The OTP Concludes Israel Is Still Occupying Gaza

The OTP Concludes Israel Is Still Occupying Gaza

As Thomas Escritt has reported for Reuters, the OTP has declined to open a formal investigation into Israel’s attack on the MV Mavi Marmara. I will have much more to say about the decision tomorrow; I agree with the OTP’s conclusion but have serious problems with much of its reasoning. But I thought I’d tease tomorrow’s post by noting that, despite the declination, Israel is going to be very angry at the OTP — because the OTP specifically concludes (as part of its decision to classify the conflict as international) that Israel is still occupying Gaza. Here are the relevant paragraphs:

26. Israel maintains that following the 2005 disengagement, it is no longer an occupying power in Gaza as it does not exercise effective control over the area.

27. However, the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement. In general, this view is based on the scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement – including, inter alia, Israel’s exercise of control over border crossings, the territorial sea adjacent to the Gaza Strip, and the airspace of Gaza; its periodic military incursions within Gaza; its enforcement of no-go areas within Gaza near the border where Israeli settlements used to be; and its regulation of the local monetary market based on the Israeli currency and control of taxes and customs duties. The retention of such competences by Israel over the territory of Gaza even after the 2005 disengagement overall supports the conclusion that the authority retained by Israel amounts to effective control.

28. Although it no longer maintains a military presence in Gaza, Israel has not only shown the ability to conduct incursions into Gaza at will, but also expressly reserved the right to do so as required by military necessity. This consideration is potentially significant considering that there is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.” In this respect, it is also noted that the geographic proximity of the Gaza Strip to Israel potentially facilitates the ability of Israel to exercise effective control over the territory, despite the lack of a continuous military presence.

29. Overall, there is a reasonable basis upon which to conclude that Israel continues to be an occupying power in Gaza despite the 2005 disengagement. The Office has therefore proceeded on the basis that the situation in Gaza can be considered within the framework of an international armed conflict in view of the continuing military occupation by Israel.

I’m not certain I agree with this analysis, though the OTP’s conclusion is far from unreasonable. Regardless, let the fireworks begin…

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Zach Tripodes
Zach Tripodes

Any chance you can post a link to the report? The ICC website still hasn’t been updated.

Eugene Kontorovich

Just to get basics right, the OTP does not conclude Israel occupies Gaza. Rather, it concludes that this is a colorable assumption at the preliminary stage of establishing admissibility.

Eugene Kontorovich

Par. 17: the characterization of Gaza as occupied is explicitly not “conclusive,” only for a “limited purpose,” and a “case of doubt”. Sounds like a lot of qualifications to me.

Eugene Kontorovich

Indeed, that language looks to be put in specifically to water-down the occupation discussion, and clearly present it as non-essential alternate holding.

tod
tod

If it is not an occupation, it means that the blockade is illegal.

Jurist 1942
Jurist 1942

I think what is more interesting is that they have clearly indicated that this is not an incident worthy of being investigated by the ICC. This will delight most Israeli’s and supporters of Israel.

Eugene thank you for pointing out the additional paragraphs missing from Kevins post. They offer good clarification on the OTP’s position re the term “occupation” being used to describe Israels actions against Gaza. Many appreciate having the full picture to prevent being mislead.

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[…] Full Article HERE […]

Eliavl
Eliavl

Israel itself claims that this is an international armed conflict so I really don’t see the big issue here

Eliavl
Eliavl

My previous comment refers to the comment about the blockade

Jurist 1942
Jurist 1942

Eliavl

I think you are correct the main focus elsewhere is the fact the OTP is not refering the issue to the ICE. Israels detractors seem to be enraged at this decision.

The Executive Summary is usually described as possibly the most important part of any report, statement or document whether it be for business or government use. If the details of the report contradict the executive statement it will only serve to discredit the document itself.

