p. 13, para. 14. Both judgments are available at: http://elyon1.court.gov.il/eng/home/index.html (last visited 5 July 2012).

123 The supply of electricity was one of the first issues that the Supreme Court of Israel decided taking into account the ‘prolonged occupation’ argument. See Supreme Court of Israel, The Jerusalem District Electric Company Ltd. v. The Minister of Energy and Infrastructure, HCJ 351/80, Judgment, cited in Supreme Court of Israel, Askan Judgment, above note 9, p. 31, para. 27.

124 Supreme Court of Israel, Al-Bassiouni Judgment, above note 121, paras. 13 ff.

125 Dinstein affirms that the real source of such obligation is that Gaza still remains under belligerent occupation: Y. Dinstein, above note 3, pp. 276–279. As has already been noted, this is also the point of view of the present author: see above note 26.

126 Akande, Dapo, ‘Classification of armed conflicts: relevant legal concepts’, in Wilmshurst, Elizabeth (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, p. 48Google Scholar.

127 See the references cited above at note 26.

128 Along the lines of the view head by the ICJ in its DRC v. Uganda Judgment, above note 19, pp. 229–231, paras. 172–178. See also Turkel Commission, above note 121, pp. 51–53, paras. 46–47. For a critical appraisal of this interpretation, see V. Koutroulis, above note 3, pp. 47–58.

129 G. Harpaz et al., above note 99, p. 18, paras. 45–46.

130 The experts ‘were unanimously of the view that the welfare of the local population played a key role’ in situations of prolonged occupation: see T. Ferraro, above note 12, p. 72.

131 Ibid., pp. 75–76.

132 Schmitt, Michael N., ‘Military necessity and humanity in international humanitarian law: preserving the delicate balance’, in Virginia Journal of International Law, Vol. 50, No. 4, 2010, p. 798Google Scholar. The preamble of the 1907 Hague Convention IV respecting the Laws and Customs of War on Land (above note 1) notes that the wording of the Convention's provisions ‘has been inspired by the desire to diminish the evils of war, as far as military requirements permit’. See also the preamble of the Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Saint Petersburg, 29 November/11 December 1868, available at: http://www.icrc.org/ihl.nsf/FULL/130?OpenDocument (last visited 5 July 2012).

133 UK Military Manual, above note 7, pp. 21–22, para. 2.2. See, along the same lines, Canada, Military Manual, above note 7, p. 2–1, para. 202; US, Law of Land Warfare, above note 7, p. 4; France, Ministère de la Défense, Manuel de droit des conflits armés, Secrétariat général pour l'administration, Direction des Affaires juridiques, Sous-direction du droit international et du droit européen, Bureau du droit des conflits armés, (undated), p. 48. These definitions can be traced back to the 1863 Lieber Code. Military necessity was defined there as ‘the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war’ (Article 14), with the additional precision that ‘in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult’ (Article 16): Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, available at: http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument (last visited 5 July 2012).

134 UK Military Manual, above note 7, pp. 21–22, para. 2.2.

135 See the military manuals cited above, as well as Australia, Royal Australian Air Force, Operations Law for RAAF Commanders, AAP 1003, Royal Australian Air Force, 2nd edition, 2004, p. 50, para. 6.7 (hereafter Royal Australian Air Force, Military Manual), available at: http://airpower.airforce.gov.au/Publications/Details/156/AAP1003-Operations-Law-for-RAAF-Commanders-2nd-Edition.aspx (last visited 5 July 2012); Germany, Military Manual, above note 7, paras. 131–132. See also, ICJ, Wall advisory proceedings, Egypt, Legal Memorandum Submitted by the Arab Republic of Egypt, 28 January 2004, p. 39; League of Arab States, Written Statement of the League of Arab States, 28 January 2004, p. 52, para. 9.5. This has been confirmed by legal doctrine: see International Law Commission, Report of the International Law Commission, Fifty-third session (23 April–1 June and 2 July–10 August 2001), UN Doc. A/56/10, 2001, p. 219, para. 19 and pp. 220–221, para. 21; Hayashi, Nobuo, ‘Requirements of military necessity in international humanitarian law and international criminal law’, in Boston University International Law Journal, Vol. 28, 2010, p. 52Google Scholar; M. N. Schmitt, above note 132, pp. 796 ff.; Downey, William Gerald Jr., ‘The law of war and military necessity’, in American Journal of International Law, Vol. 47, 1953, pp. 253–254CrossRefGoogle Scholar; Carnahan, Burrus M., ‘Lincoln, Lieber and the laws of war: the origins and limits of the principle of military necessity’, in American Journal of International Law, Vol. 92, No. 2, 1998, p. 218CrossRefGoogle Scholar; Draper, Gerald I. A. D., ‘Military necessity and humanitarian imperatives’, in Revue du droit pénal militaire et du droit de la guerre, Vol. 12, 1973, No. 2, pp. 133–134Google Scholar; McCoubrey, Hilary, ‘The nature of the modern doctrine of military necessity’, in Revue du droit pénal militaire et du droit de la guerre, Vol. 30, 1991, p. 221Google Scholar.

