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Academic Spam [UPDATED]

Published on October 11, 2013        Author: 

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Handling the daily flood of emails is painful enough. But within this flood there is a particular subset that I have over the years found increasingly more annoying – for lack of a better term, I’ll call it academic spam. I now get several such messages weekly, sometimes even daily. It comes in a number of varieties, with different degrees of sophistication in how the emails are drafted and presented. First you have the invitations to conferences/events of absurdly general scope, or at least lack of relevance to my own field, i.e. there is actually no good reason to invite me (e.g. conference on Issues in Higher Education, Language, Literature and Linguistics, Social Science and Managment, etc.). Most of these conferences involve the open access publication of the submitted papers, but from what I gather little or nothing by way of peer review or editorial standards. Then there are the invitations to submit papers to say a Journal of X, where the X again normally has little bearing on my field, and where I’ve rarely if ever heard of the journal or of the people (supposedly) sitting on their boards etc.

Having done some pain-induced research on this, I gather that the business model of these spammers, most of whom seem to operate from India, China, and Eastern Europe, is relatively simple. They collect emails, names, affiliations etc by trawling existing scholarly papers, e.g. those posted on SSRN, then sending out copy/pasted invitations (the better ones are sometimes more personalized). They charge fees for their conferences (essentially you pay to be a panelist and that’s that, no questions asked) and for the open access publications (note the perils of the recent mainstreaming of the open access ‘gold option’ in the UK). They do not operate a scam strictly speaking – there probably is a conference, and there is a publication. It’s just that they have zero scientific merit. One can after all hardly complain of being cheated after paying their fees, as the nature of the enterprise is obvious.

Read the rest of this entry…

Filed under: EJIL Analysis
 

Freedom of Religion and Religious Symbols: Same Right – Different Interpretation?

Published on October 10, 2013        Author: 

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stephanie berryStephanie E. Berry is Lecturer in Public Law at the University of Sussex.

As the debate over the wearing of religious attire in State institutions in Western Europe has reignited over previous weeks, it is pertinent to consider the protection provided under international law to those who wish to exercise this element of freedom of religion. As has been well documented, the European Court of Human Rights (ECtHR) has been willing to accept restrictions on the right to manifest religion by wearing religious attire under article 9(2) of the European Convention on Human Rights on the grounds of the ‘rights and freedoms of others’ (specifically gender equality, pluralism and tolerance and State neutrality) (see, for example, Dahlab v Switzerland; Şahin v Turkey) and public order and safety (Phull v France; El-Morsli v France). However, the wide margin of appreciation afforded to States and the failure of the ECtHR to probe whether restrictions on the right to manifest religion are proportionate have been the subject of criticism.

Until recently the right to manifest religion by wearing religious attire under the International Covenant on Civil and Political Rights (ICCPR) had rarely been considered by the UN Human Rights Committee (HRC) (see Singh Bhinder v Canada and Hudoyberganova v Uzbekistan). Notably, however, the HRC does not recognise that States have a margin of appreciation. Thus, in two recent cases concerning the right to manifest the Sikh religion by wearing religious attire, a significant divergence between the approach of the HRC and the ECtHR can be observed.

800px-Sikhs_on_the_move!In Mann Singh v France and Ranjit Singh v France the ECtHR and HRC, respectively, considered the right of a Sikh man to manifest his religion by wearing a turban on a photograph affixed to an identification document. In Mann Singh v France, the ECtHR acknowledged that the requirement that the applicant appear without his turban in the photograph affixed to his driving license constituted an interference with the right to manifest religion. However, the ECtHR accepted that the restriction was justified on the grounds of ‘public safety’ and ‘public order’ under article 9(2) ECHR. Notably, the ECtHR deferred to the discretion of the State and, thus, did not examine the legitimacy of the State’s assertion that the removal of the turban was necessary to allow the identification of the driver and to avoid fraud. (photo credit)

