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Abstract
Much of the international legal analysis of dealings in natural resources in Western Sahara has focused on its status as a Non-Self-Governing Territory, as well as the right of self-determination of the Sahrawi people. Surprisingly overlooked in the legal debates is a close examination of the application of the international law of occupation under international humanitarian law (IHL). This article considers whether and why Western Sahara is ‘occupied territory' under IHL, discussing some of the unique peculiarities that complicate the legal answer. It then considers issues of state responsibility and individual criminal liability under international law for unlawful dealings with natural resources in Western Sahara by Moroccan and foreign companies.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributors
Ben Saul is Professor of International Law at the University of Sydney and an Australian Research Council Future Fellow. Ben has expertise in general public international law (particularly terrorism, human rights, the law of war, the use of force, international criminal law, environmental law and the United Nations). He has published 11 books, over 80 scholarly articles, made hundreds of scholarly presentations, been awarded numerous research grants, and his research has been used in international and national courts. His book Defining Terrorism in International Law (Oxford, 2006) is the leading work on the subject, and he is lead author of the Oxford Commentary on the International Covenant on Economic, Social and Cultural Rights (2014), awarded the 2015 Certificate of Merit by the American Society of International Law. Ben has taught law at Oxford, the Hague Academy of International Law and in China, India, Nepal and Cambodia, and has been a visiting professor at Harvard. He has a doctorate in law from Oxford and honours degrees in Arts and Law from Sydney. Ben practises as a barrister in international, regional and national courts, and was counsel in the largest successful case against Australia before the United Nations Human Rights Committee, FKAG v Australia and MMM v Australia (2013), involving the illegal indefinite detention of over 50 refugees. Ben has advised or consulted to various international organisations, governments, and NGOs and delivered technical assistance projects in developing countries. He has served on various professional and international bodies, including the International Law Association’s International Committee for the Compensation of Victims of War. Ben often appears in the national and international media, including writing opinion in The New York Times.
Notes
1 Christine Chinkin, ‘Laws of Occupation', paper presented at the Conference on Multilateralism and International Law with Western Sahara as a Case Study, South African Department of Foreign Affairs and the University of Pretoria, December 4–5, 2008 (Pretoria Conference), 198, 199–200.
2 MINURSO was created by UNSC resolution 690 (April 29, 1991). See UN Documents on MINURSO, Resolutions of the Security Council, http://www.un.org/en/peacekeeping/missions/minurso/resolutions.shtml.
3 UNGA resolutions 34/37 (November 21, 1979) and 35/19 (November 11, 1980).
4 Chinkin, ‘Laws of Occupation', 200. See also Marcel Brus, ‘The Legality of Exploring and Exploiting Mineral Resources in Western Sahara', in International Law and the Question of Western Sahara, ed. Karin Arts and Pedro Pinto Leite (Leiden: International Platform of Jurists for East Timor, 2007), 201, 206.
5 Jacob Mundy, ‘The Legal Status of Western Sahara and the Laws of War and Occupation’, Collaborations no. 1790, Strategic Studies Group, June 22, 2007.
6 Chinkin, ‘Laws of Occupation', 199–200; Stuart Casey-Maslen, ed., The War Report 2012 (Oxford: Oxford University Press, 2013), 63–5; Vincent Chapaux, ‘The Question of the European Community-Morocco Fisheries Agreement', in International Law and the Question of Western Sahara (see note 4), 217, 224–6; Hans-Peter Gasser, ‘The Conflict in Western Sahara – An Unresolved Issued from the Decolonization Period', Yearbook of International Humanitarian Law (2002): 375, 379; Rule of Law in Armed Conflicts Project (RULAC), ‘Morocco: Applicable International Law’ (Geneva Academy of International Humanitarian Law and Human Rights), http://www.geneva-academy.ch/rulac-project/profile/pages/140/morocco/8/applicable-international-law.html; Stephanie Koury, ‘The European Community and Member States’ Duty of Non-Recognition under the EC-Morocco Association Agreement: State Responsibility and Customary International Law', in International Law and the Question of Western Sahara (see note 4), 172.
