Revisiting the Law of Occupation [1 ed.] 9789004353978, 9789004346505

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Revisiting the Law of Occupation

Nova et Vetera Iuris Gentium Editor-in-Chief Cedric Ryngaert

VOLUME 30

The titles published in this series are listed at brill.com/nvig

Revisiting the Law of Occupation By

Hanne Cuyckens

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Cuyckens, Hanne, 1984- author. Title: Revisiting the law of occupation / by Hanne Cuyckens. Description: Leiden ; Boston : Brill, 2018. | Series: Nova et vetera iuris gentium ; volume 30 | Based on author’s thesis (doctoral - Katholieke Universiteit te Leuven, 2015). | Includes bibliographical references and index. Identifiers: LCCN 2017042222 (print) | LCCN 2017042639 (ebook) | ISBN 9789004353978 (eBook) | ISBN 9789004346505 (hardback : alk. paper) Subjects: LCSH: Military occupation. Classification: LCC KZ6429 (ebook) | LCC KZ6429 .C89 2018 (print) | DDC 341.6/6--dc23 LC record available at https://lccn.loc.gov/2017042222

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-34650-5 (hardback) isbn 978-90-04-35397-8 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgments ix List of Abbreviations x Introduction 1

Part 1 The Law of Occupation and Current Challenges Introduction to Part 1 9 1 Occupation: A Conceptual Analysis 10 1 The Concept of Occupation 12 1.1 The Modern Concept of Occupation is the Product of a Long Evolution Process 12 1.2 The Determination of a Situation of Occupation is a Factual Assessment 21 1.3 Definition: The Effective Control Test 23 1.4 “Even if the said occupation meets with no armed resistance” 46 1.5 The Occupation of Territory the Title to Which is Not Clear and Uncontested 48 1.6 The Beginning of Occupation: The Invasion vs. Occupation Phase 54 1.7 End of Occupation 59 2 Main Characteristics of the Law of Occupation 69 2.1 Occupation Does Not Confer Title 69 2.2 Occupation Cannot Alter the Status Quo Ante 72 2.3 Occupation is a Provisional State of Affairs 74 3 The Occupation vs. United Nations Territorial Administration Debate: A Question of Consent? 77 3.1 United Nations Territorial Administration vs. Occupation: A Conceptual Comparative Analysis 78 3.2 Applicability of ihl to un Troops: A Prerequisite for the Potential Applicability of the Law of Occupation 81 3.3 Applicability of the Law of Occupation 86 3.4 Interim Conclusion: Lessons to be Learned from the Law of Occupation for un Territorial Administration? 95

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2 Current Challenges to the Law of Occupation 101 1 Challenges Induced by the Changing Social and International Environment 103 2 Specific Challenges Generated by Contemporary Forms of Occupation 108 2.1 Long-Term Occupation 108 2.2 Transformative Occupation 114 3 Interim Conclusion: Insurmountable Challenges? 120

Part 2 Addressing the Challenges Faced by the Law of Occupation Introduction to Part 2 125 1 The Flexibility in the Law of Occupation Itself 126 1 The Manifestation of the Conservationist Principle in the Law of Occupation: A General Overview 126 2 Article 43 of the Hague Regulations and Article 64 gciv: Definition and Delimitation of the Occupying Power’s Authority 137 2.1 Article 43 of the Hague Regulations: A Key Provision of the Law of Occupation 138 2.2 Article 64 gciv: A Further Specification of the Rule Contained in Article 43 of the Hague Regulations 145 2.3 The Adopted Measures Should Not Only be in Accordance with Article 43 hr and Article 64 gciv but Should Also be Proportional 151 3 The Law of Occupation: Flexible Enough to Encompass Change, Even in Long-Term Occupation? 152 3.1 Prolonged Occupation: Affecting the Balance between the Status Quo and Change 152 3.2 Flexibility vs. Protection: How to Find the Correct Balance and Prevent Abuse? 154 4 Interim Conclusion: Some Inherent Flexibility within the Law of Occupation Itself 159 2 International Human Rights Law as a ‘Gap-Filler’ 161 1 Comparison between Both Bodies of Law: Differences and Similarities 162

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2 Applicability of International Human Rights Law to Situations of Occupation 166 2.1 Applicability Ratione Loci: The Question of the Extraterritorial Application of International Human Rights Obligations 166 2.2 Applicability Ratione Materiae 175 3 The Relationship between International Humanitarian Law and International Human Rights Law in Situations of Occupation 178 3.1 A Preliminary Analysis of the Relationship 178 3.2 Trying to Establish the Specific Relation between Both Bodies of Law: Elements Influencing the Relationship 182 3.3 Conclusion on the Relationship between ihl and ihrl in Situations of Occupation 198 4 Interim Conclusion: International Human Rights Law Can to a Certain Extent Play an Important Role as a Gap-Filler 199 3 The United Nations Security Council as a ‘Modulator’ of the Law of Occupation 200 1 Powers of the United Nations Security Council under Chapter vii 201 2 An Assessment of the Situation in Iraq: Coexistence between the Law of Occupation and a un ‘Mandate’ 211 2.1 The Situation in Iraq under ihl 213 2.2 Role of the un Security Council in the Occupation in Iraq 226 3 Interim Conclusion: A Compelling Case for Modulation of the Law of Occupation by the unsc When Necessary 240 General Concluding Remarks 243 Bibliography 255 Index 287

Acknowledgments This book is based on a doctoral dissertation presented at the University of ­Leuven in 2015. I would like to thank the members of my jury, Prof. Dr. Jan Wouters, Prof. Dr. Terry Gill, Prof. Dr. Lemmens, Prof. Dr. Lesaffer and Dr.  Zwanenburg, for their insightful comments during that process. I would also like to thank the International Humanitarian and Criminal Law Platform and in particular its coordinator Dr. Christophe Paulussen for allowing me to present the progression of my research and get invaluable comments during their Ph.D. days. I am also strongly indebted to my colleagues at the Department of International and European Law of the University of Leuven, and the Leuven Centre for Global Governance Studies for their instrumental support. The same note of appreciation goes to my family and friends. Lastly, I would also like to express my deepest thanks to my parents for always believing in me. This work is dedicated to them.

List of Abbreviations api First Additional Protocol to the Geneva Conventions of 1977 arsiwa  i lc’s Articles on State Responsibility for Internationally Wrongful Acts cpa Coalition Provisional Authority ECtHR European Court of Human Rights gciv Fourth Geneva Convention of 1949 hr Hague Regulations of 1907 icj International Court of Justice icrc International Committee of the Red Cross icty International Criminal Tribunal for the former Yugoslavia igc Iraqi Govenning Council ihl International Humantarian Law ihrl International Human Rights Law opt Occupied Palestinian Territories un United Nations unga United Nations General Assembly unmik un Administration Mission in Kosovo unsc United Nations Security Council untaet un Transitional Administration in East-Timor vclt Vienna Convention on the Law of Treaties wwi World War i wwii World War ii

Introduction Occupation is by no means a side issue in the present-day scenery of armed clashes1 yoram dinstein, 2009

∵ Being a type of international armed conflict, and originally a by-product of war,2 occupation is regulated by the laws of war. More in particular by the 1907 Hague Regulations (hr) and the Fourth Geneva Convention of 1949 (gciv), and a few provisions of the First Additional Protocol of 1977 (api). The rules regulating occupation thus date from the first half of the 20th century. The factual situations of occupation, however, have greatly evolved since the adoption of the major rules regulating occupation. There thus seems to be a certain dichotomy between the law and reality, thereby raising the question of whether the law of occupation is still suitable to address contemporary situations of occupation. The law of occupation was originally conceived in a context that strongly differs from the one we know today. It constituted a short-term situation, which was non- or at least only minimally intrusive for the lives of civilians. This was in line with the fact that, at that period in time, State authorities in general also only minimally intervened in the lives of civilians. In a context where the sovereign authoriy did not intervene in the affairs of its citizens, this could not otherwise but be reflected in the powers attributed by international law to the occupant. Things however strongly evolved after the two World Wars, which had shown the devastating effects that war could have in post-modern society. International Humanitarian Law (ihl) became much more concerned with the humanitarian protection side of war. This evolution is clearly reflected in the two main ihl instruments regulating situations of occupation. Whereas the 1907 Hague Regulations dealt quasi-exclusively with the administration side of occupation, the Fourth Geneva Convention is mainly concerned with 1 Yoram Dinstein, The International Law of Belligerent Occupation, Cambridge, Cambridge University Press, 2009, preface, p. xii. 2 Conor McCarthy, “The paradox of the international law of military occupation: sovereignty and the reformation of Iraq”, Journal of Conflict & Security Law, Vol. 10, No. 1, 2005, p. 44. See also, Yoram Dinstein, op. cit. note 1, §70. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004353978_002

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Introduction

the protection of civilians. Concomitantly, the State also started to interfere much more in the lives of civilians, thereby further increasing the obligations of the occupying power. Quoting Orna Ben-Naftali: “The very phenomenon of occupation is a­ ssumed to be a necessary evil, and to the basis of the assumption, the law seeks to regulate it in a manner designed to minimize its painful consequences for the occupied civilian population and its disruptive effects on the international order”.3 In addition the strong nexus that existed between war and occupation eroded over time. Whereas the term ‘belligerent occupation’, was well-tailored to the reality as it existed at that time, it no longer fits very well nowadays. This does not mean that the link between belligerence and occupation is no longer important but the law of occupation has evolved beyond this original conceptualisation. Indeed since the adoption of the Fourth Geneva Convention it has been generally accepted that there can also be occupation, even in the absence of hostilities. In this sense, it means that occupation is not solely limited to situations where the belligerent acquires control over the adversary’s territory as a consequence of armed hostilities during armed conflict.4 The fact that occupation is no longer necessarily the consequence of direct military occupation should, however, not be confounded with pacific occupation in the sense of effective control by a party over a territory over which it does not have sovereignty but with the consent of the legitimate sovereign. Such ‘occupations’ fall outside of the sphere of the present research. Some have used the term ‘occupation’ to also address these other forms of territorial administration, which in my opinion unnecessarily blurs the situation. Furthermore, it is not only a question of terminology given that the legal rules applicable to these situations are also completely different. In the framework of this research the term occupation is thus used exclusively to refer to the situation as envisaged by the laws of war. Consequently we also refer to the law of occupation as the rules regulating occupation under ihl. The law of occupation is nowadays being challenged in a number of ways. Even if there has been renewed attention for the law of occupation since the occupation of Iraq in 2003–2004, there are still a certain number of issues that need further clarification. First, the conditions for the beginning and the end of occupation should be better defined. Second, specific contemporary situations 3 Orna Ben-Naftali, “Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism”, in Antonio Cassese (ed.), Realizing Utopia: the Future of International Law, Oxford, Oxford University Press, 2012, p. 539. 4 Hans-Peter Gasser and Knut Dörmann, “Protection of the Civilian Population”, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, Third Edition, Oxford, Oxford University Press, 2013, p. 269.

Introduction

3

of occupation, such as ‘transformative’ and long-term occupations, should be dealt with, especially in relation with the obligation to maintain the status quo ante in the territory. The interplay between the law of occupation and international human rights law is also a crucial part of this question. Third, another challenge raised by contemporary examples of occupation is the identification of the legal framework governing the use of force by the occupying power. This is more precisely a question concerning the relationship between the obligations to maintain security in the occupied territory through law enforcement and the use of military force in reaction to the potential resumption of hostilities between the occupying forces and the armed forces of the occupied territory. Or, in other words, it raises the question of how the occupying power can resort to force, in what circumstances and especially according to which body of law. Finally, the issue of the potential applicability of occupation law to un territorial administration is also raised. These challenges can mostly be qualified as being of two different orders. First, those relating to the applicability of the rules as conceived under ihl. These are the questions relating to the effective control test triggering occupation, the end and beginning of occupation and the comparison with un Territorial Administration. These challenges thus concern the regime regulating occupation under ihl alone and more specifically address issues with regard to the applicability of the ihl norms. These questions will be addressed in the first part of this book relating more specifically to the ihl regime regulating occupation. Second, there are also challenges affecting the law of occupation in its core principles. These core principles are: the non-alienability of sovereignty, the provisional character of occupation and the obligation to maintain the status quo ante bellum. Modern forms of occupation, such as long-term occupation and transformative occupation, are a priori difficult to square with these core tenets. How do we then conciliate the ‘old’ rules of occupation with the new factual situations as they arise today. The main question raised in this book is thus to what extent the law of occupation is still suitable to address these contemporary forms of occupation and consequently whether the law should be modified to better suit these modern situations or not. It is argued that whereas, indeed, these modern forms of occupation represent an important challenge to the law of occupation, the law should in our opinion ­nevertheless not be invalidated as a consequence of these challenges. And this for three reasons: first, the law of occupation in itself is flexible enough to accommodate some of the needed changes; second, the ihl regime can be further complemented by international human rights law (ihrl); third, the unsc when acting under Chapter vii can to a certain extent ‘modulate’ the law of occupation to adapt it to particular situations. The ways in which to remedy this a priori unsuitability will be addressed in the second part of this book.

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Introduction

Importantly, occupation is thus not only regulated by ihl. Whereas, the main legal regime regulating situations of occupation remains contained in ihl, in many cases, especially in contemporary cases, the regime needs to be complemented by other legal regimes, such as international human rights law (ihrl) and the one governed by resolutions of the un Security Council (unsc) adopted under Chapter vii. Indeed as Tristan Ferraro so correctly pointed out: “actions of the occupant must be examined not only through the lens of International Humanitarian Law (…) but also through that of [International ­Human Rights Law]”.5 Similarly, Robert Kolb also rightfully stated that: “today, to properly analyse (…) the law of occupation, it is impossible to do otherwise but to consider it in its complex blend between ihl and hrl”.6 In addition, the recent occupation of Iraq also demonstrated a potentially important role for the unsc with regard to situations of occupation. It is thus not only a question of assessing the ihl framework regulating occupation but also its interaction with ihrl and un law. It is precisely the interaction between the law of occupation and those different regimes which is interesting to analyse in light of the changing nature of the situations of occupation. Especially when the occupation lasts longer or when confronted with transformative occupation, the broader legal regime becomes more complex. The result is a superposition of different legal regimes with their own specificities. It is precisely the ambit of this thesis to provide some structure in these relationships. As Benvenisti so rightfully mentioned: there is a need for an “adaptation of the law to contemporary perceptions and needs. Such adaptation requires an understanding of the basic premises of the law of occupation and its links to others spheres of international law”.7 Importantly, the aim of this book is not to give a detailed overview of the substantive rules governing occupation but rather to look at the applicability of the body of law as such and its possible links with other spheres of international law, in order to make it fit better as far as contemporary situations of occupation are concerned. This book consequently does not attempt to provide a complete manual of the law of occupation. It identifies and highlights the 5 Tristan Ferraro, “The law of occupation and human rights law: some selected issues”, in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 273. 6 Robert Kolb, “Human rights Law and international humanitarian law between 1945 and the aftermath of the Teheran Conference of 1968”, in Robert Kolb and Gloria Gaggioli (eds.), ­Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 35. 7 Eyal Benvenisti, The International law of occupation, Princeton, Princeton University Press, 1993, preface, p. xviii.

Introduction

5

areas that raise concern and are in need of clarification and tries to provide the necessary answers to the challenges raised. The findings of this study will be mostly illustrated by two important contemporary cases of occupation: the protracted occupation by Israel of the Occupied Palestinian Territories (opt) since 1967 and the occupation of Iraq by the Coalition forces in 2003–2004. These examples will not be developed into fully-fledged case studies but, when needed, will provide crucial illustrations for the arguments made. The choice of focusing on these two situations has been made based on different elements. Firstly, they each illustrate a contemporary type of occupation challenging the law of occupation in its core: the occupation of the opt highlights the challenges raised by long-term occupation, whereas the occupation of Iraq illustrates the issue of transformative occupation as well as the role that the un Security Council can play in this regard. Secondly, not only do they illustrate the specific challenges addressed in this research, they also provide for rich examples of contemporary practice and are therefore indispensable for the present study. The Occupation of the Palestinian Territories is “the most discussed occupation of the modern era”.8 The particularity of the protracted character of the occupation of the opt as well as the importance of its contribution to the practice of international law was already recognized quite early on in the occupation.9 It thus seems difficult to discuss the law of occupation without referring to the occupation of the opt. It was also the only discussed case for a long time. Indeed as Liesbeth Lijnzaad pointed out: “The law of occupation has led a dormant life in recent times. Little has been written about the subject in the past ten to fifteen years other than with respect to the situation in the Occupied Territories in the Middle East”.10 The 2003–2004 occupation of Iraq has revived the interest in the law of occupation and the latter “has [consequently] made a remarkable comeback recently”.11 In this regard, as Eyal Benvenisti indicated: “[r]esolution 1483 can be seen as the latest and most authoritative restatement of several basic 8 9 10

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Gregory H. Fox, “Transformative occupation and the unilateralist impulse”, International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, p. 248. See Moshe Drori, “the legal system in Judea and Samaria: a review of the previous decade with a glance at the future”, Israel Yearbook on Human Rights, vol. 8, 1978, p. 174. Liesbeth Lijnzaad, “How Not Be an Occupying Power: Some Reflections on un Security Council Resolution 1483 and the Contemporary Law of Occupation”, in Liesbeth Lijnzaad, Johanna Van Sambeek and Bahia Tahzib-Lie (eds.), Making the Voice of Humanity Heard: Essays on Humanitarian Assistance and International Humanitarian Law in Honour of Hrh Princess Margriet of the Netherlands, The Hague, Martinus Nijhoff, 2004, p. 292. Marten Zwanenburg, “The law of occupation revisited: the beginning of an occupation”, Yearbook of International Humanitarian Law, Vol. 10, 2007, p. 100.

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Introduction

­principles of the contemporary law of occupation”.12 It is also the first time that the unsc has resorted to the concept of occupation to describe, authorize and delimit the authority of foreign troops in control of enemy territory.13 The case of Iraq is thus more specifically interesting for two main reasons. Firstly, it revived the attention for the law of occupation and constitutes the latest application of the law in practice.14 Secondly, it also provides an important illustration with regard to the role that the unsc can play in situations of occupation. Finally, these issues are not only of a theoretical nature. Indeed, all of these questions have an important impact on the precise applicable rules and the interaction between these rules when applicable. In addition, the troops on the ground need clear guidelines on how to act as occupiers. Occupation is already a particular situation of armed conflict which falls outside of what troops are traditionally trained to do, namely to engage in combat duties. As Peter M.R. Stirk so thought-provokingly remarked, occupation is “[f]requently resented, disparaged, and even feared, by military officers for whom it has been an unwanted burden for which they are not trained”.15 If on top of that the rules are not clear it makes it even more difficult for them to enforce these rules in the field. This research tries to take this consideration into account, at least to a certain extent and to the best of my capacities as a ‘civilian’. Clarifying the rules for an operational purpose is however not an easy task, if not indeed impossible. We will see that there is no general ‘one size fits all’-model of compliance that would be applicable to all occupations. A great deal of what it allowed or not depends on the specific case at hand and is thus to be assessed on a ­case-by-case basis. In order to address the above-mentioned issues, this book will be organized in two main parts. The first part will provide a conceptual analysis of occupation under the laws of war and highlight the challenges this framework is currently facing. The second part will more specifically try to find ways to remedy the distortions between the law and the contemporary facts.

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Eyal Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, idf Law Review, Vol. 1, 2003, p. 38. Eyal Benvensti, The International law of occupation, Oxford, Oxford University Press, 2nd edition, 2012, p. 274. Marten Zwanenburg, “Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation”, International Review of the Red Cross, Vol. 86, No. 856, December 2004, p. 767; Philip Spoerri, “The Law of Occupation”, in Andrew Clapham and Paola Gaeta (eds.), The Oxford handbook of international law in armed conflict, Oxford, Oxford University Press, 2014, p. 182. Peter M.R. Stirk, The Politics of Military Occupation, Edinburgh, Edinburgh University Press, p. 1.

part 1 The Law of Occupation and Current Challenges

∵

Introduction to Part 1 This part will focus on the regulation of occupation under ihl. To this end it will first analyse the concept of occupation, with a particular focus on the elements triggering the application of the law of occupation, the main tenets underlying the concept and a comparison with un territorial administration (Chapter 1). Second, it will outline the main challenges defeating the law of occupation in its core. These challenges are not only linked to the changing social and international environment but also more specifically to the emergence of unforeseen types of contemporary occupation, such as long-term and transformative occupation (Chapter 2).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004353978_003

chapter 1

Occupation: A Conceptual Analysis The core meaning of the term is obvious enough; but as usually happens with abstract concepts, its frontiers are less clear1 adam roberts on occupation, 1984

∵ Occupation is the situation in which a power exercises a certain authority over a territory to which it does not hold title, without the consent of the legitimate owner of the said territory.2 It can assume many different forms.3 Importantly, since occupation is an integral part of international armed conflicts, it only exists within the legal framework of such conflicts. There is thus no equivalent in non-international armed conflict.4 Since it is always an international armed conflict, its normative framework is to be found under ihl and more specifically in the 1907 Hague Regulations, the Fourth Geneva Convention of 1949 and Additional Protocol i of 1977.5 Furthermore, the lawfulness of occupation per 1 2 3 4 5

1 Adam Roberts, “What is military occupation”, British yearbook of international law, Vol. 55, n°1, 1984, p. 249. 2 See for example the definition of occupation provided by Eyal Benvenisti which is particularly helpful: occupation is “the effective control of a power (be it one or more stated or an international organisation such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory”; Eyal Benvenisti, The International Law of Occupation, 2nd edition, Oxford, Oxford University Press, 2012, p. 3. 3 See uk Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford, Oxford University Press, 2004, §11.1.1 [hereafter uk Military Manual]. For a thorough analysis of the different forms of military occupation, see Adam Roberts, op. cit. note 1, pp. 249–305. 4 “In a non-international armed conflict, the retaking by government forces of national territory previously held by the insurgents is not ‘occupation’ but re-establishment of control over a lost part of its own national territory (…) The insurgents, on the other hand, do not ‘occupy’ part of the national territory” ; Hans-Peter Gasser and Knut Dörmann, “Protection of the Civilian Population”, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, Third Edition, Oxford, Oxford University Press, 2013, p. 267. 5 Next to the application of the rules applying to International Armed Conflicts in general, the specific rules regulating occupation can be found in Articles 42–56 of the 1907 Hague Regulations and Articles 47–78 of the Fourth Geneva Convention.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004353978_004

Occupation: A Conceptual Analysis

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se has not been regulated by ihl and hence does not affect the application of the law of occupation.6 As was already stated in the Hostages Case: At the outset, we desire to point out that International law makes no distinction between a lawful and unlawful occupant in dealing with the respective duties of occupant and population in occupied territory.7 In other words, whether or not the use of force (if any) leading to the occupation is in conformity or not with the rules regulating the use of force, a strict separation should be maintained between the jus ad bellum and the jus in bello, and the law of occupation remains applicable regardless of any potential violations of the jus ad bellum.8 The modern law of occupation finds its origins at the end of the 19th century. Even though there has recently been renewed attention for this body of law, the focus has mainly been on substantive issues rather than on a certain number of preliminary issues concerning its application, even though great deal is still unclear in this regard.9 It seems however evident that it is crucial to first delimit the exact contours of the concept before being able to focus on the precise content of the norms. This chapter attempts to do precisely that, i.e. to shed some light on what precisely has to be understood by occupation,

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6 Daniel Thürer, “Current Challenges to the Law of Occupation”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 10. See also Knut Dörmann and Laurent Colassis, “International Humanitarian Law in the Iraq Conflict”, German Yearbook of International Law, Vol. 47, 2004, p. 301. 7 United States Military Tribunal, Nuremberg, Case No. 47, Trial of Wilhelm List and others, United Nations War Crimes Commission. Law Reports of Trials of War Criminals. Volume viii, 1949, p. 59 [hereafter List case]. 8 The question of ‘illegal occupation’ in the sense of the legality of the use of force with regard to the ius ad bellum (as used for example in this context by Adam Roberts, op. cit. note 1, p. 293) should not be confounded with the question of ‘illegal occupation’ as developed by for example Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, “The Illegality of the Occupation regime: The Fabric of Law in the Occupied Palestinian Territory”, in Adi Ophir, Michal Givoni and Sara Hanafi (eds.), The Power of Inclusive Exclusion: Anatomy of the Israeli Rule in the opt, New York, Zone Books, 2009, pp. 31–85 arguing that occupation should be qualified as illegal if it would violate the main principles underpinning the regime namely: the inalienability of sovereignty, the obligation to maintain the status quo ante and its shortterm nature (for a more detailed analysis of these main principles see below). 9 Tristan Ferraro, “Determining the beginning beginning and end of an occupation under international humanitarian law”, International Review of the Red Cross, Vol. 94, n°885, Spring 2012, p. 133.

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PART 1, chapter 1

and consequently it will address specifically the issues concerning its delimitation that are still subject to controversy. To this end, the exact determination of the beginning and the end of occupation proves to be especially challenging as well as even more fundamental questions concerning the effective control needed to trigger occupation. After attempting to delineate the specific frontiers of the concept as such, we will establish the main characteristics underlying the law of occupation, namely that it does not transfer sovereignty, that in principle no changes can be brought upon the occupied territory and that it is essentially a short-term phenomenon. Finally, occupation will also be distinguished from another form of the administration of foreign territory, namely un Territorial Administration. 1

The Concept of Occupation

The Modern Concept of Occupation is the Product of a Long Evolution Process Even though some basic premises for the law of occupation already appeared prior to the 19th century, the development of the modern law of occupation only emerged gradually. In particular, two phases have to be distinguished in this evolution: the first phase began during the late 19th century and led to the 1899 and 1907 Hague Peace Conferences; the second period corresponds to the two World Wars and the adoption of the Geneva Conventions in their aftermath.10 Additionally, it is interesting to link this evolution to the process of the ‘humanization’ of war,11 which in turn can be linked to the evolution from war as being a state-to-state business to the progressive involvement (and suffering) of civilians during armed conflict.12 Up to the 19th century, whenever a belligerent occupied territory, it was usually considered as being the absolute owner of the lands occupied and could do whatever it wished with these lands and their inhabitants.13 This has to be squared with the more general concept of patrimonial war. Indeed, at that

1.1

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Davis P. Goodman, “The Need for Fundamental Change in the Law of Belligerent Occupation”, Stanford Law Review, Vol. 37, No. 6,1984–1985 pp. 1575–1576. I would define the ‘humanization’ of war as the progressively taking into account the rights of civilians in the laws of war. To this regard see for example Rotem Giladi, “A different sense of humanity: occupation in Francis Lieber’s Code”, International Review of the Red Cross, Vol. 94, n°885, Spring 2012, p. 81. Doris Appel Graber, The Development of the Law of Belligerent Occupation 1863–1914: A Historical Survey, New York, Columbia University Press, 1949, p. 13.

Occupation: A Conceptual Analysis

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time, war was a means of acquiring territory and goods.14 It thus only seemed logical that the occupation of territories was seen as a way of acquiring ownership over land and that conquest directly provided a title of ownership.15 Different factors emerging in the 19th century created a favourable environment for the development of the modern law of occupation: the development of the modern state and the balance of powers; the appearance of the nation state and the principle of nationalities; the consolidation of state structures and in particular the creation of large modern armies; as well as the emergence of an international humanitarian ideology and law.16 Importantly, by outlawing the acquisition of territory by force, the distinction between conquest and occupation also progressively crystallized during this period.17 A crucial first step towards the modern law of occupation was made with the adoption of the Lieber Instructions on the 24th of April 1863, generally considered to be the first modern codification of the laws of war18 and a ­“catalyzing 14 15 16 17 18

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16 17

18

Robert Kolb and Sylvain Vité, Le droit de l’occupation militaire: perspectives historiques et enjeux juridiques actuels, Brussels, Bruylant, 2009, p. 9. Ibid., p. 11. See also Salvatore Fabio Nicolosi, “The law of military occupation and the role of de jure and de facto sovereignty”, Polish Yearbook of International Law, Vol. 31 2011, p. 167 stating that the exercise of effective control over a territory was at that time seen as a sufficient element in order to achieve full sovereignty thereover. In this regard see Robert Kolb and Sylvain Vité, op. cit. note 14, pp. 19–28. Under current international law, no territorial acquisition resulting from the threat or use of force shall be recognized as legal. Consequently, conquest is no longer a means of acquiring title over territory. In this regard see, Robert Yewdall Jennings, The Acquisition of Territory in International Law, Manchester, Manchester University Press, 1963, pp. 53–58. See also Sharon Korman, The right of conquest. The acquisition of territory by force in international law and practice, Oxford, Clarendon Press, 1996, p. 178. For the general prohibition of the treat or use of force by States in their international relations see Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, g.a. res. 2625, Annex, 25 un gaor, Supp. (No. 28), u.n. Doc. A/5217 at 121 (1970). As they have been referred to in Richard R. Baxter, “The first modern codification of the laws of war: Francis Lieber and General Orders No. 100”, in International Review of the Red Cross, vol. 3, n°25, April-May 1963, pp. 171–189. See also Dietrich Schindler and Jiri Toman, The Laws of Armed Conflict. A collection of Conventions, Resolutions and Other Documents, Dordrecht, Martinus Nijhoff Publishers, 1988, p. 3: the Lieber Instructions mainly codified the existing laws of war at that time; Robert Kolb, “The protection of the individual in times of war and peace”, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law, Oxford, Oxford University Press, 2012, p. 324. Similarly, Doris Appel Graber, op. cit. note 13, p. 14 argues that they constitute “the first attempt to gather the various new ideas advanced by writers and military commanders into a code”.

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force for the development of modern humanitarian law”.19 The Lieber Instructions are of vital importance for the understanding of the evolution of the modern law of occupation.20 They indeed already contain a certain number of elements which are characteristic of modern occupation law: occupation is essentially a factual situation,21 changes to domestic legislation can only be made insofar as this is required by military necessity22 and importance is given 19 20 21 22

19

20

21

22

Silja Vöneky, “Francis Lieber (1798–1872)”, in Bardo Fassbender and Anne Peters (eds.), The Oxford handbook of the history of International Law, Oxford, Oxford University Press, 2012, p. 1140. In this regard see also Rotem Giladi, op. cit. note 12, pp. 81–116. Rotem Giladi, op. cit. note 12, p. 84. The important value of the Lieber Code for the development of ihl has generally been recognized even if some have tried to limit its reach both regarding its substance and its field of application. First, strictly speaking it was only binding on the forces of the United States, and second, it concerned a situation of civil and not of international war. Concerning the first criticism, it has to be said that even though the instructions were indeed only strictly binding on the forces of the us, the content of the code corresponded to a great extent to the law and customs of war existing at that time and therefore provide a good overview of it content, including with regard to the law of occupation; Dietrich Schindler and Jiri Toman, op. cit. note 18 p. 3. Some have also argued that since the instructions only applied to a civil war they cannot be considered to be the first attempted codification of the rules regulating international armed conflict; for an overview of that debate, see Doris Appel Graber, op. cit. note 13, p. 18. I would like to disagree with this view. First, the situation of the civil war in the United States was a particular one and had many similarities, at least de facto, with regular state-to-state war; see us Supreme Court, Prize cases, 67 u.s. 2 Black 636 (1862). Furthermore Lieber himself also perceived this large-scale civil war as being analogous in many respects to a war between nations and consequently believed that it definitely presented both problems of domestic and international law. Second, these rules inspired many other manuals and troop guidance briefs regulating international armed conflict during that period. Finally, the Lieber Instructions became the foundation of the contemporary law of international armed conflict. Indeed, it can be said that the Hague Peace Conferences during 1899 and 1907 (and even to a certain extent some provisions of the Geneva Conventions of 1949) were largely inspired by the Lieber Code. Cf. Art. 1 of the Instructions for the Government of Armies of the United States in the Fields as cited in Dietrich Schindler and Jiri Toman, op. cit. note 12, p. 4 [hereafter Lieber Code]: “A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and consequence of occupation or conquest [emphasis added]”. Cf. Art. 3 of the Lieber Code: “Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution

Occupation: A Conceptual Analysis

15

to the maintenance of the occupying army and its security.23 The development of the law of occupation then further crystallized with the adoption of the 1899 and 1907 Hague Conventions and the attached Regulations, in turn inspired by both the Brussels Declaration of 1874 and the 1880 Oxford Manual.24 Given that the Hague regulations of 1907 still form an important share of the contemporary rules regulating occupation nowadays they will be the subject of further analysis later on in this study. It is however interesting to note that apart from the humanization character of the so-called ‘Martens Clause’,25 the modern protection of persons is still largely absent from these Conventions.26 Indeed these conventions are still largely governed by the Rousseau-Portalis doctrine, namely the belief that wars are waiged between sovereigns and armies and not against civilians and subjects.27 We would have to wait for the Geneva 23 24 25 26 27

23

24

25

26 27

of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. [emphasis added]”. and Art. 5 of said Code: “All civil and penal law shall continue to take its usual course in the enemy’s places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government – legislative executive, or administrative – whether of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader [emphasis added]”. Cf. Art. 10 of the Lieber Code: “Martial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations [emphasis added]”. Dietrich Schindler and Jiri Toman, op. cit. note 12, p. 25; George B. Davis, “Doctor Francis Lieber’s instructions for the government of armies in the field”, American Journal of International law, vol. 1, 1907, p. 23; The 1899 Hague Peace Conference: ‘the Parliament of Man, the Federation of the Word’, The Hague, Kluwer Law International, 1999, p. 260. “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience”, Preamble, Convention (iv) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Robert Kolb, op. cit. note 18, p. 326. Ernst H. Feilchenfeld, The international economic law of belligerent occupation, Carnegie Endowment for International Peace, Washington d.c., 1942, p. 12; Raphael Lemkin, Axis rule in Occupied Europe. Laws of occupation, Analysis of Government, Proposals for Redress (original text from 1944), Carnegie Endowment for International Peace, New Jersey, 2005, p. 80.

