This is an extensively revised version of a paper presented at a conference on the administration of occupied territories, Jerusalem, Jan. 22–25, 1988, organized by al-Haq, Ramallah. A book of papers from the conference, edited by Emma Playfair, will appear in due course.

¹ This can be inferred from, e.g., D. A. Graber, The Development of the Law of Belligerent Occupation 1863–1914: A Historical Survey 37–40 (1949).

² Id. at 290–91.

³ The U.S. military occupation of Japan ended on Apr. 28, 1952, with the entry into force of the Peace Treaty between the two countries. The occupation by the three Western powers of West Germany ended on May 5, 1955. The Soviet occupation of East Germany can be said to have formally ended with the opening of diplomatic relations between the two countries on Sept. 20, 1955, following a Soviet government statement of Mar. 25, 1954. The city of Berlin remains in some technical sense occupied, and hence qualifies as a case of prolonged occupation, but the powers of the Allies are minimal.

⁴ Convention respecting the Laws and Customs of War on Land, with annexed Regulations, Oct. 18, 1907, 36 Stat. 2277, TS No. 539, 205 Parry’s TS 277.

On the UK discussion about the legal status of defeated Germany, see especially F. S. V. Donnison, Civil Affairs and Military Government: Central Organization and Planning 125–36(1966).

⁵ Jennings, Government in Commission, 23 Brit. Y.B. Int’l L. 112, 135–36 (1946).

⁶ Germany, Occupation After World War II, [Instalment] 3 Encyclopedia of Public International Law 191, 196–97 (R. Bernhardt ed. 1982).

⁷ Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287. See Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 22 (J. Pictet ed. 1958) [hereinafter Pictet]; G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 281, 283 (1957); UK War Office, The Law of War on Land: Being Part III of the Manual of Military Law 140 (1958); and M. Greenspan, The Modern Law of Land Warfare 216–17, 224–27 (1959).

There might thus seem to be at least a theoretical possibility that a future postsurrender occupation would be subject to the Geneva Convention but not to the Hague Regulations, inasmuch as the latter stress mainly the preservation of the status quo against the background of war, while the former puts somewhat more emphasis on the protection of the individual inhabitants. (Israeli courts have to some extent reversed this formula, having relied more on the Hague than the Geneva rules.) However, most, if not all, future postsurrender occupations would be brought within the ambit of the Hague Regulations because of several factors, including (1) they are customary in character; and (2) in relations between powers bound by the 1899 or 1907 Hague Conventions, the fourth Geneva Convention (Art. 154) states that it is “supplementary” to the Hague Regulations.

⁸ Agreement concerning the Ryukyu Islands and the Daito Islands with related arrangements, June 17, 1971, United States-Japan, 23 UST 446, TIAS No. 7314. See also Keesing’s Contemporary Archives 24,715 (1971).

⁹ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16 (Advisory Opinion of June 21).

Key UN resolutions on Namibia include the following. Before 1971: GA Res. 2145 (XXI) (Oct. 27, 1966) (terminating South Africa’s mandate); GA Res. 2372 (XXII) (June 12, 1968) (referring several times to South Africa’s “occupation” of South West Africa and proclaiming that it “shall henceforth be known as Namibia”); and SC Res. 284 (July 29, 1970). After the Court’s advisory opinion, a consistent stream of UN resolutions referred specifically to South Africa’s “illegal occupation” of Namibia. See, e.g., SC Res. 301 (Oct. 20, 1971); SC Res. 366 (Dec. 17, 1974); SC Res. 385 (Jan. 30, 1976); GA Res. 2871 (XXVI) (Dec. 20, 1971); GA Res. 41/39 (Nov. 20, 1986); SC Res. 601 (Oct. 30, 1987); and GA Res. 43/26 (Nov. 17, 1988).

¹⁰ See Agreement among the People’s Republic of Angola, the Republic of Cuba, and the Republic of South Africa, Dec. 22, 1988, UN Doc. S/20346 (1988), reprinted in 28 ILM 957 (1989) (providing for implementation of SC Res. 435 (Sept. 29, 1978) on steps to establish Namibian independence); Agreement between the Government of the Republic of Cuba and the Government of the People’s Republic of Angola for the Conclusions of the Internationalist Mission of the Cuban Military Contingent, Dec. 22, 1988, UN Doc. S/20345 (1988), reprinted in 28 ILM 959 (1989) (providing for staged withdrawal of Cuban troops from Angola). Elections to a constituent assembly were held in Namibia on Nov. 7–11, 1989. The last South African troops stationed in Namibia withdrew to their own country on Nov. 23–24, 1989.

¹¹ 1971 ICJ Rep. at 55.

¹² See, e.g., GA Res. 2871, supra note 9.

¹³ See, e.g., id.; GA Res. 2403 (XXIII) (Dec. 16, 1968); and GA Res. S-14/1 (Sept. 20, 1986).

¹⁴ 1971 ICJ Rep. at 70.

¹⁵ See GA Res. 33/15 (Nov. 9, 1978); GA Res. 34/30 (Nov. 20, 1979); and GA Res. 37/253 (May 13, 1983). In subsequent years, the question of Cyprus has been deferred by the General Assembly.

¹⁶ GA Res. 34/37 (Nov. 21, 1979); and GA Res. 35/19 (Nov. 11, 1980). Subsequent resolutions do not use the term “occupation” but do reaffirm the need for self-determination. See, e.g., GA Res. 43/33 (Nov. 22, 1988).

¹⁷ GA Res. 37/6 (Oct. 28, 1982); GA Res. 40/7 (Nov. 5, 1985); and GA Res. 43/19 (Nov. 3, 1988).

¹⁸ Keesing’s Record of World Events 36,588 (1989). Vietnam was subsequently reported to have completed this withdrawal in the week ending Sept. 30, 1989, but without supervision by international observer forces.

¹⁹ See, e.g., British statement of July 13, 1982, quoted in 53 Brit. Y.B. Int’l L. 352 (1982).

²⁰ Occupations that have differed in some respects from the classic case of a belligerent occupation include that of the Rhineland after 1918, the Franco-Belgian occupation of the Ruhr in 1923–1925, the German occupation of Bohemia and Moravia from March 1939, and Namibia since 1971. In these cases, certain courts and tribunals have accepted the use of the term “occupation” and the applicability of international rules, including, e.g., the Hague Regulations. Roberts, What Is a Military Occupation?, 55 Brit. Y.B. Int’l L. 249, 275, 278, 291–92(1984).

²¹ Jones, Military Occupation of Alien Territory in Time of Peace, 9 Grotius Soc’y, Transactions 149, 159–60 (1924). See also Roberts, supra note 20, at 273–79.

²² Also, 18 out of the 48 states parties formally bound by the very similar terms of the second 1899 Hague Convention did not become parties to the 1907 agreement. Convention with respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, TS No. 403. Most of the provisions of the regulations annexed to these two Conventions are identical.

Information about states parties to the second 1899 Convention and the fourth 1907 Convention supplied by the depositary (the Netherlands Ministry of Foreign Affairs), and valid as of July 1, 1988. See Documents on the Laws of War 44 and 58–59 (A. Roberts & R. Guelff 2d ed. 1989) [hereinafter Roberts & Guelff].

In addition, some states became bound by these two Hague Conventions through general declarations of succession to treaties (e.g., at the time of independence), even if they have not so notified the depositary. This explains why some sources give higher figures for states parties. According to the U.S. Department of State, the number of parties to the second 1899 Convention and the fourth 1907 Convention are 56 and 43, respectively. Department of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 1989, at 363 and 363–64.

