20 No. 75 JUSTICE and Geneva Conventions.65 As Benvenisti and Keinan note, in and of itself, this text refutes “the claim that occupation, as such, is illegal.”66 47. The UN Security Council noted the illegality of the occupation of Kuwait by Iraq in August 1990,67 widely perceived as the result of an illegal use of force on the part of Iraq.68 In Resolution 674, it expressly linked the “illegal occupation” to the Iraqi “invasion.”69 Even though Resolution 674 has value as an executive pronouncement of the Security Council, however, it remains a statement unsupported by legal reasoning. 48. In Demopoulos v Turkey, the Grand Chamber of the European Court of Human Rights stated, with respect to the Turkish occupation of northern Cyprus commencing in 1974, that “the mere fact that there is an illegal occupation does not deprive all administrative or putative legal or judicial acts therein of any relevance under the [European] Convention [on Human Rights]” (emphasis added).70 Dinstein has posited that it “would have been more accurate” for this passage to “have adverted to an illegal use of force generating occupation rather than to an illegal occupation,” as the “crux of the matter is that, whether the use of force on which it is predicated is lawful or unlawful under the jus ad bellum, belligerent occupation is the font of the same body of law under the jus in bello.”71 It is indeed regrettable that the Strasbourg Court did not provide more clarity with respect to the criteria that it employed to make its determination.72 49. An amendment to the Rome Statute of the ICC, adopted by consensus by the States Parties to the ICC in 2010, provides that one of the acts that qualify as an “act of aggression” is “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack.”73 This provision, to the extent that it may be said to reflect customary international law, does not support the view that there would exist per se a category, under international humanitarian law, of “illegal occupation,” but simply that an occupation resulting from an “act of aggression” could also be considered as part of a further act of aggression. In other words, the term “occupation” in this context is used to define the scope of the international crime arising from the jus ad bellum prohibition and does not proscribe such a situation as constituting an “illegal occupation” per se. 65. Security Council Resolution 1483, preamble and para. 5. E. Benvenisti and G. Keinan, The Occupation of Iraq – a Reassessment, International Law Studies Vol.86 in R. A. “Pete” Pedrozo (ed.), The War in Iraq: A Legal Analysis (hereinafter “Benvenisti and Keinan”), p. 277. 66. Benvenisti and Keinan, p. 277. 67. S.C. Res. 674, para. 8, U.N. Doc. S/RES/674 (Oct. 29, 1990) (The Security Council warned Iraq that “it is liable for any loss, damage or injury arising in regard to Kuwait and third states, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq”). 68. S.C. Res. 661, preamble, U.N. Doc. S/RES/661 (Aug. 6, 1990). 69. Y. Ronen, Illegal Occupation and its Consequences, Israel Law Review, Vol. 41 (2008), pp.201-245 (hereinafter “Ronen”), p. 224. 70. Demopoulos and Others v. Turkey (dec.), Grand Chamber of the European Court of Human Rights, App. Nos. 46113/99, 3843/02, 13751/02 et al, 1 March 2010 (hereinafter “Demopoulos v. Turkey”), para. 94. 71 Dinstein - Occupation, p. 4 (para. 9). 72. After noting that its “conclusion does not in any way put in doubt the view adopted by the international community regarding the establishment of the ‘TRNC’ or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus,” the Strasbourg Court expressly maintained “its opinion that allowing the respondent State to correct wrongs imputable to it does not amount to an indirect legitimisation of a regime unlawful under international law.” Demopoulos v Turkey, para. 96. 73. Rome Statute, Art 8bis(2)(a); Resolution RC/Res.6 of the Review Conference of the Rome Statute, Amendments on the crime of aggression to the Rome Statute of the International Criminal Court (June 11, 2010).
RkJQdWJsaXNoZXIy MjgzNzA=