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­ onventions to be adopted for the protection of civilians to really permeate C the laws of war. Concerning occupation, we can thus state that whereas the provisions of the Hague Regulations refer more to the administration and military law side of the law of occupation, the Geneva Conventions contain more protection of persons rules (even if there is a certain overlap concerning some issues). As Benvenisti rightfully noted, the law of occupation was “honored more by its breach [than by its observance]”.28 This was particularly salient during the two World Wars, during which the existing law of occupation as codified by the 1907 Hague Regulations was seriously put to the test. During the two World Wars, the hostilities were no longer solely affecting States and their professional armies but increasingly affected civilians as well, strongly challenging the Rousseau-Portales Doctrine. Whereas rules protecting the wounded and prisoners of war already existed at that time (even if they were still in their infancy) there were few rules concerning the protection of civilians as such.29 And the few existing rules proved to be insufficient, especially in view of the dangers arising from air warfare as well as the lack of clear rules protecting civilians in enemy hands and/or in occupied territory.30 As Benvenisti ­rightfully 28 29 30

28 29

30

Eyal Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, idf Law Review, Vol. 1, 2003, p. 20. Annette Becker, “The dilemmas of protecting civilians in occupied territory: the precursory example of World War i”, International Review of the Red Cross, Vol. 94, No 885, Spring 2012, p. 119. See the introductory note to the Convention (iv) relative to the protection of civilians persons in time of war signed at Geneva, 12 August 1949, in Schindler and Toman, op. cit. note, p. 495. Grave violations of the Hague Regulations can be documented both during the First and the Second World War. During the First World War, for example, the occupying power installed a strong regime of oppression and terror vis-à-vis the civilians in occupied Belgium; J. Sosset, op. cit. note 111, p. 33. They consequently not only used arms against the belligerents but also used terror againts the non-belligerent civilian population; see. L. Pauly, op. cit. note 108, p. 31 and 111. The massive deportations of Belgians to Germany to force them to work in German factories are only a minor illustration of this regime of suppression; Albert Henry, Etudes sur l’Occupation Allemande en belgique, Brussels, Lebègue, 1920, p. 81. During World War ii the violations were even more blatant. As was so rightfully noted by Paul Struyve during the occupation of Belgium during the Second World War: “Jamais les prescriptions du droit des gens, jamais les commandements les plus élémentaires de l’humanité n’ont été de manière plus systématique foulés aux pieds. Il faudrait des volumes pour faire ne fut-ce qu’une sèche énumération des violations de la Convention de la Haye dont l’occupant c’est rendu coupable chez nous”; Paul Struyve, “L’évolution du sentiment public en Belgique sous l’occupation allemande” clandestine publication in occupied Belgium from December 1940 to September 1944 in the form of seven biannual reports and edited in one volume in 1945, as cited in Paut

Occupation: A Conceptual Analysis

17

pointed out, it very soon became clear that the occupant cannot solely be considered to be an impartial trustee but that it is also an interested party, with its own agenda.31 This especially proved to be a disadvantage for the civilian population, in strong need of additional protection. In the wake of the Second World War, four Geneva Conventions were adopted on the 12th of August 1949.32 They constituted a direct reaction to the atrocities committed during both World Wars, which had so blatantly shown the limits of the existing law.33 In particular, the adoption of a Convention dealing with the protection of civilians during wartime had proved to be “an imperative necessity”.34 Even more so, as Raymund Yingling and Robert Ginnane, so clearly stated: “The most important application of the Civilian Convention will [precisely] be in territory under military occupation, where the worst abuses of World Wars i and ii occurred”.35 That the Fourth Geneva Convention is specifically a reaction to the atrocities committed against occupied civilians during the two World Wars is very clear from the text. Accordingly, to illustrate this point, Article 49 gc iv expressly prohibits one of the main abuses committed during wwii, namely the deportations of protected persons; Articles 51–52 gc iv deal with forced labour which constituted a problem during both wwi and wwii; and Article 78 31 32 33 34 35

31 32

33 34 35

Struyve and Guillaume Jacquemyns, La Belgique sous l’Occupation Allemande (1940–1944), Brussels, Ed. Complexes, 2002, pp. 288–289. There was indeed a total disrespect for the basic provisions of the law of occupation during the Second World War and all the major powers failed to apply the Hague Regulations in the enemy territories that came under their control; Eyal Benvenisti, op. cit. note 2, p. 164. See Eyal Benvenisti, op. cit. note 2, p. 121. The four Geneva Conventions adopted on the 12th of August 1949 were: The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (the First Geneva Convention); The Geneva Conventions for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (the Second Geneva Convention); The Geneva Convention relative to the Treatment of Prisoners of War (the Third Geneva Convention); and the Geneva Convention relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention). The Fourth Geneva Convention is especially relevant for the study of military occupation. For a detailed account of how these Conventions were drafted, negotiated and adopted, see Jean S. Pictet, “The New Geneva Conventions for the protection of war victims”, American Journal of International Law, Vol. 45, n°3, July 1951, pp. 464–468. See for example, Karma Nabulsi, Traditions of War: occupation, resistance, and the law, Oxford, Oxford University Press, 1999, p. 22., p. 19. Jean S. Pictet, op. cit. note 32, p. 473. Raymund T. Yingling and Robert W. Ginnane, “The Geneva Conventions of 1949”, The American Journal of International Law, Vol. 46, n°3, July 1952, p. 416.

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gc iv concerns the security measures which were also highly abused during both World Wars.36 There is a whole section dedicated to occupied territories in the Fourth Geneva Convention.37 Whereas the 1907 Hague Regulations contained only 15 provisions concerning occupation (and of those only three related to the physical integrity of civilian persons), the Fourth Geneva Convention contains 32 articles, next to some general provisions concerning civilians in the hands of the enemy which are also applicable in occupied territories. These articles are furthermore much more detailed than the ones contained in the Hague Regulations. Importantly, however, the Fourth Geneva Convention does not abrogate the 1907 Hague Regulations but complements them.38 The specific consequences of this will be analysed further on in this book. Whereas the Hague Regulations were strongly centred on the military and the administration of territory aspects of occupation, the Geneva Convention thus deals more specifically with the protection of the occupied population. It is interesting to briefly look at the main reasons behind this transition. There is first of all a general reason, already outlined above, and in line with the general humanization of the laws of war, in particular due to the changing nature of war. Civilians were no longer mere external spectators of war but became very directly concerned by it. This was especially true for civilians under occupation given that they are by definition ‘in the hands of the enemy’ and are thus particularly vulnerable. At the end of the war, the revision, specifically of the law of occupation, was perceived as one of the main priorities in the reform of the laws of war. Indeed, just like the law of war in general was progressively ‘acquiring a more humane face’,39 especially as a consequence of the atrocities of the Second World War, so was the law of occupation, under which most of these atrocities had been committed. Secondly, there is also a more societal reason. Not only did the way in which war was waged strongly evolve, the state 36 37 38 39

36 37 38

39

Raymund T. Yingling and Robert W. Ginnane, op. cit. note 35, pp. 419–420. See Part iii, Section iii, gc iv, Articles 47–78. See Article 154 gciv which states that: “In the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections ii and iii of the Regulations annexed to the above-mentioned Conventions of The Hague [emphasis added]”. See also: See Jean Pictet (ed.) Commentaries to Convention iv relative to the Protection of Civilian Persons in Time of War, Geneva, icrc, 1958, p. 368 [hereafter Commentaries gciv], p. 614; Robert Kolb and Sylvain Vité, op. cit. note 14, p. 69; Gregory H. Fox, op. cit. note 8, p. 223. For more detail see Theodor Meron, “The Humanization of Humanitarian Law”, American Journal of International Law, Vol. 94, No. 2, 2000, p. 239.

Occupation: A Conceptual Analysis

19

system had also radically changed after wwii.40 This especially brought important changes to the law of occupation and more particularly to the duties of the occupying power. Given that the State in the 19th century, barely intervened in the social and economic lives of its own citizens, it was only normal that this was reflected in its duties as an occupying power as well. However, this clear separation between the public and private sphere slowly eroded and the creation of the nation-state brought about growing obligations for the State towards its population. ‘Normal’ government activities are therefore now quite different from those existing at the time when the Hague Regulations were adopted.41 Since the occupying power temporarily exercises some of the attributes of sovereignty normally to be exercised by the occupied power, it is only logical that, since the government is now involved in almost all aspects of society, the duties brought upon the occupying power also increased.42 The Fourth Geneva Convention thus provides for greater protection for civilians in the hand of the enemy, especially in situations of occupation, the need for which had been greatly shown by the two World Wars. The Convention also contributed to the further development of certain pre-existing rules of the law of occupation.43 Article 64 gc iv for example expresses in a more detailed manner the terms of Article 43 of the 1907 Hague Regulations laying down that the occupying power has to respect the laws in place in the occupied territory ‘unless absolutely prevented’ from doing so.44 The Fourth Geneva Convention thus contributed to the clarification of certain principles and rules already underpinning the regime established under the Hague Regulations. However, the said Convention has, in our opinion, not substantially a­ ltered the existing law of occupation, in the way some might have hoped.45 Indeed, to continue further with the example given above concerning Articles 43 hr 40 41 42 43 44 45

40 41 42 43

44

45

Karma Nabulsi, op. cit. note 33, p. 13. Davis P. Goodman, op. cit. note 10, p. 1592. Ibid., p. 1592. Already after wwi it became clear that the way the provisions of the Hague Regulations were formulated could give rise to very diverse interpretations and might thus be in need of better delimitation (see the discussions above). Article 43 hr and the way it was complemented by Article 64 gciv will be further analysed in detail in Part 2, Chapter 1 of this study given that those provisions contain the main rules regulating the authority of the occupying power over the occupied territory and its population. This opinion is generally shared. Indeed Benvenisti stated that “it has been generally held that the Geneva Conventions were in essence little more that a repetition of the Hague Regulations by scholars and courts continued to refer only to the Hague Regulations”; Eyal Benvenisti, op. cit. note 2, p. 166. See also, Major Breven C. Parsons, “Moving the Law of Occupation into the Twenty-First Century”, Naval Law Review, Vol. 57, 2009, p. 13.

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and 64 gciv, the rules pertaining to the delimitation of the powers of the occupant are, not significantly clearer and still allow for quite some leeway. Even though the convention established a new balance between the rights of the occupant and those of the occupied population, it remains a balancing exercise and no general rules can thus be ascertained. As Wolff Heintschel Von Heinegg so accurately described: “[w]hether and to what extent the occupying power may interfere with the political and social structures in an occupied territory will, however, [continue to] depend upon the circumstances of the individual situation (…)”.46 It thus remains something that needs to be assessed on a ­case-by-case basis since it depends on the facts on the ground and the particularities of the occupation concerned.47 Occupation remains an abnormal kind of situation in which a balancing act needs to occur between the different interests present. These concerned interests have also evolved over time, also in line with the evolutions affecting war in particular and the wider society and the international order in general. These evolutions are of the utmost importance for the contemporary study of the concept. Firstly, they underlie the entire system and thus allow us to understand the main characteristics on which the entire system is built. Secondly, these evolutions are also crucial for further defining and interpreting the rules. Some rules have indeed been left more vague on purpose in order to precisely accommodate the balancing act on which the whole system lies. It will be shown throughout this study that what might be permissible in the framework of one particular occupation might not be in the framework of another. To conclude with a quote from Matthew Saul, perfectly summarizing, in my opinion, this evolution as well as simultaneously highlighting the main underlying tensions which are characteristic of a situation of occupation: Geneva Law was created to supplement rather than replace the Hague Law of Occupation. As such, there is a basis (…) for interpretation of any aspect of the law of occupation to include consideration of both the preservation of sovereign rights (a core rationale of the Hague Law) and the protection of civilians (a core rationale of Geneva Law).48 46 47 48

46 47 48

Wolff Heintschel Von Heinegg, “Factors in War to Peace Transitions”, Harvard Journal of Law & Public Policy, vol. 27, n°3, 2004, p. 859. This point is an important constant element throughout the whole of this research. Matthew Saul, “The Functional Approach to the Occupation of the Gaza Strop and the Right to Self-determination”, Symposium on the Functional Approach to the Law of Occupation, Opinio Juris, April 2012, http://opiniojuris.org/2012/04/23/symposium-on-the -functional-approach-to-the-law-of-occupation/.

Occupation: A Conceptual Analysis

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The Determination of a Situation of Occupation is a Factual Assessment 1.2.1 The Assessment of a Situation Qualifying as Occupation is a Question of Fact Since the very beginning of the modern codification of the laws of war, occupation has essentially been a factual situation.49 This was later confirmed by the adoption of Article 42 of the 1907 Hague Regulations stating that: “Territory is considered occupied when it is actually placed under the authority of the hostile army [emphasis added]”. The French and authentic version of the text states even more clearly that: “Un territoire est considéré comme occupé lorsqu’il se trouve placé de fait sous l’autorité de l’armée ennemie [emphasis added]”. The qualification of a situation as one of occupation is thus based on a caseby-case factual assessment.50 In other words, this determination is based on the objective assessment of the realities on the ground and is therefore not dependent on the subjective perception of the situation by the parties concerned.51 As Rotem Giladi so vigorously remarked: “Had the application of the jus in bello depended on a designation from the aggressor, ihl would rarely or never apply in practice”.52 In this respect it makes no difference whether an occupation has received Security Council approval, what its aim is, or whether it is labelled “invasion”, “liberation”, “administration”, “occupation”, as soon as the effective control has been factually established there is occupation.53 Very practically, the number of troops needed to establish and maintain effective control over a territory is dependent upon a certain number of factors, such as the disposition of the inhabitants, their number and spread, and the nature of the terrain.54 1.2

49 50 51 52 53 54

49 50

51 52 53

54

Cf. Article 1 of the Lieber Code; Article 1 of the 1874 Brussels Code; Article 41 of the 1880 Oxford Manual. Eyal Benvenisti, “Occupation, belligerent”, Max Planck Encyclopedia of Public International Law. See also us Land Warfare Field Manual (july 1956), Washtington d.c., 15 July 1976, §355 [hereafter us Military Manual]; List case, op. cit. note 7, pp. 55–56; International Criminal Tribunal for the former Yugoslavia (icty), Prosecutor v. Mladen Naletilic and Vinko Martinovic, Case No. IT-98-34-T, 31 March 2003, § 211 [hereafter Naletilic case]. Robert Kolb and Sylvain Vité, op. cit. note 14, p. 63. Rotem Giladi, “The Jus ad Bellum/Jus in Bello distinction and the law of occupation”, ­Israel Law Review, Vol. 41, Nos. 1 & 2, 2008, p. 259. Remarks of Jean-Phillipe Lavoyer (Head of the Legal Division, International Committee of the Red Cross), “Jus in Bello: Occupation Law and the War in Iraq”, Proceedings of the American Society of International Law, Vol. 98, 2004, p. 121. Eyal Benvenisti, “Occupation, belligerent”, Max Planck Encyclopedia of Public International Law.

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As Charles Rousseau rightfully stated: “C’est un état de fait…. Mais cet état de fait n’est pas indifferent au regard du droit”.55 Or in other words, even though occupation is a factual situation, it does have legal consequences under international law. Indeed, from the moment a factual situation of occupation exists the normative framework provided for by the law of occupation is triggered. But this is not the only legal importance behind the emphasis on the fact that occupation is a mere factual situation. Indeed, Article 43 of the Hague Regulations reiterates the factual nature of occupation by stating that when the authority of the legitimate power has in fact passed into the hands of the occupant, the latter has the obligation to restore and maintain public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. This emphasis on the mere factual transfer of power clearly demonstrates that the law of occupation did not want to attach any legal consequences to the limited exercise of powers emerging from a situation of occupation.56 The occupying power is thus granted a factual and not a legal power. 1.2.2 No Formal Declaration Needed Since occupation is a matter of fact no formal declaration is needed for such a situation to exist. Even in the 1863 Lieber Instructions it was already stated that the Martial Law of the occupying army was applicable to a place in consequence of the occupation “whether any proclamation declaring Martial Law, or any public warning to the inhabitants has been issued or not”.57 Consequently, even if the powers in question would deny the existence of such a situation, if the facts say otherwise, the situation will be qualified as a situation of ­occupation.58 On the other hand, a mere proclamation of the existence of 55 56 57 58

55

56 57 58

Charles Rousseau, La compétence territoriale, cours de droit international public, Les Cours de Droit, 1956, p. 153 as cited in Odile Debbasch, L’occupation Militaire. Pouvoirs recconnus aux forces armées hors de leur territoire national, Paris, Pichon et Durand-Auzias, 1962, p. 312. [Occupation is a factual state…. But this factual state is not indifferent with regard to the law]. See also Alain Pellet, “The Destruction of Troy will not Take Place”, in Emma Playfair (ed.), International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and the Gaza Strip, Oxford, Clarendon Press, 1992, p. 187: “Occupation is most certainly a fact. But it is a juridical fact (…), that is to say an objective situation giving rise ipso facto by sole reason of its existence, to certain legal consequences”. Eugene Hanssens, Le pouvoir législatif sous l’occupation allemande en Belgique, Bruxelles, Larcier, 1919, p. 52. On this point see also Odile Debbasch, op. cit. note 55, p. 245. Art. 1 of the Lieber Code. This is far from being a hypothetical situation given the fact that being an occupier is considered to be highly unpopular and most occupying powers have tried to negate an

Occupation: A Conceptual Analysis

23

a ­situation of occupation is also insufficient to bring an occupation into existence since there also needs to be occupation in the facts.59 In others words, while proclamation might reflect the fact of occupation it does not create it.60 Both the uk and us military manuals however advocate that even though proclamation is not legally necessary it would however be better, given the special relationship occupation establishes between the occupier and the occupied population, to make the fact of occupation known as well as the extent of the territory on which the occupation is established.61 Definition: The Effective Control Test Article 42 of the Hague Regulation: Pivotal for Triggering the Law of Occupation There is no definition of occupation in the Fourth Geneva Convention. Since, as has been established above, the adoption of the Fourth Geneva Convention did not abrogate the Hague Regulations but merely constitutes a further codification of the rights and duties of the occupying power, we have to look at the definition contained in the latter.62 The use of Article 42 of the 1907 Hague 1.3 1.3.1

59 60 61 62

occupation status in order to avoid this negative bias. This was again confirmed during the 31st International Conference of the Red Cross and Red Crescent in 2011 dealing with the current challenges of contemporary armed conflict: “practice has demonstrated that many States put forward claims of inapplicability of occupation law even as they maintain effective control over foreign territory or a part thereof, due to the reluctance to be perceived as an occupying power”, 31st International Conference of the Red Cross and Red Crescent, “International Humanitarian Law and the challenges of contemporary armed conflicts”, Report prepared by the International Committee of the Red Cross, Geneva, October 2011, pp. 26–27. See also Eyal Benvenisti, “Water Conflicts during the Occupation of Iraq”, American Journal of International Law, Vol. 97, 2003, p. 860: “Using sophisticated claims, all occupants in the past three decades avoided acknowledging that their presence on foreign soil was in fact an occupation subject to the Hague Regulations or Fourth Geneva Convention (…)”. Consequently, as rigthly remarked by Christopher Greenwood, “International Humanitarian Law (laws of war), Revised report for the Centennial Commemoration of the First Hage Peace Conference 1899”, in Frits Kalshoven (ed.), The Centennial of the First International Peace Conference: reports and conclusions, The Hague, Kluwer, 2000, p. 218: “the law of belligerent occupation has a poor record of compliance for most of the twentieth century”. 59 See uk Military Manual, op. cit. note 3, §11.4. 60 Yoram Dinstein, “The International Law of Belligerent Occupation and Human Rights”, Israel Yearbook on Human rights, Vol. 8, 1978, p. 104. 61 uk Military Manual, op. cit. note 3, §11.4.1; us Military Manual, op. cit. note 50, §357. 62 See Article 154 gciv which states that: “In the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land,

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Regulations as the standard for determining the existence of a situation of occupation has been confirmed in practice by the international tribunals63 and state practice,64 as well as the literature on the subject.65 Article 42 of the Hague Regulations states that: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. The test contained in Article 42 of the Hague Regulations is one of exercising effective control. Indeed the occupation needs to be effective in order to allow the occupant to fulfil the duties laid upon him by the law of occupation.66 The occupant needs to be able to exercise the rights and duties normally incumbent on the legitimate power but momentarily suspended by the fact of occupation.67 This logic lies at the basis of the two important elements of the effective control test. As was already stated in the Hostages Case in 1949: Whether an invasion has developed into an occupation is a question of fact. The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the 63 64 65 66 67

63

64

65 66 67

whether that of July 29, 1899, or that of October 18, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections ii and iii of the Regulations annexed to the above-mentioned Conventions of The Hague [emphasis added]”. See also the Naletilic case, op. cit. note 50, §215; Commentaries gciv, op. cit. note 38, p. 614; Robert Kolb and Sylvain Vité, op. cit. note 4 p. 69; Gregory H. Fox, op. cit. note 8, p. 223. See International Court of Justice (icj), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, i.c.j. Reports 2004, §78 [hereafter Wall opinion]; International Court of Justice (icj), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, i.c.j. Reports 2005, §172 [hereafter Armed activities case] and Naletilic case, op. cit. note 50, §215–216. uk Military Manual, op. cit. note 3, §11.2; us Military Manual, op. cit. note 50, §351. For a more complete list of manuals confirming the importance of Article 42 for the assessment of occupation see Tristan Ferraro, op. cit. note 9, p. 138. See for example Hans-Peter Gasser and Knut Dörmann, op. cit. note 4, p. 268 and Tristan Ferraro, op. cit. note 9, p. 139. Odile Debbasch, op. cit. note 55, p. 325. Ibid., p. 324.

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e­ stablished government [emphasis added]. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. 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.68 Consequently, in order to determine whether a situation of occupation exists, one has to determine whether two conditions are met: (1) the occupying power has rendered the former government incapable of publicly exercising its authority in the area; and (2) the occupying power is in a position to substitute its own authority for that of the legitimate power in the occupied territory.69 As is the case with most factual determinations, it is not always easy to determine if a situation has in fact been met, nor is it easy to determine the precise moment when the said situation was met. The icty in its Naletilic case, has identified some indicators that might help in determining whether effective control in the sense of Article 42 hr has been met: – 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; – the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation; – the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; – a temporary administration has been established over the territory; – the occupying power has issued and enforced directions to the civilian population.70 68 69 70

68 69

70

List Case, op. cit. note 7, pp. 55–56. uk Military Manual, op. cit. note 3, §11.3; us Military Manual, op. cit. note 50, §355; Gerhard Von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of Belligerent Occupation, Minneapolis, the University of Minnesota Press, 1957, p. 28.; Marten Zwanenburg, “The law of occupation revisited: the beginning of an occupation”, Yearbook of International Humanitarian Law, vol. 10, 2007, pp. 109–110; Robert Kolb and Sylvain Vité, “L’applicabilité ratione temporis du droit de l’occupation de guerre: le début et la fin de l’occupation”, in Vincent Chetail (ed.), Permanence et mutations du droit de confits armés, Bruxelles, Bruylant, 2013, p. 97. Naletilic case, op. cit. note 50, §217.

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The ambit of this listing is not to provide a list of boxes to be ticked off for effective control to exist but to provide factual elements that may assist in determining whether a situation of occupation has crystallized or not.71 Importantly, effective control does not have to be asserted on the entire territory and the occupation pertains only to those areas in which control has effectively been established.72 The possibility of a partial occupation has also been confirmed by Article 2 gciv stating that “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party [emphasis added]”. In other words, it is possible to occupy only parts of a territory. Furthermore, once effective control has been acquired it must be maintained.73 The loss of effective control means the end of the occupation (see infra, 1.7). 1.3.2 Question of Actual vs. Potential Control The question has however arisen whether this control needs to be actual or whether mere potential exercise of control is sufficient. Most authors, including myself, argue in favour of the potential control test rather than the actual control test in order to trigger the law of occupation.74 The test would thus be based on the ability of the enemy forces to exert authority over the occupied territory and not on the actual exercise of such control. Whereas the establishment of a fully-fledged administration is a strong indication of the existence of an occupation, it is thus not required per se: it is sufficient for the occupying power to have the capacity to substitute its authority for that of the sovereign.75 The preference for potential rather than actual control was already clear in the 1949 Hostages Case: 71 72 73 74 75

71 72 73 74

75

Marten Zwanenburg, op. cit. note 69, p. 114; Robert Kolb et Sylvain Vité, op. cit. note 69, p. 101. Article 42, paragraph 2, of the 1907 Hague Regulations: “The occupation extends only to the territory where such authority has been established and can be exercised”. Yoram Dinstein, The International Law of Belligerent Occupation, Cambridge, Cambridge University Press, 2009, p. 44. And this already from early on: see for example Gerhard Von Glahn, op. cit. note 69, p. 29: “as long as [the occupant] has the ability to make his will felt everywhere in the territory within a reasonable time, military occupation exists from a legal point of view”. See also Expert Meeting, Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by Tristan Ferraro, Legal Advisor, icrc, March 2012, p. 19 [hereafter Expert Meeting]. Marten Zwanenburg, op. cit. note 69, p. 110. On the question regarding the establishment of the said administration see hcj, 102/82, Tsemel v. Minister of Defence, as translated into English in the Palestine Yearbook on International Law, Vol. 1, 1984, pp. 169–170 [hereafter

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While it is true that the partisans were able to control sections of these countries [i.e. Greece and Yugoslavia] at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country [emphasis added].76 This position has furthermore been confirmed by the Israeli Supreme Court in its Tsemel decision, in which it held, precisely referring to the test of the British Manual, that “one of the tests resides in the capability of the military force to enter into the shoes of the authorities of the previous regime and not necessarily in the fact that it has already done so”.77 This reference to the British Manual in the Tsemel case is interesting given that the position in the British Manual itself is not unambiguous. Indeed, whereas it is stated in paragraph 11.3 that for a situation of occupation to exist, the occupying power needs to be in a position to substitute its own authority for that of the former government, suggesting the need for sole potential control, paragraph 11.3.2. states that “occupation does not take effect merely because the main forces of the country have been defeated but depends on whether authority is actually being exercised over the civilian population”.78 Other manuals, such as that of the us, do seem to (unambiguously) confirm the need for sole potential control: “It is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district”.79 Actual control is thus not needed in order to trigger occupation law but, as shown by the passages cited above, it is important that control can be established ‘within a reasonable time’.80 Deciding otherwise would create more legal black holes and enhance the capability for the occupying power to escape its obligations and would ultimately lead to a gap in protection.81 Requiring the 76 77 78 79 80 81

76 77 78 79 80 81

the Tsemel case]: “the application [of the law of occupation] is not dependent on the establishement of a special organizational apparatus bearing the character of military administration. The obligations and the legal powers of the military force, deriving from effective occupation of territory (…) have been created and hold good by virtue of military control of the territory, and this is so even if the military force exercises it solely by means of its regular combat units, with setting up as special military framework for the needs of the administration”. List case, op. cit. note 7, p. 56. Tsemel case, op. cit. note 75, p. 169. uk Military Manual, op. cit. note 3, §11.3 and 11.3.2. us Military Manual, op. cit. note 50, §356. See also the confirmation by Gerhard Von Glahn, op. cit. note 69, p. 29. Expert Meeting, op. cit. note 74, p. 19. In this regard see also Tristan Ferraro, op. cit. note 9, p. 151.

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establishment of an administration for the occupation to exist, or for that matter equally the exercise of actual control, would enable an Occupying power “to circumvent its obligations by simply refusing to establish the control it is in a position to establish”.82 The requirement of potential control not only prevents the occupying power from escaping its obligations but equally ensures that there is no void in governing.83 Indeed, given that the legitimate power has been rendered incapable of exercising its governmental powers by the fact of the occupation, the rules should ensure that there is no gap in the exercise of these governmental functions. More recently, however, a doubt seems to have been again cast on the favouring of the potential control test. The icty in its Naletilic judgment in 2003 stated that: “The law of occupation only applies to those areas actually controlled by the occupying power and cease to apply where the occupying power no longer exercises an actual authority over the occupied area [emphasis added]”.84 It seems that the icty is endorsing a strict adoption of the actual authority test.85 By requiring a further degree of control the icty expressly departed from its previous case law.86 The same tendency can be observed at the International Court of Justice (icj) stating in its 2005 armed activities case that:

82 83 84 85 86

82 83

84 85

86

In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an ‘occupying Power’ in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case, the court will need to satisfy itself that the Ugandan Marten Zwanenburg, op. cit. note 69, p. 110. Orna Ben-Naftali, “Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism”, in Antonio Cassese (ed.), Realizing Utopia: the Future of International Law, Oxford, Oxford University Press, 2012, p. 542. Naletilic case, op. cit. note 50, §218. Pascale Chifflet, “Recent Legal Developments: The Judgement of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Mladen Naletilic and Vinko Martinovic”, Leiden Journal of International Law, vol. 16, 2003, p. 535. Pascale Chifflet, op. cit. note 85, p. 533. See also the Naletilic case, op. cit. note 50, §214 in which the icty, after having recalled that its jurisprudence on the law of occupation is inconsistent stated that “ (…) In this context, the Chamber respectfully disagrees with the finding in the Bla{ki}Trial Judgement argued by the Prosecution. The overall control test, submitted in the Bla{ki} Trial Judgement, is not applicable to the determination of the existence of an occupation (…)”.

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armed forces in the drc were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese army [emphasis added].87 Whereas Congo argued in favour of the mere ability to assert authority,88 in line with the prevailing opinion as highlighted above, the icj also seems to have reverted back to the more restrictive actual control test,89 even if it does not go as far as to require the effective establishment of an appropriate military structure in order to trigger the law of occupation.90 The apparent shift in favour of the actual control test has been referred to as a “significant change of course”.91 The two-above mentioned judgments were consequently extensively criticized specifically on this point.92 I, along with the majority of other experts on the matter,93 continue to put forward the potential rather than the actual control test, specifically in light of the above-identified problems that would arise if such an approach would not be retained. Two recent decisions of the European Court of Human Rights (ECtHR) concerning the Nagorno-Karabakh region have also attempted to clarify the definition of occupation.94 Whereas these decisions a priori seem to confirm the 87 88 89 90 91 92 93 94

87 88 89 90 91 92

93 94

Armed activities case, op. cit. note 63, §178. Ibid., § 169. Tristan Ferraro, op. cit. note 9, p. 150. Allessandra Annoni, L’occupazione “ostile” nel diritto internazionale contemporaneo, Turin, G. Giappichelli Editore, 2012, p. 48. Expert Meeting, op. cit. note 74, p. 19. See also Tristan Ferraro, op. cit. note 9, p. 150. Concerning the restrictive definition of occupation in the Armed Activities case see Armed activities case, op. cit. note 63, Separate opinion of Judge Kooimans, §49. See also Viaos Koutroulis, “L’affaire des activités armées sur le territoire du Congo (Congo C. Ouganda): une lecture restrictive du droit de l’occupation”, Revue Belge de Droit International, 2006/2, p. 718. Similary, Eyal Benvenisti and Guy Keinan, Guy, “The Occupation of Iraq: A Reassessment”, International Law Studies Services us Naval War College, Vol. 86, 2010, p. 265 refered to the adoption of the actual control test by the icj in the armed activities case as being “an unfortunatie outcome”. On the Naletilic case see, Pascale Chifflet, op. cit. note 85, p. 535. See Expert Meeting, op. cit. note 74, p. 19: “The experts unanimously expressed their disagreement with the test proposed by the icj”. See European Court of Human Rights (ECtHR), Sargsyan v. Azerbaijan, Application no. 40167/06, 16 June 2015, §94 [hereafter Sargsyan Case]; and European Court of Human Rights (ECtHR), Chiragov and Others v. Armenia, Application no. 13216/06, 16 June 2015, §96 [hereafter Chiragov Case]. It is quite exceptional for a human rights body to explicitly provide a definition of an ihl concept. Previous references to ihl in the case-law of

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trend towards actual control by stating that “the requirement of actual control is widely considered to be synonymous to that of effective control”, it is later specified that “military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in the position to exercise effective control without the consent of the sovereign [emphasis added]”.95 This subsequent specification suggests that what they refer to as actual control in fact refers more to what we consider to be potential control, namely the fact of being in a position to exercise effective control. 1.3.3 ‘Boots on the Ground’? The question raised here is whether it is necessary in order to exercise effective control to have boots on the ground or whether such control could also be exercised remotely, through other means. Most authors have argued that the physical presence of hostile troops in the foreign territory is an integral part of the effective control test.96 Such a position seems to have been explicitly confirmed by the ECtHR in the two recent cases mentioned above which explicitly state that: According to widespread expert opinion physical presence of foreign troops is a sine qua non requirement of occupation, i.e. occupation is not conceivable without ‘boots on the ground’, therefore forces exercising naval or air control through a naval or air blockade do not suffice.97 This position is however nuanced in a certain number of ways. First, whether it seems to be a condition sine qua non for the establishment of the occupation, it could be less stringent for the maintenance of the occupation.98 Second, even

95 96 97 98

95 96

97

98

the ECtHR were limited to restating some of the law without really applying the stated provisions. Sargsyan Case, op. cit. note 94, §94; Chiragov Case, op. cit. note 94, §96. Yuval Shany, “Faraway, so close: the legal status of Gaza after Israel’s disengagement”, Yearbook of International Humanitarian Law, Vol. 8, December 2005, p. 370, Orna-Ben Naftali, op. cit. note 83, p. 541; Tristan Ferraro, op. cit. note 9, p. 143. See also expert meeting, op. cit. note 74, p. 17. Sargsyan Case, op. cit. note 94, §94 and Chiragov Case, op. cit. note 94, §96. I would rejoin the criticism expressed with regard to these two judgments by Marko Milanovic, “European Court decides that Israel is not an occupying power in Gaza”, ejil Talk, 17 June 2015, stating that, due to a lack of specific ihl expertise, they might have been overstating the degree of consensus on this point. Expert Meeting, op. cit. note 74 p. 17.

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though physical presence is an important element, the different conditions for triggering occupation should be interpreted in a dynamic way. As Orna BenNaftali explains: “for instance, it could be posited that given the potential effectively to control an area, without physical presence of troop on the ground, the condition related to the potential for control should have greater weight in determining the application of the [law of belligerent occupation]”.99 I would agree with the majority that the presence of troops is absolutely necessary for an occupation to be established. However, I also believe that effective control can, in some very specific circumstances and in light of modern technological developments, be maintained remotely, so without the (permanent) physical presence of troops. This seems to be confirmed by the fact that most would still argue that Gaza is occupied even though there are no longer any troops on the ground since the 2005 disengagement.100 As I will argue below, I disagree with those who argue that Gaza is still occupied but not because of the absence of physical troops on the ground in Gaza but because, in my opinion, Israel no longer exercises effective control over the Gaza Strip instead of the ‘legitimate’ power and because Israel is no longer capable of effectively asserting control ‘within a reasonable time’ (for a more detailed development of this position, see infra, box 1). Ultimately there seem to be two possible approaches: one including the presence of troops on the ground as an integral part of the effective control test; and the other, the one I am adhering to, up-on-balance, favouring the potential power to exercise effective control, a potential which strongly depends on the inability of the lawful power to do so.101 The reason often advanced behind the ‘boots on the ground’ requirement is that such presence would be required in order for the occupying power to be able to correctly fulfil its obligations under the law of occupation and namely under Article 43 of the Hague Regulations. In other words, it would not be possible for the occupying power to ‘maintain order and public safety’, hence to fulfil its obligations adequately, if it is not present on the ground. Whereas it might indeed be more difficult to fulfil these obligations if not present on the ground, the risk of making this a third cumulative requirement is that 99 100 101

99 Orna-Ben Naftali, op. cit. note 83, p. 542. 100 In this regard see for example the possibility left in order to cover the situation of Gaza by Tristan Ferraro, op. cit. note 9, p. 147: “it can be asserted that the presence of hostile military forces on foreign territory is – in most cases – a necessary condition for describing that territory as occupied [emphasis added]”. 101 Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 8, p. 33.

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o­ ccupying powers will escape their responsibilities by not placing troops on the ground but by equally controlling the concerned territory from the outside, amounting in fact to a situation of effective control similar to a situation that would be sustained through troops on the ground. This would not be completely impossible given the new technologies that exist today. Even Yoram Dinstein seems to recognize that such a situation might be possible stating that “It is palpable that the Occupying Power must deploy ‘boots’ on the ground in or near the territory [emphasis added]”.102 As a side note, it is important not to confuse remote control with the exercise of occupation by proxy, which would involve the appointment of a new ‘local’ government exercising governmental functions on behalf of the occupying power. In such a situation, the effective control necessary for triggering the law of occupation would be exercised through surrogate armed forces under the overall control of the foreign state.103 The question of indirect control has been tackled by the uk Military Manual: In some cases, occupying troops have operated indirectly through an existing or newly appointed indigenous government (…). In such cases, despite certain differences from the classic form of military occupation, the law relating to military occupation is likely to be applicable. Legal obligations, policy consideration, and external diplomatic pressures may all point to this conclusion.104 Deciding otherwise would allow the occupying power to escape its obligations by installing an occupation ‘by proxy’ and would undeniably result in an important legal vacuum.105 102 103 104 105

102 Yoram Dinstein, op. cit. note 73, 2009, §100. Interestingly, he also argues that belligerent occupation cannot rest solely on either naval power or air power, but will argue that Gaza is still occupied, among other things, because of the fact they still control the maritime and aerial space. 103 Tristan Ferraro, op. cit. note 9, p. 158. For an example of occupation by proxy see icty, Prosecutor v. Duško Tadic, Case No. IT-94-1-T, 7 May 1997, § 584: “the relationship of de facto organs or agents to the foreign Power includes those circumstances in which the foreign Power “occupies” or operates in certain territory solely through the acts of local de facto organs or agents”. 104 uk Military Manual, op. cit. note 3, §11.3.1. 105 Tristan Ferraro, op. cit. note 9, p. 160.