Similarly, in Ranjit Singh v France the HRC considered the requirement that Sikhs remove their turbans in photographs affixed to residents permits, (paras 2.12-2.2) a requirement again justified by France on the grounds of public order and public safety (para 5.3) under article 18(3) ICCPR. Although the HRC recognised that the aim of the restriction was legitimate, (para 8.4), in direct contrast to the ECtHR, the HRC found:

 [T]hat the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead but leaving the rest of the face clearly visible would make it more difficult to identify the author than if he were to appear bareheaded, since he wears his turban at all times. Nor has the State party explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits. (para 8.4)

The HRC continued to consider the potential for this interference to result in continuing violations of the applicant’s rights ‘because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks’ (para 8.4). By exercising a higher level of scrutiny of the justifications given by the State for the restriction of the right to manifest religion, than the ECtHR in Mann Singh v France, the HRC was able to assess the proportionality of the interference and found a violation of freedom of religion. Read the rest of this entry…

 

Greenpeace ‘Pirates’ and the MV Arctic Sunrise

Published on October 8, 2013        Author: 

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MV Arctic SunriseAs is now well-known, on 18 September several Greenpeace activists attempted to board Gazprom’s oil platform, the Prirazlomnaya, in the Russian Exclusive Economic Zone (EEZ) bearing ropes and posters. They did do in inflatable craft launched from the Greenpeace vessel the MV Arctic Sunrise. They were soon arrested by the Russian Coast Guard. On 19 September the Russian Coast Guard boarded, within their EEZ but outside territorial waters, the Arctic Sunrise itself (a Netherlands flagged vessel) and arrested those on board.

I have already blogged at The Conversation as to why the Greenpeace protestors are self-evidently not pirates at international law. (In short, their acts were neither violent nor committed against another ship.) Vladimir Putin even agrees, but nonetheless the protestors and all aboard the Arctic Sunrise have been charged with “piracy of an organised group”.

Now the Netherlands government has commenced arbitration proceedings against Russia over the detention of the Arctic Sunrise and, it seems, the legality of its seizure. These proceedings will have two limbs: (1) seeking the release of the vessel and crew; and (2) the merits of the case concerning the lawfulness of the Russian action against both those aboard its oil platform and the Arctic Sunrise.

The case will be heard by an arbitration panel constituted under the UN Convention on the Law of the Sea (UNCLOS). This panel will have the power to order the release of the Arctic Sunrise as a preliminary measure, or if it is not constituted within two weeks the International Tribunal for the Law of the Sea will have jurisdiction to hear the prompt release case (Article 290(5), UNCLOS).

I, perhaps rather rashly, previously noted that the Russian reservation to the UNCLOS dispute settlement mechanism might pose problems to such proceedings. (The reservation purports to exclude disputes arising from certain categories of law-enforcement action.) What follows is (mostly) an explanation of why that is likely not the case.

A health warning, however: this is a long and rather technical post.

Read the rest of this entry…

 

The Global Countdown to October 17: International Responsibility for Foreseeable and Deliberate Sovereign Defaults?

Published on October 8, 2013        Author: 

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EJIL Talk Oct 2013The daily political saga of the United States federal government shutdown has the rest of the world riveted – not just for the ratcheting rapid-fire exchanges between President Barack Obama and Republican House Speaker John Boehner (pictured above left, credit) – but more so for the increasing threat that the United States will declare an unprecedented default on a massive portion of its government debt, if, by October 17, the Legislative and Executive branches cannot reach agreement on lifting the United States Treasury’s debt ceiling.  IMF Managing Director Christine Lagarde has said that failure to raise the debt ceiling would be a “far worse threat to the global economy than the current shutdown”.  China and Japan, both holders of significant volumes of US Treasury Bills,  have publicly asked the United States to resolve the impasse and prevent looming damage to their investments.  Fears of a global crisis sparking if the US defaults on October 17 have dominated the opening of the 2013 Asia-Pacific Economic Cooperation (APEC) Forum in Bali, Indonesia, where President Obama’s absence has conspicuously elicited skepticism of the durability of US foreign policy in its ‘pivot’ to the Asia-Pacific, and the United States’ ability to  conclude the negotiations for a Trans-Pacific Partnership agreement (TPP).

