Military Occupation of the Palestinian Territories and Beyond

In this guest post, LLM in International Law student and GJA Ambassador, Felix Mayr, reflects on a recent Edinburgh Centre for International and Global Law event on the military occupation of the Palestinian Territories and other occupied lands.

On Thursday 17 October 2019, the University of Edinburgh held an event presenting new scholarly work on the law of occupied territory, a field which has experienced a renaissance since the US-UK invasion and occupation of Iraq. 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 the occupation. The panel was followed by a lively discussion among scholars including Professor Orna Ben-Naftali (Emile Zola Chair of Human Rights, Striks School of Law, Tel Aviv), Dr Marco Longobardo (Lecturer in Public International Law, Westminster Law School, London), and Stavros-Evdokimos Pantazopoulos (Legal and Policy Analyst, Conflict and Environment Observatory).

The ABC of the OPT: A Legal lexicon of the Israeli Control over the Occupied Palestinian Territory (CUP 2018), presented by Professor Ben-Naftal, questions what role law has played in structuring and sustaining the ongoing regime of “control” of Israel over the Occupied Palestinian Territory (OPT). She argues that Israel’s occupation is far from acting in a space of lawlessness; by contrast, it is “filled to the brim” with legalism. This law, while seeming to be arbitrary, is in reality carefully crafted to create a precise order: this order, however, is designed to create uncertainty among those affected by it, rather than offering certainty – a core tenant of the rule of law. She argues that the control of the Palestinian territories is probably “the most legalized such regime in world history”. It is therefore a “legal laboratory”, and “careful scrutiny of the experiments carried out in Israel’s legal laboratory may well generate lessons that are relevant to other situations, and indeed to the course of the development of international law itself”.

Dr Longobardo’s The Use of Armed Force in Occupied Territory (CUP 2018) can be seen as an attempt to identify and clearly delineate the legal framework relating to the legality of the use of force in occupied territories. The author takes a broad approach to its topic by contextualizing it within three different bodies of international law: jus ad bellum, international humanitarian law and international human rights law. While occupations have become a subject receiving more and more scholarly attention, Longobardo suggests that the law pertaining to those occupations has been relatively under-studied. He asserts that the very existence of an occupation means that an armed conflict is already ongoing, rendering jus ad bellum irrelevant in the occupation context. Further, as jus ad bellum is only operative before a conflict starts, it cannot necessarily act as a justification for armed force used during an occupation.

Stavros-Evdokimos Pantazopoulos discussed his work on protecting the environment in times of occupation, with a focus on the obligations of an occupying power in relation to environmental law. Firstly, he considered the applicable law in the situation where the occupying power has established its control over an occupied territory, focusing on the conservationist principle or the “no harm” (or Trail Smelter) principle. He then further investigated the specific obligations of an occupying power when parts of the environment are classified as ‘property’, while also attempting to shed light on the requirements imposed on an occupying power regarding the use and management of natural resources situated on occupied territory. He concluded by explaining the role of international human rights law in protecting the environment in times of occupation, arguing that the current trend in environmental law to apply human rights approaches – for example, by using the formula of human rights language – should not be followed, since this might conceal the emancipatory prospects of other discourses. He argued that this approach can also be justified due to the incompatibilities between human rights and environmental law, such as the anthropocentric and instrumental approach to environmental protection or the failure of human rights to capture the collective nature of environmental law.

This event offered a rich discussion of the various legal constructs that are, and could be, applied to occupied territories. Ultimately, the unique insights offered by the speakers illuminated the legal discourse surrounding military occupation in many unexpected ways.