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A Prudential, Policy-Based Approach to the Investigation of Nationals of Non-States Parties

Published on May 30, 2018        Author:  and
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On 22 May, Palestinian Foreign Minister Riyad al-Maliki submitted a referral to the International Criminal Court (ICC) regarding the situation in Palestine since 13 June 2014, with no end date.  This follows the Prosecutor’s statements on 8 April and 14 May responding to the situation on the Gaza border (which were themselves unusual, if not unique, examples of OTP practice).  As with the proposed investigation of US nationals in the Situation in Afghanistan, the Myanmar and Bangladesh issue that is under consideration and the investigation of Russian conduct in Georgia and Ukraine, the question of whether, and if so how, the ICC may exercise jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again.

By proceeding with investigation of Russian conduct in Georgia and Ukraine, Israeli conduct in Gaza and the West Bank, and American conduct in Afghanistan, legal issues which arise upon exercise of the Court’s enforcement jurisdiction will foreseeably give rise to challenges both before the ICC, as well as in national jurisdictions during surrender proceedings. This contribution suggests that a prudential, even cautious, policy-based approach to the investigation of nationals of non-states parties may help the OTP avoid pitfalls resulting from proceeding without sufficient regard to non-states parties’ jurisdictional objections. Read the rest of this entry…

 
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‘With Friends Like That, Who Needs Enemies?’: Extraterritorial Sanctions Following the United States’ Withdrawal from the Iran Nuclear Agreement

Published on May 29, 2018        Author: 
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On Monday 21 May 2018, the US Secretary of State announced that, as a result of its withdrawal from the Joint Comprehensive Plan of Action (‘JCPOA’ or ‘Iran Nuclear Deal’), the United States is set to impose the ‘strongest sanctions in history’ against Iran. While the remaining states parties are committed to preserve the Iran Nuclear Deal, whether the JCPOA can in fact survive in the face of the US change of heart is a matter of uncertainty. Of particular concern is the effect that the resumption of US economic sanctions will have on non-US companies that have flocked to Iran in the aftermath of the JCPOA. Unlike the sanction programmes implemented against Iran by various states before 2015, the US measures present distinctively extraterritorial features, directly targeting foreign companies carrying out business with Iran despite the absence of a significant connection with the United States. The European Union has already vowed to take action in order to protect its trade interests and to ‘block’ unwarranted interference by the United States. As tension in the transatlantic relations mounts, serious questions arise concerning the legality of the US sanctions regime under international law. This post will focus in particular on the compatibility of these measures with the international rules governing the assertion of jurisdiction by states. It will be shown that, in the absence of an adequate jurisdictional basis, the extraterritorial aspects of the US sanctions regime must be considered unlawful. Some measures that the European Union and other JCPOA states can take in order to react to these wrongful acts will further be considered. Despite the availability of legal means to counter the US sanctions, a negotiated settlement between the United States and its economic partners remains the most viable solution to this standoff.

The long arm of the US sanction regime

Despite the Trump administration’s lack of specific directions on the issue, the US Treasury Department’s Office of Foreign Assets Control (OFAC) recommends that persons engaged in transactions with Iran:

‘should take the steps necessary to wind down those activities to avoid exposure to sanctions or an OFAC enforcement action under U.S. law after August 6, 2018, or November 4, 2018, depending on the activity’ (Question 1.4).

Of particular concern for foreign firms are the provisions contained in Executive Order 13590 (providing for an almost complete ban on the Iranian petrochemical sector), Executive Order 13622, and Executive Order 13645 (which prohibit foreign financial institutions from carrying out a vast set of transactions on behalf of Iranian entities). As recently as August 2017, Congress also vested the US President with ample powers to take measures against:

‘any person that … knowingly engages in any activity that materially contributes to the activities of the Government of Iran with respect to its ballistic missile program, or any other program in Iran for developing, deploying, or maintaining systems capable of delivering weapons of mass destruction’ (Section 104 of the Countering America’s Adversaries Through Sanctions Act).

