19 Fall 2025 43. Security Council practice does “not provide any support for the view that the notion of ‘illegal occupation’ may extend to occupation resulting from a lawful use of force.”59 Given the circumstances of Israel’s occupation of the territories in question in 1967, this should suffice. 44. However, even with respect to occupation resulting from an unlawful use of force, there is insufficient basis in public international law to conclude that it is illegal per se. The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States (“Declaration on Friendly Relations”),60 adopted by consensus by the General Assembly, states that “the territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter.”61 The question arises whether an occupation resulting from an unlawful use of force is “illegal” or, alternatively, whether the Declaration of Friendly Relations simply reflects subsisting customary and UN Charter prohibitions on the unlawful use of force. To answer this question, the substance of the rules regulating the situation must be looked for primarily in the actual practice and opinio juris of States.62 45. Suggesting that the existence of a military occupation is simply a question of fact, even in the context of an unlawful use of force, the International Military Tribunal at Nuremberg affirmed the applicability of the 1907 Hague Convention in occupied territory, and it referred explicitly to the occupant’s rights to collect taxes and make requisitions in kind.63 Similarly, in the Hostages case, an American Military Tribunal sitting at Nuremberg stated: “International Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties of the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.”64 46. More recently, Security Council Resolution 1483 (2003), relating to the occupation of Iraq by the armed forces of the United Kingdom and United States, referred to Iraq’s takeover by “occupying powers” and was accompanied by a call to “all concerned” to comply fully with their international legal obligations under the Hague Regulations 59. A. Zemach, ‘Can Occupation Resulting from a War of Self-Defense Become Illegal?’ (2015), Minnesota Journal of International Law, 316 (hereinafter “Zemach”), at 327 citing in relation to the Israeli-Palestinian conflict, SC Resolution 242 (1967), Security Council Resolution 252, Security Council Resolution 478, Security Council Resolution 497 (1981). Although several General Assembly resolutions specifically addressing the Israeli occupation of Arab territories refer to the occupation as “illegal,” review of the voting records shows that none of the Western democracies supported the resolutions asserting the illegality of the Israeli occupation. See Zemach, p. 327-332. 60. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV) ¶ 10, U.N. GAOR, 25th Sess. Supp. No. 28, U.N. Doc. A/8082 (Oct. 24, 1970). 61. Id. The ICJ held that this General Assembly resolution is indicative of customary international law. See Military and Paramilitary Activities (Nicar. V. U.S.), 1986 I.C.J. 14, pp. 188, 191, 98-101 (June 27); Wall Advisory Opinion, at 171, para. 87. 62. Libya/Malta ICJ Reports 1985, pp.13, 29; ILR, p. 239. See also the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, pp. 226, 253; 110 ILR, p. 163; and Draft Conclusion 2 provisionally adopted by the ILC Drafting Committee on the Identification of Customary International Law, A/CN.4/L.869 (2015). See also M. N. Shaw, International Law (8th ed.) (2017, Cambridge), p. 55. 63. Roberts, p.294 citing The Trial of German Major War Criminals (London, 1946-5 I), vol. 22, pp. 457, 467. 64. Hostages trial (List et al.), US Military Tribunal, Nuremberg, 1948, 8 LRTWC 34, 59.
RkJQdWJsaXNoZXIy MjgzNzA=