Should there be any US default by October 17, it may well be argued that this kind of sovereign default has a peculiar quality of avoidability and foreseeability, where the State had some conceivable measure of control over the default.  Could the United States be internationally responsible to other States (either those suffering the direct result of non-payment of debts, or those affected by a global economic crisis sparking from a US default), if it knew of the global economic impacts of an unprecedented US default and could have avoided it by acting swiftly to lift the debt ceiling, but failed to thus act?

Read the rest of this entry…

Filed under: EJIL Analysis
 

The UN Working Group on Arbitrary Detention: Obaidullah v United States and the Mainstream of International Law

Published on October 7, 2013        Author: 

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Photo BjorgeEirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, Oxford.

The UN Working Group on Arbitrary Detention (WGAD) is the only body in the international human rights system with a specific mandate to receive and examine cases on arbitrary deprivation of liberty. In this capacity it has, since 1991, interpreted and enforced the international legal rules on deprivation of liberty as they have developed in domestic, regional and international jurisdictions. Its jurisprudence can be accessed via its search engine. Earlier this year one of the members of the WGAD, Professor Mads Andenas, presented before the UN Human Rights Council the report 2012 WGAD activities.

Obaidullah v United States

obaidullah-785x1024Potential applicants and counsel are becoming increasingly aware of the opinions which make up the WGAD’s body of jurisprudence. A recent illustrative example is the opinion handed down by the WGAD in Obaidullah v United States on the detention of Bertola Obaidullah at Guantánamo Bay (distributed on 3 June 2013; to be published in December). In its opinion in Obaidullah the UN Working Group on Arbitrary Detention found against the United States in relation to the arbitrary detention of Obaidullah (pictured above right, credit).

Obaidullah, a twenty-nine-year-old ethnic Pashtun Afghan citizen resident in the village of Milani, Khost province, had on 21 July 2002 been taken into custody during a raid on his family home. He was interned at a US military station and subsequently held for three months. In its opinion the WGAD made clear that ‘while imprisoned in Afghanistan, Mr. Obaidullah was not informed of the reasons for his detention. He was threatened, coerced into making false statements and tortured’ (at [4]). The WGAD said the following about Obaidullah’s later detention at Guantánamo Bay: ‘In October 2002, United States military forces transferred Mr. Obaidullah to the United States detention facility at Guantánamo Bay, Cuba, where he continued to be subjected to torture and inhuman treatment. More than ten years later, Mr. Obaidullah continues to be detained at Guantánamo Bay. He was not provided any reasons for his detention nor charged’ (at [5]).

The opinion of the Working Group concluded that: ‘The deprivation of liberty of Mr. Obaidullah is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and 9 and 14 of the International Covenant on Civil and Political Rights.’ (See the excellent blog post by Marine Farshian on La Revue des Droits de l’Homme.) Read the rest of this entry…

 
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Announcement: International Law Weekend in New York

Published on October 6, 2013        Author: 

