Thursday, June 18, 2015

  • Thursday, June 18, 2015
  • Elder of Ziyon
From Marko Milanovic at the blog of the European Journal of International Law:
Yesterday the Grand Chamber of the European Court of Human Rights delivered judgments in two blockbuster cases regarding the aftermath of the Nagorno-Karabakh conflict between Armenia and Azerbaijan: Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan. These are very rich judgments raising many important issues, and I will be writing up more detailed comments shortly. But I first had to share one particular little nugget: the Court has (implicitly!) decided that Israel is not the occupying power in Gaza. How so, you ask?
...In fact, when it ratified the European Convention Azerbaijan made the following declaration (para. 93 of the judgment):
The Republic of Azerbaijan declares that it is unable to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation.
Note the reference to the concept of belligerent occupation. Immediately after this paragraph, the Court makes the following observations, under the heading ‘relevant international law’ (para. 94):

Article 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter “the 1907 Hague Regulations”) defines belligerent occupation as follows:

“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a state exercises actual authority over the territory, or part of the territory, of an enemy state(1) . The requirement of actual authority is widely considered to be synonymous to that of effective control.

Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation(2) , i.e. occupation is not conceivable without “boots on the ground” therefore forces exercising naval or air control through a naval or air blockade do not suffice(3) .
And in the case of Sargsyan v. Azerbaijan the court reiterates:
144. The Court notes that under international law (in particular Article 42 of the 1907 Hague Regulations) a territory is considered occupied when it is actually placed under the authority of a hostile army, “actual authority” being widely considered as translating to effective control and requiring such elements as presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign (see paragraph 94 above). On the basis of all the material before it and having regard to the above establishment of facts, the Court finds that Gulistan is not occupied by or under the effective control of foreign forces as this would require a presence of foreign troops in Gulistan.
The court interprets the 1907 Hague Convention accurately (the Geneva Conventions do not define occupation; the Hague is the source for that.)

The blog author notes something that shows the real truth of how international law is applied to Israel differently than any other state:
I also very much doubt that the judges were really aware of the implications a categorical statement such as the one made here will have on the whole Gaza debate. If they were, I imagine that they would have avoided it like the plague.
if judges are supposed to be impartial, then why would they have acted differently if they realized this applies to Gaza?

The answer is that the supposedly impartial system of international law is in fact biased against Israel, and the author of this piece knows this quite well.

(h/t YMedad)



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