Matthew Mainen
Matthew Mainen

Now is an appropriate time to remind ourselves that when Naletilic endorsed this fast and loose definition of occupation, they found only one supporting citation: Jean Pictet’s 4th Geneva Convention commentary. Alternatively, the Court provided about half a billion citations for the definition of occupation as affirmed in the Hostages Trail.

If the standard of occupation now suggested by the ICJ is valid, could someone be so kind as to provide me with a single military field manual that endorses this definition. USA? Russia? Tuvalu? Sealand?

Matthew Mainen
Matthew Mainen

As a matter of current customary implications, we need look no farther than Russian’s position on its involvement in Eastern Ukraine and Crimea. This mirrors that of the ICJ in Congo vs. Uganda. If a local entity friendly to the belligerent state is doing the administrating, then an occupation does not exist. What should be said about an unfriendly local administration? Certainly, Uganda had far more control over the territories and administration in the Congo, and Russia has far more control over the territories and administration in Ukraine that Israel has over Gaza.

At the end of the day, there are the standard primary sources of international law, and then there are academics who legislate from the ivory tower.

Eugene Kontorovich

The failure to engage Congo v. Uganda at all is shocking. They really looked to be pulling this out of thin air, or rather, from “The prevalent view within the international community” – ie, not from general principles of law, but political judgements about the particular situation. That’s not law, its a popularity contest.

el roam
el roam

Thanks for the post. It should just be noticed, that: the Israeli court (supreme court 201/09 , 248/09 for exe) regards functionally the Gaza situation as obliging the IDF (Israeli army) to provide the population of Gaza, any humanitarian provisions, deriving from the control or blockade of the IDF over Gaza , let alone those in actual military conflict . It means, that there is a sort of functional or effective occupation of Gaza, by the IDF, and at least as mentioned, concerning the duty of the IDF to provide what it does deprive by blockade. Currency has got nothing to do here !! Since it is a fact that the Israeli currency is in use in Gaza, but it’s not a humanitarian basic need, and if currency was a criteria, then: employing the local civil law, could be also argued as a duty of the IDF, by itself an absurd, since, there is no military presence in Gaza itself (the international law, oblige the occupier to maintain the local national civil law).So, if one could argue that currency indicates something at all , then: any control of the civil internal law, would have been also relevant. Absurd!! Strictly: The… Read more »

tod
tod

Eliavl are you claiming that you and the State of Israel recognize the Gaza Strip as a State? Before answering: West Bank and Gaza form 2 parts of a unit.

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[…] investigation which involved a similar number and type of alleged crimes (war crimes). That said, the blogosphere is already alive with criticism about some aspects of the Prosecutor’s reasoning. In particular, […]

Matthew Mainen
Matthew Mainen

“There is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.”” This is a reference to paragraph 217 of Naletilic, in which the Court provides some guidelines which “provide some assistance.” It is useful to go through the guidelines here, and apply it to Gaza: 1. the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly Does this apply to Gaza? No. Hamas functions very publicly as the governing administration. This guideline corresponds to the following in the Hostages Trial: “To the extent that the occupant’s control is maintained and that of the civil government *eliminated*, the area will be said to be occupied.” 2. the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be… Read more »

Jurist 1942
Jurist 1942

Matthew

Thank you for the informative post. It worries me however that the ICC can be so egregious. Many have stated similar issues with other reports by Un bodies. I am shocked that an organisation that is seen by many to be a World court fo some kind can be act so improperly with regards to its citation of legal clauses and paragraphs. This cherry picking seems to be rife amongst so called “Legal experts” and deos nothing but tarnish the rule of law and the UN in general.

federico.sperotto
federico.sperotto

The suggested approach acquires relevance in respect of the use of unmanned aerial vehicles, or drones. The possibility of continuously tracking the target puts it in the extra-territorial power of the State, which is operating the unmanned aircraft. Once the drone engages the target, it is unlikely it loses it. Actually, the target moves under the umbrella of a persistence menace, and thus its condition is analogous to that of an individual who is physically in the hands of State’s agents.

tod
tod

Matthew, assuming that you are right (comparing Israel-Gaza with the “USA would still being the occupying power in Japan” is more than a symptom that this might not be the case), you are not considering the main issue here discussed: if the Gaza Strip is not occupied it means that the blockade is illegal.

