International Humanitarian Law by Crawford Emily & Pert Alison & Crawford Emily & Pert Alison

Author:Crawford, Emily & Pert, Alison & Crawford, Emily & Pert, Alison
Language: eng
Format: epub
Publisher: Cambridge University Press
Published: 2015-08-24T16:00:00+00:00

However, even in situations where there is no ostensible “hidden agenda”, no attempt to change the social, cultural or political landscape of the occupied territory, how are prolonged occupations, the laws of occupation and the progression of time to be reconciled? With no end in sight to the Israeli occupation of Palestinian territory, how can the Israelis (or indeed, any Occupying Power in a situation of prolonged occupation) respect the laws in place in the occupied territory, while at the same time ensuring that the laws do not ossify, and fail to adequately reflect the contemporary social, cultural and political climate of the territory and population they govern?152

Dinstein has proposed a “test” for distinguishing between “legitimate and illegitimate concern for the welfare of the civilian population”153 as depending on whether the OP “shows similar concern for the welfare of its own population … if the Occupying Power enacts a law … the crux of the issue is whether a parallel (not necessarily identical) law exists back home. If the answer is negative, the ostensible concern for the welfare of the civilian population deserves being disbelieved.”154 While this seems a reasonable approach, Dinstein's test is problematic when one considers that the OP may have draconian laws in its own territory. Thus, the introduction of similarly restrictive laws might not be justifiable on the grounds of similarity with the domestic law of the OP. While Dinstein reminds us that “the legislation of the Occupying Power in the occupied territory is temporary and its effects and will normally expire at the end of the occupation”,155 where the occupation looks to be without end, the situation is less than clear.

Also problematic in the context of protracted occupation are the activities undertaken by the OP regarding security concerns. As noted above, Article 49 of GC IV provides that the OP may not engage in forcible mass or individual transfers of protected persons from the occupied territory to the territory of the OP (or any other territory) but that total or partial evacuations of a given area may be undertaken if the security of the population or imperative military reasons so demand. Likewise, Articles 42 and 78 permit internment of civilians for imperative reasons of security. What happens in situations where the security concerns are, like the occupation connected to it, protracted and on-going? This was highlighted in the case of Ajuri v. IDF Commander in the West Bank,156 where the Israeli policy of “assigned residence” was challenged. In that case, the petitioners, residents of Judaea and Samaria, had been subject to an “order assigning place of residence”, relocating them to the Gaza Strip. The Israeli government justification was that the petitioners needed to be relocated in order to counter the active participation of the petitioners and other family members in the terrorist activities of their relatives. In finding against the petitioners in two of the three counts brought, the Court stated that it was permissible for an OP to assign residence as it:

strikes a proper

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.