7 On which see Carlos Ruiz Miguel, ‘Spain's Legal Obligations as Administering Power of Western Sahara’, in Pretoria Conference (see note 1), 222.
8 Letter dated January 29, 2002 from the Under Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, UN Doc S/2002/161, February 12, 2002 (Corell Opinion), para. 25.
9 Ibid., paras. 9–14. See in particular UNGA resolutions: 1514 (XV) (December 14, 1960): Declaration of the Granting of Independence to Colonial Countries and Peoples; 1541 (XV) (December 14, 1960): Principles which should guide members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter; 1542 (XV) (December 15, 1960): Transmission of information under Article 73(e) of the Charter; 1803 (XVII): Permanent Sovereignty over Natural Resources (December 14, 1962).
10 Western Sahara (Advisory Opinion), ICJ Rep 12, October 16, 1975, para. 70.
11 International Covenant on Economic, Social and Cultural Rights (adopted December 16, 1966, entered into force January 3, 1976, 993 UNTS 3), Article 1(1) and (2). See Ben Saul, David Kinley, and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (Oxford: Oxford University Press, 2014), chapter 2.
12 See, e.g., Thomas Franck, ‘The Stealing of the Sahara’, American Journal of International Law 70 (1976): 694; Roger Clark, ‘Western Sahara and the Right to Self-Determination', in International Law and the Question of Western Sahara (see note 4), 45; Catriona Drew, ‘The Meaning of Self-Determination: “The Stealing of the Sahara” Redux?’, in ibid., 87; Stephen Zunes, ‘East Timor and Western Sahara: A Comparative Analysis of Prospects for Self-Determination', in ibid., 109.
13 See, e.g., Carlos Ruiz Miguel, ‘The Self-Determination Referendum and the Role of Spain', in International Law and the Question of Western Sahara (see note 4), 305.
14 See, e.g., Koury, ‘The European Community', 170–2, 176–8.
15 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Rep 136 (Israel Wall Advisory Opinion (2004)), paras. 154–9 and 163. Cf. Portugal v Australia (1995) ICJ Rep 90, paras. 31–2.
16 See generally New York City Bar (Committee on United Nations), Report on Legal Issues Involved in the Western Sahara Dispute: Use of Natural Resources, April 2011; Erik Hagen, ‘The Role of Natural Resources in the Western Saharan Conflict, and the Interests Involved’, Pretoria Conference (see note 1), 292.
17 See, e.g., Koury, ‘The European Community', 180–97.
18 Chief Bernard Ominayak and Lubicon Lake Band v Canada, UN Human Rights Committee Communication No. 167/1984, UN Doc. CCPR/C/38/D/167/1984 (March 26, 1990), para. 13.3.
19 See also Israel Wall Advisory Opinion (2004), para. 163(D).
20 See, e.g., Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) (Fourth Geneva Convention 1949), Article 146(3).
21 Respectively: see, e.g., Fourth Geneva Convention 1949, ibid., Article 147; ICRC, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005) (ICRC Customary IHL Study), Rules 151 (individual criminal responsibility) and 156 (war crimes); and Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002), 2187 UNTS 3, Article 8 (war crimes). On the technical distinction between ‘grave breaches' and war crimes (which is not the subject of the present article), see Marko Öberg, ‘The Absorption of Grave Breaches into War Crimes Law’, International Review of the Red Cross 91 (2009): 163.
22 See, e.g., Fourth Geneva Convention 1949, Article 146(1)–(2).
23 Geneva Conventions I–IV 1949, common Article 2(1).
24 Ibid., common Article 2(2).
25 Hague Regulations Respecting the Laws and Customs of War on Land (adopted October 18, 1907, entered into force January 26, 1910) (Hague Regulations 1907), Article 42.
26 Israel Wall Advisory Opinion (2004), para. 95.
27 Protocol I Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978), 1125 UNTS 3 (Additional Protocol I 1977), Article 1(4).