²³ For the leading judgment to this effect, see 22 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 497 (1948). Note also Meron’s statement that “the customary law status of the Regulations annexed to the Convention is universally recognized.” T. Meron, Human Rights and Humanitarian Norms as Customary Law 226 (1989).

²⁴ International Committee of the Red Cross [ICRC], List of Signatures, Ratifications, etc. (Jan. 31, 1989); and Addendum (Feb. 7, 1989).

²⁵ For an excellent discussion, see Meron, The Geneva Conventions as Customary Law, 81 AJIL 348 (1987). See also T. Meron, supra note 23, at 41–62.

²⁶ Convention and Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 240. Information about states parties supplied by the depositary (UNESCO), and valid as of July 1, 1988. See Roberts & Guelff, supra note 22, at 367–70.

²⁷ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 1125 UNTS 3. For information about states parties, see ICRC, List of Signatures, Ratifications, etc. (Nov. 3, 1989). The figure 92 includes the USSR, which ratified this Protocol (and Protocol II, on noninternational armed conflicts) on Sept. 29, 1989.

²⁸ See, e.g., President Reagan’s Letter of Transmittal of Protocol II to the U.S. Senate, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987); and T. Meron, supra note 23, at 62–70.

²⁹ Although a great deal of published writing has some bearing on the subject, very few papers or articles have been specifically devoted to prolonged occupation either in general or in the Arab-Israeli context. There have not been any such articles in some of the journals where they might have been expected, e.g., the Israel Yearbook on Human Rights, the Revue Egyptienne de Droit International and the Palestine Yearbook of International Law. Falk, Some Legal Reflections on Prolonged Israeli Occupation of Gaza and the West Bank, 2 J. Refugee Stud. 40 (1989), is very much the exception.

³⁰ Shamgar, Legal Concepts and Problems of the Israeli Military Government—the Initial Stage, in 1 Military Government in the Territories Administered by Israel: The Legal Aspects 13, 43 (M. Shamgar ed. 1982) [hereinafter Military Government]. For statements on the same issue in Supreme Court judgments, see infra text at notes 177 and 178.

³¹ Fourth Geneva Convention, supra note 7, Art. 6, para. 3.

³² Cohen, E., Human Rights in the Israeli-Occupied Territories 1967–1982, at 51 (1985)Google Scholar. Cohen also reports the opinion of Shabtai Rosenne, a legal adviser to the Israeli foreign ministry, given in a 1977 interview, that

the period of one year after the general cessation of hostilities set by the framers of Article 6 was arbitrary. While not admitting to the applicability of the Convention to the Israeli occupied territories, he felt that all the humanitarian provisions of the Convention, and not just those provided in Article 6, should be applied de facto ….

Id. at 62 n. 103.

³³ For an analysis written in 1969 or 1970 claiming that there had been no “general close of military operations” and that the Geneva Convention therefore remained fully applicable, see Hammad, The Culprit, the Targets and the Victims, in 2 The Arab-Israeli Conflict 366 (J. N. Moore ed. 1974).

³⁴ See, e.g., 2A Final Record of the Diplomatic Conference of Geneva of 1949, at 623–25.

³⁵ Pictet, supra note 7, at 62–63. In addition, Pictet suggests that where there has been no military resistance, no state of war and no armed conflict, the Convention will remain fully applicable as long as the occupation lasts. However, it is far from clear (1) whether this was the intention of the negotiators; and (2) what the logic is in treating such occupations differently.

³⁶ Bothe, M., Partsch, K. & Solf, W., New Rules for Victims of Armed Conflicts 59, also 57 (1982)Google Scholar. See also Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 68 (Y. Sandoz, C. Swinarski & B. Zimmermann eds. 1987).

³⁷ 1907 Hague Regulations, supra note 4, Arts. 42, 43, 48, 49, 51, 52, 53 and 55.

³⁸ In K.N.A.C. v. State of the Netherlands, 16 Ann. Dig. 468 (Dist. Ct. The Hague 1949), the court said:

Though the regime envisaged by the Hague Regulations for occupied territory comprised a military administration with civil departments subordinate to it, the setting up by the Occupant of a separate civil administration to control the existing civil administration left functioning, was not forbidden and must, on the contrary, be held to be a permissible complement of the maintenance of the latter administration in office.

Id.

In the Ansar Prison case (No. H.C. 593/82) (July 13, 1983), telex transcript 13, the Israeli Supreme Court said, apropos of Israel’s occupation of parts of Lebanon: “the application of the third chapter of the Hague Rules or of the parallel instructions in the Fourth [Geneva] Convention are not conditioned upon the establishment of a special organizational framework in the form of a Military Government ….” For extracts and a short summary of this leading judgment, see 13 Isr. Y.B. Hum. Rts. 360 (1983).

On various possible forms of administrative structure under occupation, see U.S. Dep’t of the Army, The Law of Land Warfare 10, 139 and 141 (Field Manual No. 27–10, 1956); and UK War Office, supra note 7, at 145. For an indication that there are limits to the constitutional changes an occupying power may bring about, see Pictet, supra note 7, at 273.

³⁹ 1907 Hague Regulations, supra note 4, Art. 48.

⁴⁰ Feilchenfeld, E., The International Economic Law of Belligerent Occupation 49 (1942)Google Scholar.

⁴¹ Fourth Geneva Convention, supra note 7, Arts. 7(1) and 47.

⁴² Rubinstein, The Changing Status of the “Territories” (West Bank and Gaza): From Escrow to Legal Mongrel, 8 Tel Aviv U. Stud. in L. 61 (1988). On Jordan’s 1988 disengagement from the West Bank, see infra text at note 120.

⁴³ Camp David Agreements, Sept. 17, 1978, Egypt-Israel-United States, 17 ILM 1466 (1978).

⁴⁴ The enabling legislation for the extension of Israeli law and of municipal boundaries was the Municipalities Ordinance (Amendment No. 6) Law, June 27, 1967, 21 Laws of the State of Israel 75 (1967). The act of annexation was the Basic Law: Jerusalem, Capital of Israel, July 30, 1980, 34 id. at 209 (1980). For a succinct Israeli exposition, see Y. Blum, The Juridical Status of Jerusalem (Jerusalem Papers on Peace Problems No. 2, Hebrew University, 1974).

⁴⁵ Agreement on Disengagement between Israeli and Syrian Forces, May 31 and June 5, 1974, 13 ILM 880 (1974). The Israeli military withdrawal to the new lines was completed by June 26, 1974.

⁴⁶ Golan Heights Law, Dec. 14, 1981, 36 Laws of the State of Israel 7 (1982).

⁴⁷ Agreement on Disengagement of Forces in Pursuance of the Geneva Peace Conference, Jan. 18, 1974, Egypt-Israel, 13 ILM 23 (1974), which provided for the withdrawal of all Israeli forces from the areas they had held west of the Suez Canal since the cease-fire at the end of the 1973 war, and for an Israeli pullback east of the canal to the area covered by the Mitla and Giddi Passes; and Agreement on the Sinai and Suez Canal, Egypt-Israel, Sept. 4, 1975, and various associated agreements, 14 ILM 1450 (1975), which provided for an Israeli withdrawal from a further 2,500 square miles of occupied Egyptian territory in Sinai, including the oil fields at Ras Sudar and Abu Rudeis, in return for certain Egyptian political undertakings, and on the basis of major pledges and commitments by the United States. Full implementation of the latter agreement was completed on Feb. 22, 1976.

On the background, content and implementation of these agreements, and the role of the United States and United Nations, see Keesing’s Contemporary Archives 26,317, 27,429 and 28,381 (1974, 1975 and 1977).