Alongside their broad content, these measures all are characterised by an unspecified — and potentially unlimited — jurisdictional scope. Through these provisions, the United States seeks to compel not only US persons, but ‘any person’ — wherever located and regardless of their connection with the United States — to refrain from engaging in certain transactions with Iran. This is problematic in several respects. Read the rest of this entry…

Filed under: Iran, Nuclear Weapons, Sanctions
 

Taking the party line on the South China Sea Arbitration

Published on May 28, 2018        Author: 
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I recently posted here on the extraordinary 500-page “Critical Study” of the Awards in the South China Sea Arbitration published by the Chinese Society of International Law (CSIL) in Oxford University Press’ Chinese Journal of International Law.

The piece drew a number of interesting comments, the most interesting from Professor Bing Ling of the University of Sydney:

This Critical Study is not some spontaneous work by individual academics, but clearly a government-orchestrated project produced in the name of a learned society. The Working Report of the Board of CSIL (2013-18) reports that the work of CSIL, including the Critical Study, was carried out “under the supervision and leadership of the Foreign Ministry” (https://mp.weixin.qq.com/s/Xv8Kij_bDuqMETULvUfMqg).

That CSIL Working Report makes for interesting reading in Google Translate. It opens with:

In the past five years, under the guidance of the socialist ideology with Chinese characteristics in the new era of Xi Jinping, the current council has united and led the members to work together under the leadership of the Ministry of Foreign Affairs to earnestly implement the spirit of the 18th and 19th National Party Congress and the Party Central Committee … [including through] adherence to the correct political direction …

In terms of the five years of work the first heading is “Serving the State’s Foreign Affairs and Foreign Affairs Bureau to Promote the International Influence of the Society” and achievement (A)(II) is listed as:

Actively respond to the “Southern Gulf [sic] arbitration case proposed by the Philippines”. From 2016 to 2018 , the Society made a multi-level, multi-channel and multi-perspective speech by organizing domestic and international seminars, writing reports, publishing series of articles, publishing special issues, receiving television interviews, and writing criticism reports. They refuted and exposed the Philippine arbitral tribunal for the South China Sea arbitration case to expand powers, ultra vires, and abuse of power. … Including: 1. Organization of domestic experts and scholars, organized the “Philippine South China Sea Arbitration” academic seminar. 2. Organize domestic experts and scholars to write a report on the “Arbitral Tribunal of the South China Sea Arbitration Court has no legal effect” report and publish it in both Chinese and English; 3. Organize domestic experts and scholars to write a “Critique of the South China Sea Arbitration Award” report in both Chinese and English publishing.  … (Emphasis added.)

A further important piece of context is the following passage:

… [W]e always adhere to the overall situation of serving the country’s diplomacy and foreign affairs. Diplomatic foreign affairs work is an important part of the overall work guilof the party and the country. The work of international law teaching research and associations is also an important component of foreign affairs. In the past five years, the Institute has guided the Chinese international law community to focus on the research direction of the focus of diplomatic work. It closely identifies the actual needs of diplomatic work when organizing various academic conferences to determine the theme of the conference, and effectively plays a role as a bridge between the theoretical and practical world of international law. Under the leadership of the Ministry of Foreign Affairs, the Society has always adhered to the mission of the National Foreign Affairs and Foreign Affairs Center, paid close attention to the evolution of the international situation, strengthened theoretical and empirical studies of international law in related fields, and scored a series of important achievements. In particular, in 2016, the Society mobilized the academic community to cooperate with the overall deployment of diplomacy to carry out the juridical struggle and actively responded to the “Philippine South China Sea Arbitration Case” in various ways, effectively refuting and exposing the unlawful practices of the temporary arbitration tribunal. (Emphasis added.)

Allowing for the vagaries of Google Translate, this five year Working Report raises a number of interesting questions including:

  • Given the close association of the CSIL and the Chinese Foreign Ministry – and the apparent integration of the CSIL into the diplomatic effort on this issue – should Foreign Ministry “leadership” of the Critical Study have been acknowledged in a first footnote?
  • Did the CSIL’s self-professed “mobiliz[ation of] the academic community” have any impact (directly or indirectly) on the peer review process for the Critical Study?
  • OUP lists the Chinese Journal of International Law as “An independent, peer-reviewed research journal edited primarily by scholars from mainland China, and published in association with the Chinese Society of International Law, Beijing, and Wuhan University Institute of International Law, Wuhan …” Should that description make some acknowledgement of the seemingly close links between the CSIL and the Foreign Ministry?