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Box 1 Effective Control and the Situation of Gaza Post-Disengagement The debate surrounding the status of Gaza will serve as an example for illustrating the conditions for the existence of a situation of occupation. Indeed since the withdrawal of the Israeli troops and settlements from Gaza and the dismantlement of its military administration on the basis of the 2004 ‘disengagement’ plan, an important debate is ongoing about whether Gaza is still occupied or not. Whereas until December 2006, the Israeli judiciary recognized that the Gaza Strip as well as the West Bank were occupied in the sense of Article 42 of the Hague Regulations, the status of Gaza after the ‘disengagement’ is less straightforward.106 In accordance with its Revised Disengagement Plan of the 6th of June 2004, Israel withdrew its land forces and evacuated its settlements from Gaza.107 The revised plan specified that “upon completion of this process, there shall no longer be any permanent presence of Israeli security forces on the areas of Gaza Strip territory which have been evacuated”.108 Interestingly, in contrast to the original plan, the revised plan no longer specifically concludes that “as a result, there will be no basis for claiming that the Gaza Strip is occupied Territory”.109 The reason behind this deletion seems to have been legal advice received by the Israeli Cabinet stating that any claims regarding the end of occupation could not be sustained as long as Israel remained in control of the Philadelphi Corridor (a buffer zone alongside the Egypt/ Gaza border) and arguably also ports and airports.110 In any case, it is 106 107 108 109 110

106 Shane Darcy and John Reynolds, “An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law”, Journal of Conflict & Security Law, 2010, p. 225. The debate concerns solely the Gaza strip, the occupied status of the West Bank has not questioned after the disengagement. 107 The Cabinet Resolution Regarding the Disengagement Plan, 6 June 2004 (as published by the Prime Minister’s Office) Addendum A – Revised Disengagement Plan – Main Principles http://www.mfa.gov.il/MFA/ForeignPolicy/Peace/MFADocuments/Pages/Revised %20Disengagement%20Plan%206-June-2004.aspx. 108 Ibid. 109 The Disengagement Plan – General Outline, 18 Apr 2004 (Communicated by the Prime Minister’s Office), http://www.mfa.gov.il/MFA/ForeignPolicy/Peace/MFADocuments/ Pages/Disengagement%20Plan%20-%20General%20Outline.aspx. 110 Iain Scobbie, “An Intimate Disengagement: Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination”, Yearbook of Islamic and Middle Eastern Law, Vol. 11,

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important to ­recall here that the qualification of a situation as being one of occupation is a factual assessment and that consequently any declaration along these lines is not relevant for the legal qualification. The same is true for the fact that Israel qualified Gaza as a ‘hostile territory’ in September 2007:111 this also has no legal meaning nor has it any impact on the qualification of the situation. The debate surrounding the status of the Gaza Strip is not merely a theoretical one. Indeed, it clearly affects the obligations owed to the population of Gaza. As an example, if we were to hold that it is still occupied, Israel would have the duty of ensuring the food and medical supplies of the population of Gaza to the fullest extent possible (see Article 55 gciv), whereas, in contrast, if it would no longer be occupied, it would only have to allow the free passage of humanitarian relief for civilians in need (see customary rule 55 applicable in both iac and niac)112 based on the existence of an armed conflict between Israel and Hamas. It is clear that the first obligation is much more stringent than the second one. It is precisely in relation to supplies which are necessary for the well-being 111 112

2006, p. 5. See also Geoffrey Aronson, “Issues arising from the implementation of Israel’s disengagement from the Gaza Strip”, Journal of Palestine Studies, vol. 34, 2005, p. 50. An earlier version of the disengagement plan indeed foresaw a continued Israeli presence in the Philadelphi Corridor but ultimately left no troops behind in the area between Egypt and Gaza, see Avi Bell and Dov Shefi, “The mythical post-2005 Israeli occupation of the Gaza Strip”, Israel Affairs, Vol. 16, No. 2, April 2010, pp. 268–269. 111 Israel Ministry of Foreign Affairs, “Security Cabinet declares Gaza hostile territory”, 19 ­September 2007, http://www.mfa.gov.il/mfa/pressroom/2007/pages/security%20cabinet %20declares%20gaza%20hostile%20territory%2019-sep-2007.aspx (consulted 12/08/ 2014). 112 We refer here to the customary law rule applicable to both International armed conflict (iac) and non-international armed conflict (niac) since there is no consensus on the nature of the armed conflict opposing Israel with Hamas. Israel argues that regardless of whether it is occupied or not (occupation would make it an iac in any case) the conflict with Hamas is an iac since it concerns a conflict that ‘crosses the border of a state’. Some have argued, in line with the qualification of the war on terror opposing the usa with AlQuada as a niac, that since Hamas is a non-state actor it is a niac. For an account of this debate see Sigall Horovitz “Accountablity of Hamas under International Humanitarian Law”, in Mark Ami-El (ed.), Hamas, the Gaza War and Accountability under International Law, Updated Proceedings of an International Conference on June 18, 2009, Jerusalem Centre for Public affairs and the Konrad Adenauer Stiftung, 2011, p. 32. I would however tend to agree with a qualification of the conflict as an iac – the corresponding treaty provision for this customary law rule would then be Article 23 gciv.

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of the population that cases arose concerning the specific legal status of Gaza before the Israeli Supreme Court.113

Does Israel Still Have Effective Control over Gaza in the Sense of Article 42 of the Hague Regulations or Not?

The debate has been framed both in terms of the potential additional requirement for occupying troops to have boots on the ground, i.e. being physically located in the occupied area,114 as in terms of the continued existence of effective control or not. In my opinion, it is not so much a question of having boots on the ground (see supra Part 1.3.3). Instead, the focus concerning the status of Gaza, in my opinion, has to lie in the factual assessment of the existence, or not, of effective control in the hands of the Israeli army, in place of the legitimate authority. There is little doubt as to the fact that Israel continues to exercise a considerable level of control over the Gaza Strip but the question is whether this control amounts to belligerent occupation, i.e. whether the effective control test contained in Article 42 of the 1907 Hague Regulations is still met. Summing up in the words of Shane Darcy and John Reynolds: “The debate on this matter largely revolves around the level of control exercised over the Gaza Strip by Israel and the type of control that is necessary for an occupation to be said to persist under ihl”.115 In order to assess the level of control exercised over the Gaza Strip by Israel and whether it amounts to effective control in the sense of Article 42 hr we have to look at the facts on the ground. Even after the ‘disengagement’, Israel maintains complete control over Gaza’s ­airspace116 113 114 115 116

113 Shane Darcy and John Reynolds, op. cit. note 106, p. 228. See for example hcj, Jaber ­Al-Bassiouni Ahmed and Others v. Prime Ministers and Minister of defence, Case n°9132/07, 27 January 2008 [hereafter the Al-Bassiouni Case]. 114 The precise question here is whether in addition to the two first cumulative requirements: (1) the occupying power is capable of exerting effective control over the occupied territory, (2) in the place of the legitimate government, there would also be a third requirement, namely that the hostile troops would have to be physically located in the area, or in other words that the occupying power would have boots on the ground. In this regard see Yuval Shany, op. cit. note 96, p. 376. This is to be furthermore framed in the wider debate concerning the requirement of actual vs. potential control (see supra Part 1.3.2). 115 Shane Darcy and John Reynolds, op. cit. note 106, pp. 226–227. 116 Gisha, “Scale of Control: Israel’s Continued Responsibility in the Gaza Strip”, November 2011, p. 12, http://gisha.org/UserFiles/File/scaleofcontrol/scaleofcontrol_en.PDF

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and territorial waters,117 as well as over the crossings between it and the Gaza Strip.118 It furthermore has a tremendous impact on the life of the Gaza Strip through its control over the passage of commercial goods into Gaza as well as its continued control of the Palestinian Population ­Registry,119 hence controlling whom and what goes into the Gaza Strip. Next to the control of the borders itself, Israel also continues to control the area adjacent to its border on the Palestinian Side (the no-go zone).120 It is clear that Israel continues to exercise an important level of control on the Gaza Strip. It is however not the sole authority exercising some form of control in the Gaza Strip. Indeed, since June 2007, Hamas carries out most of the governmental administration functions as well as being responsible for public services such as education, policing, sanitation and hospitals.121 There is thus at the very least a form of concurrent control between Israel and Hamas, making it, in my opinion, very difficult to assert that Israel has the effective control required for occupation since effective control requires the occupying power to be in a position to substitute its own authority for that of the local authority. Even if, as was already stated in the Tsemel case, some vertical sharing of power between the occupying power and the local authorities is possible,122 there still needs to be a hierarchical relationship between the occupying power and the said authority, the former keeping a form of control over the ­latter.123 This is not the case in relation to Hamas. Furthermore, as 117 118 119 120 121 122 123

117 118 119 120 121 122

123

(­consulted 07/06/2015). See also unga – Human Rights Council, “Report of the United Nations Fact-Finding Mission on the Gaza Conflict”, A/HRC/12/48, 25 September 2009, http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf (consulted 07/06/2015) [hereafter ‘Goldstone Report’] stating in §383 that “[s]ince July 2007 Hamas has been the de facto government authority in Gaza”. Gisha, op. cit. note 116, p. 13. Ibid., p. 14. Ibid., pp. 17–19. Ibid., p. 20. Ibid., p. 23. Tsemel Case, op. cit. note 75, p. 170: “If we were in a situation where a regular military administration has been installed, the military force would be free to decide in what measure it exercises its powers within the sphere of civil administration throught its direct delegates and what areas of civil administration should be left in the hands of the authorities of the previous regime, be these local authorities or officials of the previous regime. (…) The fact that the authorities of the earlier regime are left to operate to some extent, does not detract from the reality of the existence of an effective military control over the territory nor detract from the incidental consequences under the laws of war”. In this regard see for example Tristan Ferraro, op. cit. note 9, p. 149.

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was demonstrated above, even though there is no need for actual control, there needs to be ­potential control, meaning, amongst other things, that troops have to be able, ‘within a reasonable time’, to assert their power over the occupied ­territory.124 Admittedly, the timeliness was interpreted quite leniently in the framework of, for example, the Hostages case. However, I would argue that in light of modern technological developments, what might have been considered reasonable back then, is no longer necessarily reasonable. Consequently, if foreign armed forces need to engage in significant combat operations in order to recapture the area in question from local forces the territory can no longer said to be occupied.125 We have already established that armed forces are no longer present on the ground as such, but also the second element would be extremely difficult to fulfil. Indeed for Israel to reassert effective control over Gaza would require a major ground offensive and consequently it would not be possible to do so ‘within a reasonable time’. This was demonstrated by the fighting in 2008–2009, where “it [was] evident that Israel cannot dispatch troops and expect instantaneous control [and that] [s]hould Israel wish to reintroduce its control over Gaza, it would face fierce military resistance and it would have to engage in very intensive and bloody military action”.126 This was again confirmed by the latest military campaign, Operation Protective Edge, during the summer of 2014, lasting over four weeks and killing an estimate of at least 1,849.127 This shows once again that a major ground offensive would be necessary for Israel to reassert control over the Gaza Strip. A similar position has been adopted by Yuval Shany, who argued along similar lines, that there are two main problems standing in the way of the qualification of the situation in Gaza as occupation: (1) the existence within Gaza of an organized government (the Palestinian authority and later on Hamas) that openly exercises power and authority (what 124 125 126 127

124 As was shown above, this ‘reasonable’ time requirement was already found in the List case, op. cit. note 7, p. 56: “While it is true that the partisans were able to control sections of these countries [i.e. Greece and Yugoslavia] at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country”; as well as being confirmed by military manuals such as the us Military Manual, op. cit. note 50, §356 and learned authors such as for example Gerhard Von Glahn, op. cit. note 69, p. 29. 125 Hans-Peter Gasser and Knut Dörmann, op. cit. note 4, p. 273. 126 Avi Bell and Dov Shefi, op. cit. note 110, p. 274. 127 ocha, Occupied Palestinian Territory: Gaza Emergency, Situation Report (as of 6 August 2014), http://www.ochaopt.org/documents/ocha_opt_sitrep_06_08_2014.pdf (consulted 07/08/2014).

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I ­referred to above as a problem of at the very least concurrent authority meaning that there is no substitution of the legitimate authority by the ‘occupying’ power); and (2) even if we were to adopt the more lenient test, the potential authority instead of the actual authority (the latter is in any case lacking since there are no troops on the ground), this condition would also not be fulfilled since, as was also already highlighted above, in order to assert authority Israel would have to reoccupy a large part of the Gaza Strip which would be lengthy and costly hence going against the ‘reasonable’ time requirement.128 Eyal Benvenisti equally states that since Israel no longer has effective control over Gaza it is no longer occupying it.129 Similarly, Nicholas Rostow also argued that even though the withdrawal has not ended the hostilities as such, the occupation has ended since there is no longer any effective control.130 This position was also confirmed by the Israeli Supreme Court, which, in the Al-Bassiouni case, concerning the reduction of the amount of fuel allowed into the Gaza Strip, held that: “since September 2005 Israel no longer had effective control over what happens in the Gaza strip. Military rule that applied in the past in this territory came to an end by a decision of the government, and Israeli soldiers are no longer stationed in the territory on a permanent basis, nor are they in charge of what happen there. (…) Nor does Israel have any effective capability, in its present position, of enforcing order and managing civilian life in the Gaza strip”.131 Opinions remain strongly divided on the issue, however, and numerous authors,132 ngos133 and international organizations134 argue that the 128 129 130 131 132 133 134

128 Yuval Shany, “The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. The Prime Minister of Israel”, Israel law Review, Vol. 42, 2009, p. 105. 129 Eyal Benvenisti, op. cit. note 2, p. 212. 130 Nicholas Rostow, “Gaza, Iraq, Lebanon: three occupations under international law”, Israel Yearbook on Human Rights, vol. 37, 2007, p. 217. 131 Al-Bassiouni Case, op. cit. note 113, §12. 132 Mustafa Mari, “The Israeli Disengagement from the Gaza Strip: An end of the Occupation?” yearbook of International Humanitarian law, Vol. 8, December 2005, pp. 356–368 ; Claude Bruderlein, “Legal Aspects of Israel’s Disengagement Plan Under International Humanitarian Law”, hpcr Legal and Policy Brief, November 2004, 23p; Dinstein, op. cit. note 73, §664–673; Iain Scobbie, op. cit. note 110, pp. 3–31; Geoffrey Aronson, op. cit. note 110, pp. 49–63. 133 This is the case for example for Amnesty International, Amnesty International Report 2014/15 to the State of Israel, available at https://www.amnesty.org/en/countries/mid dle-east-and-north-africa/israel-and-occupied-palestinian-territories/report-israel-and -occupied-palestinian-territories/ (consulted 25/05/2015); See also Gisha, op. cit. note 116, p. 12. 134 This is the leading position within the un. See for example unsc, Resolution 1860(2009), 8 January 2009; unga, Resolution S-9/1 concerning the grave violations of human rights

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Gaza Strip is nevertheless still occupied. It even appears to be the majority position.135 We will briefly set out their main arguments here. John Dugard, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, stated that “it is clear that Israel remains the occupying Power as technological developments have made it possible for Israel to assert control over the people of Gaza without permanent military presence” and bases this control on (1) Israel’s substantial control of Gaza’s six land crossings; (2) its control through military incursions, rocket attacks and sonic booms; (3) its complete control of Gaza’s airspace and territorial waters; and (4) its control of the Palestinian Populations Registry.136 In the Goldstone Report it is similarly argued that “[g]iven the specific geopolitical configuration of the Gaza Strip, the powers that Israel exercises from the border enable it to determine the conditions of life within the Gaza Strip” and reference is made to the same factual elements.137 Yoram Dinstein also asserts that in light of the remaining control of the air, sea and land, Israel has not lost its effective control and is thus still the occupying power in the Gaza Strip.138 Geoffrey Aronson further argued that because Israel retains a ‘security envelope’ around Gaza, controlling who and what goes in and out of the territory, the occupation has not been terminated by the disengagement.139 Iain 135 136 137 138 139

135

136 137 138 139

in the Occupied Palestinian Territory, particularly due to the recent Israeli military a­ ttacks against the occupied Gaza Strip, A/HRC/RES/S-9/1, 12 January 2009; unga – Human Rights Council, “Report of the Special Rapporteur John Dugard on the situation of human rights in the Palestinian territories occupied since 1967”, A/HRC/7/17, 21 January 2008, §11, Goldstone report, op. cit. note 116, §276. This is furthermore also the position of the eu; see, for example, the eu Heads of Missions’ Report on Gaza, 2013 available at http:// www.eccpalestine.org/eu-heads-of-missions-report-on-gaza (consulted 30/10/2016) and the icrc, see Peter Maurer (President of the International Committee of the Red Cross), “Challenges to international humanitarian law: Israel’s occupation policy”, International Review of the Red Cross, Vol. 94, n°888, 2012, p. 1506. Yoram Dinstein, op. cit. note 73, §665; Mustafa Mari, op. cit. note 132, p. 357, Shane Darcy and John Reynolds, op. cit. note 106, p. 241. According to the Goldstone Report, op. cit. note 116, §277, the international community continues to regard Israel as the occupying power in Gaza. Report of the Special Rapporteur John Dugard on the situation of human rights in the Palestinian territories occupied since 1967, op. cit. note 134, §11. Goldstone report, op. cit. note 95, §278. Yoram Dinstein, op. cit. note 34, §668. The same is argued by Mustafa Mari op. cit. note 93, p. 366: Israel has not lost effective control over the Gaza Strip. Geoffrey Aronson, op. cit. note 110, p. 51. Shane Darcy and John Reynolds, op. cit. note 106, pp. 242–243 on this similarly hold that “in light of prior lack of good faith in the application of ihl to the Palestinian Territories, the ‘disengagement’ bears the hallmark of an attempt by Israel to abrogate its legal responsibilities’. Israeli authorities should be

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Scobbie goes even further by stating that “[i]t is a classic example of an occupant inclined to make use of arrangements where authority is said to be exercised by a transitional government in an attempt to disguise the truth in the hope of evading responsibility”.140 Next to arguing that the control exercised by Israel still meets the conditions for triggering occupation, some of these authors also refer to what we could call the indivisible argument, arguing that the West Bank and Gaza should be seen as a single territorial entity and hence the occupation should be assessed as a whole.141 This argument is however difficult to square with the fact that according to Article 42 of the Hague Regulations, “[t]he occupation extends only to the territory where such authority has been established and can be exercised” and the reference to “all cases of partial or total occupation of the territory” referred to in common Article 2. These two provisions indeed make it clear that only part of a territory can be occupied.142 Hence, whereas the debate surrounding the question of whether or not there is still effective control is credible, the indivisible argument should definitely and from the outset be completely disregarded. Interestingly, Aeyal Gross has taken a kind of midway approach arguing that even though effective control has not been maintained over all areas, it has been over some, and that consequently the law of occupation should be applied to the areas remaining under Israel’s control in what has been referred to as the functional approach to the law of occupation.143 The functional approach seems to have been endorsed by the icrc in its most recent report on the challenges of contemporary armed conflict to international humanitarian law: 140 141 142 143

140 141 142

143

‘­precluded from unilaterally deciding the extent of their own legal obligations’ by situating the Gaza Strip in a position of ‘legal limbo’ which inly stands to confirm Israel’s existing ‘culture of evasion and manipulation’”. If proven to be true, this however has no legal implications, since if there is no longer effective control in fact, there is no longer any occupation. Iain Scobbie, op. cit. note 110, p. 30. See for example Yoram Dinstein, op. cit. note 73, § 666. Even if, it is also clear that, applying a different ‘status’ to Gaza and the West Bank further complicates the matter in practice, there is nothing in the law of occupation stating that the occupation of part of a territory means the occupation of that territory in its entirety. Aeyal Gross, “Rethinking Occupation: The Functional Approach”, Symposium on the Functional Approach to the Law of Occupation, Opinio Juris, April 2012, http://opinio juris.org/2012/04/23/symposium-on-the-functional-approach-to-the-law-of-occupation/. This position has also been largely adopted by the ngo Gisha, op. cit. note 116, 75p.

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In principle, the effective control test is equally applicable when establishing the end of occupation, meaning that the criteria to be met should generally mirror those used to determining the beginning of occupation, only in reverse (…). The icrc considers however, that in some specific and rather exceptional cases – in particular when foreign forces withdraw from occupied territory (or parts thereof) but retain key elements of authority or other important governmental functions usually performed by an occupying power – the law of occupation may continue to apply within the territorial and functional limits of such competences. Indeed, despite of the lack of physical presence of foreign forces in the territory concerned, the retained authority may amount to effective control for the purposes of the law of occupation and entail the continued application of the relevant provisions of this body of norms.144 This debate mainly revolves around the question of whether the application of the law of occupation is a binary question, meaning that there is either occupation and the law applies or there is no occupation and the law does not apply, or whether one is able to apply only some provisions of the law based on the situation that presents itself. The proposed functional approach would lead to some kind of levelling in the degree of obligations based on the facts on the ground, meaning that even if the control is only limited to some areas, the duties and responsibilities of the occupying force should nevertheless be established with regard to the specific areas concerned. There is thus some kind of dédoublement fonctionel: the law of occupation continues to apply in the areas in which Israel maintains control over the lives of the civilians in Gaza but it no longer owes such obligations under the law of occupation in the areas in which it has relinquished its powers.145 The specific obligations are thus proportionate to the level of control exercised. This approach has not remained without criticism, however. Valentina Azarov has rightly stated, in my opinion, that: 144 145

144 Report entitled “International humanitarian law and the challenges of contemporary armed conflicts”, document prepared by the International Committee of the Red Cross, Geneva, October 2015, 32nd International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 8–10 December 2015, p. 12. The exceptional situation refered to in this report is undeniably the situation of the Gaza strip. 145 Gisha, op. cit. note 116, p. 27.

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the fragmentation of the law of occupation, through the application of different sets of obligations at different points in time would turn the law from a “set menu”, intended to restrain and control the occupier, into dishes at a buffet from which the occupier can pick and choose as it likes.146 This would entrust the occupying power with the ability to determine the extent of its own obligations and in turn even further create the risk of abusive behaviour.147 It is also far from enhancing legal certainty and in my opinion, clearly overstretches the legal framework of occupation. In this respect it might result in setting a dangerous precedent.

Responsibility towards the Population of the Gaza Strip on the Basis of Other Grounds?

A point everyone seems to agree on is the fact that somehow, occupation or not, Israel still has obligations towards Gaza. What renders this debate extremely vivid and complex is precisely the fact that, even though the control exercised by Israel towards the Gaza Strip and its population, in my opinion, clearly falls short of effective control necessary to trigger the law of occupation, Israel continues to exercise extensive control over the daily lives of the people residing in that territory. Concomitantly, there seems to be a need for this complex reality to be translated into ­obligations of some sort, be it under the law of occupation or otherwise.148 The Israeli Supreme Court in the above-mentioned Al-Bassiouni judgement argued that: 146 147 148

146 Valentina Azarov, “Disingenuous ‘Disengagement’: Israel’s Occupation of the Gaza Strip and the Protective Function of the Law of Belligerent Occupation’”, Symposium on the functional Approach to the Law of Occupation, Opinio Juris, April 2012. http://opiniojuris .org/2012/04/23/symposium-on-the-functional-approach-to-the-law-of-occupation/. 147 Ibid. 148 For a more detailed account of the reasons behind this debate see Yuval Shany, “Binary Law Meets Complex Reality: the Occupation of Gaza Debate”, Israel Law Review, Vol. 41, Nos 1&2, 2008, pp. 68–86. This more precisely also refers back to one of the main findings of this PhD thesis, namely that the law of occupation seems to be ill-suited to address certain contemporary issues arising out of situations of occupation. Here one could imagine, for example, the creation of some form of post-occupation obligation in cases of the termination of long-term occupation (some have argued that such post-occupation obligations already exist but without providing a specific legal source in which these would be embedded and in my opinon such obligations concomitantly do not yet exist).

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In the prevailing circumstances, the main obligations of the State of Israel relating to the residents of the Gaza strip derive from the state of armed conflict that exists between it and the Hamas organization that controls the Gaza strip: these obligations also derive from the degree of control exercised by the State of Israel over the border crossing between it and the Gaza strip, as well as from the relationship that was created between Israel and the territory of the Gaza strip after the years of Israeli military rule in the territory, as a result of which the Gaza strip is currently almost completely dependent upon the supply of electricity from Israel.149 The Supreme Court seems to base the residual obligations of Israel towards the Gaza strip on three grounds: (1) the still on-going armed conflict between Israel and the Hamas and thus the general obligations arising out of situations of armed conflict under International Humanitarian Law;150 (2) the control Israel still exercises over the border crossings; and (3) the fact that an important relation was created between Israel and Gaza over the years, hence referring to some kind of post-occupation obligations.151 The first ground is evident and does not give rise to any problems: since there is still an ongoing armed conflict between Israel and Hamas, Israel is bound by the concomitant obligations under ihl. The two other grounds, however, gave rise a fair degree of criticism.152 Indeed, the Israeli Supreme Court does not provide any further details on the legal sources from which these obligations would derive. As Shane Darcy and John Reynolds so suitably stated: by citing the additional factors of Israel’s control of Gaza’s borders and the dependency of Gaza’s population on Israel, it appears that the Court fabricated a halfway house of obligations that are more onerous than those legally required of an enemy belligerent under 149 150 151 152

149 Al-Bassiouni Case, op. cit. note 113, §12. 150 In relation to the problem of electricity and fuel levels raised in Al-Bassiouni the adequate obligation under ihl would be Article 23 gciv even though this might not be entirely satisfactory since this article, as we have seen above, only warrants the free passage of humanitarian goods and does not lead to an obligation to ensure a certain level of supply as Article 55 gciv would in situations of occupation. 151 The Israeli Supreme Court is not the sole authority having referred to some kind of postoccupation obligations. In this regard see for example Gisha, op. cit. note 116, pp. 47–58. 152 See for example Yuval Shany, op. cit. note 128, pp. 107–108 and Shane Darcy and John Reynolds, op. cit. note 106, pp. 230–232.

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humanitarian law, but less so than those that bind an occupying power.153 It is clear that these additional factors do not give rise to any legal obligations whatsoever. Interestingly the Court also makes no reference to potential human rights obligations, which in my opinion might provide the best option for a solution to the level of control exercised by Israel over Gaza but falling short of occupation. Even though this might also not offer a perfect answer, I tend to agree with Yuval Shany that “international human rights law may serve as the ‘missing link’ between Israel’s de facto power over Gaza (…) and the obligation to provide basic supplies to Gaza”.154 When exploring this option however one also encounters some difficulties. As we will see in further detail in Part 2, Chapter 2, of this thesis the effective control test required to trigger the application of the law of occupation does not coincide with the effective control test required for the extraterritorial application of international human rights law (ihrl). It can thus be that the amount of control falls short of occupation but nevertheless triggers the extra-territorial application of ihrl.155 The difficult situation here is that we are not in a clear-cut situation of extra-territoriality given that the acts of the Israeli army are occuring on Israeli territory and not on foreign territory. Hence the extraterritorial character does not lie in their presence on foreign ground but on the fact that acts occuring on the territory of Israel have transboundary, hence extra-territorial, effects.156 We are thus not in a classical situation of effective control over foreign territory (the territorial model of extraterritorial jurisdiction) or over people in foreign territory (the personal model of extraterritorial jurisdiction). We could perhaps try to argue that in light of the current developments concerning extraterritorial human rights jurisdiction, Israel has some kind of personal jurisdiction over the 153 154 155 156

153 Shane Darcy and John Reynolds, op. cit. note 106, pp. 231–232. 154 Yuval Shany, op. cit. note 128, p. 110. 155 Yaël Ronen, “Post-Occupation Law”, in Carsten Stahn, Jennifer S. Easterday and Jens Iverson (Eds.), JusPost Bellum: Mapping the Normative Foundations, Oxford, Oxford University Press, 2014, p. 429. 156 However, according to Jann K. Kleffner, “Human Rights and International Humanitarian Law: General Issues”, in Terry Gill and Dieter Fleck (eds.), The Handbook of the International Law of Military Operations, Oxford, Oxford University Press, 2010, p. 69 several human rights bodies do seem to have recognized that human rights obligations extend also to measures within a State’s territory that have extraterritorial effect.

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people in Gaza due to the fact that their actions have great repercussions on their daily lives and this in an important number of areas but this would mean an extensive interpretation of the personal model of extraterritorial jurisdiction. Even if also not completely satisfactory from a lex lata point of view, this might in my opinion be the best road to take.157 Admittedly this would also be very difficult to realize in practice since Israel does not recognize even the ‘regular’ extraterritorial application of human rights obligations, nor even the continued application of human rights law during armed conflict.158 Conclusion Given that there is no longer any effective control in the sense of Article 42 of the Hague Regulations, it is difficult to maintain that Gaza is still occupied. It is however a rather sui generis situation of the ending of occupation given that Israel continues to exercise a great deal of control over the Gaza Strip and its population, making it difficult to accept that it would no longer have any obligations in its regard. Whereas it is clear that some ihl obligations still exist based on the still ongoing armed conflict between Israel and Hamas, the situation seems to require an additional form of obligations, even if it is not quite clear where these obligations would stem from. In the absence of specific post-occupation obligations that might be needed in order to address the aftermath of a long-term occupation, i.e. situations in which the occupied power has become highly dependent in some areas on the occupying power precisely because that occupation has been going on for a long period of time, human rights law seems to be the best possible answer to some of the gaps needed to be filled in such cases. Or, alternatively we might just have to accept that, at the present stage of the development of international law, there are no international obligations which are suitable to be applied in the situation at hand. 157 158

157 Even if, admittedly, this would be very difficult to realize in practice since Israel does not recognize even the ‘regular’ extraterritorial application of human rights obligations. See Orna Ben-Naftali and Yuval Shany, “Living in Denial: The Application of Human Rights in Occupied Territories”, Israel Law Review, Vol. 37, No. 1, 2003–2004, pp. 25–40. 158 Terry Gill “Some Thoughts in the Relationship Between International Humanitarian Law and International Human Rights Law: A plea for Mutual Respect and a Common-Sense Approach”, Yearbook of International Humanitarian Law, Vol. 16, 2013, p. 255.

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Importantly, it is also necessary to briefly recall that the situation of Gaza should not be confused with the situation of the West Bank. In contrast to the Gaza Strip, the West Bank remains occupied. Indeed, whereas on the West Bank as well there has been some transfer of authority to the Palestinian Authority, the main difference is that the Palestinian Authority, in contrqst to Hamas, remains formally subjected to Israeli Authority.159 1.4 “Even if the said occupation meets with no armed resistance” Common Article 2, paragraph 2, to the Geneva Conventions states that ‘the Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance [emphasis added]’. There has been some debate about what was exactly meant by this addition. However, everyone seems to agree that it widens the scope of application instead of narrowing it.160 This has moreover been confirmed by the International Court of Justice (icj) in its Wall opinion: The object of the second paragraph of article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if the occupation effected during the conflict met no armed resistance, the Convention is still applicable.161 159 160 161

159 Avi Bell and Dov Shefi, op. cit. note 110, p. 274. The West Bank has been divided into three areas: area A subject to the control of the Palestinian Authority, area B subject to the control of both the Palestinian and the Israeli Authority and area C subject only to Israeli ­authority. Nevertheless, nobody contests the fact that the West Bank is still occupied since, contrary to the situation in Gaza, the Israeli Defence forces (idf) are capable of reasserting control over the West Bank at all times, even with regard to Area A, which is normally under Palestinian control. Furthermore, as was established above, a vertical sharing of responsibilities does not affect the effective control of the occupying power as long as there remains a hierarchical relationship between the occupying power and the local authority, the former retaining a form of control over the latter. This is precisely what differentiates the relationship of the Israeli authorities with regard to the Palestinian Authority on the West Bank from its relationship with Hamas ruling in Gaza. 160 Eric De Brabandere, Post-conflict Administrations in International Law: International Territorial Administration, Transitional Authority and Foreign Occupation in Theory and Practice, Martinus Nijhoff Publishers, Leiden, 2009, p. 119; Eyal Benvenisti, op. cit. note 2, pp. 3–4. 161 Wall opinion, op. cit. note 63, §95.

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According to the commentaries, the wording adopted here was also based on the experience of the Second World War, during which some territories were occupied without hostilities, the government of the occupied country considering that armed resistance would be futile.162 It is important to mention that in such a case the population, is just as deserving of protection as in an occupation carried out by force.163 Consequently, the law of occupation is henceforth applicable to all forms of occupation, regardless of whether armed force has been used or not to secure the occupation. In other words, occupation is no longer necessarily the result of fighting164 and could occur in a context not associated with a formal state of war.165 As was intelligibly pointed out by Yoram Dinstein, this has as a consequence that “belligerent occupation may constitute the sole manifestation of a state of war between State A and State B [since] [o]nce a territory belonging to State A is coercively seized by State B, there is automatically a state of war in the material sense between these two Parties (…)”.166 Consequently, regardless of whether it meets with armed resistance or not, any situation of occupation continues to legally constitute an international armed conflict.167 There have been some unclarities surrounding the use of the term ‘pacific occupation’.168 In my opinion, depending on how the term pacific occupation is used, it will, or will not, fall within the ambit of this thesis. If by ‘pacific occupation’ it is meant the occupation of territory of a foreign state by an enemy army without the existence, per se, of a state of war, then the law of occupation applies.169 This is the sense that has just been established concerning the meaning of common Article 2(2). If, on the other hand, ‘pacific occupation’ is used as meaning the occupation of territory with consent, hence consensual 162 163 164 165 166 167 168 169

162 Commentaries gciv, op. cit. note 38, p. 21. 163 Ibid., p. 21. 164 Eyal Benvenisti, op. cit. note 2, p. 3. 165 Michael J. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework, The Hague, Kluwer Law International, 1999, p. 129. 166 Yoram Dinstein, op. cit. note 73, §71. 167 Wolff Heintschel Von Heinegg, op. cit. note 46, p. 845. 168 For a distinction between pacific occupation in the sense of common Article 2(2) and consensual pacific occupation, see Eyal Benvenisti, “Occupation, Pacific”, Max Planck Encyclopedia of Public International Law, June 2009. 169 Michael Bothe, “Occupation, pacific”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 3, 1997, p. 766. See the expansion of the notion of occupation as contained in Article 42 of the Hague Regulations by Article 2, §2 gciv: “even if said occupation meets with no armed resistance”.

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pacific occupation, the issue is entirely different and the law of occupation does not apply to such cases of the consented presence of foreign forces. To this extent, the said occupations fall outside the ambit of this thesis. Indeed, a host government inviting foreign troops to come and assist it in maintaining public order would not amount to an occupation in the sense of Article 42 hr. Similarly, there will no longer be such occupation when foreign troops remain in the previously occupied territory after the conclusion of a peace treaty based on the consent of the sovereign authority.170 If by ‘pacific’ occupation we would thus mean consented foreign presence, then the law of occupation would not be applicable to such occupations. The issue of consent will also be of the utmost importance for the comparison between occupation and un territorial administration (see infra, 3.) The Occupation of Territory the Title to Which is Not Clear and Uncontested The question here is whether the disputed status of the territory concerned would impact on the qualification of the situation and/or on the application of the foreseen legal framework. In this regard the Eritrea-Ethiopia Claims Commission held, referring to both the 1907 Hague Regulations and the Fourth Geneva Convention, that “neither text suggests that only territory the title to which is clear and uncontested can be occupied territory”.171 It further stated that holding otherwise would weaken the protection offered by these instruments.172 In addition, if we were to make the applicability of the law of occupation dependent on the underlying question of title, it would most probably almost never be applicable.173 The question of the impact of potential flaws of title on the application of the law of occupation is not a mere theoretical issue since Israel precisely ­contests the de jure application of the Fourth Geneva Convention to the O ­ ccupied Palestinian Territories (opt) on the basis, inter alia, of a contested territorial title. 1.5

170 171 172 173

170 Vaios Koutroulis, Le debut et la fin de l’application du droit de l’occupation, Pedone, Paris, 2010, p. 27. 171 Eritrea-Ethipia Claims Commission, Partial Award Central Front, Ethiopia’s Claim 2, Between the Federal democratic Republic of Ethiopia and the State of Eritrea, The Hague, April 28, 2004, §29. In this regard see also Terry Gill, “The Law of Belligerent Occupation: the distinction between invasion and occupation of disputed territory”, in Andrea De Guttry, Harry H.G. Post and Gabriella Venturini, (eds.) The 1998–2000 War between Eritrea and Ethiopia; An International Legal Perspective, The Hague, t.m.c. Asser Press, 2009, pp. 365–370. The fact that the question of title is neither a condition in the Hague Regulations nor in the Fourth Geneva Convention has also been confirmed by for example, Christopher Greenwood, op. cit. note 58, p. 219. 172 Partial Award Central Front, Ethiopia’s Claim 2, op. cit. note 133, §28. 173 Christopher Greenwood, op. cit. note 58, p. 219.