⁴⁸ Treaty of Peace, Mar. 26, 1979, Egypt-Israel, 18 ILM 362 (1979). Article II stated: “The permanent boundary between Egypt and Israel is the recognized international boundary be tween Egypt and theformer mandated territory of Palestine … without prejudice to the issue of the status of the Gaza Strip.”

⁴⁹ Agreement Regarding the Permanent Boundary Between Egypt and Israel, Feb. 26, 1989, 28 ILM 611 (1989). This Agreement followed the Egypt-Israel arbitral tribunal award of Sept. 29, 1988, 27 ILM 1421 (1988). The disputed area at Taba was returned to Egypt on Mar. 15, 1989.

⁵⁰ See, e.g., UN General Assembly and Security Council resolutions, infra notes 79, 86–88 and 153. The Israeli laws on the status of East Jerusalem and the Golan Heights do not use the word “annexation” and do not extend Israeli citizenship to the local population.

⁵¹ It was so viewed by the Israeli Supreme Court in the Ansar Prison case, supra note 38, 13 Isr. Y.B. Hum. Rts. at 362–63. A question in the Knesset on Mar. 23, 1983, yielded the answer that the provisions of the fourth Geneva Convention were applied in Lebanon “on humanitarian grounds,” implying that the Convention was not viewed as formally applicable. Rubinstein, supra note 42, at 63.

⁵² See supra notes 22–27 for the sources of depositary information about the states parties to these agreements, their customary law status, and details of declarations, reservations, etc.

⁵³ Syria, at accession in November 1983, made a declaration that its accession to Protocol I in no way amounts to recognition of Israel or the establishment of any relations with it regarding the application of the Protocol.

In a note to the depositary, Israel objected to this declaration: “the Geneva Conventions and the Protocols are not the proper place for making such hostile political pronouncements, which are, moreover, in flagrant contradiction to the principles, objects and purposes of the Conventions and the Protocols.” The Syrian declaration “cannot in any way affect whatever obligations are binding … under general international law or under particular conventions.” As for the substance of the matter, Israel would adopt towards Syria “an attitude of complete reciprocity.” Roberts & Guelff, supra note 22, at 466–67.

⁵⁴ Shamgar, The Observance of International Law in the Administered Territories, 1 Isr. Y.B. Hum. Rts. 262–77 (1971). This very influential article was first presented at a symposium at Tel Aviv University in 1971, when the author was Attorney General.

⁵⁵ Id. at 266; and Rubinstein, supra note 42, at 63. The latter refers to Order No. 3 as evidence that immediately after the 1967 war it seemed clear that the Convention would apply to the territories. However, that proclamation was in fact issued during the war; and, as he notes, the section mentioning the Convention was repealed soon after the war.

⁵⁶ Resolutions on the applicability of the fourth Geneva Convention on which Israel abstained: GA Res. 3092A (XXVIII) (Dec. 7, 1973); GA Res. 3240B (XXIX) (Nov. 29, 1974); andGA Res. 31/106B(Dec. 16, 1976). Since 1977, Israel has always voted against the applicability of the Convention: see infra note 87.

⁵⁷ See Shamgar, supra note 54; see also Shamgar, supra note 30, at 48; Nathan, The Power of Supervision of the High Court of Justice over Military Government, in Military Government, supra note 30, at 109, 129, 131–32 and 163–66. Nathan says re the Preamble to the Hague Convention: “This language would appear to express the intention of the parties … that insofar as the Regulations embody norms of international law, these are binding as minimum standards of international law, even in situations not directly covered by the Regulations.” Id. at 132.

⁵⁸ E. Cohen, supra note 32, at 43, 51 and 58 nn.49, 50.

⁵⁹ For elements of such doubt about the fourth Hague Convention, see the Israeli Ministry of Foreign Affairs, Memorandum of Law (Aug. 1, 1977), 17 ILM 432, 432–33 and 442 (1978) (on offshore oil exploration in the Gulf of Suez). See also infra note 162 and accompanying text.

⁶⁰ See infra note 175 and accompanying text.

⁶¹ See infra text at notes 166–79.

⁶² See the ICRC statement on the 20th anniversary of the occupation, ICRC Bull., No. 137, June 1987, at 1, noting that the ICRC has had free access to all the occupied territories, but listing a number of “persistent violations” of the fourth Geneva Convention.

⁶³ Fourth Geneva Convention, supra note 7, Art. 2, paras. 1–2.

⁶⁴ The clearest expositions of this Israeli view are in Blum, The Missing Reversioner: Reflections on the Status of Judea and Samaria, 3 Isr. L. Rev. 279 (1968); Shamgar, supra note 30, at 13–60; and Farhi, On the Legal Status of the Gaza Strip, in Military Government, supra note 30, at 61–83.

Crown Prince Hassan Bin Tallal of Jordan has denied that Jordan’s position in the West Bank up to 1967 was that of occupant. He does not specify the precise status Jordan did have there. He argues that even if Jordan was a belligerent occupant up to 1967, it would not follow that Israel was free of legal limitations after 1967—especially in light of the provisions of the Geneva Convention. H. Bin Tallal, Palestinian Self-Determination: A Study of the West Bank and Gaza Strip 67–68 (1981).

⁶⁵ For an authoritative Israeli statement relying on the second paragraph of common Article 2, see Shamgar, supra note 54, at 262–77. See also his revised presentation (responding to the argument that the relevant paragraph is the first, not the second) in Shamgar, supra note 30, at 37–40.

For a commentary on Article 2, see Pictet, supra note 7, at 21, which leaves little room for doubt that it is the first paragraph that is relevant to the territories occupied by Israel in the 1967 war.

⁶⁶ See supra note 20.

⁶⁷ Dinstein, The International Law of Belligerent Occupation and Human Rights, 8 Isr. Y.B. Hum. Rts. 105(1978).

⁶⁸ Justice Witkon, judgment in the Beth-El case (H.C. 606/78 and 610/78), translated in Military Government, supra note 30, at 371, 374:

Each of us obviously knows of recent political developments that have occurred in our region, of the peace negotiations …. We deal with the rights of the parties according to the existing situation prevailing between Israel and the Arab countries. This situation is one of belligerency, and the status of the respondents in respect of the occupied territory is that of an occupying power.

On the Beth-El case, see also infra text at notes 166–71.

⁶⁹ See Dinstein, The Israel Supreme Court and the Law of Belligerent Occupation: Reunification of Families, 18 Isr. Y.B. Hum. Rts. 173, 173–74 (1988).

⁷⁰ See, e.g., Haim H. Cohn, Foreword to The Rule of Law in the Areas Administered by Israel, at vii–viii (Israel National Section of the International Commission of Jurists, 1981); M. Benvenisti, The West Bank Data Project: A Survey of Israel’s Policies 37 (American Enterprise Institute, 1984); and Shamgar, supra note 30, at 32–33 and 42–43.

⁷¹ On the Supreme Court’s position in this regard, see infra text at notes 165–73.

⁷² For a reasoned account and criticism by a leading Israeli international lawyer, see Dinstein, supra note 67, especially at 106–08. See also E. COHEN, supra note 32, at 51–56; and Rubin stein, supra note 42, at 63–67. For a critical view by a British academic, see J. R. Gainsbor Ough, The Arab-Israeli Conflict: A Politico-Legal Analysis 159 (1986).

⁷³ See infra notes 86–88 and accompanying text.

⁷⁴ Art. 2, Palestinian National Covenant, adopted by the PLO at its National Congress in Cairo in July 1968. The boundaries of Palestine during the British Mandate (which ended in 1947) encompassed all of the territory of Israel in its 1949–1967 frontiers, plus the Gaza Strip and the West Bank; they had also encompassed Jordan until 1922. For the text and exposition of Article 2, including discussion of whether it involves a claim to Jordan, see Y. Harkabi, The Palestinian Covenant and Its Meaning 33–39 and 113 (1979).

