New Work in the Law of Military Occupation

The Edinburgh Centre for International and Global Law presents

Scholarly work on the law of military occupation has, since the US-UK invasion and occupation of Iraq in 2003, experienced a renaissance. The relationship between the law of occupation and other areas of international law, such as human rights and environmental law, has become a pressing legal problem in a range of contexts.  The relationship between the law of military occupation and long-term military, political, and economic, domination  - a scenario which the law of occupation was not intended to regulate – is raised by the 52 year occupation of the Palestinian territories by Israel, which has developed its own intricate legal architecture to manage its occupation. In this seminar, we hear from scholars working on these dimensions of the law and reality of military occupation.

Professor Orna Ben-Naftali, Emile Zola Chair of Human Rights, Striks School of Law, Tel Aviv

Before the Law/ Against the Law: the Nomos of the Israeli Control over the Occupied Palestinian Territory

The Israeli control over the OPT is a legal laboratory due a variety of factors which have generated a profusion of laws, enactments, judgments and voluminous legal scholarship. Given that this legal plethora has not operated to limit state violence, what was law's role and what does it say about the relationship of law and violence? The vast literature on the occupation has mostly focused on the legality of specific decisions and institutional practices rather than on analyzing, in their light, the role of law in structuring and sustaining the regime. The book The ABC of the OPT: A Legal lexicon of the Israeli Control over the Occupied Palestinian Territory (CUP 2018), offers such an analysis of the nomos, in the sense Robert Cover uses the term, i.e., the normative universe of this regime. The presentation will focus the substance of this analysis; the methodologies employed, and the esthetics and ethics of the lexical format.

Dr Marco Longobardo, Lecturer in Public International Law, Westminster Law School, London

Law Enforcement versus Conduct of Hostilities in Occupied Territory

In a situation of occupation, the occupying power is tasked with the administration of a portion of foreign territory which has come under its control during an armed conflict. Accordingly, the occupying power administration is characterised by an inherent hostile character, and the occupying power may need to use armed force to restore and ensure public order, to provide for its own security, and to address a resumption of the hostilities.  In these scenarios, the occupying power faces a dilemma: should it use armed force under the law enforcement model, which is governed by domestic and international human rights law, or should it apply the model of the conduct of hostilities, which is governed by international humanitarian law and international human rights law? On the one hand, the law enforcement model, which is usually applied in peacetime, would fit the administrative tasks bestowed upon the occupying power; on the other, the conduct of hostilities model would be the better option to address armed confrontations that occur during a situation of armed conflict. This paper maintains that both models are applicable during an occupation and offers a novel way to address their interplay. It is suggested that the law of occupation itself demands the application of law enforcement as the preferential model, allowing the resort to conduct of hostilities only once the armed confrontation reaches the level of a non-international armed conflict. This conclusion is based on the duty to restore and ensure public order in occupied territory through the same instruments that would have been available to the ousted sovereign absent the occupation.

Stavros-Evdokimos Pantazopoulos, Legal and Policy Analyst, Conflict and Environment Observatory

Protecting the Environment in Times of Occupation

In this presentation, I delve into the applicable law of occupation pertaining to the protection of the environment, on the understanding that the occupying power has established its control over the occupied territory and that potential hostilities do not reach the point of challenging this control. Against this background, first, I examine the general obligations incumbent upon an occupying power in relation to environmental protection, within the contours of the conservationist principle. Subsequently, I investigate the specific obligations of an occupying power when parts of the environment are classified as ‘property.’ Accordingly, I attempt to shed light on the requirements imposed on an occupying power regarding the use and management of natural resources situated on occupied territory. Then, I consider the related prohibition of pillage and offer certain critical remarks on the famous Martens clause. I conclude with the role of international human rights law in protecting the environment in times of occupation, arguing that the human rights discourse maintains and reproduces a static, anthropocentric view of the environment, while obstructing the exploration of international environmental law’s full potential.