28 Prosecutor v Tadic (Interlocutory Appeal on Jurisdiction), ICTY, IT-94-1, October 2, 1995, para. 70; Prosecutor v Limaj et al., ICTY, IT-03-66-T, November 30, 2005, para. 83; Prosecutor v Boskoski, ICTY, IT-04-82-T, July 10, 2008.
29 Keesings Contemporary Archives (1975), vol. XXI, November 3–9, 1975, 27416; ibid., 27418; see also Stephen Zunes and Jacob Mundy, Western Sahara: War, Nationalism and Conflict Irresolution (Syracuse, NY: Syracuse University Press, 2010), 4.
30 See Tony Hodges, Western Sahara: Roots of A Desert War (Westport, CT: Lawrence Hill, 1983), 230–1; Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27579; ibid., May 28, 1976, 27746; Zunes and Mundy, Western Sahara, 11–12; John Mercer, The Sahrawis of Western Sahara, Minority Rights Group Report no. 40 (1979), 13; Letter dated August 18, 1976 from the Permanent Representative of Mauritania to the United Nations addressed to the Secretary General, UN Doc S/2002/161 (February 12, 2002).
31 Keesings Contemporary Archives (1976), vol. XXII, 28 May 1976, 27746; ibid., 27748.
32 See, e.g. Hamdan v Rumsfeld, US Supreme Court, 548 US (2006), 126 S Ct 2749 (on the interpretation of common Article 3 of the Geneva Conventions). Cf. the approach taken in Public Committee against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02, December 11, 2005, paras. 18, 21 (all hostilities in occupied territory are part of the international conflict, even if involving non-state actors).
33 Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27575.
34 Keesings Contemporary Archives (1975), vol. XXI, November 3–9, 1975, 27413.
35 Hodges, Western Sahara, 216–17.
36 Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27576.
37 Hodges, Western Sahara, 220.
38 Ibid., 222.
39 UNSC resolution 380 (November 6, 1975).
40 Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27576.
41 Hodges, Western Sahara, 222.
42 Ibid., 223.
43 Ibid., 224. By February 7, 1976 Spain had sold 65% of Fosbucraa to Morocco, retaining 35%; the remaining 35% was divested in 2003.
44 Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27577.
45 Keesings Contemporary Archives (1975), vol. XXI, November 3–9, 1975, 27417.
46 Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27577.
47 UN Doc. S/11880 (November 19, 1975).
48 Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27577.
49 Ibid., 27577.
50 Hodges, Western Sahara, 219.
51 Ibid., 220.
52 Ibid., 223.
53 Ibid., 229.
54 Ibid., 232.
55 Ibid., 229.
56 Ibid., 238.
57 Ibid., 229.
58 Eyal Benvenisti, The International Law of Occupation (Princeton: Princeton University Press, 2004), 152.
59 David Price, The Western Sahara, The Washington Papers, vol. VII (Sage Publications, 1979), 38–41.
60 Keesings Contemporary Archives (1976), vol. XXII, February 13, 1976, 27578; Hodges, Western Sahara, 230.
61 Letter dated February 26, 1976 from Spain's Permanent Representative to the United Nations addressed to the UN Secretary General, UN Doc. S/11997.
62 Hodges, Western Sahara, 237.
63 Keesings Contemporary Archives (1976), vol. XXII, May 28, 1976, 27747.
64 Mercer, The Sahrawis of Western Sahara, 10.
65 Hodges, Western Sahara, 224.
66 Ibid., 236.
67 Ibid., 237.
68 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Judgment, December 19, 2005 (Congo v Uganda (2005)), para. 173.
69 ICRC, ‘Occupation and Other Forms of Administration of Foreign Territory’, Expert Meeting, March 2012, 21.
70 Ibid. On Portuguese Timor, see Ben Saul, ‘Prosecuting War Crimes at Balibo under Australian Law: The Killing of Five Journalists in East Timor by Indonesia’, Sydney Law Review 31 (2009): 3.
71 ICRC, ‘Occupation and Other Forms of Administration of Foreign Territory'.
72 Vienna Convention on the Law of Treaties (adopted May 23, 1969, entered into force January 27, 1980) (VCLT 1969), Article 52.