In addition, the editorial board includes a substantial number of distinguished scholars who are resident outside China. It would be interesting to know how many of them were involved in the editorial decision-making and peer review process which has resulted in what could potentially be seen as a 500 page government-commissioned or -vetted report being published in a scholarly journal.

If anyone would wish to correct auto-translated passages, please let me know.

 

The Netherlands and Australia Attribute the Downing of MH17 to Russia

Published on May 25, 2018        Author: 
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Yesterday the international Joint Investigating Team (JIT)  published its conclusion that the missile which destroyed the MH17 airliner over eastern Ukraine was fired by a Russian military unit, the 53rd Antiaircraft Missile Brigade. Here’s a summary of the evidence on which the conclusion was based:

Using satellite imagery and a photograph posted on social media, the JIT notes that Buk systems were located in a parking lot on the base of the 53rd brigade in Kursk. Using social-media videos, photographs published online, and geolocation techniques, the investigation concludes that six Buk systems were part of a larger military convoy that left the base on June 23, 2014.

Investigators then reconstructed the route, with the last available images of the convoy coming on June 25, 2014, about 25 kilometers from the Ukrainian border. The convoy includes a Buk missile launcher beginning with the number 3 — indicating it was from the 3rd battalion of the 53rd brigade. Bellingcat, using the same videos, previously assessed that the missile launcher in question was number 332. This is the system the JIT says was used to shoot down MH17.

The Buk launcher that shot down MH17 appeared in Ukraine in several photographs and videos on July 17 — the day of the tragedy — and the following day, according to investigators. Comparing images of that Buk system from the convoy originating from the Kursk base and those taken in Ukraine reveals seven “fingerprints” demonstrating that they show the same missile launcher, the JIT says. These identical “fingerprints” include a center-of-gravity marking, the same partially obscured number beginning with the numeral 3, and a wheel with no spokes in the same spot.

Today the Dutch and Australian governments formally attributed the missile strike to Russia, invoking its responsibility for an internationally wrongful act:

On the basis of the JIT’s conclusions, the Netherlands and Australia are now convinced that Russia is responsible for the deployment of the Buk installation that was used to down MH17. The government is now taking the next step by formally holding Russia accountable.’

State responsibility comes into play when states fail to uphold the provisions of international law. A state can then be held responsible for breaching one or more of those provisions. This is the legal avenue that the Netherlands and Australia have now chosen to pursue. Both countries hold Russia responsible for its part in the downing of flight MH17.

Holding a state responsible is a complex legal process, and there are several ways to do this. The Netherlands and Australia today asked Russia to enter into talks aimed at finding a solution that would do justice to the tremendous suffering and damage caused by the downing of MH17. A possible next step is to present the case to an international court or organisation for their judgment.

Obviously, regardless of the formal invocation of state responsibility, the Russian government is not going to suddenly change its story and admit that its armed forces shot down the MH17, whether acting ultra vires or not. When it comes to Russia’s domestic audience, the JIT’s findings will be easily discredited by the Kremlin’s propaganda machine – but we’ll see how they play out in any  international litigation.

 
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A new twist in the South China Sea Arbitration: The Chinese Society of International Law’s Critical Study

Published on May 25, 2018        Author: 
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On Monday 14 May 2018 the Chinese Journal of International Law, an Oxford University Press journal, published an extraordinary 500 page “Critical Study” of the Awards on jurisdiction and the merits in the South China Sea Arbitration between the Philippines and China. Readers will recall the case was brought under the UN Convention on the Law of the Sea (UNCLOS) by the Philippines against China and that there was an awards on jurisdiction in 2015 and a final award on the merits in 2016 (discussed in many places including here, here, here, here and here). The Critical Study was produced by the joint efforts of some 70 scholars and is listed as having been authored by the Chinese Society of International Law (CSIL). It examines almost every issue raised in the case – and several that weren’t – and concludes the Tribunal was catastrophically wrong on every single point, right down to how many times the Philippines was allowed to amend its pleadings.