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According to Israel, given the “lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt” it cannot be considered “a territory of a High Contracting party”.174 With regard to the West Bank, Israel recognizes that whereas it was indeed engaged in an armed conflict with Jordan in 1967 and that admittedly Jordan was also a party to the Fourth Geneva Convention, the Jordanian sovereignty over the West Bank had never been recognized and, consequently, the West Bank did not constitute part of the territory of a high contracting party.175 The icj in this regard held that the Fourth Geneva Convention should in any case be applied to the conflict between Israel and Jordan based on common Article 2(1) regardless of whether Jordan had any rights with regard to the territory or not prior to 1967.176 Indeed, according to common Article 2(1), the Fourth Geneva Convention is applicable when there is an armed conflict between two contracting parties. These conditions are met in the situation at hand (both Israel and Jordan are parties to the Fourth Geneva Convention177) and the Fourth Geneva Convention is thus applicable, including “in any territory occupied in the course of the conflict by one of the contracting parties”.178 The situation of the Gaza Strip differs slightly from the situation of the West Bank. Indeed, whereas in the West Bank Jordan tried to assert title over the West Bank but this title was not recognized by the international community, Egypt never claimed sovereignty with regard to the Gaza Strip.179 Indeed Egypt was satisfied with administering the Gaza Strip without annexing it to its territory until the occupation by Israel.180 However, if we apply a reasoning analogous to the one highlighted above, this shouldn’t matter and a similar conclusion should be reached since “the Court considers that the 174 175 176 177 178 179 180

174 Wall opinion, op. cit. note 24, §90. See also and Meir Shamgar, “The Observance of International Law in the Administered Territories”, Israel Yearbook on Human Rights, Vol. 1, 1971, p. 263. For a thorough analysis of the position of Israel with regard to the non-­application of the Fourth Geneva Convention to the opt, see further Nissem Bar-Yaacov, “The applicability of the laws of war to Judea and Samaria (the West Bank) and to the Gaza Strip (in response to Prof. R. Lapidoth)”, Israel law review, Vol. 24, 1990, pp. 485–505. For an in-depth analysis of the status of Judea and Samaria and the ‘missing reversioner’ theory see also Yehuda Z. Blum, “The Missing Reversioner: reflections on the Status of Judea and Samaria”, Israel Law Review, Vol. 3, 1968, pp. 279–301. 175 Wall opinion, op. cit. note 24, §93. The United Kingdom and Pakistan did recognize the West Bank as appertaining to the Kingdom of Jordan so the statement made by Israel here is not entirely correct; see Yehuda Z. Blum, op. cit. note 174, p. 290. 176 Ibid., §95. 177 Ibid., §95. 178 Ibid.,§101. 179 In this regard see for example Yoram Dinstein, op. cit. note 73, §30. 180 Djamchid Momtaz, “Israel and the Fourth Geneva Convention: on the icj advisory opinion concerning the separation barrier”, Yearbook of International Humanitarian Law, Vol. 8, 2005, p. 346.

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Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties”.181 In addition, the position of Israel is based on a very literal reading of common Article 2(2).182 According to the Court “[t]he object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties”.183 Reaching a different conclusion would go against the rationale behind the Fourth Geneva Convention. Indeed, the intention of the drafters of the Fourth Geneva Conventions was not to restrict it to territories over which a de jure title was exercised, but also to include de facto titles.184 In this regard, the icj held that: Whilst the drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regardless of the status of the occupied territories, as is shown by Article 47 of the Convention [emphasis added].185 Similarly, as Stephan M. Boyd correctly noted: “[t]he fourth Geneva Convention of 1949 was not drafted for the purpose of deciding questions of sovereignty, recognition or legality, but for the protection of the Human Rights of the inhabitants of that territory”.186 Interestingly they do not use this argument with regard to the Hague Regulations and thus do not seem to contest the regime of occupation as such but only the applicability de jure of gciv. It seems difficult to see however why Israel would be considered a belligerent occupant with regard to the Hague Regulations but not for the purpose of the application of the Fourth Geneva Convention.187 The explanation for the Israeli position might be found in its 181 182 183 184 185 186 187

181 182 183 184

Wall opinion, op. cit. note 63, §101. Momtaz Djamnchid, op. cit. note 180, pp. 345. Wall opinion, op. cit. note 63, §95. Ardi Imseis, “Critical Reflexions on the International Humanitarian Law aspects of the icj Wall Advisory Opinion”, American Journal of Internaitonal Law, Vol. 99, 2005, p. 105. 185 Wall opinion, op. cit. note 63, §95. 186 Stephan M. Boyd (us Department of State) at the Symposium on Human Rights, Faculty of Law, Tel Aviv, July 1–4, 1971, as transcribed in Israel Yearbook on Human Rights, Vol 1, 1971, 367 [hereafter Symposium on Human Rights]. 187 Peter Malanczuk, “Israel: Status, territory and occupied territories”, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 2, 1997, p. 1496. N.B. Israel is not party to the

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fear that a strict application of the Fourth Geneva Convention would mean the implied recognition of the previous authorities on the Occupied Territories.188 It is precisely because the function of occupation is to safeguard the interest of the legitimate ousted government that Israel refuses to admit the applicability of the Fourth Geneva Convention.189 It is important to also note here that, logically, this reasoning was never held with regard to the Sinai Peninsula and the Golan Heights, given that sovereignty over these territories was not contested (they fall under the sovereignty of respectively Egypt and Syria).190 Ultimately, Israel is afraid that applying gciv to the opt would indirectly impact the latter’s status. However, there should be no such fear given that Article 4, §1 api clearly states that “(…) [n]either the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question”. Admittedly, Israel is not a party to api but this rule would nevertheless apply in its favour if it would want to. The international community also disagrees with Israel’s position.191 Indeed the numerous unsc192 and unga193 resolutions adopted on the subject clearly 188 189 190 191 192 193

Hague Regulations but accepts them as binding insofar as they reflect rules of customary international law. 188 Peter Malanczuk, op. cit. note 187., p. 1495. 189 Thomas D. Kuttner, “Israel and the West Bank: Aspect of the law of belligerent occupation”, Israel Yearbook on human rights, Vol. 7, 1977, p. 169. 190 Yoram Dinstein, op. cit. note 73, §55. 191 “Israel, contrary to the great majority of the other participants, disputes the applicability de jure of the Convention to the Occupied Palestinian Territories”, see Wall opinion, op. cite note 24 §90 [emphasis added]. See also Stephan M. Boyd, “The applicability of international law to the occupied territories”, Israel Yearbook on Human Rights, Vol. 1, 1971, p. 259: “the applicability of the Fourth Geneva Convention to the territories currently under Israeli Jurisdiction have (…) been asserted unequivocally by the icrc, by various un bodies incuding the un Security Council and General Assembly, and by most governments including the United States of America and other States friends to Israel”. 192 See for example unsc, Resolution 446(1979), 22 March 1979; unsc, Resolution 605(1987), 22 December 1987; unsc, Resolution 607(1988), 5 January 1988; unsc, Resolution 636(1989), 6 July 1989; unsc, Resolution 672 (1990), 12 October 1990; unsc, Resolution 681(1990), 20 December 1990; unsc, Resolution 694 (1991), 24 May 1991; unsc, Resolution 799(1992), 18 December 1992; unsc, Resolution 904(1994), 18 March 1994. 193 See for example unga Resolution 2546, 11 December 1969; unga Resolution 2727, 15 December 1970; unga Resolution unga 2851, 20 December 1971, Resolution 3092, 7 December 1973; unga Resolution 3240, 29 November 1974; unga Resolution 3525, 15 December 1975; unga Resolution 32/5, 20 October 1977; unga Resolution 35/122, 11 December 1980; unga Resolution 36/147, 16 December 1981; unga Resolution 37/88, 9 December 1982; unga Resolution 38/79, 15 December 1983; unga Resolution 39/95, 14 December 1984; unga Resolution 40/161, 16 December 1985; unga Resolution 41/63, 3 December 1986;

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do not leave any doubt concerning the applicability of gciv to the opt. The icrc has also always supported the de jure application of the Fourth Geneva Convention to the opt.194 In addition, most of the rules contained in the Fourth Geneva Convention are of a customary nature anyway.195 Israel nevertheless refuses to change its position and only applies the ‘humanitarian provisions’ of this Convention on a voluntary basis, even though they never clearly defined which provisions this would precisely entail.196 As Ambassador Netanel Lorch stated at 194 195 196

unga Resolution 42/160, 8 December 1987; unga Resolution 43/58, 6 December 1988; unga Resolution 44/48, 8 December 1989; unga Resolution 45/74; 11 December 1990; unga Resolution 46/47, 9 December 1991; unga Resolution 47/70, 14 December 1992; unga Resolution 50/29, 6 December 1995; unga Resolution 51/131, 13 December 1996; unga Resolution 53/55, 3 December 1998; unga Resolution 54/76, 6 December 1999: unga Resolution 55/131, 8 December 2000: unga Resolutions 56/60, 10 December 2001; unga Resolution 58/97, 17 December 2003; unga Resolution 65/103, 10 December 2010; unga Resolution 66/77, 9 December 2011; unga 67/119, 18 December 2012; unga Resolution 68/81, 11 December 2013; unga Resolution 69/91, 5 December 2014. 194 Wall opinion, op. cit. note 63, §97. In addition the Court also noted “that the State parties to the Fourth Geneva Convention approved [the interpretation given to the Convention by the Court]” and that “they issued a statement in which they reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem”; Wall opinion, op. cit. note 63, §96. 195 On the recognition of the customary nature of the conventions see Theodor Meron, “The Geneva Conventions and Public International Law”, adress at the British Foreign and Commonwealth Conference commemorating the 60th Anniversary of the 1949 Geneva Conventions, London, 9 July 2009 cited in International Review of the Red Cross, Vol. 91, n°875, September 2009, p. 625. See also International Court of Justice (icj), Legality of the Threat or of Nuclear Weapons, Advisory Opinion, i.c.j. Reports, 1996, p. 226, §79 [hereafter Nuclear Weapons Opinion]. 196 Thomas D. Kuttner, op. cit. note 189, p. 169; Nissim Bar-Yaacov, op. cit. note 174, p. 493; Christopher Greenwood, op. cit. note 58, p. 218; Djamchid Momtaz, op. cit. note 140, p. 347; Meir Shamgar, op. cit. note 174, p. 266; Peter Malanczuk, op. cit. note 187, p. 1496. At first the position of the Israeli Supreme Court was to apply formally only the rules that were included in the Hague Regulations since they were part of Israeli law contrary to the Geneva Conventions which had not been incorporated in the national law, hence supporting the official governmental position. Its position seems to have evolved, however. ­Indeed, without ever explicitly ruling on the application of the Geneva Conventions to the opt nor stating that all its provisions are part of customary law, it has become standard practice for the Court to relate to the provisions of gciv. For a more detailed analysis of the jurisprudence of the Israeli Supreme Court in this regard see: David Kretzmer, “The Law of belligerent occupation in the Supreme Court of Israel”, International Review of the Red Cross, Vol. 94, n°885, Spring 2012, pp. 209–213.

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a s­ ymposium on human rights at the Tel Aviv Law Faculty in July 1971: “Israel has pragmatically applied the provisions of the Geneva Convention and in fact has done a great deal above and beyond the provisions of the Fourth Geneva Conventions”.197 Potential problems related to title over the occupied territory are thus not relevant neither for the qualification of a situation as occupation nor should they impact on the legal framework applicable to such an occupation. To conclude in the words of Michael Bothe: the unclear status of an occupied territory does not prevent the applicability of the rules of belligerent occupation. The application of humanitarian law cannot be made to depend on such legal niceties as the recognition of legal titles to territory. It is sufficient that the territory in question did not belong to the occupying power when the conflict broke out.198 Finally, in the context of this section, a final question merits to be raised given that the conflict is no longer between Israel/Jordan in the framework of the West Bank and Israel/Egypt in the framework of the Gaza Strip but between Israel and the ‘Palestinians’. Regardless of whether we recognize the statehood of Palestine or consider it to still be a non-State entity, the icj has held in this regard:

197 198 199

Palestine gave a unilateral undertaking, by declaration of 7 June 1982, to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that unilateral undertaking valid. It concluded, however, that it “[was] not – as a depositary – in a position to decide whether” “the request [dated 14 June 1989] from the Palestine Liberation Movement in the name of the ‘State of Palestine’ to accede” inter alia to the Fourth Geneva Convention “can be considered as an instrument of accession”199

197 Ambassador Netanal Lorch (Ministry of Foreign Affairs, Israel), at the Symposium on ­Human Rights, op. cit. note 186, p. 367. It is interesting to note that moving ‘above and ­beyond’ international obligations is still an important part of Israel’s rhetoric today. Cf. Panel on the Occupation of Gaza between members of the Israeli ngo Gisha and Members of the Israeli Ministry of Justice at the 9th Annual Minerva/ICRC International Conference on International Humanitarian law on Humanitarian Action, Jerusalem, 3–4 November 2014. 198 Michael Bothe, “Occupation”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 3, 1997, p. 764. 199 Wall opinion, op. cit. note 63, §91.

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Palestine, moreover, formally acceded to the Geneva Conventions on the 2nd of April 2014. 1.6 The Beginning of Occupation: The Invasion vs. Occupation Phase Generally, it is admitted that occupation begins when the effective control test contained in Article 42 of the Hague Regulations is met.200 As is the case with most factual determinations, overall experience has shown that it is difficult to determine with precision the beginning of an occupation.201 It is particularly challenging to determine when, exactly, an invasion becomes occupation.202 Identifying the exact moment when the occupation starts is not purely a theoretical issue. On the contrary, it is very relevant since it determines which rules will regulate the situation in question.203 It is crucial for the invading troops on the ground to have some further clarity in this regard. Even though there has been some blurring between both phases in the eyes of certain commentators, I believe that both phases should be clearly distinguished and that the specific law regulating both phases, albeit both are part of ihl, is different. In line with the binary approach already advocated above with regard to the question of the occupation of Gaza, i.e. either there is an occupation or there is not, but not something in between where the scope and nature of the obligations is commensurate with the scope and nature of control, I will also advocate here that the law of occupation should be triggered in its entirety, at the same moment for all norms constituting it, and consequently no distinction should be made on the basis of the nature of the norm we are trying to activate. An invasion as such does not constitute an occupation and merely precedes it.204 As Lassa Oppenheim already stated in 1912 “(…) it is certain that mere invasion is not occupation. Invasion is the marching or riding of troops – or the flying of a military vessel – into enemy country. Occupation is invasion plus taking possession of enemy country for the purpose of holding it (…)”.205 Whereas invasion merely implies the penetration of armed forces into hostile territory, occupation requires taking control over that territory.206 In other 200 201 202 203 204 205 206

200 Marten Zwanenburg, Michael Bothe and Marco Sassoli, “Debate: Is the law of occupation applicable to the invasion phase?” International Review of the Red Cross, Vol. 94, March 2012, p. 29. 201 Expert Meeting, op. cit., note 74, p. 16. See also uk Military Manual, op. cit. note 3, §11.5. 202 Tristan Ferraro, op. cit. note 9, p. 135. 203 Marten Zwanenburg, Michael Bothe and Marco Sassoli, op. cit. note 200, p. 19. 204 Gerhard Von Glahn, op. cit. note 69, p. 28. 205 Lassa Oppenheim, op. cit. note 4, § 167. 206 Gerhard Von Glahn, op. cit. note 69, p. 28.

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words, when the invader has successfully substituted its own authority for that of the legitimate government in the invaded territory, invasion shifts to occupation.207 This necessarily implies a certain level of stability,208 which goes beyond the situation of mere fighting.209 The sole presence of enemy troops in foreign territories is thus not enough to consider that there is authority in the sense of Article 42 of the Hague Regulations.210 Admittedly, the concept of ‘invasion’ has no legal connotation, contrary to the notion of occupation.211 Indeed, whereas the qualification of a situation as occupation triggers the application of a specific set of rules, this is not true for invasion, which has no such specific legal consequences. This has led some to argue that the distinction between both phases is legally irrelevant.212 I would respectfully like to disagree, however, given that it is precisely the application of an entire body of law which is at stake. Even though the term ‘invasion’ is not of direct legal relevance, the distinction is important in fact in order to determine when, exactly, the occupation has started. Before that only the general rules of ihl are applicable. It is a factual distinction but with important legal consequences. In addition, not all invasions will transform in occupations. Again warranting the importance of a distinction between both phases. Some, and admittedly this is the majority opinion, have however argued that there should not be such a strict separation between invasion and occupation and that certain rules of the law of occupation already apply during the invasion phase. This position has been generally referred to as the ‘Pictet theory’ since it was developed by Jean Pictet in his commentaries on the Fourth Geneva Convention. It is based on a differentiation between the definition of occupation as contained in Article 42 of the Hague Regulations and the definition of occupation under the Fourth Geneva Convention. The latter being supposedly broader than the former: 207 208 209 210 211 212

207 us Military Manual, op. cit. note 50, §355. See also Eyal Benvenisti, op. cit. note 2, p. 55. 208 Marten Zwanenburg, “Challenging the Pictet theory”, in Marten Zwanenburg, Michael Bothe and Marco Sassoli, op. cit. note 200, p. 31. 209 Michaël Bothe, “Beginning and End of Occupation”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 28, which does not mean that fighting is per se incompatible with occupation, see Naletilic case, op. cit. note 50, §217; us Military Manual, op. cit. note 50, §356 and §360 and uk Military Manual, op. cit. note 3, §11.7.1. 210 Robert Kolb and Sylvain Vité, op. cit. note 14, p. 98. 211 Robert Kolb and Sylvain Vité, op. cit. note 14, p. 103. See also Arthur Lorriot, “De la nature de l’occupation de Guerre”, Henri Charles-Lavauzelle, Paris, 1903, p. 28. 212 Robert Kolb and Sylvain Vité, op. cit. note 14, p. 103.

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It follows from this that the word “occupation”, as used in the Article, has a wider meaning than it has in Article 42 of the Regulations annexed to the Fourth Hague Convention of 1907. So far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of the Article 42 referred to above. The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the present Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets. (…) The Convention is quite definite on this point: all persons who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals are protected persons. No loophole is left.213 The icrc has always adopted a broad interpretation with regard to the application of the Fourth Geneva Convention with a view to maximizing the legal protection afforded to civilians.214 The ‘Pictet theory’ was recently reflected in the Naletilic case in which the icty accepted that the application of the law of occupation when affecting individuals as civilians protected under the Fourth Geneva Convention did not require the occupying power to have actual authority over the territory in question.215 A distortion between fact and law is thus effected with regard to the protection norms of the law of occupation given that the latter seem to be applicable, in the opinion of the icty, even when the occupation has not yet realized. Indeed “[f]or the purposes of those individuals’ rights, a state of occupation exists upon their falling into ‘the hands of the occupying power’”.216 For the application of the law with regard to property, however, the test is still the territorial effective control test.217 The icty thus applies different legal tests to determine whether the law of occupation applies, depending on whether it is dealing with individuals or with 213 214 215 216 217

213 Commentaries gciv, op. cit. note 38, p. 60. See also Kenneth Watkin, “Use of force during occupation: law enforcement and conduct of hostilities”, International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, p. 272 stating that indeed: “the broader, Pictet, interpretation maximizes the protection provided to civilians”. 214 Expert Meeting, op. cit. note 74, p. 16. 215 Naletilic case, op. cit. note 50, §221. 216 Ibid., §221. 217 Ibid., §222.

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property.218 The main idea behind this theory is to avoid gaps in protection. Indeed, according to this theory, deciding otherwise would leave civilians with less protection during the invasion phase than that given to them once occupation is established.219 Amongst scholars there seem to be two main positions: those believing that the only test for determining whether there is a situation of occupation is laid down in Article 42 of the Hague Regulations and thus that the obligations of the law of occupation stem solely from effective territorial control;220 and those supporting the Pictet theory and thus believing that there is a different threshold for the application of the Fourth Geneva Convention and a blurring between the occupation and invasion phases in that regard.221 I would agree with those arguing in favour of the sole effective territorial control test and I also rejoin their criticism. The Pictet theory would first of all deny the territorial dimension of the concept of occupation, and ultimately its factual character.222 It would conflate the determination of an occupation with the identification of protection persons.223 Even more stringently, it would lead to a selective approach, applying different tests to different situations, and hence to a decrease in legal certainty, thereby further confusing the troops on the ground. Furthermore, it appears to me that the debate is somewhat void given the fact that general protection is already provided to those falling into the hands of the enemy, namely the provisions of Part iii, Section  1 of the Fourth Geneva Convention common to the territories of the parties to the conflict and occupied territories. There is thus already a minimum framework of protection for civilians trapped in the invasion phase.224 Admittedly, this protection is less developed than the one provided in a situation of ­occupation 218 219 220 221 222 223 224

218 Naletilic case, op. cit. note 50, §222. 219 Ibid., §221. 220 For example Marten Zwanenburg, op. cit. note 208, pp. 30–36; Eyal Benvenisti, op. cit. note 2, p. 53, Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, pp. 14–15; Tristan Ferraro, op. cit. note 9, p. 139. 221 For example Marco Sassoli, “A plea in defence of Pictet and the inhabitants of territories under invasion: the case for the applicability of the Fourth Geneva Convention during the invasion phase”, in Marten Zwanenburg, Michael Bothe and Marco Sassoli, op. cit. note 200, pp. 42–50; Vaios Koutroulis, op. cit. note 92, pp. 719–727; Robert Kolb and Sylvain Vité, op. cit. note 14 p. 109. According to the expert meeting, op. cit. note 74, p. 25, those in favour of the Pictet theory constitute the majority opinion. 222 Expert Meeting, op. cit. note 74, p. 25. 223 Marten Zwanenburg, op. cit. note 208, p. 33. 224 Ibid., p. 26.

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but the needs are also different. Civilians under occupation need more specific protection precisely because they come into very close contact with the enemy in their daily lives given that the latter henceforth has the effective control over their territory and is responsible for crucial aspects such as public order and civil life according to Article 43 hr in combination with Article 64 gciv. To a certain extent even Jean Pictet seemed to make a differentiation within the protection offered to civilians by the occupation regime relevant for the invasion phase by stating that: Some of the Convention’s provisions become applicable immediately, such as those in Article 136, which concerns the setting up of an official Information Bureau. Others – Articles 52 [protection of workers], 55 [food and medical supplies for the population], 56 [Hygiene and public health] and even some of the provisions of Articles 59 to 62 [relief], for example – presuppose the presence of the occupation authorities for a fairly long period.225 Furthermore, a differentiation in the levels of protection afforded to different categories of protected persons is also not an exception in the Geneva Conventions.226 Finally, it seems somewhat dangerous to impose obligations upon the invading power, which it will ultimately not be able to fulfil. Indeed some of the obligations under the law of occupation necessitate effective territorial control which is precisely why the triggering of the law of occupation is based on the effective control test in Article 42 of the Hague Regulations. In the absence of such effective control it will be difficult to secure at least some of the obligations of the law of occupation. It seems odd to admit that the will of the drafters would have been to impose impossible obligations upon the state parties. The proponents of the Pictet theory also recognize this limit and state that it is not their goal to “require of invading forces what they cannot deliver” and that the very wording of the provisions of the law of occupation “is flexible enough not to require what is impossible in the invasion phase”.227 What, then, is exactly required from the invading force under the law of occupation? In my opinion this also does not contribute to the much-needed clarity concerning the applicable rules on the ground.228 225 226 227 228

225 Commentaries gciv, op. cit. note 38, p. 60. 226 Marten Zwanenburg, op. cit. note 208, p. 33. 227 Marco Sassoli, op. cit. note 221, p. 43. 228 In this regard see for example Kenneth Watkin, op. cit. note 213, p. 273 stating that “[a]lthough driven by humanitarian concerns, the extenstion of the Fourth Geneva

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To conclude, notwithstanding the merit of the Pictet theory seeking to increase the protection offered during the invasion phase, adopting such a stance seems, in light of the above-mentioned reasons, at the very least difficult in practice and detrimental to effectivity and legal certainty. Furthermore, the protection gap supposedly present during the invasion phase could also be filled by the application of international human rights. We are not going to go into detail here since the application of human rights law as a gap-filler will be the subject of an entire chapter in the second part of this thesis but we would already like to rebut the opposition raised against such a possibility by Marco Sassoli in his argumentation in favour of the Pictet theory: Some may object that such conduct [i.e. some of the violations that could occur during the invasion phase and not regulated by general ihl and thus warranting in his opinion the application of the law of occupation already during the invasion phase] is prohibited by international human rights law (if it applies extraterritorially, which some states would deny, in particular if there is no occupation).229 It is important to highlight here that the effective control necessary for the ­extra-territorial application of human rights law, contrary to the one necessitated for the application of the law of occupation, is not merely a territorial one but also has a personal aspect. Indeed the extra-territorial application of international human rights law can be triggered based on both the territorial model (an occupation would definitely give rise to the application of this model) and on a personal model, meaning effective control over a person (see infra, Part 2, Chapter 2). 1.7 End of Occupation In theory the question relating to the end of occupation should be an easy question: once effective control is lost, the occupation ends.230 The criteria used for determining the end of occupation should thus “mirror the ones used to determine its beginning”.231 Consequently, it is also a factual assessment: if 229 230 231

Convention obligations as a matter of treaty law to invasions, patrols, and raids is challenging from a practical perspective. Any military force attempting to apply the interpretation would be forced to identify a more limited set of Fourth Geneva Convention provisions that can be practically applied in a situation where control over territory is limited (….)”. 229 Marco Sassoli, op. cit. note 221, p. 44. 230 Eyal Benvenisti, op. cit. note 2, p. 56. 231 Tristan Ferraro, op. cit. note 9, p. 156.

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the criteria of effective control are in fact no longer met the occupation ends. Similarly, a formal proclamation of the end of occupation would be of no legal importance if the facts on the ground indicate otherwise. There is however one provision that could be said to contain an exception to the factual character of the end of occupation. This exception is contained in Article 6§3 gciv.232 This provision, often referred to as the one-year-after clause, will be analysed more in detail further on in this study but, briefly, it states, that except for a certain number of specific provisions, the Fourth Geneva Convention will cease to be applicable “one year after the general close of military operations” in the case of occupation. There was a great deal of ongoing debate as to what had to be precisely understood by ‘general close of military operations’ and more specifically whether ‘even a single shot’ would make the term start from zero again. However, this provision is no longer of much relevance today since most admit that it has been modified by the entry into force of the First Additional Protocol, which states that the application of the conventions and of the additional protocol will end “in the case of occupied territories, on the termination of the occupation”.233 Additional Protocol 1 seems to have reverted to a purely factual determination of the termination of the occupation.234 As is the case for most factual determinations however, they are not always as easy to make in practice as they might appear to be on paper. Ordinarily an occupation ends “when an occupant withdraws from the territory or is driven out of it”.235 The departure of the foreign troops from the occupied area is the most apparent criterion for the ending of an occupation. In practice, however, this is not as easy a criterion as it might seem. Firstly, a withdrawal is rarely an instant event but will rather consist of a progressive, gradual thinning out of the foreign forces. It then becomes difficult to identify the exact moment when effective control has been lost, since “it becomes of question of degree whether the effective control has ceased or not”.236 Secondly, if we apply the criterion the other way around, the continued presence of troops does not necessarily mean that the state of occupation is continuing.237 The withdrawal of the 232 233 234 235 236 237

232 233 234 235 236 237

Robert Kolb and Sylvain Vité, op. cit. note 14, p. 111. Article 3, api. Robert Kolb and Sylvain Vité, op. cit. note 14, p. 111. Lassa Oppenheim, op. cit. note 5, §168. See also uk Military Manual, op. cit. note 3, §11.7. Michaël Bothe, op. cit. note 209, p. 29. Daniel Thürer and Malcolm MacLaren, “‘Ius Post Bellum’ in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian law”, in Klaus Dicke (ed.), Weltinnenrecht: festschrift für Jost Delbrück, Berlin, Duncker & Humblot, 2005, p. 759; Adam Roberts, “The end of occupation; Iraq 2004”, International and Comparative Law Quarterly, Vol. 54, 2005, p. 28.

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f­ oreign forces is thus not the sole criterion and occupation can come to an end by other means. There are mainly two other situations putting an end to the occupation: (1) the resurgence of hostilities; and (2) the conclusion of an agreement between the parties. Concerning the resurgence of hostilities, if this resurgence is severe enough, it will put an end to the effective control exercised by the occupying power on the occupied territory and ultimately permit the legitimate power to reassert its authority over the said territory. Importantly, not all resurgences of hostilities will affect the effective control of the occupying power and thus put an end to the occupation. In this respect the uk Military Manual informs us that: the fact that some of the inhabitants are in a state of rebellion, or that guerrillas or resistance fighters have occasional successes, does not render the occupation at an end. Even a temporarily successful rebellion in part of the area under occupation does not necessarily terminate the occupation so long as the occupying power takes steps to deal with the rebellion and re-establish its authority or the area is surrounding and cut off. Whether or not a rebel movement has successfully terminated an occupation is a question of fact and degree depending on, for example, the extent of the area controlled by the movement and the length of time involved, the intensity of operations, and the extent to which the movement is internationally recognized.238 Concerning the conclusion of an agreement with the occupied power, it mainly concerns the scenario in which the powers decide to put an end to the war with the conclusion of a peace treaty and the legitimate power effectively reasserts effective control over the previously occupied territory at the end of the war, hence legitimately returning the territory to its legitimate owner. Of course, a sole declaration on paper about such a restitution, without the restitution being effectuated in fact, will not terminate the occupation (see infra for an illustration concerning the situation in Iraq). There must thus be a genuine transfer of authority and not solely “a pretence that masks a retention of authority by the occupant”.239 It is also important to recall that there are clear limits on what can be agreed upon between the occupying and occupied 238 239

238 uk Military Manual, op. cit. note 3, §11.7.1. A similar argument is made in the us Military Manual, op. cit. note 50, §360: “the existence of a rebellion or the activity of guerrilla or para-military units [will not] of itself cause the occupation to cease, provided the occupant could at any time it desired assume physical control of any part of the territory”. 239 Ian Scobbie, op. cit. note 110, p. 10.

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powers. If it is perfectly legitimate to decide through a peace agreement on the restitution of the territory to its legitimate owner, Article 47 gciv clearly states that: Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory [emphasis added] Furthermore, one should not only take the interests of the occupying power into account but, in line with the right to self-determination, also the interests of the occupied population. As Adam Roberts stated: “[t]he essential feature of the ending of an occupation is often, though not always, an act of self-­determination involving the inhabitants of the occupied territory” even if “they cannot be the sole decisive criterion for when an occupation ends”.240 The conclusion of such an agreement can furthermore be accompanied by another one allowing the foreign forces to remain in the concerned territory.241 As we will develop below in the part comparing occupation and un Territorial Administration, the absence of consent is a condition for the existence of a situation of occupation. If the legitimate power consents to the presence of the foreign power this will terminate the occupation.242 For consent to effectively terminate occupation, it needs to be genuine, valid and explicit.243 The issue of consent will be further complicated by a situation, such as the situation in Iraq, where a rightful authority no longer exists. In such a situation, the validity of the agreement consenting to the presence of the foreign troops with the effect being to end the occupation needs to be assessed in line with the legitimacy of the new national government, especially with regards to the principle of self-determination. In this regard, “self-determination through elections or a referendum can boost the end of the occupation”.244 240 241 242 243 244

240 Adam Roberts, op. cit. note 237, p. 28. 241 For example when a treaty ending an occupation is accompagnied by another one perimitting the presence of foreign forces. For concrete exemples see Adam Roberts, op. cit. note 237, p. 29. 242 Robert Kolb and Sylvain Vité, op. cit. note 14, p. 117. 243 Expert meeting, op. cit. note 74, p. 21. See also Robert Kolb and Sylvain Vité, op. cit. note 14, p. 135. 244 Konstantinos Mastorodimos, “How and When do Military Occupations End”, Sri Lanka Journal of international law, Vol. 21, No. 1, 2009, p. 151.

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As is the case for most factual assessments, they are far from being easy to make in practice. There are consequently a number of complicating factors concerning the assessment of the end of occupation, such as for example the progressive phasing out of the occupying army, a partial withdrawal, the retention of certain competences over previously occupied areas, the maintenance of a certain military presence on the basis of consent, and the evolution of the means to exercise effective control.245

Box 2 The End of Occupation in Iraq The analysis of the situation of Gaza post-disengagement above already highlighted some of the difficulties surrounding the end of occupation (see supra, box 1). More in particular with regard to the challenges raised by the retention of certain competences over previously occupied areas and the evolution of the means to exercise effective control. The end of the occupation in Iraq also provides an interesting illustration with regard to the problem of the end of occupation. Two main elements are worth analyzing here. First, there is the issue of unsc resolution 1546(2004) proclaiming that “by 30 June 2004, the occupation will end (…)”.246 Second, it also provides an illustration of a situation in which foreign troops remain in the country after the occupation has supposedly ended entangled with self-determination issues. Before tackling these two questions we will provide a brief overview of the situation in Iraq back then.

Brief Overview of the Situation in Iraq247

On the 20th of March 2003 the us and uk-led coalition started launching air attacks against Iraq.248 These air attacks were later followed by the deployment of allied forces on the ground.249 Quite quickly this deployment of troops on the ground involved some territorial control

245 246 247 248 249

245 Tristan Ferraro, op. cit, note 9, p. 134. 246 United Nations Security Council, Resolution 1546 (2004), S/RES/1546 (2004), 8 June 2004, §2. 247 The occupation of Iraq will be analysed in detail in Part 2, Chap. 3 of this research. We will limit ourselves to providing a short overview here which is relevant for assessing the question of the end of the occupation of Iraq as an illustration for the general theory concerning the end of occupation. 248 Knut Dörmann and Laurent Colassis, op. cit. note 6, p. 295. 249 Ibid., p. 297.

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­ arranting the question of whether Iraq could be said to be occupied w or not. The unsc in its Resolution 1483(2003) referred to the us and the uk “as occupying powers under unified command (‘the authority’)”.250 As was highlighted on numerous occasions in this study the qualification of a situation of occupation is a factual assessment. This declaration of the unsc per se consequently does not mean that there was an occupation in Iraq from that moment on but it provided a good indicator of the existence of such a situation in fact.251 Given that the assessment of the facts on the ground actually followed the observation made by the unsc,252 it was not disputed that from April 2013 there was a foreign military occupation in Iraq.253

What is the Impact, if Any, of the Adoption of Resolution 1546(2004) on the Qualification of the Situation?