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International Law Weekend 2013 — brought to you by the American Branch of the International Law Association — begins on Thursday night, October 24, 2013, at the Great Hall of the Association of the  Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. Friday and Saturday, October 25-26, at the Lincoln Center facilities of Fordham Law School, at 140 West 62nd Street, NYC. This year’s theme is the “Internationalization of Law & Legal Practice.”  The opening panel, featuring the UN Undersecretary General for Disarmament debates the new UN Arms Trade Treaty. The keynote address will be given by international arbitrator Donald Donovan, current president of the American Society of International Law. Panels discussions include: the Well-Being of Children affected by Armed Conflict; Reform of the Inter-American Human Rights System, Teaching Law Outside Law Schools; practical panels on private international law; investment arbitration’s standards of review in regard to government regulatory conflict ; the revision of the U.S. “Restatement” of Foreign Relations Law; the new “Regime of Rocks and Islands” in maritime boundary disputes (see the contest over the South China Sea); bringing terrorists to justice, and forging a convention on Crimes Against Humanity.   Advance Registration, and further information, are available at the website of the ILA American Branch or the International Law Students Association website. As always, admission is free for all students, faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York.  Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free.  The registration fee remains a modest $75 for the two days combined for all other practicing lawyers and members of the public.

 

 

 

 

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Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)

Published on October 4, 2013        Author: 

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Editor’s Note: This piece was originally published on Just Security.

My first post for Just Security explained why, despite some bungled politics, President Obama’s proposed military action in Syria could have been lawful under U.S. domestic law.  This post discusses why President Obama did not violate international law by threatening to use force in Syria in the face of a persistent Russian veto, and how the Syria crisis might best evolve from here.

Obviously, we cannot fully evaluate the lawfulness of any state’s use of force until we know the precise factual circumstances under which it chooses to take action.  But let’s start by distinguishing the legal question—is the option of military force available under domestic or international law?—from the policy question: would it be wise to use military force in Syria for the limited purpose of discouraging a repeat use of chemical weapons?  No one denies that the policy question presents a vexing judgment call, even if the intended use were very limited and even if a decision-maker like President Obama had far more information than that available to the general public. As Nick Kristof rightly cautioned, “[l]et’s be humble enough to acknowledge we can’t be sure of the answer and that Syria will be bloody whatever we do.”  The shifting balance of power in the Syrian civil war; the proliferation of questionable armed groups on both sides, the risk of mission creep, and the uncertainty of follow-on consequences from any military strike all demand caution, particularly if one starts from the premise, “first, do no harm.”

3. Was the Proposed Military Action Lawful Under International Law? That said, a prior and distinct legal question remains: would the policy option to use military force ever be available under either domestic or international law? My last post explained the circumstances under which U.S. domestic law allows policymakers that policy option.  But does international law nonetheless bar it? I believe that international law has evolved sufficiently to permit morally legitimate action to prevent atrocities by responding to the deliberate use of chemical weapons.

Among international legal commentators, the emerging party line seems to be that President Obama was threatening blatantly illegal military action in Syria, for the simple reason that the Russians were not on board. The conventional argument, set forth by among others, my Yale friends and colleagues Oona Hathaway and Scott Shapiro, is “per se illegality:” in their view, Article 2(4) of the U.N. Charter permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. They see the Syrian crisis as a moment to reaffirm that acting without an UN Security Council Resolution is per se illegal.  But is that really what international law requires? Read the rest of this entry…

 

Syria, Security Resolution 2118 (2013) and Peace versus Justice: Two Steps Forward, One Step Back?

Published on October 3, 2013        Author: 

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Chemical weaponsOn 27 September 2013, the Security Council adopted Resolution 2118 (2013). The resolution broke the diplomatic impasse over Syria in the Security Council. It was celebrated as a diplomatic success and as a ‘precedent-setting’ resolution. It marks fundamental progress, on at least two fronts: (i) It shifted the debate on the use of force from claims of unilateral intervention to collective security action (which is in line with the spirit of the Responsibility to Protect idea under the World Summit Outcome Document); and (ii) it reinforced of the normative regime regarding the ban of the use of chemical weapons. (photo: mustard gas shells, credit)