136 For a detailed list of the relevant provisions, see Kolb, Robert, ‘La nécessité militaire dans le droit des conflits armés: essai de clarification conceptuelle’, in Colloque de Grenoble de la Société française pour le droit international, La nécessité en droit international, Pedone, Paris, 2007, pp. 176–178Google Scholar.

137 Some scholars distinguish between the ‘restrictive’ and the ‘permissive’ function of military necessity: see Melzer, Nils, Targeted Killing in International Law, Oxford University Press, Oxford, 2008, pp. 286–291CrossRefGoogle Scholar. Along the same lines but with different terminology, see also R. Kolb, above note 136, pp. 164–173.

138 We found no trace of such an interpretation in states’ military manuals. Equally revealing is the fact that none of the states intervening during the written and oral phase of the Wall proceedings before the ICJ referred to the possibility of applying military necessity in a broader manner owing to the long-lasting character of the occupation in question. States interventions are available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=4&code=mwp&case=131&k=5a&p3=0 (last visited 5 July 2012). Moreover, no such interpretation has been advanced by either Israel or the ICJ in the Wall advisory opinion.

139 See the text of Article 14 of the Lieber Code, cited above at note 128.

140 Ibid. See also, Royal Australian Air Force, Military Manual, above note 135, p. 49, para. 6.6; Norway, Norwegian Armed Forces Joint Operational Doctrine, Organisation and Instruction Authority, Defence Staff, p. 34, para. 0247; Germany, Military Manual, above note 7, para. 130.

141 See above note 135 and the accompanying text.

142 Such considerations are excluded from the scope of military necessity. See N. Hayashi, above note 135, pp. 64 ff. with analysis of the Elon Moreh decision of the Supreme Court of Israel. The case concerned an order to requisition privately owned Palestinian land in order to establish a settlement. The Court held that the order was null and void because it was founded on a predominantly political decision and thus was outside the scope of the military necessity exception provided for by Article 52 of the Hague Regulations (‘Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation’): Supreme Court of Israel, Duweikat et al. v. Government of Israel et al., HCJ 390/79, 22 October 1979, reproduced in International Legal Materials, Vol. 19, 1980, pp. 171–175. The Supreme Court of Israel has stated generally that ‘[t]he Military Commander may not consider the national, economic and social interests of his own state, so long as they do not affect his security interest in the Region or the interest of the local population’: Supreme Court of Israel, Askan Judgment, above note 9, p. 13, para. 13. This was reaffirmed, in relation to Article 43 of the Hague Regulations, in the Yesh Din judgment: Supreme Court of Israel, Yesh Din Judgment, above note 95, p. 15, para. 8. See also H. McCoubrey, above note 135, p. 227; B. M. Carnahan, above note 135, pp. 219 ff.