⁷⁵ 2 Palestine Y.B. Int’l L. 191 (1985).

⁷⁶ See especially Trainin, Questions of Guerrilla Warfare in the Law of War, trans, from Russian and reprinted in 40 AJIL 534, 535 (1946).

⁷⁷ Yahia, F., The Palestine Question and International Law 184 (PLO Research Center, Beirut, 1970)Google Scholar.

⁷⁸ UNESCO Doc. 22 C/18 (Aug. 30, 1983).

⁷⁹ The term “illegal occupation” has been used sparingly in UN resolutions. As regards the Israeli-occupied territories, GA Res. 32/20 (Nov. 25, 1977) expressed concern “that the Arab territories occupied since 1967 have continued, for more than ten years, to be under illegal Israeli occupation.” The term was also used in GA Res. 33/29 (Dec. 7, 1978). These resolutions were the exception rather than the rule. The voting figures for each resolution, showing countries for and against and abstentions (102-4-29 and 100-4-33, respectively), contain substantially fewer votes in favor than most General Assembly resolutions criticizing the Israeli occupation attracted in those years.

Some resolutions have implied the illegality of the occupation per se, without actually using the term “illegal occupation.” For example, GA Res. 43/54A (Dec. 6, 1988) “[c]ondemns Israel’s continued occupation of the Palestinian territory occupied since 1967, including Jerusalem, and the other occupied Arab territories, in violation of the Charter of the United Nations, the principles of international law and the relevant resolutions of the United Nations.” Voting was 103-18-30.

The great majority of the numerous resolutions of the UN General Assembly and the Security Council on the Israeli occupation have not stated that it is illegal per se. They have deplored Israel’s conduct of the occupation, have condemned as illegal the purported annexation of parts of the occupied territories (including Jerusalem), and have called upon Israel to put an end to its occupation of Arab territories—but have not stated that the fact of the occupation is in itself illegal. See, e.g., GA Res. 41/63 (Dec. 3, 1986) and GA Res. 43/58A-G (Dec. 6, 1988). The omission of the term “illegal occupation” from most UN resolutions on the Arab-Israeli conflict is in sharp contrast to its repeated use in those on Namibia. See supra note 9.

⁸⁰ Palestinian works that appear to accept that the occupied territories are subject to the normal rules relating to occupations include R. Shehadeh, Occupier’s Law: Israel and the West Bank (Institute for Palestine Studies, Washington, D.C., 1985); and Kassim, Legal Systems and Developments in Palestine, 1 Palestine Y.B. Int’l L. 19, 29–32 (1984). However, neither of these studies contains a sustained and concentrated discussion of what parts of international law are applicable in the occupied territories.

⁸¹ See infra text at note 121.

⁸² See, e.g., the provisions regarding non-self-governing territories, and also regarding the trusteeship system, in UN Charter Arts. 73–85.

⁸³ Gerson, Trustee Occupant: The Legal Status of Israel’s Presence in the West Bank, 14 Harv. Int’l L.J. 1 (1973); A. Gerson, Israel, The West Bank and International Law 78–82 (1978).

⁸⁴ A. Gerson, supra note 83, at 82.

⁸⁵ The ICRC has done so consistently. See ICRC, Annual Reports for 1968 and subsequent years; and its statement, supra note 62.

⁸⁶ The first such resolution, urging in general terms respect for the principles contained in the third and fourth 1949 Geneva Conventions, was GA Res. 2252 (ES-V) (July 4, 1967) (116-0-2) (the figures in parentheses are votes for, votes against and abstentions).

In 1968 came the first of a stream of resolutions making specific comments about the occupied territories, and calling on Israel to comply with the fourth Geneva Convention, as well as with various other agreements, including the 1948 Universal Declaration of Human Rights. See GA Res. 2443 (XXIII) (Dec. 19, 1968) (60-22-37). Similar resolutions in the first 5 years of the occupation included GA Res. 2727 (XXV) (Dec. 15, 1970) (52-20-43); and GA Res. 3005 (XXVII) (Dec. 15, 1972) (63-10-49). The resolutions in this period attracted less support than the 1967 resolution cited above, and less than those from 1973 onwards mentioned in note 87. There are many possible reasons for this: one that should not be overlooked is that in these years the resolutions tended to combine statements about what law was applicable with other, more contentious statements.

⁸⁷ See, e.g., the following resolutions (in all cases of a negative vote, i.e., from 1977 onwards, it is Israel’s):

GA Res. 3092A (XXVIII) (Dec. 7, 1973) (120-0-5)

GA Res. 3240B (XXIX) (Nov. 29, 1974) (121-0-7)

GA Res. 32/5 (Oct. 28, 1977) (131-1-7)

GA Res. 35/122A (Dec. 11, 1980) (141-1-1)

GA Res. 38/79B (Dec. 15, 1983) (146-1-1)

GA Res. 41/63B (Dec. 3, 1986) (145-1-6)

GA Res. 43/58B (Dec. 6, 1988) (148-1-4)

The United States voted for these resolutions in some years (1973, 1974 and 1980), and abstained in the others. However, the United States continued to state that it viewed the Convention as applicable. “The United States recognizes Israel as an occupying power in all of these territories and therefore considers Israeli administration to be subject to the Hague Regulations of 1907 and the 1949 Fourth Geneva Convention concerning the protection of civilian populations under military occupation.” U.S. Department of State, Country Reports on Human Rights Practices for 1987, 100th Cong., 2d Sess. 1189 (1988).

⁸⁸ For example, SC Res. 237 (June 14, 1967), adopted unanimously (4 days after the ceasefire came into effect), recommended to the governments concerned “the scrupulous respect of the humanitarian principles governing the treatment of prisoners of war and the protection of civilian persons in time of war contained in the Geneva Conventions of 12 August 1949.”

SC Res. 446 (Mar. 22, 1979), adopted by 12 votes to none, with 3 abstentions (Norway, the United Kingdom and the United States), reaffirmed the applicability of the fourth Geneva Convention, as well as opposing the establishment of Israeli settlements in the occupied territories.

SC Res. 605 (Dec. 22, 1987) was strongly critical of Israeli conduct and reaffirmed that the Convention “is applicable to the Palestinian and other Arab territories occupied by Israel since 1967, including Jerusalem.” This resolution was adopted by 14 votes to none, with one abstention (the United States). Two weeks later, SC Res. 607 (Jan. 5, 1988), adopted unanimously, reaffirmed the applicability of the Convention.

⁸⁹ See Roberts, The Applicability of Human Rights Law During Military Occupations, 13 Rev. Int’l Stud. 39 (1987).

⁹⁰ See Meron, Applicability of Multilateral Conventions to Occupied Territories, 72 AJIL 542 (1978), reprinted (with slight alterations) in Military Government, supra note 30, at 217.

⁹¹ Bishop, W., Jr., International Law: Cases and Materials 470 (3d ed. 1971)Google Scholar.

⁹² See, e.g., GA Res. 2444 (XXIII) (Dec. 19, 1968) (adopted unanimously), which is on respect for human rights in armed conflicts generally; and the numerous General Assembly resolutions urging respect for human rights in specific armed conflicts and occupations, in cluding those on the Israeli-occupied territories cited in note 99 infra.

⁹³ In its advisory opinion on Namibia, the International Court of Justice may have had human rights law in mind (as well as the laws of war, often called international humanitarian law) when it pointed to the applicability of “certain general conventions such as those of a humanitarian character.” 1971 ICJ Rep. at 46, 55 and 57.

