Occupied territories

Occupied territories

Occupied territories is a term of art in international law. In accordance with Article 42 of the Laws and Customs of War on Land (Fourth Hague Convention); October 18, 1907 [ [http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm#art42 'Hague IV, MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE, Article 42'] ] , Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The Kellogg-Briand Pact of 1928 made the threat or use of military force in contravention of international law [Not out of self defense, not out of Article 51, and not authorized by the Security Council.] , as well as territorial acquisitions resulting from it unlawful. Though that Pact was not universally subscribed to, and was in fact gravely breached by its signatories, subsequent treaty law, specifically the Charter of the United Nations, done at San Francisco in 1945, and adhered to by nearly all nations, contains a similar prohibition.

This was soon followed by the judgment of the International Military Tribunal at Nuremberg in the matter of several of the political and military leaders of the former Nazi entity, regarding crimes against peace, as well as other charges under the law of war and the law of nations, including war crimes, crimes against humanity, and genocide. The Tribunal declared that waging a war of aggression and territorial aggrandizement was not only criminal, but that "to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Those found guilty for planning the war of aggression in question were hanged or received long prison sentences. As the judgement of the IMT was recognized as fully declarative of the law of nations and the laws and customs of war, the prohibition against wars of aggression thus entered into the customary international law, making it binding on all civilized nations and peoples without exclusion, reservation, or exception.

It must be noted that the grossly criminal act of levying a war of aggression is distinguished from the war without legal standing, which refers to military action not done for purposes of conquest and gross territorial gain, and not legitimated by self-defense, and not authorized by Article 51 or the Security Council. This class of wars might include the settlement of long-running territorial disputes, suppression or punishment of atrocities or outrages against a belligerent nation, suppression of alleged threats to national security, defense of allies or allied peoples, peace-enforcement or peace-keeping, or prejudicial resolution of ideological differences. Wars without legal standing are unlawful; however, they are common, and not criminal like a war of aggression is. Wars without legal standing often result in the occupation of territory by the victorious nation in such a war.

At the end of a war, usually the victorious side is in possession of territories previously possessed by another state. These territories are known as occupied territories. Acquisition of occupied territories is incidental to a war, where the military forces of the occupying power come into the possession of territories previously held by another state. Military occupation is usually temporary; and under the subsequent articles of the Hague convention (articles 43, 44, and etc.), the status quo must be maintained pending the signing of a peace treaty, the resolution of specific conditions outlined in a peace treaty, or the formation of a new civilian government.

Examples of occupied territories include Germany and Japan after World War II; Cambodia by Vietnam from 1979 until 1989; Iraq after the 2003 invasion by the United States and allied forces removed the government of Saddam Hussein from power, and the Israeli-occupied territories.

Occupied territories are lawfully occupied only by military personnel, and such civilians as are necessary to support the military occupation of that territory. The Fourth Geneva Convention forbids the transfer of civilians from or to occupied territories. This provision exists to prevent the occupier from creating fait accomplis, such as those that would sustain a permanent claim to the territory in question. In the Second World War, persons were transferred from occupied territories or to occupied territories with dire consequences; for example, under the military occupation of the Nazi regime, Polish citizens of Jewish descent, and to a lesser extent, Christian Poles, were "transferred to the East" (see Holocaust) by the Nazi occupier, and their lands were taken by Germans who were settled in the newly-vacant areas by the Nazi state to settle the newly depopulated Poland, as a preparation for Nazi annexation (see Lebensraum).

If a state unilaterally declares a territory that has been under military occupation to be annexed, bodies such as the United Nations Security Council frequently describe such territories as "occupied" when that annexation is in breach of international law or not accepted by the United Nations General Assembly, even if the territory is governed through the civil laws of the state that has integrated the occupied territory into their own territories. [John Dugard (professor of international law at the University of Leiden) [http://www.iht.com/articles/2003/08/02/eddugard_ed3_.php An illegal annexation : Tear down Israel's wall] International Herald Tribune, 2 August 2003] [John Dugard (The Special Rapporteur of the Commission on Human Rights for the occupied Palestinian territory) [http://www.un.org/apps/news/story.asp?NewsID=8409&Cr=middle&Cr1=east Israel uses excessive force and annexation in Palestinian territories – UN report] , UN News Centre. Accessed 11 July 2008.] [Paul Lewis, [http://query.nytimes.com/gst/fullpage.html?res=9C0CE3DF1739F933A2575BC0A966958260 Confrontation in the Gulf; U.N. Council Declares Void Iraqi Annexation of Kuwait] , The New York Times, 10 August 1990] [R. W. Apple Jr. [http://query.nytimes.com/gst/fullpage.html?res=9D0CE6D91430F935A35750C0A967958260 After the war: The Overview; Iraq Disavows annexation, pledging to repay Kuwait; Rebellion my be subsiding] , The New York Times, 6 March 1991]

History and definitions

Most nations in the world are in some way an occupier of a previous inhabitant's land. Fact|date=February 2007 Generally, any disputed territory can be seen as occupied by the party that lacks control over it at that moment. Thus, the Germanic tribes displaced the Celts of central Europe, and Egypt was conquered and absorbed in the 7th century by Arabs who were not its original population. This is particularly true of the region between Egypt and Turkey where repeated population movements and military conquests have occurred during the past several thousand years.