143 Hague Regulations, Article 52.

144 GC IV, Art. 53 (emphasis added): ‘Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations’.

145 GC IV, Arts. 48 and 35.

146 For an interpretation of the scope of this exception, see Y. Arai-Takahashi, above note 3, pp. 223–225.

147 For example, economic interests: see Commentary GC IV, above note 5, p. 236.

148 See ICJ, Wall advisory proceedings, Written Statement of the League of Arab States, pp. 86–87, para. 9.13; Egypt, Legal Memorandum, p. 39; Palestine, Written Statement, 30 January 2004, pp. 199–202, paras. 442–449; Syria, Memorandum presented by the Syrian Arab Republic, 30 January 2004, p. 17; Morocco, Written Statement of the Kingdom of Morocco, 30 January 2004, p. 11; Organisation of the Islamic Conference, Written Statement of the Organisation of the Islamic Conference, January 2004, p. 10, para. 35; France, Written Statement of the French Republic, 30 January 2004, p. 10, paras. 42–43; Ireland, Statement of the Government of Ireland, January 2004, pp. 7–8, paras. 2.8–2.9; Sweden, Note Verbale dated 30 January 2004 from the Embassy of the Kingdom of Sweden to the Netherlands, together with the Statement of the Kingdom of Sweden, 30 January 2004, para. 7.

149 Supreme Court of Israel, Askan case, above note 9, p. 24, para. 22.

150 See A. Roberts, above note 4, pp. 52–53; C. Chinkin, above note 59, p. 178; O. Ben-Naftali, above note 39, pp. 218–219.

151 A. Roberts, above note 4, p. 47.

152 See above note 30.

153 See above note 31, as well as C. Chinkin, above note 59, pp. 174–178; Koury, Stephanie, ‘The European Community and Member States’ duty of non-recognition under the EC–Morocco Association Agreement: state responsibility and customary international law’, in Arts, Karin and Leite, Pedro Pinto (eds), International Law and the Question of Western Sahara, International Platform of Jurists for East Timor, Oporto, 2007, pp. 172–174Google Scholar; Vincent Chapaux, ‘The question of the European Community–Morocco Fisheries Agreement’, in K. Arts and P. Pinto Leite, this note, pp. 224–226.

154 ICJ, Wall advisory proceedings, Jordan, Written Statement of the Hashemite Kingdom of Jordan, 30 January 2004, p. 143, para. 5.279.

155 See the definition given in Sandoz, Yves, Swinarski, Christophe, and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar, ‘Article 51’, p. 617, para. 1936. For scholars in favour of a narrow interpretation, see among others Scobbie, Iain, ‘The Wall and international humanitarian law’, in Yearbook of Islamic and Middle Eastern Law, Vol. 9, 2002–2003, p. 504Google Scholar; Carroll, Martin B., ‘Israeli demolition of Palestinian houses in the Occupied Territories: an analysis of its legality in international law’, in Michigan Journal of International Law, Vol. 11, 1989–1990, pp. 1210–1213Google Scholar.

156 GC IV, Art. 51, para. 2, p. 320: ‘The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary … for the needs of the army of occupation’.

157 Commentary GC IV, above note 5, p. 294; Y. Arai-Takahashi, above note 3, p. 351.

158 Switzerland, Wall advisory proceedings, Written Statement of the Swiss Confederation, 30 January 2004, p. 6, para. 26 (emphasis added).

159 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 240, para. 25 (hereafter Nuclear Weapons advisory opinion); ICJ, Wall advisory opinion, above note 10, pp. 178–181, paras. 106–113; ICJ, DRC v. Uganda Judgment, above note 19, pp. 242–243, para. 216; ECHR, Loizidou v. Turkey (Preliminary Objections), above note 30, paras. 62–64; ECHR, Loizidou v. Turkey, Judgment, above note 30, paras. 54, 57; ECHR, Al-Skeini and others v. The United Kingdom, Case No. 55721/07, Judgment, 7 July 2011, paras. 138–142 (the ECHR judgments are available at: http://cmiskp.echr.coe.int (last visited 5 July 2012)).

160 Switzerland, Wall advisory proceedings, above note 158, p. 6, para. 27; UN General Assembly, Note by the Secretary General, Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, 4 October 2001, UN Doc. A/56/440, p. 4, para. 5; UN Economic and Social Council, Commission on Human Rights, above note 93, p. 12, para. 37: ‘A prolonged occupation, lasting for more than 30 years, was not envisaged by the drafters of the Fourth Geneva Convention (see art. 6). Commentators have therefore suggested that in the case of the prolonged occupation, the Occupying Power is subject to the restraints imposed by international human rights law, as well as the rules of international humanitarian law.’