73 Dubai–Sharjah Border Arbitration, Award, October 19, 1981, International Law Reports 91 (1981): 543, 569.
74 VCLT 1969, Article 53 defines a peremptory norm as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.
75 The ICJ described self-determination as an obligation erga omnes (Israeli Wall Advisory Opinion (2004), para. 88; East Timor v Portugal (1995) ICJ Rep 102, para. 29) but did not characterize it as jus cogens.
76 By transmitting information under Article 73e of the UN Charter: see UN Doc. A/5446/Rev.1, annex 1. See also UNGA resolutions 2072 (December 17, 1965); 229 (December 20, 1966); 2354 (December 19, 1967); 2428 (December 27, 1968); 2591 (December 16, 1969); 2711 (December 14, 1970); 2983 (December 14, 1972); 3162 (December 14, 1973); and Miguel, ‘Spain's Legal Obligations', 223, 237.
77 UNGA resolutions 2229 (XXI) (December 20, 1966); 2354 (XXII) (December 19, 1967); 2428 (XXIII) (December 18, 1968); 2591 (XXIV) (December 16, 1979); 2711 (XXV) (December 14, 1970); 2938 (XXVII) (December 14, 1972); 3162 (XXVIII) (December 14, 1973).
78 Letter dated August 20, 1974 from the Permanent Representative of Spain to the United Nations to the Secretary-General, UN Doc. A/9714.
79 Hodges, Western Sahara, 215.
80 Oxford English Dictionary, ‘procure’, online.
81 International Law Commission, Draft Articles on the Law of Treaties with Commentaries (1966) II Yearbook of the International Law Commission 187 (ILC Commentary), 247.
82 Olivier Corten, ‘Article 52', in The Vienna Conventions on the Law of Treaties: A Commentary, vol. II, ed. Olivier Corten and Pierre Klein (Oxford: Oxford University Press, 2011), 1201, 1211.
83 Fisheries Jurisdiction (Federal Republic of Germany v Iceland), Judgment of February 2, 1973, ICJ Reports (1973) 49, at 59, para. 24.
84 Amato Narodni Podnik v Julius Keilwerth Musikinstrumentenfabrik, District Court of The Hague, December 31, 1955–November 11, 1956, International Law Reports 24 (1957): 437 (concerning the 1938 Munich Agreements and the German–Czechoslovak Nationality Treaty).
85 Kuwait v The American Independent Oil Company (Aminoil), Arbitral Award, March 24, 1982, para. 43.
86 Cited in Corten, ‘Article 52’, 1212.
87 Ibid., 1213.
88 Ibid.
89 Ibid.
90 See, e.g., Attorney-General's Reference (No. 1 of 1975) [1975] 2 All ER 684 at 686, at 687.
91 Pursuant to Article 38(1)(c) of the Statute of the International Court of Justice, annexed to the Charter of the United Nations 1945.
92 John Carter, ‘Chapter 23: Duress', in Carter on Contract (LexisNexis, Service 40: February 2015), database.
93 Ampol Ltd v Caltex Oil (Australia) Pty Ltd (unreported, NSW SC, Foster J, 82/9033, December 22, 1982).
94 See e.g. Barton v Armstrong [1976] AC 104; [1973] 2 NSWLR 598, PC; Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 at 45 per McHugh JA; Vantage Navigation Corp v Suhail and Saud Bahwan Building Materials LLC (The Alev) [1989] 1 Lloyd's Rep 138, Hobhouse J; Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298, CA.
95 Carter, ‘Chapter 23: Duress', [23-030] (citing Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40, CA).
96 Barton v Armstrong, citing Reynell v Sprye (1852) 1 De GM & G 660 at 708.
97 As suggested in earlier cases: Carter, ‘Chapter 23: Duress', [23-020].
98 Ibid. [23-020] (citing, among others, Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40, 45 per McHugh JA, CA).
99 Carter, ‘Chapter 23: Duress', [23-020].
100 Ibid., [23-001] (citing, among others, Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 474 per Deane J (Wilson J agreeing)).
