23 Fall 2025 58. Moreover, and as noted by Zemach, the “occupations of Namibia and Guinea-Bissau did not result from foreign military invasion. However, those occupations were created through illegal use of force consisting in the refusal on the part of South Africa and Portugal to withdraw their military forces from the territory upon loss of title. Such circumstances are indistinguishable from an occupation resulting from the refusal of a foreign army, initially invited to a territory by the legitimate sovereign, to withdraw from that territory after the invitation has expired. International law considers such refusal an act of aggression.”92 In this case, the Namibian and South African examples are distinguishable as there is no valid claim that Israel’s actions in the Six-Day War of 1967 constituted an unlawful use of force. An occupation does not become illegal with the passing of time 59. Article 6(3) of Geneva IV limits the applicability of certain provisions of the Convention in occupied territory to one year after the “close of military operations”: “In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.” 60. The issue of whether and how to limit the duration of occupation, with emphasis on the Arab-Israeli situation, was a focus during the drafting process of the Additional Protocols.93 While Additional Protocol I did not contain a provision proscribing the length of an occupation, it did not adopt the approach of Article 6(3). Instead, the drafters included Article 3(b) which mandated application of the Conventions and the Protocol until the “general close of military operations and, in the case of occupied territories, on the termination of the occupation.” According to the Commentaries, it was argued that this provision would then supplant Article 6(3).94 61. Neither the Hague Regulations nor the Fourth Geneva Convention limits the duration of the occupation, nor requires the occupant to restore the territories to the sovereign before a peace treaty is signed.95 Rosalyn Higgins has similarly noted that “there is nothing in either the [UN] Charter or general international law which leads one to suppose that military occupation, pending a peace treaty, is illegal.”96 62. Former Israeli Chief Justice, Meir Shamgar, also rejected the concept of “illegal occupation,” stating that “pending an alternative political or military solution [occupation]... could, from a legal point of view, continue indefinitely.”97 Zemach has noted that a “review of conventional international law reveals no treaty provision that refutes these statements of law.”98 Imseis acknowledges that although “occupation is meant to end under international law, nothing in the IHL/IHRL paradigm expressly compels this result.”99 92. Zemach, p. 325. 93. A. Roberts, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967,” 84 American J. Intl Law 44, 52 (1990), 56. 94. Yves Sandoz, et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee for the Red Cross 1987 at para. 151. 95. Benvenisti – Occupation, p. 245. 96. R. Higgins, The Place of International Law in the Settlement of Disputes by the Security Council, 64 AM. J. INT’L L. 1, 8 (1970). 97. M. Shamgar, Legal Concepts and Problems of the Israeli Military Government – The Initial Stage, in Military Government in the Territories Administered by Israel 1967-1980 – The Legal Aspects 13, 43 (Meir Shamgar ed., 1982). 98. Zemach, p. 326. 99 A. Imseis, Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine, 1967–2020, EJIL (2020), Vol. 31 No. 3, 1055–1085, p. 1064.
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