As has been aptly noted,  the text of resolution has not been expressly adopted under Chapter VII. But this does not detract from its binding force (Article 25 of the UN Charter) and its legal significance. The most immediate consequence of Resolution 2118 (2013) is that averted the threat of unilateral military strikes. The text of the resolution makes it makes it clear that military action to enforce compliance with obligations under the Resolution needs to be channelled through the Security Council. The wording differs from Security Council Resolution 1441 (2002) which afforded Iraq ‘a final opportunity to comply with … disarmament obligations under relevant resolutions of the Council’ (para. 2), and recalled that ‘Iraq […] will face serious consequences as a result of its continued violations of its obligations’ (para. 13). Resolution 2118 (2013) maintains the prerogative of the Council to decide on future action. It states that the Security Council ‘decides’ on measures ‘in the event of non-compliance with’ the resolution (para. 22). This makes it hard to justify unilateral strikes, based on the interpretation of the Resolution, as argued in the context of Iraq, where Resolution 1441 was invoked in conjunction with Resolution 678 (1990) to justify the use of force. The wording of Resolution 2118 adopts a different approach. It suggests that the burden lies on the Council to reach agreement.  It leaves some choice as to the type of measure to be adopted (e.g., sanctions or other measures under Article 41, or coercive measures under Article 42). But the wording (‘The Security Council ‘[d]ecides […] to impose measures under Chapter VII’)  seems to reflect an implied pre-commitment to act which is visibly designed to prevent risks of future inaction by the Council.

Secondly, the resolution marks new ground since it proclaims a ‘new’ norm regarding the universal ban on the use of chemical weapons. It clarifies that ‘the use of chemical weapons anywhere constitutes a threat to international peace and security’ (para. 1).It thus embraces a new commitment by the Security Council to the prohibition of the use of chemical weapons ‘anywhere’, ‘anytime’ and ‘under any circumstances’. As argued by Marko Milanovic, this universal ban bears resemblance with the generic finding in the preamble of Resolution 1373 (2001) that ‘acts, like any act of international terrorism, constitute a threat to international peace and security’. It puts pressure on the Council to deal with such incidents in the future. It coincides with parallel developments in international criminal law, i.e. the extension of the war crime of employing poison, poisonous weapons or prohibited gases, liquids, materials or devices to non-international armed conflicts at Kampala, as discussed by Dapo Akande.

But like the preceding discourse on intervention, the resolution contains a fundamental contradiction. Read the rest of this entry…

 

Apartheid in Occupied Palestine: A Rejoinder to Yaffa Zilbershats

Published on October 2, 2013        Author: 

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 dugardJohn Dugard (pictured left) is Emeritus Professor of John ReynoldsInternational Law at the University of Leiden and Honorary Professor in the Centre for Human Rights at the University of Pretoria. John Reynolds (pictured right) is the EJ Phelan Fellow in International Law at the National University of Ireland, Galway.

‘Upper Nazareth is a Jewish city and it’s important that it remains so’, wrote its mayor Shimon Gapso last month. ‘If that makes me a racist’, he continued, ‘then I’m a proud offshoot of a glorious dynasty of racists’. Gapso was responding to criticism he had received over his call for the preservation of Jewish Israeli demographic superiority over Palestinians in his jurisdiction. He sought to undercut such criticism by situating his views as merely symptomatic of the core tenets of Zionism. His position, he suggested, is no more or no less racist than Herzl or Ben-Gurion and the pioneering Jewish settlement—with inevitable removal of Palestinians—that they espoused. While Gapso makes this admission of racism rather facetiously, so as to expound the ‘hypocrisy and bleeding-heart sanctimoniousness’ of his liberal Israeli critics, his comments go to the heart of Israeli policy vis-à-vis the Palestinians historically and contemporaneously: colonisation, displacement, and segregation. In pointing to security issues and the diverse political, socio-economic and cultural needs of the two population groups, Gapso essentially reproduces the vision of “separate development” that was central to apartheid in southern Africa. Apartheid was presented by its Afrikaner architects as not about oppression or denial of self-determination, but “separateness”.

