18 No. 75 JUSTICE of an occupation is therefore a factual one.53 It follows that, “under the law of belligerent occupation, the fact of occupation is the basis for the Occupying Power to exercise authority over the occupied territory”54 and, as this principle’s corollary, “once an occupation exists in fact, the law of occupation applies, regardless of whether the invasion was lawful under jus ad bellum.”55 The distinction between the operation of the in bello law of occupation and the legality of the use of force which gives rise to it “is an example of how jus in bello rules and jus ad bellum rules generally operate independently of one another.”56 39. As a primary matter, then, a situation of belligerent occupation cannot be illegal per se, nor is its duration proscribed under the law of armed conflict. Since the jus in bello applies equally to all parties to the conflict, regardless of the legality of a conflict under the jus ad bellum, the material questions, once an occupation exists (as a factual matter), are simply whether the occupant has complied with the law of occupation under the jus in bello.57 It is a “myth” that the legal regime of belligerent occupation “is, or becomes in time, inherently illegal under international law.”58 40. In the matter at hand, Israel assumed control over the territories in June 1967 in response to a clear and present threat, initiated by a group of Arab states, to destroy the Jewish State. The legitimacy of Israel’s control of these territories at that time was generally uncontested, as it was understood that it had done so within the framework of the legitimate exercise of its right of self defence. While the international community did eventually develop a framework for the resolution of the results of this war (UN Security Council Resolutions 242 and 338, discussed above), it was not contended at that time that Israel’s occupation of these territories, pending such resolution, was illegal. 41. Today, more than 50 years later, there are new voices claiming that the Israeli occupation has become illegal, or even that it was illegal ab initio. To this we respond: first - as explained above, under international law, the existence of an occupation is a matter of fact. A fact is not legal or illegal. 42. Second, there is an insufficient legal basis to support the claim that an occupation can become “illegal” due to external circumstances, such as it having being achieved through the illegal use of force (which is, in any event, not the case in the current situation), due to an occupation preventing exercise of the right of self-determination, or due to the passage of time. There is insufficient basis to conclude that an occupation resulting from an unlawful use of force is illegal under public international law 53. Roberts, p. 256 (“Most sources follow the Hague Regulations, Article 42, in stating that occupation may be said to begin when the invader actually exercises authority, thus stressing that it is factual criteria that are important. See also United States Department of Defense, Law of War Manual, June 2015 (Updated July 2023) (hereinafter “US DoD Manual”), para. 11.2.1. 54. US DoD Manual, paras. 1.3.3.2, 11.2.1. 55. Id., paras. 3.5.2.1, 11.2.1. 56. Id., para. 11.2.1. 57. For framing of the issue in this way, see E. Lieblich, E. Benvenisti, Occupation in International Law (Oxford, 2022) (hereinafter “Lieblich and Benvenisti”), p. 32 citing Y. Dinstein, The International Law of Belligerent Occupation, Second Edition (Cambridge 2019) (hereinafter “Dinstein - Occupation”). 58. Dinstein - Occupation, para. 6.
RkJQdWJsaXNoZXIy MjgzNzA=