⁹⁴ The European Commission of Human Rights ruled applications by the Government of Cyprus in respect of the Turkish occupation admissible in Cyprus v. Turkey. See 1975 Y.B. Eur. Conv. on Hum. Rts. 82 (Nos. 6780/74 and 6950/75, Decision of May 26, 1975); and 1978 id. at 100 (No. 8007/77, Decision of July 10, 1978). The European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221, Art. 1, states that the high contracting parties shall secure certain rights and freedoms to everyone “within their jurisdiction.” The Commission found:

[T]his term is not equivalent to or limited to “within the national territory” of the High Contracting Party concerned. … [T]he High Contracting Parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, not only when that authority is exercised within their own territory but also when it is exercised abroad.

1978 Y.B. Eur. Conv. on Hum. Rts. at 230.

⁹⁵ See particularly Meron, The International Convention on the Elimination of All Forms of Racial Discrimination and the Golan Heights, 8 Isr. Y.B. Hum. Rts. 222 (1978); and Meron, West Bank and Gaza: Human Rights and Humanitarian Law in the Period of Transition, 9 id. at 106 (1979); see also Meron, supra note 90.

⁹⁶ E. Cohen, supra note 32, at 29.

⁹⁷ Ministry of Defence, Co-ordinator of Government Operations in Judea-Samaria and the Gaza District, Judea-Samaria and the Gaza District: A Sixteen-Year Survey (1967–1983) 60 (1983). For the International Covenant on Civil and Political Rights, Dec. 16, 1966, see 999 UNTS 171.

⁹⁸ Office of the Legal Adviser, memorandum (Sept. 12, 1984), written/or, and contained in, A. Roberts, B. Joergensen & F. Newman, Academic Freedom Under Israeli Military Occupation 80, 81 (World University Service, London/International Commission of Jurists, Geneva, 1984).

⁹⁹ See, e.g., GA Res. 2443 (XXIII) (Dec. 19, 1968); GA Res. 2546 (XXIV) (Dec. 11, 1969); GA Res. 2727 (Dec. 15, 1970); and the subsequent annual resolutions entitled “Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population in the Occupied Territories.” For the Universal Declaration of Human Rights, see GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

¹⁰⁰ See note 24 supra and accompanying text. For the Covenant on Civil and Political Rights, supra note 97, and the Covenant on Economic, Social and Cultural Rights, GA Res. 2200 (Dec. 16, 1966), see Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1988, at 120, 130, UN Doc. ST/LEG/SER.E/7 (1989).

Syria, at accession to the Covenants in April 1969, made a declaration to the same effect as that of its declaration on Protocol I, supra note 53. In a note to the depositary in July 1969, Israel objected to this declaration.

¹⁰¹ Possible overlap between human rights law and the laws of armed conflict was raised in Cyprus v. Turkey where, because of the applicability of the third Geneva Convention on prisoners of war, the European Commission of Human Rights did not find “it necessary to examine the question of a breach of Article 5 of the European Convention on Human Rights with regard to persons accorded the status of prisoners of war.” See T. Meron, Human Rights Law-Making in the United Nations 212 n.229 (1986) (quoting Eur. Comm’n of Hum. Rts., Report on Applications Nos. 6780/74 and 6950/75 (Cyprus v. Turk.) 109 (1976, declassified in 1979)). See also supra note 94.

¹⁰² Fourth Geneva Convention, supra note 7, Art. 78, para. 1.

¹⁰³ Critical work in English from the occupied territories includes many publications of the Palestinian affiliate of the International Commission of Jurists, al-Haq/Law in the Service of Man, Ramallah; and R. Shehadeh, supra note 80, which summarizes a range of complaints against Israeli practices.

¹⁰⁴ The work of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population in the Occupied Territories has illustrated the political hazards that can attend efforts to evaluate Israeli actions by reference to international-legal standards. Since it was set up in 1968, the committee has submitted annual reports, published by the United Nations. See, e.g., its 15th report, UN Doc. A/38/13 (1983). In the eyes of many Israelis, the committee was biased from the beginning and its reports one-sided. For a critical Israeli review, seeShefi, The Reports of the UN Special Committees on Israeli Practices in the Territories, in Military Government, supra note 30, at 285. The committee’s work may have reinforced two already existing tendencies in Israel: distrust of international organizations and reliance on unilateral, rather than multilateral, approaches.

For another critical view of the committee’s work, see Alderson, Curtis, Sutcliffe & Travers, Protection of Human Rights in Israeli-Occupied Territories, 15 Harv. Int’l L.J. 470 (1974). They suggest that the General Assembly, through the committee and through its resolutions concerning rights in the occupied territories, has had little discernible effect other than to antagonize Israel and add another element of contention to the disputes between Israel and its neighbors. Id. at 481. They conclude that parties to the fourth Geneva Convention need to

perfect and reaffirm the enforcement procedures prescribed in that agreement. They cannot rely exclusively upon United Nations action to ensure conformity with its provisions. A consistent theme in United Nations pronouncements on the enforcement of the Convention has been that it is only the parties themselves which are, in the last analysis, in a position to implement the procedures and exert the pressures which will make the Convention work.

Id. at 482.

¹⁰⁵ Dinstein, supra note 69, at 174. Note also Schachter’s observation, in Self-Defense and the Rule of Law, 83 AJIL 259, 263 (1989): “That states generally do not welcome international scrutiny of their defensive measures is hardly surprising. This attitude is especially marked when armed force is actually used, even though seen by the user as legitimate self-defense.” The same attitude characterizes military occupants.

¹⁰⁶ See Tabory, Universality at the UN: The Attempt to Reject Israel’s Credentials, 18 Isr. Y.B. Hum. Rts. 189(1988).

¹⁰⁷ GA Res. 3379 (XXX) (Nov. 10, 1975).

¹⁰⁸ See supra notes 86–88 and accompanying text.

¹⁰⁹ See, e.g., GA Res. 36/5 (Oct. 21, 1981); and GA Res. 43/19 (Nov. 3, 1988) (both on Kampuchea); GA Res. 2403 (XXIII) (Dec. 16, 1968); and GA Res. 43/26 (Nov. 17, 1988) (both on Namibia); and GA Res. 38/40 (Dec. 7, 1983); and GA Res. 43/33 (Nov. 22, 1988) (both on Western Sahara).

¹¹⁰ See supra text at note 64.

¹¹¹ On the evolution within the international community of the idea of Palestinian self-determination, see especially S. & T. Mallison, The Juridical Bases for Palestinian Self-Determination, 1 Palestine Y.B. Int’l L. 36 (1984). On the emergence of nationalism among the Palestinian Arabs, see the important study by an Israeli scholar, Y. Porath, The Emergence of the Palestinian-Arab National Movement 1918–1929 (1974).

¹¹² On political developments in the West Bank, see particularly two fine studies by an Israeli and a Palestinian academic, respectively: M. Ma’oz, Palestinian Leadership on the West Bank: The Changing Role of the Mayors Under Jordan and Israel (1984); and E. Sahliyeh, In Search of Leadership: West Bank Politics Since 1967 (1988). In 1979–1980 Ma’oz was an adviser on Arab affairs to the Israeli Defense Minister, and to the Coordinator for Activities in the Territories.

¹¹³ SC Res. 242 (Nov. 22, 1967) provided for Israeli withdrawal from territories occupied in the 1967 war, coupled with a termination of all claims or states of belligerency. SC Res. 338 (Oct. 22, 1973) reaffirmed Res. 242 and called for negotiations “aimed at establishing a just and durable peace in the Middle East.” These resolutions, accepting as they did Israel’s right to exist, and making no specific mention of Palestinian self-determination, were for many years viewed with deep suspicion by the PLO.

