Occupation

V. Koutroulis – The application of international humanitarian law and international human rights law insituations of prolonged occupation: only a matter of time?lines, if an occupation is established in exercise of a state’s right to self-defence,the duration of the occupation will be taken into account in the evaluation ofthe necessary and proportionate character of the self-defence in question. It isevident that the longer the duration of the occupation, the harder it will be for astate to prove that the conditions of self-defence relating to necessity andproportionality are satisfied. 11 As interesting as these issues may be, they arebeyond the scope of this contribution, which will be limited to the influenceexercised by the duration of the occupation over IHL and IHRL. However, beforemaking our analysis, it is important to identify what kinds of situations qualify as‘prolonged occupations’.Prolonged occupation: in search of a definitionIn exploring what is meant by ‘prolonged occupation’, it should be underlinedfrom the outset that neither conventional nor customary IHL distinguishesbetween ‘short-term’ occupations and ‘prolonged’ ones. In the absence of a formaldefinition of prolonged occupation in conventional or customary humanitarian law,any attempt to define these terms will essentially be arbitrary or, as Adam Robertshas admitted in his seminal article on the subject of prolonged occupation,‘a pointless quest’. 12 This arbitrariness is applicable both to the temporal elementand to other particular characteristics that may be attributed to a prolongedoccupation. For example, the UN Security Council used the term ‘prolongedoccupation’ with reference to the Israeli occupation of Palestinian territories in1980, that is, thirteen years after the beginning of the occupation in question. 13According to Roberts, a prolonged occupation ‘is taken to be an occupation thatlasts more than 5 years and extends into a period when hostilities are sharplyreduced – i.e., a period at least approximating peacetime’. 14 Thus, for Roberts,prolonged occupation has two characteristics: a temporal one (five years)and a substantial one relating to the quasi-absence of hostilities. YoramDinstein seems to define prolonged occupations only with reference to theirOral Statement by counsel Georges Abi-Saab, 23 February 2004, CR 2004/1, p. 46; also ICJ, LegalConsequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 9 July2004, ICJ Reports 2004 (hereafter ICJ, Wall advisory opinion), Separate Opinion of Judge Al-Khasawneh,p. 237, para. 9.11 South Africa: ICJ, Wall advisory proceedings, Written Statement Submitted by the Government of theRepublic of South Africa, 30 January 2004, p. 15, para. 37; Democratic Republic of the Congo (DRC): ICJ,Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits, WrittenProceedings, Reply of the Democratic Republic of the Congo, 29 May 2002, pp. 240–242, paras.3.173–3.176. Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge UniversityPress, Cambridge, 1995, p. 99; Christine Gray, International Law and the Use of Force, 3rd edition, OxfordUniversity Press, Oxford, 2008, pp. 154–155.12 A. Roberts, above note 4, p. 47. Cf. International Committee of the Red Cross (ICRC), First meeting ofexperts in Occupation and Other Forms of Administration of Foreign Territory, Report prepared and editedby T. Ferraro, ICRC, Geneva, April 2012, pp. 72–78 (a chapter referring to prolonged occupations, whichhas no discussion of the definition of this notion).13 UNSC Res. 471, 5 June 1980, p. 2, para. 6; UNSC Res. 476, 30 June 1980, p. 1, para. 1.14 A. Roberts, above note 4, p. 47.168