The extent to which the Critical Study manages to strike a temperate and balanced tone towards the Awards made by the arbitral tribunal is summed up in the introduction:

“These awards are not conducive to solving the dispute between China and the Philippines in the South China Sea; instead, they have complicated the related issues. They have impaired the integrity and authority of [UNCLOS], threaten to undermine the international maritime legal order, run counter to the basic requirements of the international rule of law, and also imperilled the interests of the whole international community” [para 5].

Like pirates, the Tribunal members it seems are close to hostes humani generis and their award a threat to international legal order. The other blow to any semblance of academic neutrality in the book-length Critical Study is the one issue it studiously chooses not to address: China’s refusal to participate in proceedings. The Critical Study, while challenging almost every other paragraph of the award is entirely silent as to the Tribunal’s plainly correct finding that China – even if it disputed jurisdiction – was bound by its voluntary membership of UNCLOS to participate in proceedings. Further, UNCLOS makes clear China was bound by the result of such proceedings, even in the event of non-appearance. Indeed, this is why in UNCLOS cases where the UK and France disputed jurisdiction, for example, they have nonetheless shown up to make the argument.

In any event, the Critical Study raises a number of very interesting questions both in terms of the legal arguments it makes and in the simple fact of its existence. In the remainder of this (unfortunately long) post I would like to offer some brief and necessarily initial observations on following issues:

  • First, what is the significance of the critical study as an intervention in the debates about the South China Sea award, and what does it tell us about Chinese approaches to international law?
  • Second, is there any merit to the substantive legal arguments advanced by the Critical Study? (And what do these arguments tell us about Chinese approaches to international law?) I will put aside here the issues of both jurisdiction and the legal definition of islands capable of generating significant maritime zones (on which reasonable minds have differed) and focus on arguments regarding Chinese historic rights in the South China Sea and whether the Spratley Islands can be considered an archipelago.

  Read the rest of this entry…

 

Visions of the ‘Right to Democratic Governance’ under International Law: The Complexities of the Philippines under Duterte

Published on May 24, 2018        Author: 
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Is international law any closer to defining the content of a “right to democratic governance”? International human rights law instruments do not prescribe a form of governance, but they do explicitly refer to consistency with the needs of a “democratic society” when they admit limitations or restrictions to certain rights and freedoms.  Thus, the Universal Declaration of Human Rights refers to limitations to rights and freedoms determined by law and which meet “the just requirements of morality, public order and the general welfare in a democratic society.” (UDHR, Article 29(2). The International Covenant on Civil and Political Rights (ICCPR) enumerates specific civil and political rights and freedoms, but only refers to the needs of a “democratic society” when it speaks of permissible restrictions on press and public participation in court hearings [ICCPR Article 14(1)], restrictions to the right to peaceable assembly [ICCPR Article 21], and restrictions to the right to freedom of association [ICCPR Article 22(2)].  The general limitations clause in Article 4 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) refers to “such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”  The United Nations paints a broad brush on democracy as the enabling environment for the realization of human rights:

“Democracy, based on the rule of law, is ultimately a means to achieve international peace and security, economic and social progress and development, and respect for human rights – the three pillars of the United Nations mission as set forth in the Charter of the UN. Democratic principles are woven throughout the normative fabric of the United Nations….The UN has long advocated a concept of democracy that is holistic: encompassing the procedural and the substantive; formal institutions and informal processes; majorities and minorities; men and women; governments and civil society; the political and the economic; at the national and the local levels. It has been recognized as well that, while these norms and standards are both universal and essential to democracy, there is no one model: General Assembly resolution 62/7 posits that “while democracies share common features, there is no single model of democracy” and that “democracy does not belong to any country or region”. Indeed, the ideal of democracy is rooted in philosophies and traditions from many parts of the world. The Organization has never sought to export or promote any particular national or regional model of democracy.” (UN Guidance Note of the Secretary-General on Democracy, at p. 2).