161 See among many, A. Roberts, above note 4, pp. 70–74; R. Falk, above note 4, p. 46; Lubell, Noam, ‘Challenges in applying human rights law to armed conflict’, in International Review of the Red Cross, Vol. 87, No. 860, 2005, pp. 752–753CrossRefGoogle Scholar; Watkin, Kenneth, ‘Controlling the use of force: a role for human rights norms in contemporary armed conflict’, in American Journal of International Law, Vol. 98, No. 1, 2004, p. 28CrossRefGoogle Scholar; Ben-Naftali, Orna and Shany, Yuval, ‘Living in denial: the application of human rights in the Occupied Territories’, in Israel Law Review, Vol. 37, No. 1, 2003–2004, p. 40CrossRefGoogle Scholar.

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163 Ibid.

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167 ICJ, Nuclear Weapons advisory opinion, above note 159, p. 240, para. 25; ICJ, Wall advisory opinion, above note 10, p. 178, para. 106.

168 A. Lindroos, above note 166, pp. 41–42; I. Scobbie, above note 166, p. 453, H. Krieger, above note 166, p. 269; D. Richter, above note 166, p. 319. It has rightly been pointed out that the ICJ itself, in the Nuclear Weapons advisory opinion, formulated the lex specialis rule in relation to the application of a specific norm, namely that of Article 6 of the International Covenant of Civil and Political Rights (ICCPR), 19 December 1966, UNTS, vol. 999, p. 175: see V. Gowlland-Debbas, above note 166, pp. 138–139; M. Milanović, above note 166, p. 99.

169 The UN International Law Commission Study Group on Fragmentation indicates that, while the maxim lex specialis derogat legi generali may sometimes appear as a ‘conflict-resolution technique’, this may not always be the case: International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 13 April 2006, p. 35, para. 57. For the notion of ‘conflict of norms’, see ibid., pp. 17–20, paras. 21–26.

170 V. Gowlland-Debbas, above note 166, pp. 138–139. This is the case even for the ICJ Nuclear Weapons advisory opinion. In that case, what the Court essentially did was to interpret the adjective ‘arbitrary’ in Article 6 of the ICCPR according to IHL, therefore operating a ‘harmonizing interpretation’ rather than excluding the application of one rule over another: see D. Richter, above note 166, pp. 290–291.

171 A. Guellali, above note 166, p. 557; M. Milanović, above note 166, p. 116.

172 UN Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 11.

173 ICJ, Wall advisory opinion, above note 10, p. 178, para. 106; ICJ, Armed Activities Judgment, above note 19, pp. 242–243, para. 216; ICJ, Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, ICJ Reports 2008, p. 387, para. 112 (adopted by eight votes to seven, with a highly critical joint dissenting opinion of the seven dissenting judges: ibid., p. 402, para. 10).

174 See C. Droege, above note 166, p. 339 and pp. 340–344 (on the various facets of complementarity); V. Gowlland-Debbas, above note 166, p. 141; N. Prud'homme, above note 166, pp. 386–393. The ECHR also seems to adhere to this view. In an application launched before the Court by Georgia against the Russian Federation following the 2008 hostilities between them, Russia invoked the lex specialis rule and argued that, since the alleged violations took place in the context of an international armed conflict, ‘the conduct of the Stat Party's forces was governed exclusively by international humanitarian law’ and thus lay outside the ratione materiae scope of the European Convention on Human Rights: ECHR, Georgia v. Russia, Appl. No. 38263/08, Decision, 13 December 2011, pp. 23–24, para. 69. The Court reserved the assessment of the question to the merits stage of the procedures, but not without confirming the applicability of the Convention in cases of armed conflict. It also stated that: ‘Article 2 must be interpreted in so far as possible in the light of the general principles of international law, including the rules of international humanitarian law … . Generally speaking, the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part’ (ibid., p. 25, para. 72).

175 See M. Sassòli, above note 166, p. 73. Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, UNTS, Vol. 213, p. 221 (hereafter EConvHR).