Matthew Mainen
Matthew Mainen

Tod – what is the basis of your argument that the blockade would be illegal if Gaza is not occupied? There seems to be little dispute over the legality of the USA’s blockade of Cuba, and there are no credible positions that the USA occupied the Island.

tod
tod

Exactly Matthew, the blockade is legal just in internationally armed conflict. If there is no occupation the conflict between Gaza and Israel cannot be but non international. In the absence of an occupation, either the Gaza Strip is a State (and part of a unity) or the conflict in non-international.

Matthew Mainen
Matthew Mainen

Tod,

Gaza most certainly does not have to be occupied in order for the conflict to be an international conflict. The USA did not occupy Cuba, but the blockade was an act within an international armed conflict. The same applies to Gaza.

With respect to the issue of non-international armed conflict and blockades:

4 years ago, KJH tried to raise a similar argument, demanding that the legality of the blockade be based on a positive right to blockade in non-international armed conflict.

This position was bombarded by all sides with rational rebuttal. You can read everything (especially the comments) here:

http://opiniojuris.org/2010/06/02/why-is-israels-blockade-of-gaza-legal/

Matthew Mainen
Matthew Mainen

Kevin, I think you have misunderstood what I said. I did not say that you said it was illegal to institute a blockade in non-international armed conflict, thus transforming the conflict into an international armed conflict. What I said was “4 years ago, KJH tried to raise a similar argument, demanding that the legality of the blockade be based on a positive right to blockade **in** non-international armed conflict.” “In” should be read expansively; the blockade is occurring during non-international armed conflict and did not transform the status of the conflict upon its emergence. You most certainly did demand that one identify a positive right to blockade in non-international armed conflict: “The Lotus Principle, by the way, is the ultimate red herring. Gaza is not Israeli territory. If Israel can do anything it wants to Gaza that is not prohibited by international law, so can any other state. And that includes sending humanitarian aid — nothing in international law prohibits sending such aid. Does that mean Israel cannot stop aid being sent to Gaza? Of course not. But it does have to find positive authority in international law to do so; otherwise, stopping aid being sent by ship under another… Read more »

Tod
Tod

Matthew, Probably is my fault. I try again: Cuba is a State. My question: is the Gaza Strip a State or not? If yes, do you recognize that the Gaza Strip is part of a unity? If not, can you claim that the one between Israel and the Gaza Strip is an international conflict? Before answering consider that the U.S. State Department has a web page, that cites the US Civil War, which explains that blockades have historically resulted in belligerent recognition, because they are “a weapon of war between sovereign states.” According to the Washington Post and many other sources, Israeli government spokesman Mark Regev cited the San Remo Manual and maintained that Israel was clearly within its rights to stop the aid flotilla, saying “any state has the right to blockade ANOTHER STATE in the midst of an armed conflict.” Finally, a bit of history. The population in the Gaza Strip is mainly composed by refugees kicked out and trasported via bus from Kawkaba, Najd, al-jura, Majdal…the cities that today you call Or HaNer, Sderot and Ashkelon (The latter was a Cananite city that included in his area also Majdal). Is it relevant in your parallelism with Cuba-US,… Read more »

Matthew Mainen

I am very open to the idea that Gaza is a state, meeting the criteria set out in the Montevideo Convention and repeatedly affirmed. Not sure what you mean by single unit though. Single unit with what?

If you found the arguments unconvincing, the perhaps you could argue in Kevin’s stead (it’s been 4 years since he gave his word that he would give Bell a response, so I don’t think he would mind).

How do you address the argument that this issue is fully resolved through the Lotus Principle and the non liquet doctrine?