There is no shortage of international legal scholarship examining different facets of “democracy”, whether as a separate right of individuals or peoples under international human rights law, or as an emerging norm of governance under international law.  Thomas Franck wrote in 1992 about the “emerging right to democratic governance” under international law, anchored on the notions of “democratic entitlement” and a “separate and equal status in the community of nations” – all traceable to the fundamental human right to self-determination.  In the same year, Gregory Fox also published a landmark article with the Yale Journal of International Law, this time on the specific right to political participation in international law, based on the ICCPR, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights. A year later, James Crawford argued that a “pro-democratic” shift was taking place in international law, in a much-cited article in the British Yearbook of International Law.  Susan Marks later developed the concept of an emerging international law norm of “democratic governance” in her landmark book The Riddle of All Constitutions:  International Law, Democracy, and the Critique of Ideology (OUP, 2003). Jean D’Aspremont’s 2011 EJIL Article observed that certain global events – such as the rise of non-democratic regimes – could be “cutting short the consolidation of the principle of democratic legitimacy under international law.”  But even among these scholars (and many others, see here, here, here, and here), there is no hard consensus on the elements of the “right to democratic governance”. After Stanford’s Larry Diamond originated the idea of the “global democratic recession” some years ago, the Economist’s Intelligence Unit (EIU) developed its “Democracy Index” which measures the state of democratic freedoms in countries around the world according to five categories: 1) electoral process and pluralism; 2) civil liberties; 3) the functioning of government; 4) political participation; and 5) political culture.  

The Philippines presents an interesting case study on today’s many scholarly contestations over the “right to democratic governance” under international law (see among others Susan Marks’ 2011 EJIL article here, Ignacio del Moral’s ESIL essay, Johannes Fahner’s 2017  positivist argument for the existence of the right to democracy here).  As of 2017, the Philippines is ranked 51st among the world’s democracies in the 2017 Democracy Index as a “flawed democracy”, expressly finding that “the indefinite declaration of martial law in the southern state of Mindanao in the Philippines, and the rule of country’s strongman leader, Rodrigo Duterte, adversely affected the quality of democracy in the Philippines.  Mr. Duterte has led the way among the many Asian countries that are infringing democratic values.” (2017 Democracy Index, at p. 28). While the Philippines ranks in the highest percentiles when it comes to the electoral process and pluralism category, it ranked very dismally in the categories of the functioning of government and political culture, and only in moderate percentiles in the categories of political participation and civil liberties.  It is a jurisdiction that is unique for having repeatedly and consistently transformed the UDHR into a legally binding and directly actionable set of rights under Philippine law (see landmark Philippine Supreme Court decisions here, here, here, here, here, among others), and yet it finds itself today seriously contesting visions of “democratic governance” between Mr. Duterte’s asserted “rule of law” and the myriad of civil and political liberties issues raised by local critics (see for example here, here, and here), as well as abroad (such as the 2018 US State Department Country Report on Human Rights in the Philippines, the 2017 Report of the Working Group on the Universal Periodic Review for the Philippines, the 2018 chapter on the Philippines in Human Rights Watch’s World Report, among others).  The irony is, both the Philippine government and its critics claim to act according to a “right to democratic governance”, even if both parties may have different visions of what democratic governance is.

Read the rest of this entry…

 

The ‘Open Arms’ case: Reconciling the notion of ‘place of safety’ with the human rights of migrants

Published on May 21, 2018        Author: 
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The work of the NGOs rescuing migrants in the Mediterranean Sea has been the subject of much controversy. One of the most recent cases regards the NGO Proactiva Open Arms: it has been accused of smuggling migrants during rescue operations at sea, and its rescue ship was impounded by the Italian authorities. This post examines the decision issued on 16 April 2018 by the pre-trial judge of Ragusa (Sicily) that ordered the release of the Open Arms vessel.

The relevance of this case is twofold. It obliquely tackles the legitimacy of the ‘pull-back’ agreement between Italy and Libya, as part of which the two states agree to collaborate with the aim of returning migrants to Libya, and which was recently challenged before the European Court of Human Rights (see this previous EJIL:Talk! post). Secondly, the decision, despite being just a pre-trial order, offers interesting insights into a contested area of international law which is gaining increase salience, i.e. the intersection between the Law of the Sea and the human rights of migrants.