The main question here is what the impact of Resolution 1546(2004) is on the qualification of the situation. Or in other words, can the unsc by adopting a resolution under Chapter vii put an end to the occupation? The role of the unsc with regard to the law of occupation will be the subject of a separate chapter (see infra, Part 2, Chapter 3) but here we will already briefly address the specific question of the end of the occupation. We have established above that both the beginning and the end of occupation are based on a factual assessment. If the facts follow the qualification of the situation by the unsc then there is no problem. However, what happens when this is not the case? Additionally, as Adam Roberts so correctly pointed out, the factual situation will usually “not change overnight”.254 In this respect, Liesbeth Lijnzaad rightly indicated that “the matter of the factual determination of the situation on the basis of the Hague Regulations in combination with the role of the un Security Council in that respect would seem to merit further study”.255 It will be demonstrated

250 251 252 253 254 255

250 United Nations Security Council, Resolution 1483(2003), S/RES/1483(2003), 22 May 2003, preamble. 251 Remarks of Jean-Phillipe Lavoyer, op. cit. note 53, p. 122. 252 Daniel Thürer, op. cit. note 6, p. 14. 253 Adam Roberts, op. cit. note 237, p. 30. 254 Adam Roberts, op. cit. note 237, p. 30. 255 Liesbeth Lijnzaad, “How Not Be an Occupying Power: Some Reflections on un Security Council Resolution 1483 and the Contemporary Law of Occupation”, in Liesbeth Lijnzaad,

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more in detail in Part 2, Chapter 3 of this study, but it has been generally admitted that the unsc may derogate from general international law norms as long as they do not have jus cogens status. In my opinion it would be hard to sustain that Article 42 hr is of a jus cogens nature (for the complete reasoning leading to this conclusion see Part 2, Chapter 3). In any case, the question is, in my opinion, irrelevant. What it certainly means is that a unsc resolution could not contravene a factual determination, which is of a completely different order.256 Allowing the unsc to derogate from the factual determination would invalidate a whole body of law. This can hardly be the intention given that it would deprive the civilian population of an entire body of law specifically designed to protect them in a situation where they come into extremely close contact with the enemy forces. This does not seem to be the position of everyone, however. Eyal Benvenisti and Guy Keinan for example argued in this regard that: Although occupation is a matter of fact, its legal status can be subject to the determination of the Security Council acting under Chapter vii of the Charter as the ultimate arbiter of the law. Therefore, since Security Council Resolution 1546 stipulated that “by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty”, in the eyes of the law the occupation formally came to a close by June 30 despite the fact that the coalition forces were still exercising administrative authority in certain areas of Iraq.257 They further state, however, that whereas the unsc formally ended the occupation in Iraq on the 30th of June, it was ended “not only from the formal perspective” when the interim government of Iraq assumed full 256 257

Johanna Van Sambeek and Bahia Tahzib-Lie (eds.), Making the Voice of Humanity Heard: Essays on Humanitarian Assistance and International Humanitarian Law in Honour of Hrh Princess Margriet of the Netherlands, The Hague, Martinus Nijhoff, 2004, p. 304. 256 Such a position seems to have been confirmed by Michael Bothe during the question time following the presentation by Erika De Wet on the beginning and end of occupation, Collegium, No. 34, Autumn 2006, pp. 41–42: “Security Council Resolution are binding but can not change the facts”. 257 Eyal Benvenisti and Guy Keinan, “The Occupation of Iraq: A Reassessment”, International Law Studies Services us Naval War College, Vol. 86, 2010, p. 269.

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authority.258 They thus nevertheless seem to make some distinction between the effects attributed to the declaration of ending and the ending in fact but their distinction between ‘formal ending’ and ‘ending not only from a formal perpective’ is far from clear here. I would here however agree with Marco Sassoli when he states that “it is nevertheless regrettable and a dangerous precedent to make thus the (end of) the application of ihl depend on [such] criteria”.259 Ultimately, such a solution would also contribute to the blurring of the fundamental separation between the jus in bello and the jus ad bellum.260 Consequently, if the occupation might be considered as having ended from a jus ad bellum perspective by the unsc declaration, the law of occupation continued to apply as long as the occupation is in fact enduring.261

Effective Transfer of Authority and the Continued Presence of Troops on the Ground?

Resolution 1546(2004) proclaimed that, by the 30th of June 2004, the Coalition Provisional Authority administrating the territory on behalf of the occupying powers would cease to exist and that consequently Iraq would reassert its full sovereignty and thus reassert authority over the previously occupied territory.262 In line with this proclamation, the authority was formally transferred from the Coalition Provisional Authority to the newly established Iraqi Interim Government on the 28th of June 2004 (two days before the date stated in the resolution).263 If at this moment in time the exercise of all of the attributes of sovereignty had effectively been transferred back to the legitimate sovereign authority, the occupation would have ended.264 Indeed, for the transfer of authority to effectively end the occupation it must be effective.265 The idea is of

258 259 260 261 262 263 264 265

258 Eyal Benvenisti and Guy Keinan, op. cit. note 257, p. 269. 259 Marco Sassoli, “Legislation and Maintenance of Public Order and Civil Life by occupying powers”, European Journal of International law, Vol. 16, No. 4, 2005, p. 684. 260 Ibid., p. 684. 261 Ibid., p. 684. 262 United Nations Security Council, Resolution 1546 (2004), S/RES/1546(2004), 8 June 2004, §2. 263 Daniel Thürer, op. cit. note 6, p. 18. 264 Robert Kolb and Sylvain Vité, op. cit. note 14, p. 133. 265 Knut Dörmann and Laurent Colassis, op. cit. note 6, p. 309. See also Ian Scobbie, op. cit. note 110, p. 10.

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course to avoid the installation by the occupying forces of puppet governments and occupations by proxy in order to escape its obligations, while de facto maintaining effective control over the territory.266 However, the sole fact that troops continue to be present on the ground does not mean that the occupation necessarily continues.267 Indeed, if, after the transfer of authority, the legitimate power consents to the presence of these troops and this consent is genuine, valid and explicit, the occupation would cease to exist.268 In applying these rules to the situation in Iraq, two main conclusions have been drawn from the situation in the field: you have those arguing that the occupation had indeed ended at the moment of the transfer of authority and those saying that it only ended later on. Those arguing that the occupation effectively ended with the transfer of authority on the 27–28th June 2004 state that, since the Iraqi Interim Government had been legitimized by the unsc and it acquiesced in the maintenance of the international coalition forces on the ground, the conditions necessary for the occupation to end were met in the case at hand.269 In their opinion this is for example illustrated by the fact that unsc Resolution 1546(2004) provides the Iraqi Interim Government with the authority to terminate the mandate of the international coalition if it would so desire.270 Only if such a request by the Iraqi authorities would not be complied with by the foreign forces or if the Iraqi government would for example not be able to enact new legislation or overturn laws imposed during the occupation, would it be demonstrated that the effective control in fact continued to lie in the hands of the multinational forces, which would be a clear sign of the fact that the occupation has continued or has restarted.271 This position seems to suggest that until the contrary has been proven, the reality follows the attributed label. Others, on the contrary, argue that at the moment of the formal transfer of authority, the Iraqi Authorities were not yet sufficiently independent to freely authorize the coalition forces to stay on their territory.272 Some argued more specifically that effective control (or ‘full sovereignty’) had 266 267 268 269 270 271 272

266 267 268 269 270

Knut Dörmann and Laurent Colassis, op. cit. note 6, p. 309. Adam Roberts, op. cit. note 237, p. 29. Robert Kolb and Sylvain Vité, op. cit. note 14, p. 117; Expert Meeting, op. cit. note 74, p. 21. Knut Dörmann and Laurent Colassis, op. cit. note 6, p. 310. unsc Resolution 1546 (2004), op. cit. note 222, §11; See Knut Dörmann and Laurent Colassis, op. cit. note 6, p. 310. 271 Knut Dörmann and Laurent Colassis, op. cit. note 6, p. 311. 272 Robert Kolb and Sylvain Vité, op. cit. note 14 p. 135.

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not yet in fact returned to the Iraqi government,273 while others argued more in terms of the illegitimacy of the Interim Government, which consequently could not validly have consented to the presence of the Coalition forces leaving them in the situation of an occupying power;274 but their conclusion was, in fact, the same: the conditions required for the occupation to end had not (yet) been met. Conclusion As Daniel Thürer and Malcolm MacLaren have so rightfully stated, ideally, “the determination of the end of an occupation should be governed by reality as well as by particular proclamations”, in order to reconcile the facts on the ground with the formal declarations made in this respect.275 This is however not always the case, thereby complicating the issue in practice. In any case, it is important to mention, as a side note, that the end of the application of the law of occupation does not necessarily imply the end of the application of ihl in its entirety. This would depend on whether there is still is an ongoing armed conflict or not. In the case of Iraq, regardless of whether or not we would argue that the occupation came to an end with the transfer of powers to the Interim Government, there were still clearly hostilities going on, hence triggering at least the application of the general rules of ihl. 273 274 275

273 Daniel Thürer and Malcolm MacLaren, op. cit. 237, p. 769.; Andrea Carcano, “End of occupation in 2004? The status of the Multinational force in Iraq after the Transfer of Sovereignty to the interim Iraqi government”, Journal of conflict & Security Law, Vol. 11, n°1, p. 58 argued that in light of the weakness of the Interim Government and its obligation to rely on the Multinational force for its security, effective control still lay with the Multinational forces and they thus still had to be regarded as the an occupying force. 274 Rahim Kherad, “La souveraineté de l’Irak à l’épreuve de l’occupation”, in D. Maillard Desgrées du Loû (ed.), Les évolutions de la souveraineté, Paris, Montchrestien, 2006, p. 154, who argued that the Interim Iraqi Government was neither legal nor legitimate since it had been designated by the occupying powers and subject to its authority ; Luigi Condorelli, “Le Conseil de sécurité entre autorisation de la légitime défense et substitution de la sécurité collective : Remarques au sujet de la Résolution 1546 (2004)”, in Societé française pour le droit International (ed.), Les métamorphoses de la sécurité collective, Droit pratique et enjeux stratégiques, Paris, Pedone, 2005, p. 237, who even went as far as to declare that considering the Iraqi government as independent and sovereign was a complete fiction : “la souveraineté et l’indépendance du gouvernement en question, sa pleine responsabilité et autorité relèvent du monde des fables et ne ressemblent en rien à la réalité”. 275 Daniel Thürer and Malcolm McLaren, op. cit. note 237, p. 773.

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Main Characteristics of the Law of Occupation

According to the Commentaries to the Fourth Geneva Convention: the occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied power of neither its statehood nor its sovereignty; it merely interferes with its power to exercise its rights.276 Many authors have underlined the ‘exceptional nature’ of a situation of occupation, breaching the normal order of things and placing the exercise of public power over a territory in the hands of a power which is different to the one normally destined to exercise this power.277 Consequently, there are three main characteristics underlying the law of occupation: the inalienability of sovereignty, the obligation to maintain the status quo ante and its temporary character. As we will see below, all of these characteristics are strongly interlinked. In order to correctly understand the rationale behind the law of occupation it is important to recall that it is situated at the confines between the laws of war and the laws related to sovereignty. The importance of the protection of sovereignty is reflected in the three main characteristics highlighted above, but, based on the rationale of armed conflict, it should not be forgotten that military necessity plays an important role in the law of occupation as well. Nowadays these basic tenets are being increasingly challenged due to a certain number of evolutions that can be observed with regard to contemporary situations of occupation. It is precisely this problem that this research attempts to address (see infra, Part 1, Chapter 2, specifically outlining the challenges faced by the law of occupation, and Part 2, Chapters 1, 2 and 3, establishing ways through which these challenges could be addressed). 2.1 Occupation Does Not Confer Title Occupation is strongly related to the concept of sovereignty, a concept which the law of occupation is designed to maintain and protect.278 Even more strongly, it seems to be “the foundation upon which the entire law of occupation is based”279 and could be said to “serve as its mirror image”.280 Even though occupation used to be seen as a way of acquiring territory during what 276 277 278 279 280

276 Commentaries gciv, op. cit. note 38, p. 275. 277 See for example Eyal Benvenisti, op. cit. note 2, p. 3 and Orna Ben-Naftali, Aeyal M. Gross, and Keren Michaeli, op. cit. note 8, p. 37. 278 Eyal Benvenisti, op. cit. note 2, preface, p. vii. 279 Ibid., p. 6. 280 Ibid., p. 1.

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has been referred to as the patrimonial war phase, the main rationale behind the law of occupation since the twentieth century is the fact that occupation does not confer title.281 It is thus nowadays generally admitted that occupation does not transfer sovereignty.282 An occupied state consequently does not cease to exist as a legal entity by the mere fact of the occupation. The fact that occupation cannot affect the legal status of the territory in question has furthermore been confirmed by the adoption of Additional Protocol 1 already mentioned above in the framework of the debate surrounding the applicability of the Fourth Geneva Convention to the opt.283 The commentaries concerning the adoption of this article specify that: Everyone recognized this principle as an uncontested principle of international law which was, moreover, underlying both the Hague Regulations and the fourth Convention. Nowadays it follows from the inadmissibility of the use of force, as laid down in the Charter of the United Nations, and elaborated in the Declaration on Principles of International Law concerning friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (Resolution 2625 (xxv) of the United Nations General Assembly).284 281 282 283 284

281 Robert Kolb and Sylvain Vité, op. cit. note 14, p. 11; Charles Rousseau, Le droit des conflits armés, A. Pedone, Paris, 1983, pp. 136–141. See also Peter Malanczuk, op. cit. note 187, p. 1433. 282 Gerhard Von Glahn, op. cit. note 69, p. 31; Eyal Benvenisti, op. cit. note 2 p. 6 ; Yoram Dinstein, op. cit. note 73, §113; Hans-Peter Gasser and Knut Dörmann, op. cit. note 4, p. 275 ; us Military Manual, op. cit. note 50, §358 ; uk Manual, op. cit. note 3, §11.9. See also Affaire de la Dette Publique Ottomane (Bulgarie, Irak, Palestine, Transjordanie, Grèce, Italie et Turquie), 18 avril 1925, Recueil des sentences arbitrales, vol. 1, p. 555 : «Quels que soient les effets de l’occupation d’un territoire par l’adversaire avant le rétablissement de la paix, il est certain qu’à elle seule cette occupation ne pouvait opérer juridiquement un transfert de souveraineté ». 283 See Article 4, §1 api: “The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question”. 284 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Martinus Nijhoff Publishers, Geneva 1987, §172 [hereafter icrc Commentary on api].

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The non-alienability of sovereignty through occupation is thus a direct consequence of the prohibition on acquiring territory by force.285 The normative consequence is that the annexation of occupied territory is forbidden.286 Indeed as was further confirmed by the Commentaries to the Fourth Geneva Convention, even though occupation may look like actual possession in all its appearances, it cannot however imply any right whatsoever to dispose of the concerned territory.287 If the occupier were to annex the territory in question, regardless of the fact that this is actually prohibited, this would mean that it intends to subject it to its sovereignty and consequently to put an end to the occupation.288 Occupation creates an exceptional situation in which the link between sovereignty and effective control is suspended.289 It can be compared to a situation of trust:290 since the sovereign no longer has effective control over the territory in question, it is up to the occupying power to, in a certain sense, ‘take care’ of the occupied territory until it is handed back to the sovereign. In the words of Arnold Wilson: “enemy territories in the occupation of the armed forces of another country constitute (…) a sacred trust, which must be administered as a whole in the interests both of the inhabitants and of the legitimate sovereign (…)”.291 Since it does not transfer sovereignty over the occupied territory to the occupant but only temporarily grants it the exercise of certain rights normally 285 286 287 288 289 290 291

285 Under current international law, no territorial acquisition resulting from the threat or use of force shall be recognized as legal. See for example, Robert Y. Jennings, The Acquisition of Territory in International Law, Manchester, Manchester University Press, 1963, pp. 53–55; Sharon Korman, The right of conquest. The acquisition of territory by force in international law and practice, Oxford, Clarendon Press, 1996, p. 178. 286 Orna Ben-Naftali, op. cit. note 83, p. 538. In this regard see also Article 47 gciv enshrining the inviolability of rights by the fact of the occupation. 287 Commentaries gciv, op. cit. note 38, p. 275. This is of course in line with the prohibition on acquiring territory by force, see Hans-Peter Gasser and Knut Dörmann, op. cit. note 4, p. 268. 288 Alain Pellet, op. cit. note 55, p. 176. 289 Orna Ben-Naftali, “PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and Other Legal Pathologies”, in Orna Ben-Naftal (ed.), International Humanitarian Law and International Human Rights Law: Pas de Deux, Oxford University Press, Oxford, 2011, p. 133. 290 Arnold Wilson, “The Laws of War in Occupied Territory”, Transactions of the Grotius Society, vol. 18, 1932, p. 29; Gerhard Von Glahn, op. cit. note 30, p. 31; Eyal Benvenisti, op. cit. note 2, p. 6; Gregory H. Fox, op. cit. note 8, p. 233; Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 8, p. 41; Daniel Thürer and Malcolm MacLaren, op. cit. note 237, p. 764. 291 Arnold Wilson, op. cit. note 290, p. 38.

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incumbent upon the sovereign, international law needed to regulate the exact relationship between the occupying power, the ousted government and the local inhabitants for the duration of the occupation.292 Sovereignty ultimately remains vested in the occupied States and since under current international law, and in line with the principle of self-determination, sovereignty is vested in the people, it remains vested in the occupied population.293 The interests of the inhabitants and of the legitimate sovereign are however not absolute and should be balanced with the security interests of the occupying power. Occupation remains an armed conflict type of situation meaning that the interests of the inhabitants do not abrogate the security interests of the occupying power.294 This is a difficult balancing act. Even if the law of occupation still foresees a certain number of exceptions based on military necessity295 with the adoption of the Geneva Conventions in 1949 “the scale began to tip to the side of the inhabitants”.296 The importance of the link with the rules regarding sovereignty is not only reflected in the prohibition on transferring it, but the rules containing sovereignty, such as human rights and selfdetermination, also serve as limits to the power of the occupant.297 The need to establish a balance between the different interests at stake, albeit not an easy exercise, is quite a constant thread throughout the law of occupation as we will see further on in this research. 2.2 Occupation Cannot Alter the Status Quo Ante The idea that occupation is a temporary situation, which may not generate permanent results, as illustrated by the non-transfer of sovereignty, is also at the basis of the conservationist principle underlying the law of occupation. Given that the ousted government maintains sovereign authority over the occupied territory, the occupying power can only be granted limited powers. A de facto situation can only give rise to de facto powers. The obligation to maintain the status quo ante, is reflected in numerous provisions of the law of 292 293 294 295 296 297

292 Eyal Benvenisti, “Occupation, belligerent”, Max Planck Encyclopedia of Public International Law. 293 Orna Ben-Naftali, op. cit. note 83, p. 540. 294 Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 8, p. 43. 295 With regard to the security needs of the occupying power in gciv see articles 49 (transportations, evacuations, deportation), 51 (enlistment, labour) 53 (prohibited destruction), and 64 (penal legislation). See infra, Part 2, Chap. 1 for a more detailed analysis on the role of military necessity in the provisions regulating the conduct of the occupying forces. 296 Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 8, p. 41. 297 Eyal Benvenisti, op. cit. note 2, p. 1.

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­occupation.298 These provisions will be analysed in detail in Part 2, Chapter 1 of this study but we will already provide a brief overview here. Roughly, the obligation to maintain the status quo ante means that the occupying power cannot, in principle, make any changes to the occupied territory. Indeed since the occupying power is not a permanent sovereign, it is deemed to be beyond its competences to make permanent changes to fundamental institutions.299 The occupying power is not allowed, for example, to modify the laws in force in the country, to change the mode of government, administration or the judicial system, nor to alter the status of the officials of the occupied territory. To the extent that the administration of the country continues to function, the occupying power must cooperate with it. The occupying power thus needs to allow the political institutions and public life to continue with as little disturbance as possible.300 Finally, the occupying power also needs to maintain the sociological structures of the occupied population. To this extent individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive as well as deportations or transfers of its own civilian population into the territory it occupies.301 This is precisely the problem surrounding the Israeli settlements in the West Bank. The conservationist principle is however not absolute. Here as well there is a balance to be struck between the interest of the legitimate power/population, in this case making sure that no changes that would be detrimental to them are made, and the security interests of the occupying power. The balancing act is further complicated by the fact that sometimes the interest of the local population will precisely push the occupying power to make changes. This tension, as we will see further on in this study, is especially present in a long-term occupation, where sometimes not making changes will ultimately leave the occupied population worse off. The delimitation of the exact powers of the occupant is thus far from being an easy question (see infra, Part 2, Chapter 1) but it is important to understand that the general rationale underlying the law of occupation is that, in principle, the occupied territory should be restored to the legitimate power after occupation in the same state that it was in before the occupation began. 298 299 300 301

298 See Articles 43 and 55 of the 1907 Hague Regulations and Articles 47, 54 and 57 gciv. 299 Ernst H. Feilchenfeld, The international economic law of belligerent occupation, Carnegie Endowment for International Peace, Washington d.c., 1942, p. 89. 300 Hans-Peter Gasser and Knut Dörmann, op. cit. note 4, p. 276. 301 Cf. Article 49 cgiv.

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2.3 Occupation is a Provisional State of Affairs Ultimately, the non-transfer of sovereignty and the conservationist principle are two sides of the same coin, and are the consequence of the third, and most fundamental, principle underpinning the entire legal regime of occupation, namely that occupation is a provisional state of affairs.302 Indeed as Doris A. Graber so rightfully stated: The modern law of occupation is anchored in the concept that occupation differs in its nature and legal consequences from conquest. It is therefore not surprising that the early definitions of the modern concept of belligerent occupation are chiefly concerned with the main aspects of this difference, namely the temporary nature of belligerent occupation as contrasted with the permanency of conquest, and the limited, rather than full powers which belligerent occupation entails for the occupant.303 Since occupation has been construed as a short-term phenomenon, it advocates a quick return to normal. Different provisions of the law of occupation show the underlying short-term nature of occupation.304 The law of occupation has however not foreseen a time limit on the duration of occupation,305 and consequently does not prescribe a permitted length for the occupation.306 Given that occupation was foreseen, from the onset, as a short-term temporary and exceptional situation, it was not necessary to address these issues at the time when the rules were drafted. Nowadays, however, the reality of a long-term occupation, such as the occupation of the Palestinian Territories or Northern Cyprus, has revealed the problems that the absence of exact time limits to occupation can generate. The only temporal indication comes from Article 6, paragraph 3 gciv. This provision seems to be an exception to the factual nature of occupation since it entails that the Fourth Geneva Convention, with the exception of certain 302 303 304 305 306

302 uk Military Manual, op. cit. note 3, §11.9; Gerhard Von Glahn, op. cit. note 69, p. 31; Orna Ben-Naftali, “A la recherche du temps perdu: rethinking Article 6 of the fourth Geneva Convention in the light of the legal consequences of a wall in the occupied Palestinian territory advisory opinion”, Israel Law Review, Vol. 38, 2005, pp. 220–221. 303 Doris Appel Graber, op. cit. note 13, p. 37. 304 Cf. Articles 43 and 55 of the Hague regulations of 1907, Articles 47 (inviolabilty of rights), 49§6 (prohibition of settlement) and 54 (status of public officials and judges might not be altered). 305 Orna Ben-Naftali, op. cit. note 83, p. 548. 306 Daniel Thürer and Malcolm MacLaren, op. cit. note 197, p. 769.

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articles, ceases to be applicable one year after the general close of military operations and not once the occupation is factually over, namely when there is no longer effective control.307 It thus generates a regime which is distinct from the realities on the ground and provides for distinct legal regimes depending on the duration of the occupation.308 The Fourth Geneva Convention would be fully applicable for a period of one year, after which the occupying power would only be bound by it in so far as it continued to exercise governmental functions and only by a limited number of provisions.309 The remaining provisions regulate the basic humanitarian provisions rather than the military and administration side of occupation.310 The underlying rationale was that: if the occupation were to continue for a very long time after the general cessation of hostilities, a time would doubtless come when the application of the Convention was no longer justified, especially if most of the governmental and administrative duties carried out at one time by the Occupying Power had been handed over to the authorities of the occupied territory.311 In its Wall opinion, the icj, while applying this provision, concluded that: “Since the military operations leading to the occupation of the West Bank in 1967 ended a long time ago, only those Articles of the Fourth Geneva Convention referred to in article 6, paragraph 3, remain applicable in that occupied territory” This declaration by the Court gave rise to much criticism.312 This criticism highlighted the general problems concerning the application of Article 6, paragraph 3, gciv. First of all, what exactly must be understood by 307 308 309 310 311 312

307 Robert Kolb, “Deux questions ponctuelles relatives au droit de la guerre”, Revue hellénique de droit international, vol. 61, p. 354. 308 Ibid., p. 355. 309 Commentaries gciv, op. cit. note 38, pp. 62–63. 310 Ibid., p. 63. 311 Ibid., p. 62. 312 In this regard see for example Ardi Imseis, op. cit. note 184, p. 103: “[t]he most serious [shortcomings] in relation to the Court’s findings on ihl concern, what I view to be a flawed interpretation of article 6 of the Fourth Geneva Convention, which, if taken as an accurate interpretation, of the law, would lead to very negative consequences for the Palestinian civilian population in the opt and quite possible for other civilian population subject to prolonged foreign military occupation”. See also D. Momtaz, op. cit. note 140, p. 350; Expert Meeting, op. cit. note 35, p. 71; Iain Scobbie, “Prolonged Occupation and article 6(3) of the Fourth Geneva Convention: Why the International Court Got It Wrong Substantively and Procedurally”, ejil Talk, 16 June 2015.

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‘­general close of military operations’? Would any resumption of combat, even very short, reset the counter to zero? Concerning, specifically, the application of the provision by the Court to the situation in the opt, besides the criticism that can be made with regard to the very textual reading of the provision, it is also erroneous in fact. Indeed, the situation on the ground in the opt is clearly one where such operations regularly continue.313 Secondly, adopting the interpretation of Article 6, paragraph 3, gciv embraced by the Court give rise to the conclusion that people would be less protected in long-term occupation since only 23 out of the 32 provisions contained in Section iii of the Convention concerning the Occupied Territories would still be applicable.314 One can at the very least question whether this was really the intent of the drafters of the Convention. As an illustration both Article 50 gciv warranting the protection and education of children and Article 55 gciv concerning food and medical supplies for the population would no longer be applicable after one year. In the words of Orna Ben-Naftali: “[i]t would be unreasonable to assume that the drafters of the Convention intended for children to be deprived of proper schooling or for the population to be deprived of medical supplies and food in long-term occupations, as such an intention would defy the Convention’s main objective”.315 Furthermore, in the meantime, the rule contained in Article 6, paragraph 3, gciv seems to have been replaced by the adoption of Article 3 api.316 The ‘one year after’ rule was clearly a product of its time and was designed for specific historic cases.317 Consequently, there was no reason to continue keeping it in 313 314 315 316 317

313 314 315 316

Orna Ben Naftali, op. cit. note 302, p. 214. Ibid., 214. Orna Ben-Naftali, op. cit. note 289, p. 151. icrc Commentary on api, op. cit. note 284, §146; See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, The Hague, Martinus Nijhoff Publishers, 1982, p. 57. Expert meeting, op. cit. note 74, p. 78: “In this regard, a majority of the experts took the view that all the provisions of occu- pation law applied until the termination of an occupation and, consequently, that the rationale behind Article 3 of Additional Protocol i replaced the principle underlying Article 6§3”. 317 It was adopted in response to the occupation of Germany and Japan after the Second World War; Commentaries gciv, op. cit. note 23, p. 62. See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, op. cit. note 255, p. 59. Robert Kolb, “Etude sur l’occupation est sur l’article 47 de la IVéme Convention de Genève du 12 aout 1949 relative à la protection des personnes civiles en temps de guerre: le dégré d’intangibilité des droits en territoire occupé”, African Yearbook of International Law, 2002, Vol. 10, p. 295 refers to Article 6(3) gciv as a “anachronisme juridique”.

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force and it seems to no longer be valid as a general rule.318 Furthermore, there seems to be some evidence suggesting that Article 3 api would have attained customary law status.319 In this regard the present author would like to adhere to the reasoning exposed by Orna Ben-Naftali: it should be pointed out that while Israel indeed remains a persistent objector to some of the Protocol’s provisions, this objection does not seem to extend to Article 3(b) [api]: The argument that Article 6 of the Fourth Geneva Convention limits the Convention’s scope of applicability was never raised before Israeli Courts, and indeed the Israeli High Court of Justice had applied provisions that would have otherwise become inapplicable in light of the language of Article 6. This practice characterizes other prolonged occupations, thereby lending support to the proposition that Article 2 3(b) of Protocol i enjoys customary status.320 With the adoption of Article 3 api we return to the factual nature of occupation. Indeed it warrants that the application of both the Conventions and api will cease upon the termination of the occupation. There no longer seems to be a distinction in the legal regime depending on the duration of the ­occupation and the same regime is applicable to both short and long-term occupations. This however generates a certain number of problems in practice (see infra, Part 1, Chapter 2). 3

The Occupation vs. United Nations Territorial Administration Debate: A Question of Consent?

There are a number of different situations in which effective control is exercised by entities other than the territorial sovereign.321 Both occupation and United Nations (un) territorial administration are examples of situations in

318 319 320 321

318 Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, op. cit. note 316, p. 59. 319 Orna Ben-Nafali, op. cit. 302, p. 217. This is for example not without importance for the occupation of the Palestinian Territories by Israel. Israel not being party to Additional Protocol i this could have posed issues with regard to the ongoing occupation of the opt. 320 Orna Ben-Nafali, op. cit. 302, pp. 216–217. See also, Adam Roberts, “Prolonged Military Occupation: the Israeli-Occupied Territories since 1967”, American Journal of International law, Vol. 84, No. 1, January 1990, p. 55. 321 Malcolm N. Shaw, “Territorial Administration by Non-Territorial Sovereigns” in Yuval Shany and Tomer Broude (eds.), The Shifting Allocation of Authority in International Law. Considering Sovereignty, Supremacy and Subsidiarity,Portland, Hart Publishing, 2008, p. 373.

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which there is such a disjunction between territorial control and sovereignty. Since the un could find itself, during the course of its field deployments, in a position where it would have to assume governmental functions in lieu of the relevant territorial sovereign, it is important to determine whether the law of occupation would be applicable in such cases.322 And if so, whether occupation by an international organization would be subject to the exact same legal framework as the one imposed upon states exercising effective control over foreign territory.323 In order to analyse this question we will first define the concept of territorial administration and show its similarities with occupation. Second, we will briefly relate the debate surrounding the applicability of ihl to un forces, a prerequisite for the possible applicability of the law of occupation. Third, we will determine that the application of the law of occupation is not per se excluded in the case of territorial administration but that since these missions are often based on the consent of the receiving state, de jure application will be mostly excluded since the absence of consent is a condition sine quo non for a situation of occupation to exist. Finally, we will conclude by stating, that the norms underlying the law of occupation could in any case be used as important guidelines for un Territorial Administration even if there would be no de jure occupation. United Nations Territorial Administration vs. Occupation: A Conceptual Comparative Analysis un territorial administration is a form of international territorial administration. The notion of international territorial administration may be defined in a variety of ways.324 In our opinion, the definition contained in the Max Planck Encyclopedia of Public International Law adequately describes the concept as follows: 3.1

322 323 324

322 The question of the applicability of occupation law to operations under the command and control of the un was identified as one of the main challenges surrounding the law of occupation during the 31st International Conference of the Red Cross and Red Crescent held in Geneva from 28 November to 1 December 2011, see Report prepared by the International Committe of the Red Cross, International Humanitarian Law and the challenges of contemporary armed Conflicts, 31st International Conference of the Red Cross and Red Crescent (28 November–1 December 2011, Geneva, Switzerland), Geneva, October 2011, p. 29 [hereafter 2011 Challenges Report]. 323 2011 Challenges Report, op. cit. note 322, p. 29. 324 For a list of different definition of international territorial administration see Carsten Stahn, The Law and Practice of Internationall Territoiral Administration. Versailles to Iraq and Beyond, Cambridge, Cambridge University Press, 2008, p. 44.

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The terms ‘international administration of territories’, ‘direct administration’, or ‘international territorial administration’ (ita) refer to situations where governmental functions in a specific territory are exercised not by the territorial state, but by an entity mandated to do so under international law, i.e. an international organization, a single state, or a group of States under an international mandate.325 Carsten Stahn further complements this definition by stating that International Territorial Administration concerns: “The exercise of administrative authority (executive, legislative or judicial authority) by an international entity for the benefit of a territory that is temporarily placed under international supervision or assistance for a communitarian purpose”.326 un Territorial administration concerns a situation “imply[ing] the international administration of a territory – [in which] the [un] authorities are vested with extensive executive and legislative powers (…)”.327 At first sight occupation and un Territorial administration seem to have a lot in common since they both concern a situation where the governmental functions are exercised by a power other than the sovereign. The un operations in Kosovo and East Timor, for example, shared many similarities with traditional military occupation.328 Gregory H. Fox accordingly uses the term ‘humanitarian occupation’329 to describe international 325 326 327 328 329

325 Markus Benzing, “International administration of territories”, Max Planck Encyclopedia of Public International Law, May 2010. 326 Carsten Stahn, op. cit. note 324, p. 44. 327 2011 Challenges Report, op. cit. note 322, p. 29. See also Christine Rueger, “The Law of Military Occupation: Recent developments of the Law of Military Occupation with regard to un Security Council mandated international administrations”, Military Law and the Law of War Review, Vol. 45, 2006, p. 215. 328 2011 Challenges Report, op. cit. note 322, p. 29. See United Nations Security Council, Resolution 1244(1999), S/RES/1244(1999), 10 June 1999 and United Nations Security Council, Resolution 1272(1999), S/RES/1272(1999), 24 October 1999, respectively laying out the mandate of the un Interim Administration Mission in Kosovo (unmik) and of the United Nations Transitional Administration in East Timor (untaet). As Erika de Wet so rightfully stated, a “model of full-scale United Nations governmental control” was followed in Kosovo and East Timor, making it particularly interesting to precisely justappose those two missions with the occupation paradigm; Erika de Wet, “The Direct Administration of Territories by the United Nations and its Member States in the Post Cold War Era: Legal Bases and Implications for National Law”, Max Planck Yearbook of United Nations Law, Vol. 8, 2004, p. 301. 329 Some authors use the term ‘occupation’ in a broader sense than ‘occupation’ in the meaning of ihl alone, so that the term also encompasses other forms of international

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territorial administration: humanitarian because its purpose is to end human rights abuses, reform the governmental institutions and restore peaceful coexistence; and occupation because the governing authority assumed is relatively similar to the de facto authority in case of occupation.330 Both situations are also designed to be of a provisional nature and do not alter the status of the territory administered.331 However, the rationale behind both forms of territorial administration is very different.332 If the main rationale behind occupation is of a military nature, in un Territorial Administration the military component is only a side-issue, since the military are only there to keep the territory secure, and the main focus is laid on the governance of the territory in question, with in most cases the aim being to make transformations in the territory in question and to rehabilitate the State.333 Indeed, the typical context of territorial administration is that of a State or territory wrecked by armed conflict and where the governance structures no longer exist, or if they still exist, are no longer capable of administering the territory and population in question.334 It is also important to establish a clear distinction here between operations authorized by the un and operations established and commanded by 330 331 332 333 334

330 331

332

333 334

t­ erritorial administration. This is the case, for example, for Gregory Fox, op. cit. note 8, p. 3 who uses the term ‘humanitarian occupation’ to describe international territorial administration. The same holds true, for example, for Steven Ratner who uses the term occupation ‘in a functional sense to describe control of territory by outside entities’; Steven R. Ratner, “Foreign Occupation and International Territorial Administration: the Challenges of convergence”, The European Journal of International Law, vol. 16(4), 2005, p. 697. See also Jan Wouters and Kenneth Chan, “State-Building, Occupation and International Law: Friends of Foes”, Leuven Centre for Global Governance Studies Working Paper, n°87, March 2012, 16p. We would like to emphasize that, for the clarity of argument, we refer to ‘occupation’ as understood under ihl (as defined by Article 42 of the Hague Regulations) and hence triggering the law of occupation. Gregory H. Fox, op. cit. note 8, pp. 3–4. Tobias H. Irmsher, “The legal Framework for the Activities of the United Nations Administration Mission in Kosovo: The Charter, Human Rights and the Law of Occupation?” German Yearbook of International Law, 44, 2001, p. 386. See also Robert Kolb, Gabriele Porretto and Sylvain Vité, L’application du droit international humanitaire et des droits de l’homme aux organisations internationales. Forces de paix et administrations civiles transitoires, Brussels, Bruylant, 2005, p. 58. Richard Caplan, International Governance of War-Torn Territories, Oxford, Oxford University Press, 2005, p. 3. We will see that precisely this different rationale has often been invoked as one of the main arguments used to demonstratie the non-applicability of the law of occupation to situations of un Territorial Administration (see Infra). Steven R. Ratner, op. cit. note 329, pp. 701–702; Gregory H. Fox, op. cit. note 8, p. 7. Robert Kolb, Gabriele Porretto and Sylvain Vité, op. cit. note 331, p. 57.