Matthew Mainen
Matthew Mainen

To clarify what I meant above – I don’t think it would be discourteous for you to address arguments that were addressed to someone else, especially given the lapse in time.

Tod
Tod

Matthew, that’s an important starting point. So the Gaza Strip is a State that under the Oslo Accords agreement – signed between Israel and the Palestine Liberation Organization – is part of a “territorial unit: the two sides agreed the West Bank and Gaza Strip would be treated as a “single territorial unit, whose integrity will be preserved”. If you don’t like Oslo, give up it entirely and don’t maintain only only what you wish or like. Unfortunately, despite being a State and while Israel removed its military installations and settlements from inside Gaza in 2005, it retained control of the Palestinian population registry, of Gaza’s sea and airspace, of a “buffer zone” of land inside Gaza, of Gaza’s only commercial crossing (thus controlling all entrance and exit of goods) and the pedestrian crossing at Erez, connecting Gaza to the West Bank and Israel. The extent and nature of this control – which impacts almost every aspect of life in Gaza – translates into responsibilities. No idea who does Bell is. The use of the Lotus Principle, quoting Judge Simma, “reflects an anachronistic, highly consensualist vision of international law rooted in the so-called Lotus principle developed by the Permanent Court… Read more »

Matthew Mainen
Matthew Mainen

I’m not sure why you are bringing up Oslo. Hamas took over Gaza and removed it from the authority of the PA.

I’m not sure what any modest responsibilities that Israel may have towards Gaza has to do with the legality of a blockade in non-international armed conflict.

Unfortunately, Judge Simma is/was not the Grand Ayotollah of international law. Customary international law derives from state practice and opinio juris. I’ve seen no evidence that these factors have turned against the Lotus Principle.

tod
tod

Matthew, I bring up Oslo in order to answer to your question “what you mean by single unit”.

Hamas took over Gaza winning an election. They are extremists as extremists are the Likud leaders and their manifesto.

“any modest responsibilities that Israel may have towards Gaza”: maybe you didnd get what I wrote you, otherwise you would not write “modest”.

If Gaza is a State is a “international armed conflict”.

Judge Simma was echoing a common stance among jurists: the Lotus Principle does not prove anything.

Matthew Mainen

The Lotus Principle is one of the foundational elements of modern customary international law. I’m more than happy to see your opinio juris and state practice demonstrating that the principle has been obviated.

Moreover, what you fail to realize is that Simma’s position is normative. He did not deny that the Lotus Principle is the law of the land; he is simply saying that it shouldn’t be.

Someone calling for the abolition of slavery obviously recognized that slavery nonetheless remained the law of the land. The same applies here.

Jurist 1942
Jurist 1942

Matthew

I believe tod is trying to force the conversation towards a discussion with regards to Gaza status as a state. I can see why you find this odd and i would add that this is frustrating for those of us who are trying to read the opinions based on opino juris that relate directly to the post. It would be nice if, like you have been with your responses to Tod, everyone who posted an opinion would remain within the context of the post subject rather than attempting to hijack the commentory. Tods comments come across as omethign simlar to Trolling. He does not directl answer your well formed rebuttals and instead continously leads the conversation away from the subject at hand.

Tod
Tod

Jurist 1492, for me it is important that people like you disapprove what I write. I would be worried if this would not be the case. Matthew, I did not claim that “the Lotus principle has been obviated”. I claimed that alone it represents just a small piece of a much larger cake. In general terms, the Lotus Principle, I would say international law in general, can explain just a little part of this issue. If you don’t consider the history of the Gaza Strip and who are the persons that live on it, but instead tries to explain this complex issue to a ancient principle, you will understand very little. In particular and going back to IL, the 2004 ICJ AO, that I hope we agree constitutes an authoritative statement of international law, clarified the West Bank and Gaza are occupied territories and that Israel is an occupying power with legal responsibilities: all states, according to the Court, are obliged not to recognize the situation as lawful. As I wrote above Israel retains control of the Palestinian population registry, of Gaza’s sea and airspace, of a “buffer zone” of land inside Gaza, of Gaza’s only commercial crossing (thus controlling… Read more »