101 Corten, ‘Article 52', 1213.
102 Hodges, Western Sahara, 215.
103 Karin¸š and Others v Parliament of Latvia and Cabinet of Ministers of Latvia, Latvian Constitutional Court, Case No. 2007-10-0102, November 29, 2007.
104 Treaty on the Temporary Sojourn of Soviet Forces in the Territory of the Czechoslovak Socialist Republic (adopted 16 October 1968).
105 Peace Convention between France and Thailand (adopted May 9, 1941).
106 Corten, ‘Article 52', 1213.
107 Meinhard Schröder, ‘Treaties, Validity’, Max Planck Encyclopedia of Public International Law, online, last updated December 2010 (on the Agreement concerning the restoration of the Government of President Aristide (adopted September 18, 1994)).
108 On whether the UNSC can lawfully ratify post facto an agreement procured by coercion, see Serena Forlati, ‘Coercion as a Ground Affecting the Validity of Peace Treaties', in The Law of Treaties Beyond the Vienna Convention, ed. Enzo Cannizzaro (Oxford: Oxford University Press, 2011), 320; and Jochen Frowein and Nico Krisch, ‘Introduction to Chapter VII’, in The Charter of the United Nations: A Commentary, ed. Bruno Simma. 2nd ed. (Oxford: Oxford University Press, 2002), 701, 711.
109 Hodges, Western Sahara, 223.
110 UNGA resolutions 2229 (XXI) (December 20, 1966); 2354 (XXII) (December 19, 1967); 2428 (XXIII) (December 18, 1968); 2591 (XXIV) (December 16, 1979); 2711 (XXV) (December 14, 1970); 2938 (XXVII) (December 14, 1972); 3162 (XXVIII) (December 14, 1973).
111 Corell Opinion, para. 6.
112 Morocco is not listed as administering power in the UN list of Non-Self-Governing Territories: http://www.un.org/en/decolonization/nonselfgovterritories.shtml. See also Corell Opinion, para. 7. Neither, however, is Spain, although it is listed as such in some UN Secretary General reports: Miguel, ‘Spain's Legal Obligations', 243 (citing UN Docs. A61/70 (2006) and A/62/67 (2007)). Spain could be the de jure administering power in absentia; or its role as administering power may have lapsed due to ineffectiveness, the elapse of time, or (more doubtfully) its unilateral renunciation of its responsibilities.
113 ILC Commentary, 247.
114 Ibid.
115 Ibid. Any subsequent agreement between the same parties not tainted by coercion and to the same effect must also comply with other rules of the law on treaties, including conflict with peremptory norms under Article 53.
116 Annalisa Ciampi, ‘Invalidity and Termination of Treaties and Rules of Procedure', in The Law of Treaties (see note 108), 360; see also Schröder, ‘Treaties, Validity', para. 23; Alessandra Gianelli, ‘Absolute Invalidity of Treaties and Their Non-Recognition by Third States', in The Law of Treaties (see note 108), 333. The procedure requires notification to the other parties; proposed measures of settlement; and a waiting period before implementing said measures. If another state objects, the parties must pursue the peaceful settlement of disputes in accordance with Article 33 of the UN Charter. If there is no solution within 12 months of the objection, in the case of Article 53 of the VCLT (jus cogens), a state may unilaterally initiate proceedings in the ICJ (or pursue arbitration by consent). As regards Article 52 (coercion), a state may invoke the Conciliation Commission under the VCLT.
117 Ciampi, ‘Invalidity and Termination of Treaties'.
118 Gianelli, ‘Absolute Invalidity of Treaties'.
119 UNGA resolution 34/65 B (November 29, 1979). See also UNGA resolution 33/28 A (1979); Gianelli, ‘Absolute Invalidity of Treaties'; Ciampi, ‘Invalidity and Termination of Treaties'.
120 Gianelli, ‘Absolute Invalidity of Treaties', 336; see also Ciampi, ‘Invalidity and Termination of Treaties', 330 (suggesting further that national courts are obliged to impeach the validity of such treaties).
121 Gianelli, ‘Absolute Invalidity of Treaties'.
122 Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (adopted December 11, 1989, entered into force February 9, 1991, [1991] ATS No. 9); East Timor (Portugal v Australia) [1995] ICJ Rep 90.