This post argues that the order issued on 16 April is an important step forward in the definition of the notion of ‘place of safety’. International law merely states that people rescued at sea shall be delivered to a ‘place of safety’, but provides no definition of it (3.1.9. of the International Convention on Maritime Search and Rescue 1979, “SAR Convention”). The decision by the judge in Ragusa interprets ‘place of safety’ in accordance with the human rights of migrants, and rightly overcomes inappropriate distinctions based on migrants’ statuses. Read the rest of this entry…

 
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Announcements: CfP Transformations of Citizenship; Annual Conference of the Italian Society of International and EU Law; CfP Joint North American Conference of International Economic Law; UN Audiovisual Library of International Law

Published on May 20, 2018        Author: 
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1. Call for Papers: Transformations of Citizenship. This conference seeks to illuminate, elucidate and review the juxtaposition and tension inherent in the concept of citizenship today in an effort to understand the processes responsible for the key transformations in citizenship that we have witnessed in recent years. The deadline for submissions is 1 July 2018. The conference will be hosed 20 – 21 November 2018 at the University of Graz. For more information, please see here
 
2. Annual Conference of the Italian Society of International and EU Law (SIDI-ISIL). On 7 – 8 June 2018, the University of Ferrara will host the XXIII Annual Conference of the Italian Society of International and EU Law (SIDI-ISIL). The Conference’s theme is Codification in International and EU Law. The full program of the Conference and the calendar of the pre-conference events organised by the Interests Group of the Society are available here. For registration and further info: convegnosidi2018 {at} unife(.)it.
 
3. Call for Papers: Joint North American Conference of International Economic Law. The ASIL International Economic Law Interest Group, the Canadian Council on International Law, and The Centre for International Governance Innovation, together with McGill University Faculty Of Law are organizing a Joint North American Conference on International Economic Law that incorporates the 2018 ASIL IEcLIG Biennial. It will be held at McGill University Faculty of Law, Montreal, Quebec, Canada, 21 – 22 September 2018. The conference theme is “Managing International Economic (Dis)Integration: Challenges and Opportunities.” We invite unpublished paper and panel proposals relating to the conference theme, but will also consider submissions on other topics in international economic law. Paper proposals are to comprise abstracts of no more than 500 words, whereas panel proposals should not exceed 1,500 words. Proposals should be sent to 2018naiel {at} gmail(.)com, and the submission deadline is 4 June 2018. The complete call for papers is available here.

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What Level of Human Control Over Autonomous Weapon Systems is Required by International Law?

Published on May 17, 2018        Author: 
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Introduction

Autonomous weapon systems [AWS] raise profound legal, ethical and moral concerns. Scholars have asked, for example, whether AWS can comply with international humanitarian law [IHL]; whether their use will lower the threshold on the use of force and undermine jus ad bellum rules and whether their deployment will create an accountability gap in violation of victims’ rights to remedy. While there is no agreed definition of AWS, the United Kingdom House of Lords’ recent report carries definitions that generally describe AWS as robots that, once activated, are able to make targeting decisions without further human intervention.

In the recent United Nations Group of Governmental Experts [GGE] meeting [9-13 April] on Lethal Autonomous Weapon Systems, States reiterated the need to maintain human control over AWS. Notwithstanding the general consensus on maintaining human control over AWS, there is no agreement on the nature of that human control or how it should be defined.

Issues surrounding the concept of human control

The 2018 GGE meeting brought to fore a number of questions on how human control should be defined. States submitted a number of ideas and suggestions. Organisations like the International Committee of the Red Cross noted both legal and ethical reasons why human control must be maintained. Likewise, the International Panel on the Regulation of Autonomous Weapons discussed military and philosophical perspectives on the notion of human control.

Now that various disciplines – e.g. military, law, ethics, religion, philosophy etc. – have standards that are relevant to the notion of human control over AWS, the paramount question is which standard(s) should determine an acceptable level of human control and why? While States and scholars may cite innovative ideas and standards upon which to define the concept of human control, it is paramount to distinguish between relevant standards and those that are obligatory or legally binding upon States. The later ought to serve as the yardstick. Read the rest of this entry…

 
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Prolonged Occupation or Illegal Occupant?  

Published on May 16, 2018        Author: 
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An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. Read the rest of this entry…