176 K. Watkin, above note 161, p. 28. See also, Harris, Grant T., ‘Human rights, Israel, and the political realities of occupation’, in Israel Law Review, Vol. 41, Nos 1–2, 2008, p. 104CrossRefGoogle Scholar.

177 N. Lubell, above note 161, p. 752.

178 This relates to the question of the extraterritorial application of human rights treaties, a question that goes beyond the scope of this article. The present writer considers, along with the majority of legal scholars, that situations of occupation bring the local population under the jurisdiction of the Occupying Power, rendering IHRL treaties applicable. See, among many, G. T. Harris, above note 176, pp. 112–115, and the references cited therein.

179 ICJ, Wall advisory opinion, above note 10, pp. 187–189, paras. 127–131 and pp. 191–192, para. 134.

180 See, among many decisions, the case law cited above note 159.

181 D. Richter, above note 166, pp. 303–306.

182 Inter-American Commission for Human Rights, ‘Report on Terrorism and Human Rights’, 22 October 2002, OEA/Ser.L/V/II.116, Doc. 5 rev.1 corr, para. 146, available at: http://www.cidh.org/Terrorism/Eng/toc.htm (last visited 5 July 2012) (emphasis added).

183 GC IV, Art. 51, p. 320.

184 ICCPR, Art. 8, para. 3: ‘(a) No one shall be required to perform forced or compulsory labour. (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court. (c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include: (i) Any work or service, not referred to in sub-paragraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations’.

185 This presupposes that the Occupying Power in question has not invoked Article 4 of the ICCPR in order to derogate from GV IV, Art. 8, para. 3: see ICCPR, Art. 4, para. 2.

186 Which does not seem to be the case, since states continue to acknowledge the power of the occupier to compel members of the occupied population to work: see the military manuals referred to in relation to Rule 95 of the ICRC study on customary IHL, available at: http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule95 (last visited 5 July 2012).

187 See above note 157 and accompanying text.

188 GC IV, Art. 78.

189 Of course, the existence of large-scale and long-lasting hostilities against the Occupying Power might give rise to the question whether the occupant is in a position to exercise the control necessary for the existence of a belligerent occupation. However, it is accepted that occasional successes of resistance fighters in an occupied territory do not put an end to belligerent occupation. See UK, Military Manual, above note 7, p. 277, para. 11.7.1; Canada, Military Manual, above note 7, p. 12–2, para. 1203; US, Law of Land Warfare, above note 7, p. 139, para. 360; V. Koutroulis, above note 3, p. 54.

190 The freedom of movement is set out in Article 12 of the ICCPR and in Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocols, 16 September 1963, UNTS, vol. 1496, p. 263. The right to privacy is set out in Article 17 of the ICCPR and in Article 8 of the EConvHR. The articles with respect to which no derogations are permitted are listed in the following two notes.

191 ICCPR, Art. 4, para. 1. Paragraph 2 of the article lists the non-derogable articles of the ICCPR: ‘No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision’.

192 EConvHR, Art. 15: ‘(1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (2) No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision’.

193 The mere existence of a belligerent occupation, even if it meets with no armed resistance, is constitutive of an international armed conflict: see Article 2 common the Geneva Conventions, para. 2.

194 Human Rights Committee (HRC), General Comment No. 29: States of Emergency (Article 4), 31 August 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, p. 2, para. 3.

195 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Israel’, 3 September 2010, UN Doc. CCPR/C/ISR/CO/3, para. 7.

196 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Thailand’, 8 July 2005, UN Doc. CCPR/CO/84/THA, para. 13; HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Algeria, 12 December 2007, UN Doc. CCPR/C/DZA/CO/3, para. 14 ; HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Israel’, 21 August 2003, UN Doc. CCPR/CO/78/ISR, p. 3, para. 12.

197 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Syrian Arab Republic’, 9 August 2005, UN Doc. CCPR/CO/84/SYR, para. 6.

198 For example, Mongolia proclaimed a state of emergency for four days in 2008, in order to stop a demonstration that led to mass disorder and unrest and to prevent the broadening of its scope. The HRC did not question this determination: HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Mongolia’, 2 May 2011, UN Doc. CCPR/C/MNG/CO/5, para. 12.