Gapso’s comments mark the latest round in an ongoing debate over the role of ethno-racial dynamics in Israeli policy-making, and the nature of Israel’s institutional and legal regimes as they apply to the AbuDisWallPalestinians. They came in the context of the relationship between Israeli authorities and Palestinian citizens inside the state’s borders. They are equally and arguably more prescient when considered in relation to the occupied Palestinian territories, where the narrative of an Israeli apartheid-like regime has gained particular prolificacy in popular and political discourse since the 1990s. More recently, the relevance of the normative prohibition of apartheid as articulated through the specific language of international law has come to the fore. Our article in the current issue of the European Journal of International Law explores international law’s engagement with questions of race, racial discrimination and apartheid. It considers the nature of Israel’s occupation of the Palestinian territories in that light, and concludes that the regime of discrimination and segregation imposed in the occupied territories is of a sufficiently institutionalised nature to be qualified as a system of apartheid. (photo: Israeli wall at Abu Dis, credit)

Yaffa Zilbershats’ reply  to our article roots itself in the familiar refuge of Israeli exceptionalism, and parrots two standard talking points of Israeli government lawyers. The first is that as a mere occupying power, Israel’s behaviour in the Palestinian territories is not susceptible to the same standards by which a sovereign state would be judged. The second is that because Palestinians have committed acts of “terror”, Israel’s behaviour is not susceptible to the same standards by which a sovereign state would be judged. Both of these points are supported by almost exclusive reference to Israeli court decisions.

Occupation and Apartheid: “Apples and Oranges”

Zilbershats suggests that because Israel occupies the Palestinian territories without having formally annexed them (disregarding the fact that in the case of East Jerusalem it has done so), the state is bound there only by the laws of armed conflict. Israel can exempt itself from other spheres of international law, including, apparently, the prohibition of apartheid; its status as a jus cogens norm and explicit inclusion in the laws of armed conflict themselves notwithstanding. Zilbershats argues that, by asserting that regimes of apartheid and occupation can (and do) occur simultaneously, our article is guilty of ‘comparing apples and oranges’.

Apart from erasing several decades of Namibian history, this claim obscures the present reality that Israel’s colonisation of Palestinian territory goes far beyond the image of a temporary occupation that Zilbershats conjures up. With this “temporary” situation now approaching fifty years as the status quo and the settlement enterprise continuing apace, it is not merely a regime of belligerent occupation but also one of expansionary settler colonialism. Read the rest of this entry…

 

On the Occasion of the Five-year Anniversary of the Russian-Georgian War: Is Georgia Occupied?

Published on October 1, 2013        Author: 

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natia kalandarishviliNatia Kalandarishvili-Mueller is a Lecturer in Humanitarian Law at Tbilisi State University, Institute of International Law, Faculty of Law, and a PhD Candidate at the University of Essex, School of Law.

 

Five years have passed since war broke out between Russia and Georgia. The Independent International Fact Finding Mission on the Conflict in Georgia, established by the Council of the EU by decision of 2 December 2008, found that:

“On the night of 7 to 8 August 2008, a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements. It did not take long, however, before the Georgian advance into South Ossetia was stopped. In a counter-movement, Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country’s main east-west road, reaching the port of Poti and stopping short of Georgia’s capital city, Tbilisi […] After five days of fighting, a ceasefire agreement was negotiated on 12 August 2008 between Russian President Dmitry Medvedev, Georgian President Mikheil Saakashvili and French President Nicolas Sarkozy…”. (pp. 10-11 of the Report)

However, the Russian Federation appears to be in violation of Point 5 of the Sarkozy peace plan, which had stipulated “the withdrawal of Russian military forces to the lines they held before hostilities broke out…”. What is more, on 26 August 2008 Russia recognized the independence and sovereignty of Georgia’s two breakaway regions, Abkhazia and South Ossetia.

This post examines the validity of Georgia’s contention that 20 percent of its territory is occupied by Russia. I first discuss the parties’ opposing positions and then assess the facts in light of the applicable law on military occupation. Read the rest of this entry…