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the un.335 The question of the 2003 occupation of Iraq, which will be used to illustrate the issue of transformative occupation further on in this research, accordingly does not fall under un Territorial Administration since it was not an operation under the command and control of the un even if its actions were to a certain extent regulated by un Security Council resolutions.336 Applicability of ihl to un Troops: A Prerequisite for the Potential Applicability of the Law of Occupation The question whether the law of occupation can apply to un peace operations is part of the more general question of whether ihl as such can apply to such operations. For a long time the question of the applicability of ihl to peace operations was highly controversial.337 We are not going to enter into detail on this question since it falls outside the ambit of this research but we will limit ourselves to providing the main elements of the issue at hand.338 For an international organization to be able to enjoy rights and duties under international law it needs to have international legal personality. The question of the legal personality of the United Nations was settled quite early on. Indeed the International Court of Justice held in its Reparations for Injuries advisory opinion that:

3.2

335 336 337 338

335 Marten Zwanenburg, “Pieces of the Puzzle: peace operations, occupation and the use of force”, Military Law and the Law of War review, Vol. 45, 2006, p. 240; Siobhan Wills, “Occupation Law and Multi-National Operations: Problems and Perspectives”, British Yearbook of international law, 2007, Vol. 77(1), p. 321. 336 We do not refer here to the controversial question of the illegal use of force by the Coalition forces but to the un Security Council resolutions subsequently regulating the occupation. 337 Marten Zwanenburg, op. cit. note 335, p. 240. See also Michael Bothe and Thomas Dörschel, “The un Peacekeeping Experience”, in Dieter Fleck (ed.), The Handbook of the Law of Visiting Force, Oxford, Oxford University Press, 2001, p. 499. 338 For a more detailed analysis of this subject see Paolo Benvenuti, “Le respect du droit international humanitaire par les forces des Nations Unies: la circulaire du sécrétaire général”, Revue Générale de droit international public, 2001, pp. 355–372; Claude Emanuelli, “Les forces des Nations Unies et le Droit International Humanitaire”, in Luigi Condorelli, Anne-Marie La Rosa and Sylvie Scherrer (eds.), Les Nations Unies et le droit international humanitaire / The United Nations and international humanitarian law, Actes du Colloque international à l’occasion du cinquatième anniversaire de l’ONU (Genève, 19, 20 et 21 octobre 1995), Paris, Editions Pedone, pp. 345–370; Daphna Shraga, “The United Nations as an actor bound by international humanitarian law”, International Peacekeeping, Vol. 5, No. 2, 1998, pp. 64–81; Brian D. Tittemore, “Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations”, Stanford Journal of International Law, Vol. 33, 1997, pp. 61–117.

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[T]he organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights, which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. (…) Accordingly, the Court has come to the conclusion that the Organization is an international person (…) [which means] that is as a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.339 The un thus possesses international legal personality and can thus possess international rights and duties.340 However, the very idea that ihl could be applicable to un forces was for a long time disregarded.341 This was based on the contention that un forces could not be a party to an armed conflict since they were acting on behalf of the international community as a whole, thereby precluding them from being either a ‘party’ to the conflict, or a ‘power’ within the meaning of the Geneva Conventions, and therefore the un could not be bound by ihl.342 Such a position however disregards the factual character underlying the applicability of ihl. Indeed, if the conditions for the application of ihl (i.e. the existence of an armed conflict) would in fact be met this would lead to the application of ihl regardless of issues such as the particular nature of international organizations or the source of their actions. Some have rightly argued that the above-mentioned position would lead to jus ad bellum issues being taken into account in order to analyse an jus in bello situation hence blurring the strict distinction that should be maintained between both bodies of law.343 Today, there is a growing acceptance that ihl would apply to un forces when ihl would in fact be applicable (i.e. when un action would in fact amount to a situation of armed conflict or occupation).344 339 340 341 342 343 344

339 International Court of Justice (icj), Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, i.c.j. Reports 1949, p. 179. 340 Robert Kolb, Gabriele Porretto and Sylvain Vité, op. cit. note 331, p. 121. 341 2011 Challenges report, op. cit. 322, p. 30. 342 Ibid., p. 30. 343 Ibid., p. 30. 344 Most of the experts indeed agreed that the applicability of ihl to un mandate operations is a matter of fact. See Alexandre Faite and Jérémie Labbé Grenier (eds.), Report of the Expert meeting on multinational peace operations: Applicability of International Humanitarian Law and International Human Rights Law to un Mandated Forces, organized by the International Committee of the Red Cross in cooperation with the University Centre for international humanitarian law (ucihl), Geneva, 11–12 December 2003, p. 9 [hereafter Multinational peace operations expert meeting]. See also Tristan Ferraro,

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Since the determination of the applicability of ihl is of a factual nature, the mandate underlying the specific un missions is irrelevant. Previously, the question whether ihl had to be applied to un activities strongly depended on the qualification of the intervention, in other words on the mandate given to these troops. It was for a long time argued that whereas the applicability of ihl within the framework of peace enforcement was straightforward, it was believed to be more complex for peacekeeping, including un Territorial Administration.345 Indeed, peacekeeping being situated somewhere between Chapter vi (the peaceful resolution of a conflict) and Chapter vii (enforcement action) is more difficult to define.346 Peacekeeping missions, contrary to peace enforcement, were of the consensual type hence excluding the application of ihl, except if a self-defence type of situation would arise.347 However, peacekeeping operations have become increasingly complex and multi-­ faceted over time,348 blurring the distinction between peace enforcement and 345 346 347 348

345 346

347

348

“The applicability and application of international humanitarian law to multinational forces”, International Review of the Red Cross, Vo; 95, No. 891/892, Autumn/Winter 2013, p. 573; Marten Zwanenburg, op. cit. note 335, p. 240; A. Roberts, op. cit. note 1, p. 295; Eric De Brabandere, op. cit. note 160, p. 123. Eric De Brabandere, op. cit. note 160, p. 122. See also, D.W. Bowett, United Nations forces, London, Steven & Sons, 1964, p. 490. Mario Silva, State Legitimacy and Failure in International Law, Leiden, Brill Nijhoff, 2014, p. 214. Peacekeeping missions have been sometimes refered to as Chapter 6½ missions. See for example Erika de Wet, op. cit., note 282 p. 321. See for example the definition of peacekeeping given by the former un Secretary General Boutros Boutros Ghali in his Agenda for peace: “Deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, normally involving United Nations military and/ or police personnel and frequently civilians as well”; Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, An Agenda for Peace. Preventive diplomacy, peacemaking and peace-keeping, A/47/277 – S/24111, 17 June 1992. Daphna Shraga, op. cit. note 338, p. 66. See also Davis Brown, “The role of the United Nations in peaceekping and truce-monitoring: what are the applicable norms?” Revue Belge de Droit International, 1994/2, p. 562. United Nations Departement of Peacekeeping Operations, Handbook on United Nations Multidimensional Peacekeeping Operations, Peacekeeping best practices Unit, December 2003, foreword. See also for example Michael V. Bhatia, War and Intervention: issues for contemporary peace operations, Bloomfield, Kumarian Press, 2003, p. 93 stating very relevantly for the precise question under assessment here that “Not only have un peace operations increasingly had to assume direct functions of government, but their involvement in the levels of government as also deepened, including involvement in the lower levels of administration”.

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­peacekeeping operations.349 Indeed on the ground, the line between peacekeeping and peace enforcement can prove to be extremely thin.350 The application of ihl within the framework of peacekeeping operations is no longer per se excluded and if the facts on the ground would amount to an armed conflict, ihl would be triggered. The Bulletin adopted by the un Secretary-­General with regard to the observance of ihl by un forces constitutes an explicit recognition of the applicability of ihl not only to enforcement operations but also to un peace support operations.351 To this extent, the promulgation of the said bulletin “ended a decade long debate on the applicability of international humanitarian law to un peacekeeping operations”.352 Indeed, it clearly states that the fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence.353 Admittedly, the phrasing ‘when the use of force is permitted in self-defence’ with regard to peacekeeping operations provides for an odd description and is not crystal clear but it is generally admitted that once peacekeeping forces become involved in actual fighting, ihl becomes applicable.354 Once it became clear that ihl would be applicable to un forces if the criteria for its applicability were in fact met, there was still unclarity about the 349 350 351 352 353 354

349 Daphna Shraga, op. cit. note 338, p. 66. See also Christine Rueger, op. cit. note 327, p. 223; Multinational peace operations expert meeting, op. cit. note 344, p. 12; Christine Gray, “Host-State Consent and United Nations Peacekeeping in Yugoslavia”, Duke Journal of Comparative & International Law, Vol. 7:24, 1996, p. 257. 350 Steven R. Ratner, The New un Peacekeeping: Building Peace in Lands of Conflict after the Cold War, Basingstoke, Macmillan Press ltd, 1995, p. 40. 351 Marten Zwanenburg, Accountability of Peace Support Operations, Leiden, Martinus Nijhoff Publishers, 2005, p. 206. 352 Daphna Shraga, “The Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law: A Decade Later”, Israel Yearbook on Human Rights, Vol. 39, 2009, p. 357. 353 un Secretary-General (unsg), Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, 6 August 1999, ST/SGB/1999/13, Section 1.1, [hereafter unsg Bulletin]. 354 Michael Bothe and Thomas Dörschel, op. cit. 337, p. 501.

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­precise content of the ihl obligations applicable to the un. The main issue raised was the inability of the un to formally adhere to the different ihl instruments since they foresaw only accession by States.355 The only question can thus be whether customary ihl can apply to the un.356 For a long time the un limited itself to declaring that it was bound by the ‘principles and spirit’ of ihl,357 the extent of which was extremely vague.358 The un Secretary General’s Bulletin provided some clarity with regard to the applicable rules.359 It indeed provides a summary of a certain number of rules that the un forces need to follow when they are effectively using force.360 However, if the majority of the provisions contained in the Bulletin reflect customary ihl, many other rules of customary ihl have not been included in the document.361 Since the law of occupation is not expressly mentioned it is important for the case at hand to establish whether this constitutes an exhaustive list or not. We would argue that the list is non-exhaustive. This seems to be confirmed expressly by 355 356 357 358 359 360 361

355 Paolo Benvenuti, op. cit. note 338, p. 356. See also: Claude Emanuelli, op. cit. note 338, p. 348; Daphna Shraga, op. cit. note 338, p. 66; Brian D. Tittemore, op. cit. note 338, p. 97. 356 Michael Bothe and Thomas Dörschel, op. cit. note 337, p. 500. See also Brian D. Tittemore, op. cit. note 338, p. 97. 357 Paul C. Szasz, “un forces and International Humanitarian Law”, in Micheal N. Schmitt and Leslie Claude Green (eds), International Law across the Spectrum of Conflict: Essays in honor of Professor L.C. Green on the occasion of his eightieth birthday, Naval War College, Newport, 2000, p. 516. See also Marco Sassoli, “Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century”, Background Paper prepared for Informal High-Level Expert Meeting on Current Challenges to International Humanitarian Law, Cambridge, June 25–27, 2004, Program on Humanitarian Policy and Conflict Research at Harvard University, p. 18; Richer D. Glick, “Lip Service to the Laws of War: Humantiarian Law and United Nations Armed Forces”, Michigan Journal of International law, Vol. 17, 1995–1996, p. 78. 358 Paolo Benvenuti, op. cit. note 338, p. 356. 359 Ibid., p. 362. 360 These rules have been divided into five categories: protection of civilian personnel (Section 5); means and methods of combat (Section 6); treatment of civilians and persons hors de combat (Section 7); treatment of detained persons (Section 8); and protection of the wounded, sick, and medical and relief personnel (Section 9). 361 Marten Zwanenburg, op. cit. note 351, p. 206. Concerning the confirmation of the potential applicability of the law of occupation on the basis of the unsg Bulletin see, for example, Daphna Shraga, “Military Occupation and un Transitional Administration – the Analogy and its limitation”, in Marcelo G. Kohen, Promoting justice, human rights and conflict resolution through international law / La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit international. Liber Amicorum Lucius Caflisch, Leiden, Martinus Nijhoff Publishers, 2007, p. 479.

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­Section 2 of the bulletin stating that the enumerated provision “do not constitute an exhaustive list of principles and rules of international humanitarian law binding upon military personnel (…)”.362 As Marten Zwanenburg explains: “It seems that it is related to the fact that the bulletin is mainly intended as a tool for instruction, rather than an exhaustive list of all applicable rules”.363 To conclude there is thus a growing acceptance of the obligation for un forces to respect ihl when ihl would in fact be applicable.364 The applicability of ihl to un forces being a prerequisite for any potential application of the law of occupation, we can now turn to the question of the applicability of the law of occupation to un Territorial administration. 3.3 Applicability of the Law of Occupation The growing acceptance of the application of ihl to un peace operations, does not necessarily extend to the application of the law of occupation to such operations and the question remains controversial.365 If we were to follow the same reasoning as the one outlined with regard to the applicability of ihl, the law of occupation would be applicable if a situation of occupation would in fact be met. In other words, if the definition of occupation contained in Article 42 of the Hague Regulations would be met. The definition of occupation given by Benvenisti would suggest that an occupation by un forces is not per se excluded: “effective control of a power (be it one or more States or an international organization, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory [emphasis added]”.366 Similarly, Adam Roberts also states that: “Forces acting under the ageas of the United Nations could conceivably be in occupation of all or part of the territory of a State, either in the course of an enforcement action, or in the course of an armed peacekeeping operation”.367 A certain number of elements have been advanced to bar the applicability of the law of occupation to un Territorial Administration. They will be briefly 362 363 364 365 366 367

362 unsg Bulletin, op. cit. note 353, Section 2. 363 Marten Zwanenburg, op. cit. note 351, p. 206. 364 Tristan Ferraro, “The applicability of the law of occupation to peace forces”, in Gian Luca Beruto (ed.), International Humanitarian Law, Human Rights and Peace Operations, Proceedings of the 31st Round Table on Current Problems of International Humanitarian Law, Sanremo, 4–6 September 2008, p. 133; A. Roberts, op. cit. note 1, 289; E. De Brabandere, op. cit. note 160, p. 123. 365 Marten Zwanenburg, op. cit. note 335, p. 241; Robert Kolb, Gabriele Porretto and Sylvain Vité, op. cit. note 331 p. 328. 366 Eyal Benvenisti, op. cit. note 2, p. 3. 367 Adam Roberts, op. cit. note 1, p. 289.

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outlined below. We will however show that the only valid argument for the barring of the applicability of the law of occupation would be the consent of the host state. 3.3.1

Arguments Used against the Applicability of the Law of Occupation in the Framework of un Territorial Administration The first line of arguments advanced to bar the applicability of the law of occupation to un Territorial Administration could be qualified as being of a doctrinal or conceptual nature.368 Indeed some have referred to the pejorative character of occupation to explain the reluctance in applying the law of ­occupation to the un.369 Given that occupation ‘is a tainted concept in contemporary international law’,370 the un wants to avoid the stigma of being qualified as an occupier.371 Similarly, some have advanced the notion that the logic behind un Territorial Administration was of an entirly different nature than the one underlying occupation. To this extent, Daphna Shraga argues that: “[W]hereas the essence of an occupant-occupied relationship is that of conflicts of interest, that which characterizes a United Nations ‘administration’ of a territory is cooperation between the force and the local population”.372 368 369 370 371 372

368 In this regard, Erika de Wet op. cit., note 328, p. 325 for example states that “it would seem conceptually unconvicing to regard the un-authorized military presence in [a given territory] as an occupying force”. 369 Ralph Wilde, International Territorial Administration. How Trusteeship and the Civilizing Mission Never Went Away, Oxford, Oxford University Press, 2008, p. 355; Siobhan Wills note 335, op. cit., p. 256; A. Roberts, above note 1, p. 301; Steven R. Ratner, above note 283, p. 697; Carsten Stahn, op. cit. note 324, p. 141. 370 Steven Ratner, “Administration of territoires by the United Nations: is there room for international humanitarian law”, in Gian Luca Beruto (ed.), International Humanitarian Law, Human Rights and Peace Operations, Proceedings of the 31st Round Table on Current Problems of International Humanitarian Law, Sanremo, 4–6 September 2008, p. 170. 371 Michael H. Hoffman, “Peace-enforcement actions and humanitarian law: Emerging rules for ‘interventional armed conflict’”, International Review of the Red Cross, Vol. 82, No 837, March 2000, p. 193. See also Siobhan Wills, op. cit. 335, p. 317. 372 Daphna Shraga, op. cit. note 338, p. 70. See also Ivan Ingravallo, “un territorial administration: between international humanitarian law and human rights law”, in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 394 who stated that “while the occpier administrates the territory mainly for its interest, the territorial administrations are established both for the general interest for the maintenance of peace and security and for the particular interest of the well-being of the territorial community which they administer”. Based on a similar logic, Richard Caplan, op. cit. note 286, p. 3 argues that the fact that the territory concerned is under the control and accountability of an international body provides

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However, a reasoning barring the application of the law of occupation based on some kind of altruistic purpose underlying the action of the un or because it would create a stigma would be difficult to accept. Not only are good intentions hard to measure as Marten Zwanenburg rightfully stated,373 but taking into account motives and purposes only leads to the blurring of the jus ad bellum and the jus in bello and, consequently, it is also against the factual assessment underlying the qualification of a situation as one of occupation.374 A second line of reasoning looks more specifically at the differences between un Territorial Administration and occupation and argues that these specificities precisely render the law of occupation inapplicable. This is the case concerning the argument stating that there could never be occupation in the case of un Territorial Administration because such administrations are not the result of armed conflict. This is also not an acceptable argument since there is the possibility of occupation ‘without hostilities’ (see, supra Part 1.4).375 Another illustration would be the argument based on the processes of reconstruction and state building underlying un Territorial Administration.376 Indeed some have argued that since the purpose of un Territorial Administration is the political and institutional transformation of the state concerned, this would render de jure application impossible since it would in any case be contrary to the obligation to maintain the status quo ante.377 However, not only does it seem difficult to argue the inapplicability of a certain set of rules on the sole basis that these would not be able to be met, but we will also demonstrate further on in this research that some changes are not impossible to square with the law of occupation, especially if they were to be authorized by an unsc resolution adopted under Chapter vii allowing for some modulation of the law of occupation (see infra, Part 2, Chapter 3). A third line of argumentation refers to the fact that un Territorial Administration is based on another legal basis, which would render the law of occupation inapplicable. Indeed, it is argued that since un Territorial Administration is based on a unsc resolution and on a Status of Forces Agreement (sofa), the law of occupation would be inapplicable. The fact that some other b­ odies of 373 374 375 376 377

373 374 375 376 377

legitimacy and is thus not sufficiently similar to warrant the potential application of the law of occupation. Marten Zwanenburg, op. cit. note 335, p. 242. Siobhan Wills, op. cit. 335, p. 274. Bertrand Levrat, “Le droit international humanitaire au Timor Oriental: entre théorie et pratique”, International Review of the Red Cross, Vol. 83, No 841, March 2001, pp. 97–98. Carsten Stahn, op. cit. note 324, p. 49. Expert Meeting, op. cit. note 74, p. 78.

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law would also be applicable to un Territorial Administration does not however per se mean that any applicability of the law of occupation would be excluded. It solely means that a hierarchy should be established between these different sources, notably in line with article 103 of the un Charter. This argument can also be linked to the fact that some have argued that because the law of occupation is not explicitly mentioned in the un Secretary-General’s Bulletin, it would consequently not apply to un forces. We have however argued above that the list contained in the said Bulletin is not exhaustive and that this would not therefore bar the potential applicability of the law of occupation. Similarly, the argument raised by Erika de Wet that “it is unlikely that the customary law of occupation suffices in providing a legal basis for the whole spectrum of measures adopted by these administrations”378 is also not a reason to disregard its applicability since there are precisely other sources of law which also regulate the concerned situation. It is thus not a question of the applicability of one body (be it the law of occupation or the un mandate) to the detriment of the other, but a question of co-application between different bodies. A fourth line of argumentation, strongly linked to the one concerning the legal basis of such territorial administrations, is the fact that the un peacekeeping force would not represent the source of authority in the area concerned, unlike occupation, and that said authority would find its source in the unsc resolution and in the consent of the territorial state.379 In other words, the un as such cannot be the occupying power since the source of the authority is to be found within the unsc resolution and the consent of the territorial state. We will come back to the issue of the consent of the territorial state, but other than that, this construction seems to be slightly artificial and difficult to square with the factual character of occupation. Similarly, some have also argued that occupation would in any case be excluded since the un is never the sole authority in such a situation.380 This statement will however not always be factually true and there could be instances where the un could be the sole authority. More in general, the mandate does not impact on the qualification of the situation since this would also lead to a blurring between the jus ad bellum and the jus in bello.381 Finally, and we would argue that this is the only element effectively barring the application of the law of occupation to un Territorial Administration, is the fact that un Territorial Administration is often deployed based on the 378 379 380 381

378 379 380 381

Erika de Wet, op. cit. note 328, p. 329. Dapha Shraga, op. cit. note 338, p. 70. Tristan Ferraro, op. cit. note 364, p. 146. Eric de Brabandere, op. cit. note 160, p. 125.

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consent of the host state. In other words, the law of occupation would only be applicable to un Territorial Administration in the case of the absence of such consent.382 The criterion of consent is the ‘major hurdle’ for the de jure application of the law of occupation to un Territorial Administration.383 Indeed the absence of consent it one of the conditions for the existence of a situation of occupation.384 Some have argued that un Territorial Administration will always be based on consent and would therefore always exclude the application of the law of occupation.385 Even if this seems to have always been the case in practice until now, it is not per se inconceivable that consent would disappear over time or that apparent consent would in fact be flawed.386 Once the consent is withdrawn or the basis of the consent becomes questionable, the applicability of ihl (and of the law of occupation if the other conditions are also met) is resuscitated.387 The existence of a Status of Forces Agreement (sofa) does not per se prejudice the potential application of the law of occupation if, in fact, the expressed consent thereto is not valid.388 In the words of Eyal Benvenisti: “The International administrations where domestic consent is lacking or legally invalid are occupations”.389 The law of occupation will thus be applicable to un Territorial Administration if the criteria contained in Article 42 of the Hague Regulations are in fact met. 3.3.2

A Closer Look at the Issue of Consent in un Territorial Administration The issue of consent in the context of peacekeeping activities is a complex and multifaceted one.390 Consequently, it is not always easy to determine whether 382 383 384 385 386 387 388 389 390

382 Robert Kolb, Gabriele Porretto and Sylvain Vité, op. cit. note 331., p. 110. 383 Expert Meeting, op. cit. note 74, p. 13. 384 In this regard see the definition of occupation provided by Eyal Benvenisti cited above and which clearly stated that for there to be occupation effective control should be asserted “without the volition of the sovereign of that territory”, Eyal Benvenisti, op. cit. note 3, p. 3; See also Malcolm N. Shaw, op. cit. note 321, p. 409 stating that occupation is non-consensual by its very nature. 385 Robert Kolb, Gabriele Porretto and Sylvain Vité, op. cit. note 294, p. 220. 386 Ibid., p. 110. 387 Yutaka Arai-Takahashi, op. cit. note 220, p. 537. 388 Eric De Brabandere, op. cit. note 160, p. 121. 389 Eyal Benvenisti, op. cit. note 2, p. 276. 390 For more information on this issue see: David Wippman, “Military Intervention, Regional Organizations and Host State Consent”, Duke Journal of Comparative & International Law, Vol. 7, pp. 209–239 and Christine Gray, “Host-State Consent and United Nations Peacekeeping in Yugoslavia”, Duke Journal of Comparative & International Law, Vol. 7, pp. 241–270.

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consent has really been given, but the determination must nevertheless be made since the triggering of the law of occupation in un territorial administration is precisely dependent on the existence of such consent or not.391 Seemingly, the un territorial administrations established so far have always been based on consent, hence barring the de jure application of the law of ­occupation. However, both the un Territorial Administration in Kosovo and the one in East Timor have raised some important questions with regard to the ­validity of the said consent. It is generally difficult to assess consent when there is no generally recognized government having control over the State’s territory in its entirity or over the entity concerned.392 If we were to prove that the consent was not effective, the law of occupation could have been applicable to the cases at hand. We will not try to provide a definitive answer to the question of whether the consent was or was not effectively flawed in these cases, but we will provide the main elements of the debate. As was already stated above, both the un Transitional Administration in East-Timor (untaet) and the un Administration Mission in Kosovo (unmik) provide an interesting illustration of the question at hand since they both combined a civilian administration of territory aspect with an important military operation, making them well-suited for comparison with occupation.393 Most have argued that the law of occupation was not applicable to the un territorial administrations in Kosovo and East-Timor for the simple reason that the State consented to the presence of foreign troops. Some have however contested the validity of the consent in either one, or both of these cases. Indeed consent must be explicit and legally valid to effectively bar occupation.394 According to the Expert Meeting, consent has to be interpreted in the light of current public international law, especially the law of treaties, and not in a specific way for the purpose of occupation law.395 Coerced consent396 or consent given by a State which did not have the authority to consent would thus be flawed. Concerning unmik, it was also not that clear who exactly had to consent and some have also argued that the consent was extorted, hence it was not of a voluntary nature.397 The situation with regard to East Timor was more 391 392 393 394 395 396 397

391 392 393 394 395 396 397

Tristan Ferraro, op. cit. note 364, p. 137. Christine Gray, op. cit. note 390, p. 241. Robert Kolb, Gabriele Porretto and Sylvain Vité, op. cit. note 331, p. 84. Eyal Benvenisti, op. cit. note 3, p. 278. See Expert Meeting, op. cit. note 74, 21. Cf. Article 52 vclt. John Cerone, “Minding the Gap: Outlining kfor Accountability in Post-Conflict Kosovo”, European Journal of International Law, vol. 12, 2001, pp. 484–485. See also Expert meeting, above note 74, p. 22; Erika de Wet, op. cit. 328, p. 321. According to Eyal Benvenisti,

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­complicated.398 In the case of untaet, consent was given by Indonesia; however, Indonesia’s authority over East Timor, hence its authority to consent, was far from having obtained consensus.399 However, some grant a role to the unsc in evaluating the genuineness and the validity of consent.400 And, in any case, most are of the opinion that it would be very difficult to qualify a situation as an occupation “once consent – even if initially extorted by coercion – had been validated by the Security Council”.401 In a certain way, one could argue, as Sylvain Vité has done, that the decision of the unsc, being an organ representing the international community, in such a case, substitutes the will of the State having sovereignty on the territory in question.402 If we follow this reasoning, the applicability of the law of occupation to such un missions would be extremely rare if not impossible. One can also wonder whether such an interpretation would not be going against the factual character on which the law of occupation rests. Indeed, it would mean that even if consent would in fact appear to be absent, we would still have to look at the impact of the un resolution on this matter and this seems difficult to square with the factual nature of occupation. In addition, whereas most seemed to agree on the validation of consent by a unsc resolution adopted under Chapter vii in general, they admit that the situation is different in the case of deployment in failed States. The problem of consent is particularly salient in the case of failed States.403 The question of the applicability of the law of occupation within the framework of a un ­Mission in 398 399 400 401 402 403

398 399

400 401 402

403

unmik was also not based on genuine state consent; Eyal Benvenisti, op. cit., p. 278: See also Simon Chesterman, You, the people : the United Nations, transitional administration, and state-building, Oxford, Oxford University Press, 2004, p. 310 arguing that despite the delegation of some responsabilities unmik “governs through Military Occupation”. Erika de Wet, op. cit. 328, p. 321. Micheal J. Kelly, Timothy L.H. McCormack, Paul Muggleton and Bruce M. Oswald, “Legal aspects of Australia’s involvement in the International Force for East Timor”, International Review of the Red Cross, Vol. Vol. 83, No. 841, March 2001, pp. 102–103. See also Bertrand Levrat, op. cit. note 375, pp. 96–97: there is no East Timorese authority capable of consenting, and the consent of de de facto authority, namely Indonesia, was contested. Expert Meeting, op. cit. note 74, p. 22. Ibid., p. 22. Sylvain Vité, L’applicabilité du droit international de l’occupation militaire aux activités des organisations internationales, International Review of the Red Cross, vol. 86, No. 853, 2004, p. 27. Pietro Pustorino, “Failed States and International Law: The Impact of un Practice in Somalia in Respect of Fundamental Rules of International Law”, German Yearbook of International Law, Vol. 53, 2010, p. 739.

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Somalia, “the failed State par excellence”, arose with regard to u ­ nosom ii.404 In the case of failed States most of the experts advocate the view that consent must be presumed to be absent.405 This would mean that in cases of un Territorial Administration in a failed state, consent would at the very least be presumed to be absent, hence triggering the applicability of the law of occupation if the remainder of the criteria are also met. This has however not been confirmed by practice so far. On the contrary, in the undpko’s report on the lessons to be learned from the un operation in Somalia it was stated that “in an environment of state collapse, the Fourth Geneva Convention could supply adequate guidelines for regulating relations between peacekeeping troops and the local population [emphasis added]”.406 This view has moreover been confirmed by the uk military manual in which it is stated that in cases where troops are sent in to a collapsed state [such as in Somalia in 1993 or East Timor in 1999] to restore law and order, it may not always be possible to conclude a civil affairs agreement with the authorities of the country concerned in advance so that there will be de facto military rule by the liberating power. The rules of international law applying to occupied territory should, so far as possible, be applied by analogy until an agreement is concluded [emphasis added].407 The position of the un, against the de jure application of the law of occupation in Somalia, was further corroborated by the United States one of the troopcontributing countries.408 Only the Australian Government took the view that the law of occupation applied de jure to its activities in Somalia in the framework of the un operation in Somalia.409 The crucial factor in arriving at this

404 405 406 407 408 409

404 Pietro Pustorino, op. cit. note 403, p. 727. 405 See Expert Meeting, op. cit. note 74, p. 23 and Steven R. Ratner, “The law of occupation and un Administration of Territory: Mandatory, Desirable, or Irrelevant?” in Expert Meeting, op. cit. note 74, p. 97. 406 The Comprehensive Report on Lessons Learned from United Nations Operation in Somalia (unosom), April 1992–March 1995, United Nations Peacekeeping Department, New York, para. 57. 407 uk Military Manual, op. cit. note 3, p. 275. 408 Michael J. Kelly, “Transitional Justice in Peace Operations: Shaping the Twilight Zone in Somalia and East Timor”, Yearbook of International Humanitarian Law, 2001, p. 220. 409 Michael J. Kelly, Restoring and maintaining order in complex peace operations: the search for a legal framework, The Hague, Kluwer Law International, 1999, p. 31. Whereas this assessment is mainly made vis-à-vis unitaf according to Michael J. Kelly, ibid., p. 181, “the

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assessment was that there was no government in Somalia, and consequently also no consent from the host state.410 In the absence of such consent, and the other criteria triggering the application of the law of occupation being met, the law of occupation would thus apply de jure to the part of the Somali territory under Australian authority (ie Southern Somalia) based on the application of Article 2(2) gciv allowing for the partial occupation of the territory of a State party.411 Next to having strongly advocated the application of the law of occupation in Somalia the Australian contingent was also convinced that the law of occupation was particularly well suited to deal with the different issues that were emerging from public security issues in an armed intervention in a collapsed state such as Somalia,412 and that it would also assist in securing long-term reconstruction objectives.413 The question surrounding the application of the law of occupation is not a mere theoretical one. Indeed, in the absence of a specific legal framework dealing with challenges raised by the un mission in Somalia, the existence of a suitable (and we would argue also a de jure applicable) body of rules would prove more than useful.414 The extent of the mission in Somalia forced the un to move away from mere assistance towards de facto governance, hence going beyond the foreseen mandate.415 Consequently, the un troops acted on many occasions on uncertain legal grounds.416 As Carsten Stahn so rightfully stated; “The harsh divergence between theory and practice in the case of Somalia revealed very clearly the lack of a unified legal framework for the exercise of public authority and regulatory functions by un missions”.417 The application of the law of occupation could, 410 411 412 413 414 415 416 417

410 411 412 413 414

415 416 417

same conclusion applies to the unosom ii deployment, for at least a portion of its presence in Somalia”. Michael J. Kelly, op. cit. note 408, p. 222. Ibid., p. 236. Ibid., p. 236. Michael J. Kelly, op. cit. note 409, p. 37. Ibid., p. 31 in which he confirms the opinion that adopting the law of occupation would have resolved much of the problems/chaos in Somalia. Indeed he states that: “had this position been accepted and the inclination been present during the unitaf phase to play a more constructive role in Somalia it is asserted that much could have been achieved and confusion in critical areas avoided”. Other authors have confirmed that the Australian Approach was far more successful and moreover had a more long-term societal benefit even after withdrawal. To this regard see Siobhan Wills, op. cit. note 295, p. 282. Carsten Stahn, op. cit. note 324, p. 263. Ibid., p. 264. Ibid., p. 264.

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and should, have remedied this legal vacuum, precisely as the Australian Government advocated. The analysis set out above highlights two major issues. First, there seems to be a difference in treatment ab initio between consent in general on the one hand, and consent in failed states on the other. Even though we agree that state failure at the very least provides a strong presumption of the absence of consent, the presence or not of consent should be analysed from a factual point of view meaning that apparent consent in a ‘normal’ state might also be flawed. In other words, one situation should not ab initio be favoured visà-vis the other. Second, state practice (with the exception of the practice of Australia) seems to indicate that even in the absence of state consent, the law of occupation would still only apply de facto and by analogy and not de jure. In our opinion, this is in clear opposition to the factual assessment on which the application of the law of occupation relies and contributes to a blurring of the jus ad bellum with the jus in bello. If there is no consent, and the other elements contained in the definition of occupation as laid down in Article 42 of the Hague Regulations are met, then the law of occupation should apply. Some would argue that the assessment of the validity of the consent is not a factual determination and should not therefore be taken into account when assessing whether a situation of occupation has in fact been met, but we would like to disagree since the assessment of consent is crucial for the determination of the existence of occupation and has furthermore been included in definitions of occupation, such as, for example, the one provided by Eyal Benvenisti.418 Interim Conclusion: Lessons to be Learned from the Law of Occupation for un Territorial Administration? As we have demonstrated above, the question of the applicability of the law of occupation to un Territorial Administration is a question of fact. In other words, if the definition of occupation is in fact met, then the law of occupation will apply to un Territorial Administration. The condition of an absence of consent is however often problematic in relation to un Territorial Administration. Indeed, given that un Territorial Administration is usually based on the consent of the state concerned, the application de jure of the law of occupation will often be barred.419 In addition, the un has up until now never c­ onsidered 3.4

418 419

418 In this regard see the definition of occupation provided by Eyal Benvenisti, op. cit. note 3, p. 3 which clearly stated that for there to be occupation effective control should be asserted “without the volition of the sovereign of that territory”. 419 Multinational peace operations expert meeting, op. cit. note 344, p. 16.

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itself to be an occupier.420 There is also little state practice in this regard, ­except for the above-mentioned position of Australia. But even if the law of occupation would not apply de jure, most do agree that occupation law can provide some guidelines and could thus be applied by analogy to un ­Territorial Administration.421 As was stated in the report following the 31st International Conference of the Red Cross and Red Crescent concerning current challenges: In these situation, ihl might provide practical solutions to many of the problems that arise and could inform the policies undertaken by the international administration. It would thus appear that the applicability of ihl to internationally administered territories needs to be still more precisely delineated in light of the specific nature and objectives of such operations.422 According to Marten Zwanenburg, a relatively important part of the law of occupation would indeed be relevant to peace operations.423 Even if we tend to agree with this statement, we would like to nuance and divide the importance of the provisions of the law of occupation in case of application by analogy424 into two categories. We indeed believe that the main relevance lies in the provisions concerning the administration of territory.425 Indeed the law of ­occupation might offer some guidance on how to deal with a certain ­number of 420 421 422 423 424 425

420 Marten Zwanenburg, “Substantial relevance of the law of occupation for peace operations”, in Gian Luca Beruto (ed.), International Humanitarian Law, Human Rights and Peace Operations, Proceedings of the 31st Round Table on Current Problems of International Humanitarian Law, Sanremo, 4–6 September 2008, p. 160. See also Dapha Shraga, op. cit. note 338, p. 70. 421 Yoram Dinstein, “Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding”, hpcr Occasional Paper Series, Fall 2004, p. 2; Michael J. Kelly, Timothy L.H. McCormack, Paul Muggleton and Bruce M. Oswald, op. cit. note 399, p. 115; Sylvain Vité, op. cit. note 402, p. 29; E. De Brabandere, op. cit. note 160, p. 126; Robert Kolb and Sylvain Vité, op. cit. note 14, p. 55; Ivan Ingravallo, op. cit. note 372, p. 394. 422 2011 Challenges report, op. cit. note 322, p. 29. 423 In this respect, he gives a thorough overview of which precise articles could be useful in a peace operations context. See Marten Zwanenburg, op. cit. note 420, pp. 157–167. See also the detailed assessment of the useful provisions provided by Michael J. Kelly, op. cit. note 408, pp. 183–216. 424 Indeed, in case of de jure application, the question of which norms should be applied is not raised because then the whole body of rules would become automatically applicable. 425 In this regard see, for example, Ivan Ingravallo, op. cit. note 372, p. 394, arguing that “the detailed nature and their universal acceptance [of the law of occupation] are useful in order to solve practiccal matters that can emerge in the day-to-day administration activity”.

