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  • Author: John Dugard, John Reynolds
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Apartheid is a loaded term; saturated with history and emotion. It conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and, ultimately, emancipation. All of which come to us through the history of apartheid in South Africa. Although prohibited and criminalized by international law in response to the situation in southern Africa, the concept of apartheid was never given enormous attention by international lawyers. Following an awakening of interest in the international legal prohibition of apartheid as a potentially appropriate lens through which to view the situation of the Palestinians, this article examines the merits of such a claim in the context of Israeli law and practice in the occupied Palestinian territory.
  • Topic: International Law
  • Political Geography: Israel, South Africa, Palestine
  • Author: Yaffa Zilbershats
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I accept the authors' premise in their article entitled 'Apartheid, International Law, and the Occupied Palestinian Territory' that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel's actions cannot be considered a basis for the crime of apartheid.
  • Topic: International Law
  • Political Geography: Israel, South Africa, Palestine
  • Author: Mirko Sossai
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The renewed interest in the law of belligerent occupation probably reached its peak in 2009, when various monographs were published by distinguished authors as well as by younger scholars. The book under review originated from a doctoral thesis defended by Andrea Carcano at the University of Milan. His investigation focuses on the 2003 occupation of Iraq as the ideal test-case to verify whether the existing legal regime is adequate to address the challenges posed by present-day scenarios, including Afghanistan, Congo, and the Arab–Israeli conflict. The book is divided into three parts. The first one comprises two chapters, which present respectively the legal framework of belligerent occupation and the other applicable norms of international law. Chapter I takes a historical perspective on the legal concept of occupation, which the author considers functional to the subsequent analysis for two main reasons: to investigate the underlying values guiding the development of the law of belligerent occupation; and to compare current theories regarding the role of the law in such a situation with similar arguments upheld in the past (at 13). Carcano identifies three epochs, which modelled different concepts of occupation. The first one is valid until the Modern Age and is influenced by the Roman law tradition: occupation is considered as 'conquest and exploitation of the territory'. The modern notion of occupation, defined as 'administration and effective control', emerged during the 18th century, at the time of the consolidation of sovereign states in Europe. Whereas Vattel had already in theory identified the differentiation between sovereignty and private ownership, it was August Heffter, a century later, who first recognized the legal implications of the distinction between occupatio bellica and debellatio (at 24). Finally, the last model is that of the occupation as 'transformation': Carcano identifies it as 'a military action aimed at the radical …
  • Topic: Development, International Law
  • Political Geography: Afghanistan, Europe, Israel, Paris, Arabia