¹¹⁴ The first such resolution was GA Res. 2535B (XXIV) (Dec. 10, 1969). Another key resolution was GA Res. 2672C (XXV) (Dec. 8, 1970), which recognized that “the people of Palestine are entitled to equal rights and self-determination, in accordance with the Charter of the United Nations.” These early resolutions attracted only modest support: votes for and against and abstentions were, respectively, 48-22-47, and 47-22-50.

¹¹⁵ Camp David Agreements, supra note 43. For a succinct account of the negotiation of these accords, referring to memoirs of participants, see S. Sofer, Begin: An Anatomy of Leadership 189–200 (1988). According to Sofer, as late as March 1978, “Sadat was inclined to agree that a Palestinian state should not be established.” Id. at 187.

¹¹⁶ Keesing’s Contemporary Archives 30,635 (1980).

¹¹⁷ The Arab Peace Plan, adopted by the Twelfth Arab Summit Conference, held at Fez, Sept. 6–9, 1982, went some way towards accepting the existence of Israel. For details, including extracts from the Fez summit declaration, see Keesing’s Contemporary Archives 32,037 (1983). It was subsequently supported in numerous General Assembly resolutions, e.g., GA Res. 43/54A (Dec. 6, 1988), and at the extraordinary summit meeting of the Arab League at Algiers on June 7–9, 1988.

¹¹⁸ This declaration was issued at the conclusion of the UN International Conference on the Question of Palestine, held at Geneva, Aug. 29–Sept. 7, 1983, reprinted in 1 Palestine Y.B. Int’l L. 66 (1984).

¹¹⁹ The text of the Jordanian-Palestinian Accord, Feb. 11, 1985, together with indications of the PLO Executive Committee’s desired alternative wording, is reprinted in 2 Palestine Y.B. Int’l L. 224 (1985). On the demise of the accord, see Roberts, Decline of Illusions: The Status of the Israeli-occupied Territories over 21 Years, 64 Int’l Aff. 345, 353–54 (1988).

¹²⁰ N.Y. Times, Aug. 1, 1988, at A1, col. 6.

¹²¹ For a succinct summary of the 19th session of the PNC, held in Algiers, Nov. 12–15, 1988, see Keesing’s Record of World Events 36,438 (1989). On the evolution of Palestinian thinking that led to the events at the end of 1988, see Sayigh, Struggle Within, Struggle Without: The Transformation of PLO Politics since 1982, 65 Int’l Aff. 247 (1989).

¹²² Evidence of a degree of international acceptance of the PLO’s move was GA Res. 43/177 (Dec. 15, 1988), which acknowledged the proclamation of the State of Palestine by the Palestine National Council and decided that the designation “Palestine” should be used in place of “Palestine Liberation Organization” in the UN system, without prejudice to the observer status and function of the PLO within the system. The vote was 104-2-36, the two votes against being those of Israel and the United States. UN Press Release GA/7814, at 112 (Jan. 16, 1989).

¹²³ Int’l Herald Trib. (Paris), Dec. 17–18, 1988, at 1.

¹²⁴ Keesing’s Record of World Events 36,599 and 36,670 (1989); and report from Cairo, The Times (London), Sept. 13, 1989, at 12, col. 7.

¹²⁵ See, e.g., Y. Harkabi, Israel’s Fateful Decisions (1988); and Roberts, supra note 119.

¹²⁶ Prof. Falk’s article, supra note 29, was originally a paper presented on July 8, 1988, at an international symposium at Oxford. In this paper he also suggested that the proposed convention should specify that international human rights law, as well as the law of war, applies in a prolonged occupation.

¹²⁷ A famous exploration of resistance is Baxter, The Duty of Obedience to the Belligerent Occupant, 27 Brit. Y.B. Int’l L. 235 (1950).

¹²⁸ For a brief, skeptical discussion of this issue in relation to the 1973 war, which Egypt and Syria justified partly as a war for the recovery of territory under prolonged Israeli occupation, see W. O’Brien, The Conduct of Just and Limited War 286 (1981).

¹²⁹ Definition of Aggression, Art. 7, Annex to GA Res. 3314 (XXIX) (Dec. 14, 1974). See also the similar formula in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Annex to GA Res. 2625 (XXV) (Oct. 24, 1970).

¹³⁰ GA Res. 3237 (XXIX) (Nov. 22, 1974). On recognition, see also supra note 122.

¹³¹ Mentioned in GA Res. 2443 (XXIII) (Dec. 19, 1968). House demolitions have been widely criticized as an extrajudicial measure of collective punishment.

¹³² GA Res. 41/63A (Dec. 3, 1986). In logic, one could question the claim that the Arabs have been detained “arbitrarily,” when the reason for their detention occupies the rest of the same sentence in the resolution. In reality, however, it does appear that many cases of detention and imprisonment have been arbitrary.

¹³³ GA Res. 43/21 (Nov. 3, 1988). In April 1989, the ICRC stated

that it had been extremely concerned for some time by the increasingly frequent use of firearms against civilians in the occupied territories, and by acts of physical violence against defenceless people. Over the past 16 months, more than 400 Palestinians and around 17 Israelis have been killed, while thousands of people have been injured. In addition, the institution stated that the evacuation of the wounded, the work of medical staff and the smooth running of hospitals in the occupied territories were hampered by Israeli forces.

ICRC Bull., No. 160, May 1989, at 1.

¹³⁴ Judgment of an Israeli military court, May 25, 1989, hearing the case of four soldiers accused of manslaughter of a Palestinian beaten to death after trying to protect his son from arrest. The four were convicted on the lesser charge of brutality. The court said that, under Israeli law, obeying orders is no defense if, as in this case, they were manifestly illegal. Charles Richards, reporting from Jerusalem, concluded: “Prosecutions and disciplinary actions have been rare; the army protects its own. … Since the Uprising began in December 1987, two soldiers have been convicted of manslaughter. Nearly 500 Palestinians have been shot dead or beaten to death in this period.” The Independent (London), May 26, 1989, at 12, col. 1.

¹³⁵ Howard, The UN and International Security, in United Nations, Divided World 31,37 (A. Roberts & B. Kingsbury eds. 1988).

¹³⁶ For results of the UN consideration of terrorism, including the texts of conventions on the subject, see especially GA Res. 3166 (XXVIII) (Dec. 14, 1973); GA Res. 34/146 (Dec. 17, 1979); and GA Res. 40/61 (Dec. 9, 1985).

¹³⁷ Protocol I, supra note 27, Art. 1(4).

¹³⁸ M. Bothe, K. Partsch & W. Solf, supra note 36, at 51–52. Since neither South Africa nor Israel has become party to the Protocol, its formal applicability to these territories is of course doubtful.

¹³⁹ The main positions are outlined in Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 81 AJIL 910 (1987); and its continuation, 82 AJIL 784 (1988); see also Gasser’s further letter, 83 AJIL 345 (1989).

¹⁴⁰ Central Bureau of Statistics, Statistical Abstract of Israel 1988, at 705.

¹⁴¹ Unofficial Israeli projections for mandatory Palestine as a whole (i.e., Israel, the West Bank and Gaza) suggest that by the year 2010 there will be parity between the Jewish and Arab populations. See M. Benvenisti, The West Bank Data Base Project 1987 Report 5 (1987). An accelerated influx of Soviet Jews in the 1990s could upset these forecasts.

¹⁴² Fourth Geneva Convention, supra note 7, Art. 49, paras. 1 and 6.

¹⁴³ E. Cohen, supra note 32, at 106–07, reports figures indicating that over 1,100 people were deported from the West Bank and Gaza between 1967 and 1977. She quotes a senior military official as saying that only 68 of these were genuine deportations—i.e., cases in which the individuals concerned were (1) recognized officially to be residents of the occupied territories, and (2) not transferred as part of an exchange with an Arab state. The deportations aroused opposition both internally and internationally; in 1980 they were discontinued, recommencing following a cabinet decision of Aug. 4, 1985.