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‘governance’ issues.426 It might also provide an adequate framework for maintaining public order and civil life.427 The provisions concerning the protection of persons on the other hand, can also be of relevance, but to a lesser extent, since they have to be balanced against international human rights norms, which are also binding on un troops.428 In this regard, detention has especially been advanced as an area in need of clearer guidelines in the context of peace operations, since un forces are increasingly involved in the detention of individuals.429 Such clarification is especially needed in situations where un forces have effective control over territory and people.430 Very concretely, in the case of un Territorial Administration, persons suspected of serious crimes against local laws could be held in administrative detention (for imperative reasons of security) while awaiting the development of competent local institutions.431 The law of occupation could provide these needed guidelines, especially at the beginning of the operation where urgent, directly applicable legislation is needed, while awaiting the regulation of certain areas, which like the administration of justice, cannot be put in place from one day to the other.432 The usefulness of precisely the above-mentioned provisions, whether applicable de jure or applied de facto, in the case of un Territorial Administration has moreover been confirmed in practice by the Australian Defence Forces (adf) when they applied the law of occupation de jure to their participation within the framework of unosom and de facto within the framework of untaet. In both cases, the legal framework seemed to provide a solution to many of the legal issues raised.433 In East Timor the Australian contingent drew extensively 426 427 428 429 430 431 432 433

426 Steven Ratner, op. cit. note 370, p. 171. 427 Sylvain Vité, op. cit. note 402, p. 29, Marco Sassoli, op. cit. note 357, p. 21. 428 Even if there are certain more specific protection of population rules contained in the law of occupation (such as the protection of property) which could be applied by analogy, but overall they will benefit from better protection under human rights law. See Steven R. Ratner, op. cit. note 405, p. 101. 429 2012 Challenges Report, op. cit. note 322, p. 32.; Michael J. Kelly, op. cit. note 408, p. 236. 430 Multinational peace operations expert meeting, op. cit. note 344, p. 16. See also Marten Zwanenburg, op. cit. note 420, p. 162; Steven Ratner, op. cit. note 370, p. 171; Marco Sassoli, op. cit. note 357, p. 22. 431 Marco Sassoli, op. cit. note 357, p. 1. 432 For a more detailed analysis of the way the law of occupation would be useful for detention in peace operations see Bruce ‘Ossie’ Oswald, “The Law of Military Occupation: Answering the Challenges during Contemporary Peace Operations?” Melbourne Journal of International law, Vol. 8, 2007, pp. 311–326. 433 Michael J. Kelly, Timothy L.H. McCormack, Paul Muggleton and Bruce M. Oswald, op. cit. note 399, p. 115.

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on the law of occupation as a guideline, especially for the establishment of an interim justice system and a detention management unit.434 Also in Somalia, the adf has applied the law of occupation to good effect.435 There, the law of occupation has especially proven to be useful with regard to detention, due process, the applicable criminal laws and procedure, the relationship with the civil community, the handling of major ihl violations and the reconstruction of the law and justice administration.436 Even if, as demonstrated above, the law of occupation can effectively address some of the legal issues which arise during un Territorial Administration, it is important to keep the specificities of the latter in mind when applying the legal regime by analogy.437 We should not only take the specific purpose of un Territorial Administration into account,438 but also the other legal sources regulating un Territorial Administration, namely the sofa, i.e. the agreement with the host state, and the unsc resolution authorizing and regulating the mission in question.439 If the rules concerning the relationship between the occupying power and the civilian population can play an important role in regulating the relationship between the un troops and that said population, it is important also to look at the agreement with the host state, which might also contain rules in this regard. The unsc mandate might provide the necessary derogations from the rules of the law of occupation, precisely to allow for the transformations that are usually at the heart of un Territorial Administration missions.440 Additionally, it has also been generally accepted that international human rights law is applicable to such missions.441 The application 434 435 436 437 438 439 440 441

434 Michael J. Kelly, op. cit., note 408 p. 242 and p. 246. 435 Michael J. Kelly, Timothy L.H. McCormack, Paul Muggleton and Bruce M. Oswald, op. cit. note 399, p. 115. 436 Michael J. Kelly, op. cit. note 408, p. 236. 437 Yoram Dinstein, op. cit. note, 421 p. 2. See also Tristan Ferraro, op. cit. note 364, p. 149. 438 Marco Sassoli, op. cit. note 357, p. 1. 439 Tobias H. Irmsher, op. cit. note 331, p. 376. 440 For a more detailed analysis of the capacity of the unsc to ‘modulate’ the law of occupation and allow transformations if needed see infra Part 2, Chapter 3. 441 Yutaka Arai-Takahashi, op. cit. note 220, p. 604; Tobias H. Irmsher, op. cit. note 331, p. 366; Sylvain Vité, op. cit. note 402, p. 32. For an application in practice see for example the unmik regulations on the authority of the interim administration in Kosovo stating that “In exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards (…)”; Section 2, unmik Regulation No. 1999/1 on the Authority of the Interim Administration in Kosovo, 25 July 1999. The Regulations on the authority of the Transitional Administration in East Timor further specified which specific human rights standards should, in

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of the law of occupation thus needs to be articulated also with the applicable human rights regime.442 As Yutaka Arai-Takashi so rightfully argued: “As with many other issues of occupation, it is through the synergy of the two bodies of law that one can construct a coherent and effective legal framework of the un administered territory”.443 Finally, also the fact that the un would not be able to be bound in the same way as States should be taken into account.444 Not everyone however subscribes with enthusiasm to the idea that applying the law of occupation by analogy to un Territorial Administration would provide important benefits, even when taking into account the above-­mentioned limits. Steven S. Ratner, for example, has stated that: “a pick-and-choose approach to the [law of occupation] may undermine its coherence and suggest that certain aspects are more important than others”.445 Another possible drawback highlighted by Sylvain Vité is the divergence in application depending on the will of the national contingent engaged on the field since – given the fact that these rules are not legally binding – everyone would be able to decide which rules they want to use or not.446 Consequently this could lead to legal uncertainty.447 The main disadvantage of an application by analogy is indeed that it depends on the goodwill of the international administration and that different contingents may have different practices in this respect.448 Consequently, some have argued for the need to establish clear rules regulating un Territorial Administration. David J. Scheffer indeed stated that such missions “require a far more pragmatic body of rules and procedures than occupation law can afford” and that the law of occupation “should be returned to the box it came from”.449 The need for such a clear legal framework has moreover been highlighted in practice. Indeed, as Carsten Stahn so strongly demonstrated: “The harsh divergence between theory and practice in the case of Somalia revealed very clearly the lack of a unified legal framework for the exercise of 442 443 444 445 446 447 448 449

442 443 444 445 446 447 448 449

­ articular, be observed, namely: the udhr, the iccpr, the icescr, icerd, the cedaw, p the cat and the crc; Section 2, untaet Regulation No. 1991/1 on the Authority of the Transitional Administration in East Timor, 27 November 1999. Robert Kolb, Gabriele Porretto and Sylvain Vité, op. cit. note 331, p. 231. Yutaka Arai-Takahashi, op. cit. note 220, p. 607. Erika de Wet, op. cit. note 326, p. 323. Steven R. Ratner, op. cit. note 405, p. 101. Sylvain Vité, op. cit. note 402, p. 30. Ibid., p. 30. Marco Sassoli, op. cit. note 357, p. 128. David J. Scheffer, “Beyond Occupation Law”, The American Journal of International Law, Vol. 97, No 4, Octobre 2003, p. 859.

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public authority and regulatory functions by un missions”.450 I would agree with the need for the development of such a legal framework, however, as long as no such specific framework for reconstruction and law reform in an un context exists, the law of occupation can provide the much needed guidelines in order to fill in the gaps and remedy the legal uncertainties caused in the framework of such missions. I believe that this was successfully proven by the adf when they applied the law of occupation de jure to their participation in the un presence in Somalia and de facto with the framework of the un mission in East Timor. I would like to emphasise, however, that this conclusion does not affect my belief that the law of occupation can be applicable de jure when the conditions for occupation, including a lack of consent, are factually met. The law of occupation would apply in such cases regardless of whether a specific legal framework regulating un Territorial Administration would exist or not. The specific question would then be a question of the co-applicability and ­hierarchy of different sets of norms. 450

450 Carsten Stahn, op. cit. note 324, p. 264.

chapter 2

Current Challenges to the Law of Occupation (…) les situations d’occupation se diversifient et les conditions d’application du droit de l’occupation s’estompent et deviennent incertaines.1 robert kolb and sylvain vité, 2009

∵ The recent examples of occupation have raised a whole set of new legal questions.2 Indeed contemporary forms of occupation seem to have strongly moved away from the traditional model of occupation. As we have highlighted in the previous chapter, there are three basic tenets underlying the law of occupation: (1) occupation does not transfer sovereignty; (2) occupation cannot, in principle, bring about any changes to the occupied territory; and (3) occupation is essentially a short-term phenomenon. The contemporary forms of ­occupation are challenging all of these basic tenets. These new forms of occupation thus challenge the law of occupation at its core. Hence the question has arisen whether the existing law is still suitable to address these new situations of occupation and whether it should be changed to better suit these contemporary forms. In addition, the occupying powers have consistently ignored the law of occupation,3 which has made it lose part of its legitimacy.4 1 Robert Kolb and Sylvain Vité, Le droit de l’occupation militaire. Perspectives historiques et enjeux juridiques actuels, Brussels, Bruylant, 2009, p. 43. [the situations of occupation are becoming more diverse and the conditions for the application of the law of occupation are becomimg blurred and uncertain]. 2 Tristan Ferraro, “Determining the beginning beginning and end of an occupation under international humanitarian law”, International Review of the Red Cross, Vol. 94, n°885, Spring 2012, p. 133. 3 This problem is highlighted in Part i, Chap. i of this thesis. See footnote 58 and the accompanying text. 4 Major Breven C. Parsons, “Moving the law of occupation into the twenty-first century”, Naval Law Review, lvii, 2009, p. 2; Nehal Bhuta, “The Antinomies of Transformative Occupation”, The European Journal of International Law, Vol. 16, No 4, 2005, p. 735. See also Davis

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Some of the challenges confronting the law of occupation, namely the question concerning the beginning and the end of occupation as well as the inapplicability of the regime to un Territorial Administration based on consent, have already been addressed in the previous chapter.5 These challenges c­ oncerned more specifically the applicability of the legal framework under ihl itself. In this chapter, we will focus on the challenges specifically affecting the basic principles on which the law rests. It will be organized in two main parts. First, we will show that, law being a product of its time, the law of occupation is being challenged by the transformation of society and the international arena in general. Second, we will focus on two specific forms of contemporary occupation, namely long-term and ‘transformative’ occupation, and highlight which specific challenges arise in such contexts. The ultimate aim of this chapter is to highlight the specific problems that need remedying in order to prepare the way for the second part of this research, which will focus on finding solutions to these challenges. P. ­Goodman, “The Need for Fundamental Change in the Law of Belligerent Occupation”, Stanford Law Review, Vol. 37, No 6, July 1985, p. 1596: “International law has recognized this reality of repeated violations of the law of war and of belligerent occupation but it has not attempted to deal with this reality”. We would, however like to agree here with Christopher Greenwood, International Humanitarian Law (laws of war), Revised report for the Centennial Commemoration of the First Hage Peace Conference 1899, in Frits Kalshoven (ed.), The Centennial of the First International Peace Conference: reports and conclusions, The Hague, Kluwer, 2000, p. 215: the problem is not to be found in the deficiency of the law iself but in the refusal of States to actually apply the law. 5 Both of these questions were also highlighted by the icrc as being important challenges concerning the law of occupation. See Report prepared by the International Committe of the Red Cross, International Humanitarian Law and the challenges of contemporary armed Conflicts, 31st International Conference of the Red Cross and Red Crescent (28 November–1 December 2011, Geneva, Switzerland), Geneva, October 2011, pp. 26–27 and 29 respectively [hereafter icrc Challenges Report]. See also Proceedings of the Bruges Colloquium, Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006 and Expert Meeting, Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by Tristan Ferraro, Legal Advisor, icrc, March 2012, pp. 16–32 and 33–35 respectively [hereafter Expert Meeting]. See also Maria-Daniella Marouda, “Application of International Humanitarian Law in contemporary armed conflicts: is is ‘simply’ a question of facts?”, in Stelios Perrakis and Maria-Daniella Marouda (eds.), “Armed Conflicts and International Humanitarian Law: 150 Years after Solferino. Acquies and prospects”, Brussels, Bruylant, 2009, p. 207, who similarly identifies these two issues as being important challenges with regard to the law of occupation nowadays. She further also explicitly refers to prolonged occupations as a major challenge for the law of occupation stating that “this is a reality that needs to be reflected in the law”.

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Challenges Induced by the Changing Social and International Environment

As Odile Debassch effectively indicated already in 1962: “La notion d’occupation militaire se trouve aujourd’hui dans la même situation que bien d’autres concepts du droit international. Elle s’est forgée en fonction de circonstances qui ne sont plus aujourd’hui toutes reunies”.6 Even when faced with a ‘text book’ example of occupation, it already constitutes an exceptional situation disrupting the normal order of things. Indeed, occupation generates a situation in which the effective control over a particular territory is exercised by a power other than the one holding sovereign title over it. This leads to a situation where there is a dichotomy between effective control and title whereas both are normally concentrated in the hands of the legitimate sovereign authority. Consequently, occupation generates the need to balance the conflicting interests arising out of this dichotomy between (factual) control and title. It generates a delicate balance between the interests of the occupying power on the one hand and those of the legitimate sovereign and increasingly the occupied population on the other. The law of occupation thus delimits the powers of the occupying power, while keeping these conflicting interests in mind. The world has however strongly evolved since the beginning of the 20th century when the law of occupation was drafted. It is nowadays much more difficult to delimitate the occupants powers than it was back then and this for a certain number of reasons. First, whereas there was only minimal governmental intervention in the lives of the population when the law of occupation was first established, this is no longer the case today.7 The ‘laissez-faire’ conception of the state prevailing at that time allowed the powers of the occupant to be confined within strict ­limits.8 Economic and social life being a private matter, completely outside of the concern of the state, it was also not a concern for the law of occupation.9 With the shift from the liberal state towards the welfare state and the 6 Odile Debassch, L’occupation Militaire. Pouvoirs recconnus aux forces armées hors de leur territoire national, Paris, Pichon et Durand-Auzias, 1962, p. 1 [the notion of military occupation finds itself today in the same situation as many other concepts of international law. It was developped under circumstances, which are no longer all met today]. 7 Eyal Benvenisti, The International Law of Occupation, 2nd edition, Oxford, Oxford University Press, 2012, p. 6. 8 Robert Kolb and Sylvain Vité, op. cit. note 1, p. 27. On the laissez-faire concept of governement see also Major Breven C. Parsons, op. cit. note 4, p. 9; Benvenisti, op. cit. note 7, p. 27. 9 Benvenisti, op. cit. note 7, p. 27. There was indeed a clear separtion between the governement and the society; see Davis P. Goodman, op. cit. note 4, p. 1591.

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­subsequent blurring of the separation between public and private life, the areas under the responsibility of the state increased.10 Since occupation creates a situation in which the occupant has, at least to a certain extent, displaced the pre-existing governmental apparatus, the occupant inherits the responsibilities to see to the welfare of the population which is normally incumbent upon the sovereign government, at least to the extent possible under the circumstances.11 An increase in governmental responsibilities thus, in turn, also increases the responsibilities that the occupant inherits from the displaced government for the duration of the occupation.12 In a certain way, occupation also progressively had to adapt to the modern notion of governance.13 In addition, this has also made the interpretation of certain provisions more complicated. A good illustration of this is provided by the distinction between public and private property, important with regard to the law of occupation, and which is much more difficult to apply in the modern governance era.14 This increase in governmental competences made it overall more difficult to precisely delimitate the powers of the occupant and the risk of abuses increased with the increase in powers potentially to be assumed by the occupant. With the evolution of the law of occupation, and notably the adoption of the Fourth Geneva Convention, “the scale began to tip to the side of the inhabitants”.15 However even the Fourth Geneva Convention had not anticipated the extent of the ­increase in 10 11 12

13 14 15

Robert Kolb and Sylvain Vité, op. cit. note 1, p. 33. Michael Bothe, “Effective Control: A situation triggering the application of the law of belligerent occupation”, in Expert Meeting, op. cit. note 5, p. 36. This is for example extremely relevant for the definition of the term ‘l’ordre et la vie publique’ used in Article 43 of the Hague Regulations and it plays an important role in the delimitation of the powers confered upon the occupying power. The Israeli Supreme Court has held in this respect that the term ‘public life’ includes conducting proper administration in all the branches accepted nowadays in a well-functioning country and that ‘proper administration’ cannot be judged based on the laissez-faire concept of government that prevailed when the Hague Regulations were adopted and one had to refer to those which were suitable for a modern and civlized state at the end of the 20th century. See David Kretzmer, “The law of belligerent occupation in the Supreme Court of Israel”, International Review of the Red Cross, Vol. 94, n°885, Spring 2012, p. 219. Major Breven C. Parsons, op. cit. note 4, p. 9. Christopher Greenwood, op. cit. note 4, p. 220. Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli “The Illegality of the Occupation regime: The Fabric of Law in the Occupied Palestinian Territory”, in Adi Ophir, Michal Givoni and Sara Hanafi (eds.), The Power of Inclusive Exclusion: Anatomy of the Israeli Rule in the opt, New York, Zone Books, 2009, p. 41.

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the factual powers of the occupant16 and did not fundamentally alter the law’s traditional focus.17 As was correctly summarized by Major Breven C. Parsons: “Despite the Fourth Geneva Convention of 1949 and the Additional Protocols’ contribution to the law of occupation, the law remained out of touch with the reality of occupation on the ground”.18 In addition, it became increasingly clear over the years that States tend to interpret the law of occupation in a selfserving way and attempt to reduce as far as possible the constraints on their powers.19 They increasingly use the flaws in the law of occupation that became apparent over time to try to evade their responsibilities.20 Second, the concept of sovereignty in itself has also evolved. Whereas the classical notion of sovereignty resolutely meant state sovereignty and had a territorial connotation, the subject of modern sovereignty is increasingly the people.21 Given the important link between sovereignty and occupation, this shift also has some repercussions for the regulation of occupation. Initially, occupation was a matter of inter-state relations (as was war in general at that time) regulated by a law tasked with protecting the sovereignty of the state concerned and more generally the global territorial order. With sovereignty being increasingly vested in the people under current international law, and in line with the principle of self-determination, the law became increasingly concerned with protecting the rights of the occupied population.22 In addition, the interests of the state no longer necessarily coincide with those of the nation, i.e. ultimately those of the people,23 adding another layer to the 16 17

18 19 20 21 22

23

Robert Kolb and Sylvain Vité, op. cit. note 1, p. 43. See also Nehal Bhuta, op. cit. note 4, p. 734. Even though the elements on which the law of occupation was traditionaly based became increasingly blurred (i.e. the separation between the governement and the people, between public and private property and between the occupying power and the sovereign authority), the Geneva Conventions only addressed the lack of protection of the civilian population; see Davis P. Goodman, op. cit. note 4, p. 1579. Major Breven C. Parsons, op. cit. note 4, p. 13. Expert Meeting, op. cit. note 5, p. 7. Ibid., p. 7. Samantha Besson, “Sovereignty”, Max Planck Encyclopedia of Public International Law, last modified April 2011, §153. Orna Ben-Naftali, “Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism”, in Antonio Cassese (ed.), Realizing Utopia: the Future of International Law, Oxford, Oxford University Press, 2012, p. 540. Randall Lesaffer and Rianne Letschert, “The Global Challenges to Public International Law: Some First Thoughts”, Tilburg Law Review, Vol. 17, 2012, p. 259.

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a­ lready difficult balancing act between the different interests present during a situation of occupation. This evolution is clearly reflected by the adoption of the Fourth Geneva Convention in 1949, which is no longer so much concerned with the rights of the sovereign but specifically aims to protect the welfare and security of the occupied population.24 The occupied territory is no longer solely administered in the interest of the displaced sovereign but also, and one might argue even to a greater extent, in the interest of the occupied population. One could conclude by stating that self-determination changed the way the occupying powers should govern occupied territories,25 and some have even argued that the advent of the right of self-determination is the change that has impacted the law of occupation the most.26 Indeed, whereas the concept of self-determination was not significant at the time of the conclusion of the Hague Regulations and the Geneva Conventions, it became one of the most robust principles of international law thereafter.27 Hence the question of how the principle of self-determination should be accommodated in an occupation context.28 Some even wondered whether the right to self-determination would not invalidate occupation tout court. Youngjing Jung argues that: [i]n theory, the principle of self-determination immediately makes any belligerent occupation illegal, because occupation is inevitable against the will of the people in the occupied territory. Considering that the right to self-determination is a peremptory norm of international law, the illegality of the very existence of belligerent occupation seems more plausible. The jus cogens character of the principle of self-determination would disallow every situation that is in violation of the principle. It may be said that belligerent occupation, which violates the core value of people’s right to self-determination is simply not permitted. This theoretical

24

25 26

27 28

Martti Koskenniemi, “Occupation and Sovereignty – Still a Useful Distinction?”, in Ola Enghdahl and Pal Wrange, Law at War: The Law as it Was and the Law as it Should Be. Liber Amicorum Ove Bring, Leiden, Martinus Nijhoff Publishers, 2008, p. 166. Major Breven C. Parsons, op. cit. note 4, p. 3. Ibid., p. 19. See also Matthew Saul, “The Impact of the Legal Right of Self-Determination on the Law of Occupation as a Framework for Post-Conflict State Reconstruction”, in Noëlle Quénivet and Shilan Shah-Davis, International Law and Armed Conflict: Challenges in the 21st Century, The Hague, T.M.C. Asser Press, 2010, p. 399. Younghjin Jung, “In Pursuit of Reconstructing Iraq: Does Self-Determination Matter?”, Denver Journal of International Law & Policy, Vol. 33, 2004–2005, p. 393. Ibid., p. 393.

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­ rohibition, however, does not deprive the Hague and Geneva Convenp tions of their raison d’être.29 In his opinion the peremptory right to self-determination would invalidate a situation of occupation. He nevertheless seems to admit that this will somehow not affect the applicability of the law of occupation. Even if this last ­nuance is important, I still believe that his position is too radical: the fact that occupation limits the right to self-determination does not necessarily lead to the conclusion that it is illegal in this regard. I would be more in favour of a more nuanced approach like the one provided by Eyal Benvenisti and Guy Keinan for example who, while recognizing that occupation definitely constitutes a limitation to the right of self-determination (just as it constitutes a limitation to the sovereignty of the occupied state30) affirm that “not every limitation of the right to self-determination is an impermissible infringement of a jus cogens right”.31 Regardless of the specific question of whether the concept of self-determination renders occupation illegal as such, it is in any case clear, that it has an important impact on the way the law of occupation should be interpreted nowadays. Indeed, it is no longer a question of balancing the (military and security) interests of the occupying power off with the rights of the legitimate sovereign but self-determination becomes in itself a part of the equation. To this extent, it can serve both as a way of further justifying change as well as a limit om the occupying power’s authority.32 29 30

31

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Younghjin Jung, op. cit. note 27, p. 405 As Batram S. Brown, “Intervention, Self-Determination, Democracy and the Residual Responsibilities of the Occupying Power in Iraq”, uc Davis Journal of International Law & Policy, Vol. 11, 2004–2005, p. 40 has established: “self-determination (…) is very much the human rights counterpart of the rights of sovereignty and territorial integrity held by the States in which those peoples live”. Eyal Benvenisti and Guy Keinan, “The Occupation of Iraq: A Reassessment”, International Law Studies Services us Naval War College, Vol. 86, 2010, p. 276. In this regard see also Alain Pellet, “The Destruction of Troy will not Take Place”, in Emma Playfair (ed.), International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and the Gaza Strip, Oxford, Clarendon Press, 1992, p. 187: “Nothwitstanding the incomptability of occupation with the principles of peoples’ right to s­ elf-determination (…), the occupying power does have rights; but their exercise is controled by the rules of international humantarian law, which operate a balance between the demands of humanity and the necessities of war, the principle of respect for the sovereign rights of the occupied people constituting the criterion of the rights of the parties in both respects”. Matthew Saul, op. cit. note 26, respectively pp. 399 and 404.

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To conclude, the 19th century on which the original law of occupation was based no longer exists.33 Some of the current inadequacies are precisely to be found there. Contemporary occupations are increasingly characterized by tensions between the occupants and the local populations and by changes in the role played by the occupying power in the administration of the occupying territory, often going even as far as a fully-fledged exercise of foreign authority.34 Consequently, there is a need to adapt the legal situation to the exigencies of modern times. 2

Specific Challenges Generated by Contemporary Forms of Occupation

Two contemporary forms of occupation are specifically challenging the traditional conception of occupation, namely: long-term occupation and ‘transformative’ occupation. In this section, we will briefly discuss both forms of ­occupation and will demonstrate to what extent they challenge the traditional conception of occupation and which specific legal questions they generate. 2.1 Long-Term Occupation Occupation is essentially a short-term phenomenon based on the predominant assumption of temporary control pending a peace settlement or any other form of bringing the conflict to an end.35 Since it disrupts the normal order of things, creating a distinction between effective control and sovereign title, it has been construed to be of a short-term duration and the law advocates a quick return to normality.36 Irrespective of the short-term character being one of its essential features, the law of occupation has however placed no time limit on the duration of occupation.37 The law seems to allow the occupying power to exercise its authority over the occupied territory “for as long as it deems 33 34 35

36 37

Expert Meeting, op. cit. note 5, p. 4. Ibid., p. 4. Malcolm N. Shaw, “Territorial Administration by Non-Territorial Sovereigns” in Yuval Shany and Tomer Broude, The Shifting Allocation of Authority in International Law. Considering Sovereignty, Supremacy and Subsidiarity, Hart Publishing, 2008, p. 381. Concerning the inherent temporary nature of belligerent occupation see for example hcj, Beit Sourik Village Council v. The Government of Israel and the Commander of the idf Forces in the West Bank, Case n°2056/04, 30 June 2004, §27 [hereafter the Beit Sourik Village Council Case]. Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 15, p. 31. Orna Ben-Naftali, op. cit. note 22, p. 548; Vaios Koutroulis, “The application of International humanitarian law and international human rights law in situation of prolonged

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necessary to secure its military interests and impose its terms of peace upon the enemy”.38 An enduring occupation nevertheless creates important legal difficulties. It is also far from being a theoretical question since some contemporary occupations, such as the occupation of the Palestinian Territories and the occupation of Northern Cyprus, have been ongoing for decades,39 thereby strongly challenging the underlying short-term nature of occupation. Consequently, we have to address the question of how to reconcile the assumption that occupation is temporary with these realities of long-term occupation.40 2.1.1 Issues Raised by Long-Term Occupation The longer the occupation lasts, the more shortcomings the law of occupation tends to reveal. Indeed, the application of the relevant principles becomes more difficult the longer the occupation lasts precisely because the law had never foreseen the possibility of an enduring occupation.41 As the Israeli Supreme Court already stated in 1971 in its first published decision dealing with the Occupied Palestinian Territories, only four years into the occupation (we are now approaching 50 years of the West Bank’s occupation): The needs of the civilian population become more valid and tangible when the occupation is drawn out: the economic and social situation changes, and it is impossible to freeze the laws in force without taking into account the evolution of time.42 Long-term occupation does not only call into question the short-term character of occupation but is also difficult to reconcile with the two other main tenets of the law of occupation: the obligation to maintain the status quo ante and the non-transfer of sovereignty.

38 39 40

41 42

occupation: only a matter of time?”, International Review of the Red Cross, Vol. 94, n°885, Spring 2012, p. 166. See also Expert Meeting, op. cit. note 5, p. 55. See also Expert Meeting, op. cit. note 5, p. 55. The Palestinian Territories have been occupied since 1967 (so almost 50 years) and Northern Cyprus since 1974 – see Eyal Benvenisti, op. cit. note 7, p. 203 and p. 191 respectively. Daniel Thürer, “Current Challenges to the Law of Occupation”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 23. See also Expert Meeting, op. cit. note 5, p. 55. Malcolm N. Shaw, op. cit. note 35, p. 381. hcj, Christian Society for the Holy Places v. Minister of Defence, Case n°337/71, 1971 as refered to by Yoram Dinstein, “The International Law of Belligerent Occupation and Human Rights”, Israel Yearbook on Human rights, Vol. 8, 1978, p. 112.

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That the persistence of an occupation will impact on the obligation to maintain the status quo ante, which is in se strongly linked to the short-term character of occupation, seems quite straightforward. Indeed, it seems difficult to justify not making any changes to the occupied territory, when the latter has been occupied for decades, since this will risk leaving the occupied territory worse off. Undeniably, maintaining the status quo ante in a long-term occupation would result in the stagnation of the political, social, cultural and economical aspects of life, which would be highly detrimental to the occupied population.43 This has very concrete and practical consequences. As Hans-­ Peter Gasser so rightfully stated: Roads must not only be repaired but new roads must be built. Economic growth requires investments in long term projects. Administrative and legal measures must be taken for promoting new activities and creating jobs. And in the domain of social security, new measures must be taken which grant inhabitants of occupied territories comparable protection to that in other countries.44 More indirectly, perhaps, a prolonged occupation is also difficult to square with the fact that occupation does not transfer sovereignty. Some have indeed argued with regard to, for example, the Occupied Palestinian Territories that the enduring occupation actually amounted to de facto annexation.45 Even if we are not going so far as to argue that the situation in the Occupied Palestinian Territories amounts to de facto annexation (or at least not yet), it creates in any case a special situation, in which Israel is both a sovereign and an occupant in the West Bank. Indeed, Israel acts as a sovereign with regard to the Israeli citizens in the settlements by extending its laws to them on a personal and a mixed personal/territorial basis, while it acts as an occupying power 43 44 45

Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 15, p. 43; Eyal Benvenisti, op. cit. note 7, p. 246. See also Expert Meeting, op. cit. note 5, p. 72. Hans-Peter Gasser, “Notes on the law of Belligerent Occupation”, Military law and the law of War Review, Vol. 45, 2006, p. 235. See for example Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 15, p. 58. Concerning the claim of de facto annexation with regard to the opt, see also International Court of Justice (icj), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004 [hereafter Wall Opinion]: “the Court considers that the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation”.

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­towards the Palestinian population.46 Next to creating an illegal situation,47 such a dichotomy within an occupied territory was also something that had not been foreseen by the law of occupation. Consequently, it raises difficult legal questions given that it generates a situation somewhere in between effective control and sovereignty and leads to the blurring of the different regimes. In addition, other issues which had not been foreseen by the law of occupation, such as the potential sharing of responsibilities, also arise. This in turn creates grey areas also with regard to state responsibility. To illustrate this point, the following question arises who will be ultimately responsible for the actions of the Palestinian forces free from Israeli control? 2.1.2 Long-Term Occupation: A Situation Justifying More Leeway? As was pointed out above, not making any changes to the occupied territory could leave that territory, and ultimately its population, worse off in the longer term. It is important to recall that the conservationist principle is not absolute and consequently does not mean that everything should be completely frozen during occupation. Indeed, the obligation to restore and maintain public order and civil life as inscribed in Article 43 of the Hague Regulations could require the occupant to make certain changes to the territory or bring about certain reforms.48 This power is however not without its limits. The question that arises is whether prolonged occupation would justify more leeway. This question concerning the precise extent of the powers of the occupant will be analysed more in detail in Part ii, Chapter 1 of this research but we will already provide some elements here that are of particular relevance to the question of the challenges raised by long-term occupation. It is first of all important to mention that from a strictly legal point of view, no distinction is made between short-term and long-term occupation.49 Even though some have attempted to formulate a working definition of prolonged occupation,50 there is no legal definition, and hence also no fixed time limit 46 47 48 49 50

Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, op. cit. note 15, pp. 65–66. According to Article 49 gc iv, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. Expert Meeting, op. cit. note 5, p. 68. Vaios Koutroulis, op. cit. note 37, p. 168. See for example the definition formulated by Adam Roberts for the purpose of his article defining prolonged military occupation as “an occupation that lastst more than 5 years and extends into a period when hostilities are sharply reduded – i.e., a period at least approximating peacetime”; Adam Roberts, “Prolonged Military Occupation: the IsraeliOccupied Territoires since 1967”, American Journal of International law, Vol. 84, January 1990, p. 47. Importanly, he makes it very clear that it concerns a working definition for his

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from when onwards, an occupation would legally qualify as having become prolonged.51 Consequently, there are also no specific rules dealing with long-term occupation and we thus need to apply the general rules. The fact that there is no legal distinction between short-term and long-term occupation does not however mean that duration has absolutely no effect on the application of the law.52 The occupation of the West Bank53 by Israel for almost 50 years provides a significant contribution to the practice of international law since a military administration of such long duration is extremely exceptional.54 The main question here is whether the mere fact that the occupation lingers on confers more power upon the occupant than would be the case in a short-term occupation.55 One thing seems to be clear, however, the prolonged duration of the occupation does not alter the applicable rules as such. As Judge Elaraby so rightfully pointed out in a separate opinion to the icj’s Wall Opinion: “A prolonged occupation strains and stretches the applicable rules, however the law of belligerent occupation must be fully respected regardless of the duration of the occupation”.56

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article and that providing a precise definition of prolonged occupation “is likely to be a pointless quest”. The only form of temporal indication comes from Article 6(3) gciv but we have argued above that since the adoption of Article 3 api, Article 6 gciv has become obsolete. For a more detailed reflexion on this question see Part i, Chapter ii, Section 2.3. However, in the framework of specifically the issue of prolonged occupation as is exposed here, it is worth repeating that continuing to adhere to the logic of Article 6 (3) gciv would imply that fewer rules would be applicable during prolonged occupation. This cannot be the purpose underlying this article precisely since we are demonstrating here that people under prolonged occupation need more protection and certainly not less. In this regard see also Adam Roberts, op. cit. note 50, p. 95. Vaios Koutroulis, op. cit. note 37, p. 170. We would like to recall here that we believe that the Gaza strip is no longer occupied since the 2005 disengagement (see Box  1: Effective control and Gaza post-disengagement in Part i, Chap. ii). Most interestingly, the importance of the occupation of the Palestinian Territories as well as the exceptional character of such a prolonged occupation to the practice of international law was already pointed out in 1978, only 11 years into the occupation. See Moshe Drori, “The legal system in Judea and Samaria: a review of the previous decade with a glance at the future”, Israel Yearbook on Human Rights, vol. 8, 1978, p. 174. Eyal Benvenisti, op. cit. note 7, p. 246. International Court of Justice (icj), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, Separate opinion of Judge Elaraby, p. 255.