123 Israeli Wall Advisory Opinion (2004), paras. 91, 93.
124 Ibid., para. 95.
125 Corell Opinion, para. 6.
126 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, in UNGA resolution 2625 (October 24, 1970) (reflecting customary law); see also Benvenisti, The International Law of Occupation, 151–3.
127 Fourth Geneva Convention 1949, Article 53 and ICRC Commentary 1958 thereto; see also Hague Regulations 1907, Articles 46 and 56.
128 Fourth Geneva Convention 1949, Article 33 and ICRC Commentary; Hague Regulations 1907, Article 47; ICRC Customary IHL Study, rule 52.
129 The IG Farben Trial: The Trial of Carl Krauch and 22 Others, US Military Tribunal, Nuremberg, August 14, 1947–July 29, 1948, in UN War Crimes Commission, Law Reports of Trials of War Criminals, vol. X (London: HMSO, 1949), 1.
130 Hague Regulations 1907, Article 46. Private owners may, however, lawfully transact with the occupying power where their consent is voluntarily and not obtained by threats, intimidation, pressure, or exploitation: The IG Farben Trial, 46–7.
131 Hague Regulations 1907, Articles 46 and 53(2).
132 Ibid., Article 52; ICRC Customary IHL Study, rule 50.
133 See Iain Scobbie, ‘Natural Resources and Belligerent Occupation: Perspectives from International Humanitarian and Human Rights Law', in International Law and the Israeli-Palestinian Conflict: A Rights-based Approach to Middle East Peace, ed. Susan Akram, Michael Dumper, Michael Lynk and Iain Scobbie (Abingdon: Routledge, 2011), 229, 234.
134 Hague Regulations 1907, Article 53(2). ‘Munitions de guerre’ includes arms, ammunition, transport, communications equipment, and other things that have a sufficiently close connection with direct military use, and does not include, for instance, crude oil in the ground: NV de Bataafsche Petroleum Maatschappij v The War Damage Commission, Singapore Court of Appeal, April 13, 1956 (in violation of Article 53 of the Hague Regulations 1907), American Journal of International Law 51 (1957): 802.
135 Hague Regulations 1907, Article 52.
136 Ibid., Article 53.
137 Ibid., Articles 48–9.
138 Scobbie, ‘Natural Resources and Belligerent Occupation', 234.
139 Article 55 of the Hague Regulations 1907 provides that: ‘The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct’. See also ICRC Customary IHL Study, rule 51.
140 In re Flick (US Military Tribunal at Nuremberg), 14 Ann Dig 266, 271; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004), 303. See Scobbie, ‘Natural Resources and Belligerent Occupation', 233.
141 Scobbie, ‘Natural Resources and Belligerent Occupation', 235.
142 ICRC Customary IHL Study, rules 50–51.
143 Koury, ‘The European Community', 174; The IG Farben Trial, 50.
144 The transfer of civilian populations into occupied territory itself is unlawful under IHL: Fourth Geneva Convention 1949, Article 49(6); Rome Statute of the International Criminal Court, Article 8; see also Israeli Wall Advisory Opinion (2004), para. 120 (Israeli settlements in the West Bank violate international law).
145 The IG Farben Trial, 44.
146 Ibid., 45.
147 Ibid.
148 Ibid., 44.
149 Scobbie, ‘Natural Resources and Belligerent Occupation', 234–5.
150 US Army Field Manual 27-10: The Law of Land Warfare, July 18, 1956, para. 402.
151 Scobbie, ‘Natural Resources and Belligerent Occupation', 234–5; see, e.g., UK Ministry of Defence, The Manual of the Law of Armed Conflict, 303; In re Krupp (US Military Tribunal at Nuremberg, 1948), 15 Ann Dig 620, 622–5.
152 Hague Regulations 1907, Article 43.
153 Human rights law applies concurrently with IHL in armed conflict, including extraterritorially in occupied territory: Israeli Wall Advisory Opinion (2004), paras. 105–7.