Regarding the West Bank (58% Israeli-administered, with the remainder under Israeli suzerainty), Gaza Strip (whose land and sea access is blockaded by Israel) and Israel proper, the correct use of this expression is often controversial and hotly disputed.

Additionally, "occupation" has two distinct meanings:
# The state of being lived in (as in: "Isle of Man is occupied by the Manx", or this house is occupied by the Smith family);
# The state of military control following conquest by war but prior to annexation.Although (1) and (2) are obviously distinct, they are sometimes intermingled. Under (1), the territory in question is under normal civilian law; under (2) the territory is usually under military law within the terms of the Laws of war, such as the Fourth Geneva Convention (according to the UN).

Occupied territories since 1907

For a list of occupied territories since the Hague Convention of 1907 [http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm Laws and Customs of War on Land (Hague IV); October 18, 1907] first clarified and supplemented the customary laws of belligerent military occupation see the list of military occupations and the list of territorial disputes.


West Bank and Gaza Strip after 1967

International Court of Justice Opinion

In July of 2004, The International Court of Justice delivered an Advisory Opinion on the [http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=5a&PHPSESSID=60e2f3e3d732bbe27c8f55888a311c8f&case=131&code=mwp&p3=4 'Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory'] . The Court observed that under customary international law as reflected in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907, territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.

The State of Israel raised a number of exceptions and objections, [ [http://www.icj-cij.org/docket/files/131/1579.pdf 'Letter dated 29 January 2004 from the Deputy Director General and Legal Advisor of the Ministry of Foreign Affairs, together with the Written Statement of the Government of Israel'] ] but the Court found them unpersuasive. The Court ruled that territories had been occupied by the Israeli armed forces in 1967, during the conflict between Israel and Jordan, and that subsequent events in those territories, had done nothing to alter the situation. 'All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.'

tate Of Israel Position

The Gaza Strip (until the 2005 disengagement), and the West Bank, are often referred to as "the occupied territories", however their status was, and for the West Bank continues to be, disputed.

After the Six-day War in 1967, Israeli troops occupied the Gaza Strip, the West Bank, and the Golan Heights. However, the status of these territories has been the subject of dispute. Paul S. Riebenfeld, an international lawyer, who represented Jewish interests at the League of Nations, argued that the West Bank and the Gaza Strip do not belong to any other sovereign state, are part of former Mandate Palestine, and therefore fall legitimately within Israel's jurisdiction. They were "occupied territories" before 1967; and the "occupying powers" had been Egypt and Jordan. Specifically, Egypt's borders had been determined by the international community even before World War I without the Gaza Strip. Jordan had been part of Mandate Palestine; but the British, under the Mandate provisions of the League of Nations had granted the British, "inter alia", the power to divide Palestine.

First, the region in question was divided, for administrative purposes, into Transjordan (east of the Jordan River) and Cisjordan (west of the Jordan River). Next, the British, under its Mandatory powers, granted Transjordan independence, in 1947; shortly thereafter, the country changed its name to "Jordan." But the "West Bank" was clearly not on the east side of the Jordan river; although this land was conquered in the 1948 war, only one country, Great Britain, recognized Jordan's subsequent annexation of the West Bank, but not of East Jerusalem.

tate of Jammu and Kashmir

Jammu and Kashmir is a disputed and occupied territory, claimed by New Delhi as part of their country which both the Peoples Republic of China and Pakistan dispute India's claims.

Western Sahara

Western Sahara is considered an occupied territory by the Polisario, the Sahrawi Arab Democratic Republic government in exile in Algeria, the United Nations, [UN General Assembly Resolution 34/37 - November 21, 1979 and UN General Assembly Resolution 35/19 - November 11, 1980] and some other groups. International bodies see Morocco as the "de facto" administrative power pending a solution to the conflict. The referendum that the UN wants to hold has been effectively blocked, and many of the incidents reported to have occurred in the territory [ [http://web.amnesty.org/report2006/mar-summary-eng Western Sahara] "Impunity for past crimes remained a serious concern, particularly since some alleged perpetrators continued to be members, or even high-ranking officials, of the security forces.". Verified 4 Oct 2007.] are consistent with an unaccountable military occupation.

Most of the territory claimed by the SADR in Western Sahara is currently under the unrecognized but effective sovereignty of Morocco. They do not recognize the SADR, though dozens of countries do. [ [http://www.thirdworldtraveler.com/Africa/intifada_W_Sahara.html Third World Traveller] Intifada in Western Sahara, Morocco seals off the occupied territory, New Internationalist magazine, August 2005. Verified 4 Oct 2007.]


* Douglas J. Feith, William V. O'Brien, Eugene V. Rostow, Paul S. Riebenfeld, Malvina Halberstam, & Jerome Hornblass, "Israel's Legitimacy in Law and History, Proceedings of the Conference on International Law and the Arab-Israeli Conflict". Sponsored by "The Lois D. Brandeis Society of Zionist Lawyers", October 21, 1990, New York. ed. Edward M. Siegel, Esq., assoc. ed. Olga Barrekette, (New York: Center for Near East Policy Research, 1993) ISBN 0-9640145-0-5

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