A figure of 2,000 deportations for the whole period 1967–1986, apparently from the West Bank alone, is given in M. Benvenisti, The West Bank Handbook: A Political Lexicon 87 (1986).

¹⁴⁴ For discussions of the legality of the deportations, see Dinstein, Refugees and the Law of Armed Conflict, 12 Isr. Y.B. Hum. Rts. 94 (1982); Shefi, supra note 104, at 304–06; E. Cohen, supra note 32, at 104–11. For a well-argued critique of the legality of deportations (mainly those of 1985–1986), see J. Hiltermann, Israel’s Deportation Policy in the Occupied West Bank and Gaza (Al-Haq/Law in the Service of Man, 1986). For a 1988 Supreme Court case involving deportations, see infra text at note 181. For a recent affirmation of the illegality of deportations, under both the Geneva Convention and customary law, see T. Meron, supra note 23, at 48 n. 131.

¹⁴⁵ Observer (London), June 12, 1988, at 22, col. 5. In the November 1988 election, one party, Moledet, ran on this issue; it secured under 2% of the total vote and won only two seats in the Knesset.

¹⁴⁶ M. Benvenisti, supra note 141, at 51–55; and M. Benvenisti, supra note 143, at 66.

The figures for settlers in the West Bank do not include the large number (80,000 in 1985, and still growing) in the extended municipal boundaries of Jerusalem.

¹⁴⁷ For an analysis suggesting that some Israeli settlements are compatible with the fourth Geneva Convention, see Dinstein, supra note 67, at 124. See also text at notes 169, 173 and 174 infra, for statements in the Supreme Court on the status and meaning of Article 49, paragraph 6.

¹⁴⁸ See, e.g., the material on various Supreme Court cases involving settlements in Military Government, supra note 30, at 152–53, 158, 313–19, 371–97, 404–41. See also infra text at notes 166–74 (referring to the Beth-El and Elon Moreh cases).

¹⁴⁹ See, e.g., M. Benvenisti, supra note 141, at 51–65.

¹⁵⁰ On unauthorized violence by settlers, see the Ministry of Justice report J. Karp et al., Report of the Inquiry Team re Investigation of Suspicions Against Israelis in Judea and Samaria (1984).

¹⁵¹ The first was GA Res. 2546 (XXIV) (Dec. 11, 1969). The following resolutions condemning deportations received overwhelming majorities: GA Res. 41/63E (Dec. 3, 1986) (131-1-21); and GA Res. 43/58E (Dec. 6, 1988) (152-1-1). The United States abstained on these resolutions. However, the “United States has stated that deportation is inconsistent with the Fourth Geneva Convention.” Department of State, supra note 87, at 1193.

¹⁵² See, e.g., the following examples, at 4-year intervals:

GA Res. 31/106A (Dec. 16, 1976) (129-3-4)

GARes. 35/122B (Dec. 11, 1980) (140-1-3)

GA Res. 39/95C (Dec. 14, 1984) (143-1-1)

GA Res. 43/58C (Dec. 6, 1988) (149-1-2)

The United States voted against the 1976 resolution above, and abstained on the others. When it abstained on GA Res. 32/5 (Oct. 28, 1977) (131-1-7), the U.S. representative said that the United States opposed the Israeli settlements, but that it had accepted a special responsibility as cochairman of the Geneva Peace Conference on the Middle East, requiring it to remain impartial when the complex issues to be considered there were involved. 1977 UN Y.B. 317–18.

For a clear statement of the U.S. view that Israel’s establishment of civilian settlements in the occupied territories is inconsistent with international law, see the letter of Herbert J. Hansell, Legal Adviser, Department of State, to House Comm. on International Relations (Apr. 21, 1978), 17 ILM 777 (1978). On U.S. policy towards settlements in 1989, see text at note 184 infra.

The General Assembly has shown some consistency in criticizing other cases of demographic changes imposed by foreign occupation forces. See, e.g., its expressions of concern “about reported demographic changes being imposed in Kampuchea by foreign occupation forces” in GA Res. 40/7 (Nov. 5, 1985), and GA Res. 43/19 (Nov. 3, 1988).

¹⁵³ See, e.g., SC Res. 469 (May 20, 1980) (on deportations; quoting the fourth Geneva Convention, Art. 49, and calling on Israel to rescind the expulsion of the mayors of Hebron and Halhoul, and the Sharia Judge of Hebron); and SC Res. 465 (Mar. 1, 1980) (calling settlements a “flagrant violation of the Geneva Convention”). The latter resolution, which also criticized Israel’s purported annexation of Jerusalem, was adopted unanimously, but the U.S. Government subsequently stated that it was retracting its vote. For an account of “the highly publicized snafu” over this vote, see Z. Brzezinski, Power and Principle: Memoirs of the National Security Adviser, 1977–1981, at 441 (rev. ed. 1985). Brzezinski presents much interesting material on the Carter administration’s thinking on the settlements; see, e.g., id. at 110, 258, 263 and 440–42. See also SC Res. 607 (Jan. 5, 1988), adopted unanimously, calling on Israel to refrain from deporting any Palestinian civilians from occupied territory.

¹⁵⁴ See, e.g., the June 1980 Venice declaration of the nine EEC countries, supra note 116 and accompanying text, which was blunt on the settlements issue.

¹⁵⁵ See, e.g., text at note 177 infra.

¹⁵⁶ On economic developments in the West Bank and Gaza, see Graham-Brown, The Economic Consequences of the Occupation, in Occupation: Israel over Palestine 167 (N. Aruri ed. 1984); and M. Benvenisti, publications cited in notes 70, 141 and 143 supra.

¹⁵⁷ See, e.g., GA Res. 41/63D (Dec. 3, 1986), which includes in its litany of complaints of Israeli policies and practices the following economic items:

(c) Illegal imposition and levy of heavy and disproportionate taxes and dues;

…

(f) Confiscation and expropriation of private and public Arab property in the occupied territories and all other transactions for the acquisition of land involving the Israeli authorities, institutions or nationals on the one hand and the inhabitants or institutions of the occupied territories on the other;

…

(m) Interference with the system of education and with the social and economic and health development of the population in the Palestinian and other occupied Arab territories;

…

(o) Illegal exploitation of the natural wealth, resources and population of the occupied territories.

¹⁵⁸ The first was GA Res. 3175 (XXVIII) (Dec. 17, 1973). It referred to the fourth Geneva Convention. It was not until the fifth resolution on this subject, GA Res. 32/161 (Dec. 19, 1977), that specific reference was made to the Hague Convention, which is more germane to the exploitation of natural resources. These resolutions received substantial, but not over-whelming, support. The voting on the last in this series, GA Res. 38/144 (Dec. 19, 1983), was fairly typical: 120 for, 2 against and 18 abstentions.

¹⁵⁹ If constructed, part of the canal would allegedly have gone through the Gaza Strip. The first General Assembly resolution criticizing it was GA Res. 36/150 (Dec. 16, 1981). The 1984 version, GA Res. 39/101 (Dec. 14, 1984), stated that the canal, “if constructed, isa violation of the rules and principles of international law, especially those relating to the fundamental rights and duties of States and to belligerent occupation of land.” This received 143 votes for, 2 against and 1 abstention.

¹⁶⁰ One piece of evidence of discrimination by the international community is that there has been little, if any, international comment or censure regarding one apparent infringement by Israel of the law on occupations—the building of the main road from Jerusalem to Tel Aviv on a natural line that passes through what before 1967 was a demilitarized zone between the West Bank and Israel. Although this road in effect annexes a small portion of territory, Jordan and other states acquiesced in it.