Tod
Tod

Matthew, I would like also to quote for you Michael Bothe on the Lotus principle and the other topics here discusses: “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. […] The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side. In such a case, the argument that everything is permitted in… Read more »

Matthew Mainen

You’re more than welcome to introduce larger pieces to this cake, but my modest request remains the same: please provide opinio juris and state practice (or treaty law) for any circumstances that would challenge the full effect of the Lotus Principle as it applies to the blockade. We can end this single territorial unit nonsense here. Using the Hostages Trial as our starting point, moving through the various military field manuals, and ending with Congo vs. Uganda, we can say with absolutely certainty that the whole of a territory is not considered occupied just because some of that territory is occupied. All of Congo was not considered Occupied just because some of it was occupied. You can read my comments on Congo vs. Uganda above. Looking to Israel, certainly Syria is a single territorial unit, yet no one has argued that Damascus or Alepo is occupied by Israel just because one might hold that the Golan Heights is occupied. Nobody argued that Cairo was occupied territory just because Israel occupied the Sinai. In order for your single territorial unit theory to hold, you need to concede one of two things: 1) Damascus is occupied by Israel 2) The Golan Heights… Read more »

tod
tod

Matthew, I beg to disagree and I already explained you why. I quote for you Prof. Michael Bothe on why you are musing the Lotus principle and why what you claim is factually (and morally) wrong: Bothe: “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population. The situation of the Gaza Strip is special. At… Read more »

Tod
Tod

Why my answers are not published?

Tod
Tod

Matthew, I tried to answer you several times but it seems that there is a problem. I try again. I already answered you about why, in MHO, you are misusing the Lotus principle and the other aspects. So I decided to quote for you Prof. Michael Bothe: “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the… Read more »

Tod
Tod

Prof. Michael Bothe: “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population. The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side. In such a… Read more »

Tod
Tod

Prof. Michael Bothe: “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population. The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side. In such a… Read more »

shmuel
shmuel

Matthew, I used this fantasy name (Shmuel) because they don’t publish my replies. 1) I already answered you why you are misunderstanding the Lotus principle and misusing the other issues. I quote Prof. Michael Bothe on this: “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population. The situation of the Gaza Strip is special. At… Read more »

Tod
Tod

Matthew, I used this fantasy name because they don’t publish my replies. 1) I already answered you why you are misunderstanding the Lotus principle and misusing the other issues. I quote Prof. Michael Bothe on this: “For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population. The situation of the Gaza Strip is special. At least… Read more »

Matthew Mainen

I’d love to see it. Please bite the bullet, write it all out on a word program first and paste it. It sucks when a post gets deleted by accident, but it has happened to all of us. Nothing you can really do except learn from the mistake and never type directly into a comment section.

Matthew Mainen

The discussion of the Lotus Principle was confined to the blockade. At any rate, you provided no opinio juris or state practice challenging the Lotus Principle in any way, shape or form. The opinion of a professor is not opinio juris and it is not state practice. As to whether Gaza is occupied, I cited an axiomatic primary source of international law: Nuremberg. You provide me with the opinion of a professor. According to the Hostages Trial, occupation demands the elimination of organized resistance and governing to the exclusion of the established regime. Please cite me opinio juris and state practice – not the baseless opinion of someone – that the requirements of occupation have been reformulated. I say baseless on account of the lack of citation for opinio juris and state practice. The Professor’s citation of Article 42 of the Hague Regulations is absolutely absurd. The Hostage’s Trial was operating under this definition when it enunciated its strict standard for establishing effective control and occupation. I will quote here, the relevant passage from the case: it is essential to a proper understanding of the issues involved in the present case, that the status of Yugoslavia, Greece and Norway be… Read more »