199 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Russian Federation’, 24 November 2009, UN Doc. CCPR/C/RUS/CO/6, para. 7.

200 See above note 192.

201 The Court has dealt mainly with what were qualified as ‘terrorist activities’ by the respondent states in relation to Article 15. See, e.g., ECHR, Lawless v. Ireland, Appl. No. 332/57, Judgment, 1 July 1961, paras. 23–30; ECHR, Ireland v. The United Kingdom, Appl. No. 5310/71, Judgment, 18 January 1978, para. 205; ECHR, Brannigan and McBride v. The United Kingdom, Appl. No. 14553/89 and 14554/1989, Judgment, 25 May 1993, paras. 43–47; ECHR, Aksoy v. Turkey, Appl. No. 21987/93, Judgment, 18 December 1996, paras. 68–70; ECHR, Demir and others v. Turkey, Appl. No. 71/1997/855/1062–1064, Judgment, 23 September 1998, paras. 43–45; ECHR, Bilen v. Turkey, Appl. No. 34482/97, Judgment, 21 February 2006, paras. 46–47.

202 See the cases mentioned in the previous note.

203 Again, see the cases mentioned in note 201.

204 Moir, Lindsay, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 196Google Scholar.

205 See Commentary GC IV, above note 5, pp. 20–21; E. David, above note 7, p. 123; Kosirnik, René, ‘Droit international humanitaire et protection des camps de réfugiés’, in Swinarski, Christophe (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, Geneva/The Hague, 1984, p. 389Google Scholar; Quéguiner, Jean-François, ‘Dix ans après la création du Tribunal pénal international pour l'ex-Yougoslavie: évaluation de l'apport de sa jurisprudence au droit international humanitaire’, in International Review of the Red Cross, Vol. 85, No. 850, 2003, p. 275Google Scholar.

206 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Second periodic report of States Parties due in 1984: Syrian Arab Republic’, 25 August 2000, UN Doc. CCPR/C/SYR/2000/2, p. 10, para. 50.

207 Syrian Arab Republic, ‘Comments by the Government of the Syrian Arab Republic on the Concluding Observations of the Human Rights Committee: Syrian Arab Republic’, 28 May 2002, UN Doc. CCPR/CO/71/SYR/Add.1, para. 4.

208 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Syrian Arab Republic’, 24 April 2001, UN Doc. CCPR/CO/71/SYR, para. 6. See also HRC, UN Doc. CCPR/CO/84/SYR, above note 197, para. 6 (on the concern over the continuing state of emergency).

209 HRC, ‘Consideration of report submitted by Algeria’, above note 196, para. 14 (state of emergency proclaimed in 1992); HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Egypt’, 28 November 2002, UN Doc. CCPR/CO/76/EGY, para. 6. The state of emergency proclaimed by Egypt dates back to 1981: HCR, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee: Egypt, Addendum: Comments by the Government of Egypt on the Concluding Observations of the Human Rights Committee’, 4 November 2003, UN Doc. CCPR/CO/76/EGY/Add.1, para. 7 (the state of emergency was founded on the need to deal with terrorism and to protect the security and stability of society).

210 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Second Periodic Report, Addendum: Israel’, 4 December 2001, UN Doc. CCPR/C/ISR/2001/2, p. 19, para. 71.

211 HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Initial report of States Parties due in 1993, Addendum: Israel’, 9 June 1998, UN Doc. CCPR/C/81/Add.13, para. 106.

212 Ibid. See also HRC, ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Third periodic report of States Parties due in 2007: Israel’, 21 November 2008, UN Doc. CCPR/C/ISR/3, pp. 41–42, para. 161.

213 Invoking the existence of an occupation in order to justify the state of emergency is highly unlikely in the case of Israel, since it does not accept that the ICCPR applies to the Occupied Palestinian Territories.

214 HRC, UN Doc. CCPR/CO/78/ISR, above note 196, p. 3, para. 12. The HRC has also indicated that the sweeping nature of measures adopted during this state of emergency goes beyond what is permissible under the ICCPR. See also HRC, UN Doc. CCPR/C/ISR/CO/3, above note 195, para. 7.

215 See above note 192.