¹⁶¹ U.S. Dep’t of State, Memorandum of Law (Oct. 1, 1976), 16 ILM 733, 752 (1977). This memo stated that concessions granted to Amoco by Egypt were valid, “whether granted prior to or post June 1967.” Id.

¹⁶² Memorandum of Law, supra note 59, 17 ILM at 434 (submitted to the U.S. Department of State on Oct. 27, 1977). On Mar. 26, 1978, two wells in the Alma field in the Gulf of Suez began operation under a concession granted by Israel to the Neptune Oil Co. Id. at 432. All Sinai was returned to Egypt by Apr. 25, 1982.

¹⁶³ See further Gerson, Off-Shore Oil Exploration by a Belligerent Occupant: The Gulf of Suez Dispute, 71 AJIL 725 (1977); and Claggett & Johnson, May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Oil Resources of the Gulf of Suez?, 72 AJIL 558 (1978).

¹⁶⁴ Nathan, The Power of Supervision of the High Court of Justice over Military Government, in Military Government, supra note 30, at 109, 133. For other Israeli assessments, see Domb, Judgments of the Supreme Court of Israel Relating to the Administered Territories, 11 Isr. Y.B. Hum. Rts. 344 (1981); Negbi, The Israeli Supreme Court and the Occupied Territories, Jerusalem Q., No. 27, Spring 1983, at 33; and E. Cohen, supra note 32, at 80–92.

Many inhabitants of the occupied territories with whom I discussed the matter in November-December 1983 and January 1988, welcomed this right of petition, and noted that it had fostered a few out-of-court settlements of certain issues, but argued that, overall, very few practical results had been achieved. These sources were critical of the tendency of the Court (1) to accept “security” as ajustification for the acts of the occupant, and (2) to accept certain limits on the formal applicability or justiciability of the fourth Geneva Convention. For a critical Palestinian view, see R. Shehadeh, supra note 80, at 95–100.

¹⁶⁵ See, e.g., Nathan, supra note 164, at 125–49; and Hadar, The Military Courts, in Military Government, supra note 30, at 171, 172–75. Also the judgments in the Beth-El and Eton Moreh cases, infra text at notes 166–74. For a critique of the view that the fourth Geneva Convention does not embody customary law, see T. Meron, supra note 23, at 45–50.

¹⁶⁶ Beth-El case, supra note 68, at 378. For a short report of this case, see 9 Isr. Y.B. Hum. Rts. 337 (1979).

¹⁶⁷ Beth-El case, supra note 68, at 379. The article in question was Dinstein, The Judgment in the Rafiah Approach Case, 3 Tel Aviv U.L. Rev. 934 (Hebrew 1974).

For critiques of the Supreme Court’s view that the fourth Geneva Convention does not have the status of customary law, see T. Meron, supra note 23, at 5–6 n.5, and 48 n.131; and Rubinstein, supra note 42, at 65–67.

¹⁶⁸ Beth-El case, supra note 68, at 377.

¹⁶⁹ Id. at 387–90. See also Justice Witkon’s statement that “the provisions of the Geneva Convention regarding the transfer of population from or to occupied territory do not come under already existing law. They are intended to enlarge, and not merely clarify or elaborate the duties of the occupying power.” Id. at 380.

¹⁷⁰ Id. at 392.

¹⁷¹ Id. at 374–77, 392–93, 395–97.

¹⁷² Elon Moreh case, No. H.C. 390/79, reprinted in Military Government, supra note 30, at 404, 419–26 and 437–38. For a short report, see 9 Isr. Y.B. Hum. Rts. 345 (1979).

¹⁷³ Elon Moreh case, supra note 172, at 419.

¹⁷⁴ Id. at 438.

¹⁷⁵ Christian Soc’y for the Holy Places v. Minister of Defense, No. H.C. 337/71, 26(1) Piskei Din 574 (1972), as summarized in 2 Isr. Y.B. Hum. Rts. 354, 355 (1972). Justice Cohn’s dissenting opinion is at p. 355. On the application of particular treaties, the summary states that the Court

refrained from considering two issues: first, whether the Hague Convention applied to the administered areas, and second, whether the two aforementioned Conventions [i.e., the fourth Hague Convention and the fourth Geneva Convention] constitute law which could be invoked in an “internal” dispute between a State and its citizens. The Court explained that it avoided these questions because Counsel for the State chose not to raise them, as he based the defense of the respondents on the argument that they observed the Conventions properly.

Id. at 356. See also the interesting discussion of this case, and the implications of prolonged occupation, in Dinstein, supra note 67, at 112–14.

¹⁷⁶ Jerusalem Elec.Co. v. Minister of Energy, No. H.C. 351/80, 35(2) Piskei Din 673 (1981), summarized in 11 Isr. Y.B. Hum. Rts. 354, 357 (1981).

¹⁷⁷ Abu Aita case, Nos. H.C. 69/81 and 493/81, 37(2) Piskei Din 197 (1983), translated in 7 Selected Judgments of the Supreme Court of Israel 6, 98–99 (1988). For a summary, see 13 Isr. Y.B. Hum. Rts. 348 (1983). The article by Dinstein to which Shamgar referred was The Legislative Power in Occupied Territories, 2 Tel Aviv U.L. Rev. 505 (1972 Hebrew). See also Dinstein, supra note 67, at 112–13; and his analysis of this case, Dinstein, Taxation under Belligerent Occupation, in Des Menschen Recht Zwischen Freiheit und Verantwortung 115 (J. Jekewitz et al. eds. 1989).

In a subsequent case, ‘Adah v. IDF Commander in Gaza Strip, No. H.C. 118/84, 38(3) Piskei Din 107 (1984), summarized in 15 Isr. Y.B. Hum. Rts. 276 (1985), which concerned the treatment of mentally ill accused persons, the Supreme Court ruled that there was no obligation to make legislation in the occupied territories conform to Israeli legislation on similar matters; discretion for such conformity was vested in the commander of the region.

¹⁷⁸ Cooperative Soc’y v. Commander of IDF Forces in Judea and Samaria Region, No. H.C. 393/82, 37(4) Piskei Din 785 (1983), summarized in 14 Isr. Y.B. Hum. Rts. 301, 307–08 (1984) (referring to Y. Dinstein, The Laws of War 216 (1983 Hebrew)).

¹⁷⁹ 14 Isr. Y.B. Hum. Rts. at 309.

¹⁸⁰ Mustafa Yusef v. Manager of the judea and Samaria Central Prison, No. H.C. 540-6/84, 40(1) Piskei Din 567 (1986), summarized in 17 Isr. Y.B. Hum. Rts. 309, 312 (1987).

¹⁸¹ T. Meron, supra note 23, at 48 n.131 (referring to Afu case, Nos. H.C. 785/87, 845/87 and 27/88 (1988)).

¹⁸² Id. (referring also to Dinstein, Deportation from Administered Territories, 13 Tel Aviv U.L. Rev. 403 (1988)). For the text of Article 49, paragraph 1, see supra text at note 142.

¹⁸³ A point argued impressively by Arthur Hertzberg, Israel and the West Bank: The Implications of Permanent Control, 61 Foreign Aff. 1064, 1072–75 (1983).

¹⁸⁴ The Independent (London), May 24, 1989, at 11, col. 1.

¹⁸⁵ See A. Gerson, supra note 83, at 181–83; and the 1983 Report of the Commissioner General of UNRWA, 38 UN GAOR Supp. (No. 13) at 12, UN Doc. A/38/13 (1983).