154 On which, see Corell Opinion.
155 See, e.g., International Military Tribunal at Nuremberg, Judgment, 22 IMT 481, September 30, 1946; In re Flick (1947) US Military Tribunal at Nuremberg; In re Krupp (1948) US Military Tribunal at Nuremberg, in UN War Crimes Commission, (1949) 10 Law Reports of Trials of War Criminals 69; In re Krauch (1948) US Military Tribunal at Nuremberg (illegal transfer of shareholdings in private companies to industrialists of the occupying power).
156 E.g., German Finance Minister Schwerin von Krosigk responsible for the taking of oil, coal, ores and raw materials from Poland: UN War Crimes Commission, (1949) 14 Law Reports of Trials of War Criminals 784.
157 See, e.g., The IG Farben Trial; In re Krupp.
158 International Military Tribunal at Nuremberg, Judgment, 22 IMT 481, September 30, 1946.
159 NV de Bataafsche Petroleum Maatschappij v The War Damage Commission.
160 See UN Claims Commission for Kuwait, Report and Recommendations of Commissioners, UN Doc. S/A.22/1999/10 (1999).
161 Congo v Uganda (2005), paras. 222–50 (under the Hague Regulations 1907, Article 47; Fourth Geneva Convention, Article 33; and the African Charter on Human and Peoples' Rights, Article 21 (which requires restitution or compensation in the case or spoliation)).
162 Congo v Uganda (2005), para. 249.
163 ICC Rome Statute, Article 8(2)(b)(xvi) and (e)(v) (as a serious violation of the laws and customs of war).
164 Fourth Geneva Convention 1949, Article 147. Also ICC Rome Statute, Article 8(2)(a)(iv) (as a grave breach of the Geneva Conventions).
165 Prosecutor v Blaskic, ICTY Trial Chamber, ICTY-95-14-T, March 3, 2000), para. 184, and Prosecutor v Delalic, ICTY Trial Chamber, IT-96-21-T (November 16, 1998), para. 591, plunder was found to embrace all unlawful appropriation of property, including pillage. See also Prosecutor v Kunarac, ICTY Trial Chamber, ICTY-96-23/1-T, February 22, 2001, para. 15 (plunder and pillage are synonymous). ‘Spoliation’ and ‘plunder’ are also synonymous: The IG Farben Trial, 44.
166 Prosecutor v Delalic (1998), para. 590.
167 Trial of Christian Baus, Permanent Military Tribunal at Metz, Judgment of August 21, 1947, (1949) IX War Crimes Reports 68 (where a German caretaker was convicted for taking property from French farms which had been given to him by another German custodian of the farms).
168 Rome Statute, Article 8(2)(b)(xiii) (international conflict) and 8(2)(e)(xii) (non-international conflict).
169 E.g., Australian Criminal Code, s. 12.1.
170 See, e.g., Crimes Act 1914 (Australia), s. 6.
171 Stockholm Declaration of the UN Conference on the Human Environment (1972), principle 13; Rio Declaration on Environment and Development (1992), principle 15.
172 Norwegian Refugee Council, Western Sahara: Occupied Countries, Displaced People, NRC Reports, Issue 2, 2008, 4. The statistics are, however, uncertain. According to the UN, the total population of Western Sahara was 549,000 people in 2012: https://data.un.org/CountryProfile.aspx?crName=Western%20Sahara.
173 ICC, Elements of Crimes: Rome Statute, Article 8(2)(b)(xvi) and (e)(v), UN Doc. PCNICC/2000/1/Add.2 (2000).
174 Ibid., Article 8(2)(a)(iv).
175 Ibid., Article 8(2)(b)(xiii) and 8(2)(e)(xii).
176 Rome Statute, Article 25(3)(b).
177 Ibid., Article 25(3)(c).
178 Ibid., Article 25(3)(d).
179 See also Israel Wall Advisory Opinion (2004), para. 163(D).
180 See, e.g., Fourth Geneva Convention 1949, Article 146(1)–(2).
181 Rome Statute, Articles 12–14.
182 Ibid., Article 13(b).