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The rules, including the obligation to maintain the status quo ante, have to be maintained while at the same time some flexibility should be allowed in the interpretation of these rules. In this sense, it is generally admitted that prolonged occupation allows the occupying power to introduce some changes of a more permanent nature.57 There is however a difference between maintenance and development, on the one hand, and transformation on the other.58 The difficulty precisely lies in the specific delimitation of these powers,59 as there is a fine line between more leeway and an extension of power tout court. As the Israeli Supreme Court so clearly stated in the Beit Sourik Village Council case with regard to the occupation of the West Bank: True, the belligerent occupation of the area has gone on for many years. This affects the scope of the military commander’s authority (…). The passage of time, however, cannot extend the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation.60 In the administration of the occupied territory, the occupying power needs to balance the security needs of the occupying army, on the one hand, with the interests of the local inhabitants on the other. In a long-term occupation, the balance needs to shift more towards the welfare of the local population.61 In this regard reference is especially made to the ‘changing needs of the population’ which is a problem that is strongly linked to the passage of time.62 In such occupations, the scope of the powers should thus be expanded in the interest of the local population.63 The welfare of the population becomes important both as a restraint on the actions of the occupant but also as a drive for ensuring that the occupied territory does not remain underdeveloped.64 The latter is however not without risks. Indeed the benefit of the local population can also be used as an excuse for the occupant to pursue its own agenda. Different elements have been advanced in order to mitigate this potential risk. The most 57 58 59

60 61 62 63 64

Vaios Koutroulis, op. cit. note 37, p. 177. See also Expert Meeting, op. cit. note 5, p. 72. Expert Meeting, op. cit. note 5, p. 75. A whole chapter of this thesis will be dedicated to the flexible interpretation of the law of occupation (see infra, Part ii, Chapter 1) but here we will already give some elements that are directly pertinent to the debate at hand. Beit Sourik Village Council Case, op. cit. note 35, §27. Vaios Koutroulis, op. cit. note 37, p. 186; Expert Meeting, op. cit. note 5, p. 74. Adam Roberts, op. cit. note 50, p. 94. Vaios Koutroulis, op. cit. note 37, p. 186. Expert Meeting, op. cit. note 5, p. 74.

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frequently mentioned is using as a yardstick whether the occupying power expresses this same concern for its own population.65 In any case the measures taken would still need to fit within the framework of the law of occupation since the occupying power does not have the same rights when it is acting as a sovereign on its own territory than when it is acting as an occupier on the occupied territory. Other elements include the involvement of the local population in the decision-making process66 and the need for external monitoring mechanisms to control the decisions of the occupying power.67 It is important to mention, lastly, that even though the law of occupation itself allows for some additional measures to be taken in the interest of the local population under long-term occupation, the leeway offered remains ­insufficient. Indeed, in order to ensure adequate protection for the civilian population and their changing needs under prolonged occupation, further protection is called for.68 This is where the interplay with human rights law will enter the fray as will be demonstrated in Part ii, Chapter 2 of this book. 2.2 Transformative Occupation As is the case for prolonged occupation, ‘transformative’ occupation is also not a legal concept as such. Consequently it neither has a legal basis nor a legal justification under ihl. The term is merely used to describe an “operation whose main objective is to overhaul the institutional and political structures of the occupied territory”.69 Such an occupation clearly poses fundamental problems with regard to the basic principles of the law of occupation. We will first of all highlight these problems and we will then show that ‘transformative’ occupation is not per se impossible. 2.2.1 Issues Raised by Transformative Occupation An occupation with a transformative purpose is difficult to square with the basic tenets of the law of occupation. The most straightforward issue is its (in) compatibility with the obligation to maintain the status quo ante but we will show that transformative occupation also has some important repercussions for the issue of sovereignty. 65

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Expert Meeting, op. cit. note 5, p. 74. Such an approach is not without flaws. Some have argued that what is good for the occupying state’s population might not necessarily be good for the local population. Expert Meeting, op. cit. note 5, p. 75. Ibid., p. 75. Adam Roberts, op. cit. note 50, p. 71. Expert Meeting, op. cit. note 5, p. 67.

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It is first of all important to mention that the question of transformative occupation, just like long-term occupation, is also not merely a theoretical one. A strong debate in this regard has been held in the framework of the 2003 occupation of Iraq. Indeed the aim of the 2003 occupation of Iraq was precisely to ensure that the whole political, social, economic and legal system was transformed.70 The occupation of Iraq led to an important revival of the debates surrounding the law of occupation.71 The extent of the importance of the case of Iraq for the law of occupation was clearly illustrated by Eyal Benvenisti who stated that: “Resolution 1483 can be seen as the latest and most authoritative restatement of several basic principles of the contemporary law of occupation”.72 It was also the first time that the un Security Council has expressly resorted to occupation in order to describe, authorize and delimit the authority of foreign troops in control of the territory of an enemy,73 as well as one of the rare instances where the occupying States have accepted the law of occupation as being applicable to them.74 It is thus certainly interesting to keep the case of the transformative occupation of Iraq in mind here and occasionally to use it in order to provide some illustration. The case of the 2003 occupation of Iraq will in addition be more thoroughly described in Part ii, Chapter 3 of this study. Transformative occupation, at its very core, seems to be impossible to square with the conservationist principle which lies at the heart of the law of occupation, precisely prescribing that no changes should be brought upon the occupied territory. Indeed in the case of transformative occupation there is no intention of ever returning to the status quo ante, precisely because changes are deemed necessary.75 Making fundamental changes to a State that is weak, failing or otherwise posing a threat to international peace and security might be a legitimate task for the occupying power.76 Gregory H. Fox has rightfully summarized the core of the problem in the following terms: “Conserving existing laws makes sense when the alternative is repression or even plunder by an occupier. But when the alternative is greater protection of human rights and the introduction of democratic politics, the principle appears regressive and 70 71 72 73 74

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Malcolm Shaw, op. cit. note 35, p. 390. Nehal Bhuta, op. cit. note 4, p. 722. Eyal Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, idf Law Review, Vol. 1, 2003, p. 38. Eyal Benvenisti, op. cit. note 7, p. 274. Maarten Zwanenburg, “Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation”, International Review of the Red Cross, Vol. 86, No 856, December 2004, p. 745. Martti Koskenniemi, op. cit. note 24, p. 175. Expert meeting, op. cit. note 5, p. 55.

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even anachronistic”.77 If, from a mere common-sense perspective, this appears to be entirely logical, the question of the legal basis for such action as well as the delimitation of such a power in order to prevent abuse still remains an important one. Transformative occupation does not only raise evident problems with regard to the maintenance of the status quo ante of the occupied territory but also with regard to the two other basic tenets underlying the law of occupation. Firstly, the fact that non-reversible permanent changes might be made impacts on the short-term character of occupation. Secondly, with regard to respect for sovereignty, it creates tension between, on the one hand, the respect owed to the sovereignty of the occupied power as well as to the right of self-determination of the occupied people, and, on the other hand, the need to reconstruct the occupied territory.78 That sovereignty remains of fundamental importance even during occupation with a transformative purpose clearly emerged from unsc Resolution 1483(2003) unequivocally “reaffirming the sovereignty and territorial integrity of Iraq” as well as “stressing the right of the Iraqi people freely to determine their political future”.79 2.2.2 Can Transformative Occupation Ever be Justified? Is it ever legitimate, within the existing legal framework, for the occupying power to introduce fundamental changes to the constitution, as well as the social, economic and legal order of the occupied territory for the purpose of creating a more democratic and peaceful state?80 Whereas it might be argued that such a transformative power would have no legal basis tout court and would necessarily necessitate a change to the law, different potential leads for a legal justification have been advanced. A distinction has to be made, however, between the justifications that are valid and those that are not or at the very least are difficult to uphold. Starting with the category of justifications that are difficult to uphold, an indication that has sometimes been advanced is the consent of the local 77 78

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Gregory H. Fox, “Transformative occupation and the unilateralist impulse”, International Review of the Red Cross, Vol. 94, n°885, Spring 2012, p. 241. Conor McCarthy, “The paradox of the international law of military occupation: sovereingty and the reformation of Iraq”, Journal of Conflict & Security law, Vol. 10, No 1, 2005, p. 48. United Nations Security Council, Resolution 1483(2003), S/RES/1483(2003), 22 May 2003, preamble. Adam Roberts, “Transformative military occupation: applying the laws of war and human rights”, American Journal of International Law, Vol. 100, July 2006, p. 580.

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­population.81 In other words, if the local population consents to the changes these would be allowed. This is however a difficult argument to support since it raises a whole series of questions concerning, amongst others, the validity of such consent82 and would in any case probably not be sufficient as such. Some have also argued that state failure would grant more leeway to the occupying power. This, however, has no legal foundation whatsoever. That is not to say that a situation of state failure would have absolutely no effect in practice: indeed, in a state where there are no basic structures, there is a fine line between ‘restoring and ensuring, as far as possible, public order and safety’83 on the one hand, and restructuring the country in so far as there were no structures to begin with, on the other.84 But the influence of state failure in the case at hand would be factually more than granting additional legal power to the occupying power. Others have reasoned in terms of purpose.85 In other words, if the purpose is legitimate it will trump the conservationist principle, somehow tipping the balance in favour of a ‘greater good’. But what can exactly be seen as a ‘greater good’ and who will be the judge of this. This is quite a risky position to take. The aforementioned justifications are far from satisfactory. This does not however mean that there are no possible justifications. Three different types of justifications for transformative purposes during occupation can be validly used. First, the law of occupation offers a certain degree of flexibility in the law itself, which would be sufficient to justify at least some of the changes in cases of transformative occupation. Indeed as Lindsey Cameron so correctly noted: “Many of those who argue that the law of occupation should be changed to permit greater transformation by an occupying power have a tendency to interpret extremely narrowly the ‘transformational changes’ that the law a­ ctually

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Expert Meeting, op. cit. note 5, p. 69. See for example, Philip Spoerri, “The Law of Occupation”, in Andrew Clapham and Paola Gaeta (eds.), The Oxford handbook of international law in armed conflict, Oxford, Oxford University Press, 2014, p. 190. For the consent of the local population to be valid, the participation of the population need to be active, free and significant. See Jorge Cardona Llorens, “Les principes fondamentaux du droit international et les limites aux transformations dans les territoires ­occupés”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of ­Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 75. In line with Article 42 of the 1907 Hague Regulations. Expert Meeting, op. cit. note 5, p. 70. See a reflection in this regard in Gregory Fox, op. cit. note 77, op. cit., p. 243.

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allows”.86 The issue of the inherent flexibility of the law of occupation itself will be analysed in detail in Part ii, Chapter 1 of this research but we will already briefly provide a few elements supporting this flexibility here for the sake of argument. Generally speaking the changes allowed under the military necessity exception and the duty to restore public order and safety mean that the occupying power is not totally prevented from making changes.87 To provide a clear illustration based on the situation in Iraq, according to Michael N. Schmitt and Charles H.B. Garraway, who analysed most of the measures adopted by the Coalition Provisional Authority (cpa) in Iraq, the measures adopted in the field of governance and property management were entirely in accordance with the law of occupation alone.88 In contrast, the other measures were either in compliance with occupation law read in the light of international human rights law,89 or based on the mandate provided by unsc Resolution 1483.90 This clearly shows, that contrary to what could have been thought, not all of the extensive transformations adopted by the occupying powers during the occupation of Iraq, were in contradiction with the law of occupation as such. Second, it could be argued that some laws could not be applied or even needed to be changed because they would not meet the human rights standards by which the occupying power is bound.91 This would for example be the case with regard to local laws that would hinder the occupant from satisfying its duties under gciv. Indeed in line with Article 64 gciv, further complementing the general principle enshrined in Article 43 of the Hague Regulations, the penal laws of the occupying power shall remain in force “with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the a­ pplication of the 86

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Lindsey Cameron, “Does the Law of Occupation Preclude Transformational Developments by the Occupying Power”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 62. Davis P. Goodman, op. cit. note 4, p. 1584. Michael N. Schmitt and Charles H.B. Garraway, “Occupation Policy in Iraq and International Law”, International Peacekeeping: the Yearbook of International Peace Operations, Vol. 9. 2005, pp. 36–38 and pp. 51–53. This was the case of the security legistlation; Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 88, pp. 42–44. This was the case of the economic reforms; Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 88, p. 55: “there is no specific mandate in occupation law for economic reconstruction. Resolution 1483, on the other hand, recognizes the pressing need to rebuild Iraq’s economy”. Malcolm Shaw, op. cit. note 35, p. 385.

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present Convention [emphasis added]”. This principle could be extended to other obligations, notably arising from international human rights law.92 An occupying power would thus have a very good case to say that it is ‘absolutely prevented’ from implementing rules that clearly violate international human rights law.93 But as was so rightly stated during the icrc Expert Meeting on occupation, human rights law “should not be interpreted as giving [the occupying power] a blank cheque to change legislation and institutions in the name of human rights (…)”.94 It could nevertheless provide some basis for change (see infra Part ii, Chapter i). Third, the last credible, and in our opinion also the most important, basis that can be advanced for allowing such transformative purposes is to seek specific authorization from international bodies,95 more specifically under the form of a resolution adopted by the un Security Council under Chapter vii. Indeed, as Ebrahim Afsah has so rigfully argued: Whatever the shortcomings of the current law of occupation claiming its obsolescence conveniently disregards the fact that a clear and evidently usable mechanism exists in the instrument of a robust Security Council mandate which could easily provide the legal basis for the kind of societal and state transformation deemed necessary.96 The issue of the role of the un Security Council as a modulator of the law of occupation will be further assessed in Part ii, Chapter 3 of this thesis but we will already provide some thoughts here. This justification is based on the fact that the un Security Council may derogate from the law of occupation when acting under Chapter vii, i.e. by taking binding decisions, since according to Article 103 of the un Charter, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. There is, however, an important limit to the powers of the un Security Council acting under Chapter vii, namely jus cogens. The question thus arises whether the law of occupation is to be included in the category of peremptory norms, in which case no derogation would 92 93 94 95 96

Expert Meeting, op. cit. note 5, p. 69. Lindsey Cameron, op. cit. note 86, p. 64. Expert Meeting, op. cit. note 5, p. 69. Adam Roberts, op. cit. note 86, p. 621. Ebrahim Afsah, “Limits and Limitations of Power: The Continued Relevance of Occupational Law”, German Law Journal, Vol. 7, n°6, 2006, p. 567.

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be allowed. I will argue further below that, if we can recognise that the basic rules of ihl, including certain rules of the law of occupation, might be of a peremptory character, this would be the case for the rules concerning the protection of people but not for the rules relating more to the administration of the occupied territory, such as the conservationist principle.97 However, there is another peremptory norm that is not without importance in the context of occupation, namely the right to self-determination.98 The limits posed by the later to the derogatory powers of the unsc in situations of occupation must also be further assessed (see infra, Part ii, Chapter 3). 3

Interim Conclusion: Insurmountable Challenges?

Davis P. Goodman already quite bluntly stated in 1985 that “[t]he current law of belligerent occupation is so far removed from reality that even those nations inclined to obey the law will find it difficult to do so”.99 We would not go as far as to subscribe to this statement but we definitely recognize that there are a certain number of important of challenges affecting the law of occupation, be they more generally linked to the evolution of the world since the 19th century or more specifically linked to certain contemporary examples such as longterm and transformative occupation. Even though some have argued that the law should definitely be modified to accommodate these challenges,100 we believe that the law is not only still 97

I agree here with David J. Scheffer, “Beyond Occupation Law”, The American Journal of international Law, Vol. 97, No 4, Octobre 2003, p. 843 stating that “it would be mistaken to regard the totality of occupation law as reflecting jus cogens or erga omnes obligations in the context of such authorized military intervention and occupations (…) such principles of jus cogens have never been conclusively established, but one would expect them to include the overarching principles of humane treatment and judicial due process that appear in various codified provisions of occupation law”. 98 See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, (A/56/10), 2001, yearbook of the International Law Commission, 2001, vol. ii, Part Two, p. 113; Maarten Zwanenburg, op. cit. note 74, p. 767. 99 Davis P. Goodman, op. cit. note 4, p. 1607. 100 To cite two examples Davis P. Goodman argues that in order to meet the changing circumstances a dynamic law is needed; Davis P. Goodman, op. cit. note 4, p. 1607; and Major Breven C. Parsons clearly argues that the law must be updated to provide a viable framework for occupation in order to include: (1) a multilateral oversight mechanism and un approval of a mandate; (2) international human rights law and the right to self-­determination; and (3) occupation with transformative objectives,; Major Breven C. ­Parsons, op. cit. note 4, pp. 1–48.

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useful but should also not be modified. Cases such as prolonged and transformative occupation should remain the exception and not become the norm. We agree completely with Adam Roberts stating that: “It is simply not worth going down that road when other remedies for any claimed defect of the law on occupation are at hand (…)”.101 The question then remains how we would resolve the issue of the ill-­ suitability of the law vis-à-vis the contemporary situations of occupation. That is precisely the ambit of Part ii of this thesis, in which the three solutions already briefly mentioned in this chapter will be more thoroughly explored: (1) the flexibility offered by the law of occupation itself; (2) the relationship between ihl and international human rights law serving as a gap-filler; and (3) the impact of the un Security Council working as a ‘modulator’. 101 Adam Roberts, op. cit. note 86, p. 622.

part 2 Addressing the Challenges Faced by the Law of Occupation

∵

Introduction to Part 2 In this second part we will more particularly analyse different paths that can potentially remedy the fact that the law of occupation seems to be ill-suited to contemporary situations of occupation. To this end, we will firstly, analyse the exent to which the law of occupation in itself can be applied flexible (­Chapter 1). We will then look more precisely at the interplay between ihl and ihrl in situations of occupation and assess whether human rights law can play a role in filling in the gaps left by the law of occupation (Chapter 2). Finally, we will evaluate whether the un Security Council can play a role in moduling the law of occupation in order to make it better suitable to specific situations of occupation that might require derogations or a strained interpretation of the law. This last chapter draws extensively on the example of the ‘transformative’ occupation in Iraq (Chapter 3).

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chapter 1

The Flexibility in the Law of Occupation Itself The law of occupation maintained its viability because its basic principles proved flexible enough to adapt to the changing circumstances and the evolving norms of general international law eyal benvenisti, 20121

∵ In this chapter we will demonstrate that the law of occupation is in itself sufficiently flexible to accommodate some of the changes needed by contemporary forms of occupation despite the importance of the conservationist principle, one of the cornerstones of the law of occupation. In order to do so we will first of all briefly relate how the obligation to maintain the status quo ante is translated into concrete obligations in the two main treaties encompassing the law of occupation, namely the 1907 Hague Regulations and the Fourth Geneva Convention of 1949.2 We will then focus on Article 43 hr and Article 64 gciv since they contain the most essential rules defining and delimiting an occupying power’s authority in the occupied territory. Finally, we will demonstrate that these rules possess the necessary flexibility to accommodate at least some of the needed transformations in the occupied territory but that an attempt should be made to better delimit the powers of the occupant in this regard. 1

The Manifestation of the Conservationist Principle in the Law of Occupation: A General Overview

As the definition itself provides, “territory is considered occupied when it is ­actually placed under the authority of the hostile army”.3 As a consequence, 1 Eyal Benvenisti, The International Law of Occupation, 2nd edition, Oxford, Oxford University Press, 2012, p. 19. 2 The Hague Regulations will be abbreviated as hr and the Fourth Geneva Convention as gciv in the remainder of this chapter. 3 Article 42 of the Hague Regulations.

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and as part of the definition, is the fact that the occupant temporarily asserts ­effective control over the occupied territory in place of the legitimate sovereign. This is confirmed by the first part of Article 43 hr stating that “the ­authority of the legitimate power [has] in fact passed into the hands of the ­occupant”. ­Given that the occupying power is exercising de facto authority over the occupied territory instead of the legitimate sovereign, it is only logical that “he will constitute the authority entrusted with the continuation of the administration”,4 since the ousted sovereign is not longer capable of doing so. The occupant thus acts as the substitute of the legitimate sovereign and as such is required to discharge at least some of the basic functions of everyday governance.5 Consequently, the occupying power has ensure that the political institutions and the public life in general are able to continue with as little disturbance as possible.6 However, since occupation does not transfer sovereignty, the occupant cannot exercise the full powers of sovereignty but only some of its attributes. ­Indeed, as was already mentioned previously, whereas a sovereign power has full powers, the occupying power only has limited de facto powers.7 These powers have thus been inscribed within strict limits and it is precisely here that the conservationist principle comes into play. As Ernst H. Feilchenfeld so purposefully noted: “Since a belligerent occupant is not a permanent sovereign, it is deemed beyond his competence to engage in permanent changes in regard to fundamental institutions”.8 4 Gerhard Von Glahn, The Occupation of Enemy Territory … A Commentary on the Law and Practice of Belligerent Occupation, Minneapolis, the University of Minnesota Press, 1957, p.  94. See also, Lassa Oppenheim, “The Legal Relations between an Occupying Power and the Inhabitants”, The Law Quarterly Review, October 1917, p. 364. As an illustration of this see also uk Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, ­Oxford, 2004, §11.19 [hereafter uk Military Manual] stating that “the occupying power assumes responsibility for administrating the occupied area”. 5 Christopher Greenwood, “The Administration of Occupied Territory in International law”, in Emma Playfair (ed.), International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and the Gaza Strip, Oxford, Clarendon Press, 1992, p. 249. See also David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, New York, State University of New York Press, 2002, p. 57. 6 Hans-Peter Gasser and Knut Dörmann, “Protection of the Civilian Population”, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, Third Edition, Oxford, Oxford University Press, 2013, p. 276. 7 Gregory H. Fox, Humanitarian Occupation, Cambridge, Cambridge University Press, 2008, p. 237. 8 Ernst H. Feilchenfeld, The International Economic Law of Belligerent Occupation, Carnegie Endowment for International Peace, Washington d.c., 1942, p. 89.

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To this extent the legal status of the territory including the laws in force as well as the internal administration and the sociological structures of the territory’s population have to remain intact.9 These restrictions are however, as we will see, not absolute and are subject to a certain number of exceptions, mostly relating to the needs of war. Ultimately, the rules underlying the obligation to maintain the status quo ante serve as a way to guide the balancing exercise between the different interests at stake.10 And these interests are threefold: (1) the security interest of the occupying power and its army; (2) the interests of the ousted government; and (3) the interest of the local population given that the latter might be different from the interests of the ousted government.11 The overall authority of the occupying power has been inscribed in ­Article 43 hr, complemented by Article 64 gciv. Given that these articles lie at the foundation of the occupant’s authority over the occupied territory and its people, these will be discussed in detail further on in this chapter, but given that these rules are extremely relevant with regard to the obligation to maintain the status quo ante as a whole, we will already briefly touch upon them here. Article 43 hr states that [the occupant] shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country [emphasis added]. In other words, whereas the occupant has been expressly vested with the ­authority to restore and ensure public order and safety, it is also specified that it will have to respect the laws in force in the country, unless it is absolutely prevented from doing so. We will see later in this chapter that this absolute prevention to do so refers both to military necessity and to the welfare of the

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Hans-Peter Gasser and Knut Dörmann, op. cit. note 6, pp. 275 and 276; Gregory H. Fox, op. cit. note 7, p. 235; Wolff Heintschel von Heinegg, “Factors in war to peace transitions”, Harvard Journal of Law and Public Policy, Vol. 27, No 3, pp. 860–861; Gerard Von Glahn, op. cit. note 4, p. 96. Rüdiger Wolfrum, “The Adequacy of International Humanitarian Law Rules on Belligerent Occupation: To What Extent May Security Council Resolution 1483 Be Considered a Model for Adjustment”, in Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein, Leiden, Martinus Nijhoff Publishers, 2007, p. 497. Eyal Benvenisti, op. cit. note 1, p. 69.

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occupied population.12 Given that the term ‘laws’ should not be limited to laws in a strict sense but also refers to the constitution, decrees, ordinances, court precedents (common law), as well as administrative regulations and executive orders,13 and given that the administrative organization of the State is based on laws and other regulations, the governmental and administrative structures should thus also be respected ‘unless absolutely prevented’.14 While the administrative organization of the State might be adapted based on military necessity or on the needs of the occupied population, certain changes are in any case excluded from the realm of the occupant’s authority. If new administrative boundaries would be allowed if they would benefit the occupied population or because they would facilitate control over the areas concerned,15 the occupant cannot intervene with regard to the fundamental rules establishing the structure of the State.16 The occupying power would for example not be allowed to change a democratic republic into an absolute monarchy,17 nor would it be allowed to change a unitary system into a ­federal one.18 To give a concrete example, the attempt of the German occupant to play upon the Walloon-Flemish divide in order to change the balance of power ­between the two entities during the First World War was widely condemned.19 To recapitulate, while some changes to the administrative system would be ­allowed, the occupant cannot interfere with the essential structures of the occupied state. The underlying idea is quite straightforward: the occupying power is not allowed to make such changes to the structures of the occupied state which would be difficult to restore given that this would go against the sovereignty of the legitimate power. 12 See infra, 2.1.4. 13 Marco Sassoli, “Legislation and Maintenance of Public Order and Civil Life by occupying powers”, European Journal of International law, Vol. 16, No 4, 2005, p. 668; Yoram Dinstein, The International Law of Belligerent Occupation, Cambridge, Cambridge University Press, 2009, §252; Eyal Benvenisti, op. cit. note 1, p. 94. 14 Robert Kolb and Sylvain Vité, Le droit de l’occupation militaire: Perspectives historiques et enjeux juridiques actuels, Bruylant, Brussels, 2009, p. 199. See also See Jean Pictet (ed.) Commentaries to Convention iv relative to the Protection of Civilian Persons in Time of War, Geneva, icrc, 1958, p. 335 [hereafter Commentaries gciv]. 15 Gerard Von Glahn, op. cit. note 4, p. 96. 16 Odile Debbasch, L’occupation Militaire. Pouvoirs recconnus aux forces armées hors de leur territoire national, Paris, Pichon et Durand-Auzias, 1962, p. 171. 17 Ernst H. Feilchenfeld, op. cit. note 8, p. 89. 18 Yoram Dinstein, op. cit., note 13, §290. 19 Gerard Von Glahn, op. cit. note 4, p. 96; See also Ernst H. Feilchenfeld, op. cit. note 8, p. 89 and Yoram Dinstein, op. cit. note 13, §291.

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Article 47 gciv further confirms the limits placed on the changes allowed to be made to the institutions or government of the occupied state but this time from a humanitarian viewpoint, i.e. linked to the negative effects that such transformations might have on the civilian population. Indeed it states that protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of said territory (…) [emphasis added]. This provision specifically refers to the fact that the transformation of the country’s structures and organizations may worsen the position of the inhabitants and it intends to protect the civilians of the occupied territory from being harmed by measures taken by the occupant with a view to restoring and maintaining law and order.20 As was the case for many of the provisions of the G ­ eneva Conventions, it was deemed necessary to adopt such a provision in reaction of certain abuses that occured during the Second World War.21 It does not expressly prohibit changes to the institutions or the government as such. As we have seen some changes might indeed be considered necessary and are thus allowed and might even leave the population better off.22 Contrary to ­Article 43 hr which did not only aim at protecting the inhabitants of the occupied territory but also more specifically the separate existence of the State, its institutions and its laws,23 Article 47 gciv “is of an essential character; its object is to safeguard human beings and not to protect the political institutions and government machinery of the State as such”.24 The main point underlying this provision is whatever changes might be introduced to the institutions and government of the occupied territory, these should never lead to depriving the occupied population of the rights and safeguards provided by the Fourth Geneva Convention. The wider ambit of this provision is to ensure the inviolability of rights guaranteed by the Fourth Geneva Convention 20 Commentaries gciv, op. cit. note 14, p. 274. 21 Ibid., p. 273. See also Robert Kolb, “Etude sur l’occupation et sur l’article 47 de la IVéme Convention de Genève du 12 aout 1949 relative à la protection des personnes civiles en temps de guerre: le dégré d’intangibilité des droits en territoire occupé”, African Yearbook of International Law, Vol. 10, 2002, p. 298. 22 This point will be developed further on in this chapter. 23 Commentaries gciv, op. cit. note 14, p. 273. 24 Ibid., p. 274.

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and as such these rights thus represent a minimum non-derogable or absolute ­standard of rights.25 Importantly, Article 43 hr, does not become less valid because of the adoption of Article 47 gciv, the latter merely being an amplification of the conservationist principle contained in Article 43 hr “in so far as the protection of civilians is concerned”.26 This provision further contains a prohibition to be linked to the nature of occupation and the underlying obligation to maintain the status quo ante since it states that protected persons shall also not be deprived of the benefit of the Fourth Geneva Convention “by any annexation by the latter of the whole or part of the occupied territory”. As was already highlighted in Part i, Chapter 1 of this thesis, “the occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied Power of neither its statehood nor its sovereignty; it merely interferes with its power to exercise its rights”.27 As such it should thus be distinguished from annexation as this creates a more permanent state of affairs contrary to occupation, which even though it might give the appearance of actual possession, does not imply any rights whatsoever to dispose of the occupied territory.28 It is precisely the fact that occupation is a de facto and exceptional situation that does not transfer any permanent rights over the occupied territory, which lies at the heart of the conservationist principle: the territory will have to be returned to the sovereign more or less in the same state as it was before the occupation. In this regard the occupying power has to be considered merely as a de facto administrator.29 In line with what has just been mentioned and as Odile Debassch so rightfully confirmed: “l’occupant ne gouverne pas, il administre” and it would be ­difficult for the occupying power to act without local civil servants.30 A good illustration of this is Article 54 gciv stating that the occupying power may not alter the status of public officials and judges even if of course this article is not so much concerned with helping the occupant administer the occupied territory but rather with making sure, as part of the conservationist principle, that public officials and judges are “allowed to retain their pre-occupation status [by] enabl[ing] them to continue carrying out the duties of their office as in the past, without being the object of intimidation or unwarranted interference”.31 25 Robert Kolb, op. cit. note 21, p. 297. 26 Commentaries gciv, op. cit. note 14, p. 274. 27 Ibid., p. 275. 28 Ibid., p. 275. 29 Ibid., p. 274. 30 Odile Debbasch, op. cit. note 16, p. 159 [the occupant does not govern, it administers]. 31 Commentaries gciv, op. cit. note 14, p. 304.

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It is a specific illustration of the general principle implicitly contained in the Fourth Geneva Convention that the personal status of all protected persons has to be respected.32 Importantly, given that occupation does not transfer sovereignty, public officials and judges continue to be responsible for their actions and subject to public opinion of their state of nationality.33 This general rule is however subject to an important restriction, again demonstrating that a balancing act is being made between protection/maintaining the status quo ante and the interests of the occupying power. Indeed the last sentence of Article 54 gciv confirms that the occupants have the right to remove public officials from their post and this “for reasons of their own”.34 Usually a distinction is made between administrative officials and ‘political’ ones,35 the former being generally considered less threatening to the occupying power than the latter. This safeguard established in favour of the occupant helps to ensure the bona fide application of the present Article as a whole, since on the one hand it allows the occupying authorities to behave fairly generously, in the certainty that they have the power to put an end to any abuses; on the other hand, it prevents public officials and judges who have been retained from using their authority in a manner detrimental to the Occupying Power, as they would otherwise be liable to be removed.36 Next to there being rules concerning the administrative system, there are also rules concerning the judicial system. Briefly, here again the obligation to maintain the status quo ante and the interests of the occupying power are balanced by the creation of a two-tier system37 or a dual system of judicial authority.38 This system is based on the maintenance of the local courts, on the one hand, and the institution of military courts by the occupying power on the other. The courts in place before the occupation should normally continue to ­operate under the same laws and staffed by the same personnel as before the ­occupation.39 They shall retain jurisdiction to deal with all cases concerning 32 Commentaires GCIV, op. cit. note 14, p. 304. 33 Ibid., p. 304. 34 Ibid., p. 308. 35 The difference between both categories is that administrative officials have a purely executing function and are not elected, they are what we call civil servants, whereas political officials have been elected and exercise a political/decision-making function rather than a purely executing one. 36 Commentaries gciv, op. cit. note 14, p. 308. 37 Yoram Dinstein, op. cit. note 13, §308. 38 Gerard Von Glahn, op. cit. note 4, p. 112. 39 Ibid., p. 106.

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the inhabitants in so far as these cases are neither of a military nature, nor affect the safety of the occupying forces.40 Next to allowing the local courts to continue functioning, the occupying power is also allowed to establish its own courts in line with the obligation to restore and maintain public order as contained in Article 43 hr and Artcile 64 gciv.41 Consequently, the occupant’s legislative powers are reinforced by judicial power “designed to make good the deficiencies of the local courts, should this be necessary”.42 Not only is the occupying power not allowed to modify the administrative and judicial structures of the occupied country, changes made to the sociological structures of the occupied territory are also prohibited.43 Indeed, Article 49 gciv clearly states that: “individual or mass forcible transfers, as well as ­deportations of protected persons from occupied territory to the territory of the Occupying power or that of any other country, occupied or not, are prohibited regardless of their motive” and that “the occupying power shall also [not] deport or transfer parts of its own civilian population in the territory it occupies”. It thus has a double ambit: not only is it prohibited to deport the ­occupied population out of the occupied territory but it is also prohibited to transfer the population of the occupier into the occupied territory. Concerning, the former, it is undeniable that this prohibition is based on the atrocious mass deportations that took place during the Second World War.44 The prohibition is absolute and allows for no exceptions besides those stipulated in paragraph 2 (strictly limited to evacuations for the security of the population or imperative military reasons and subject to strict conditions).45 Concerning the latter component of Article 49 ggiv, it was added to prevent a practice which also occurred during World War ii by which certain occupying powers transferred portions of their own population into the occupied territories “for political and racial reasons or in order, as they claimed, to colonize these territories”.46 This is the whole problem concerning the Israeli Settlements on the West Bank,47

40 41

uk Military Manual, op. cit. note 4, § 11.26. See Article 66 gciv. See also Gerard Von Glahn, op. cit. note 4, p. 110 and Yoram Dinstein, op. cit. note 13, §320. 42 Commentaries gciv, op. cit. note 14, p. 340. 43 Hans-Peter Gasser and Knut Dörmann, op. cit. note 6, p. 275. 44 Commentaries gciv, op. cit. note 14, p. 279. 45 Commentaries gciv, op. cit. note 14, p. 279. See also Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, p. 327. 46 Commentaries gciv, op. cit. note 14, p. 279. 47 There also used to be Israeli settlements in the Gaza Strip but these were dismantled by Israel following the 2005 disengagement from Gaza.

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which have been widely criticized as a breach of international law.48 A thorough analysis of this problem falls outside of the ambit of this research, but it is important to mention in this regard that the International Court of Justice has held that Article 49 gciv: prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory. In this respect, the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of Settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited (…) The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.49 Transfers of population whether concerning the first or the second category have the potential to gravely disturb the sociological order in the occupied territory (besides also having strong economic, social and political repercussions) and it thus seems self-evident that such changes would contradict the obligation to maintain the status quo ante. The main ambit of Article 49 gciv is thus to maintain the general demographic status quo in the occupied territory.50 The severe character of such measures with regard to the institution of occupation have been confirmed by the fact that violations of Article 49 gciv have been included in the list of grave breaches as established by Article 85(4)(a) of additional Protocol i to the Geneva Conventions and by article 8(b)(viii) of the Rome Statute creating the International Criminal Court.51 Finally, there are also a certain number of rules with regard to property and taxes in the occupied territory. We will limit ourselves to describing the general principles here. The destruction of property, be it private or public, is 48

49 50

51

Eyal Benvenisti, op. cit. note 1, p. 240. See also International Court of Justice (icj), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, §120 [hereafter Wall opinion]. Ibid., §120. Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli “The Illegality of the Occupation Regime: The Fabric of Law in the Occupied Palestinian Territory”, in Adi Ophir, Michal Givoni and Sara Hanafi (eds.), The Power of Inclusive Exclusion: Anatomy of the Israeli Rule in the opt, New York, Zone Books, 2009, p. 45. See also for example the uk Military Manual, op. cit. note 4, § 11.55, confirming that ­unlawful deportation or transfer is a grave breach of the Fourth Geneva Convention.

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­prohibited unless this is rendered absolutely necessary by military necessity.52 Pillage is also prohibited.53 Concerning the seizure and use of property in the occupied territory, a distinction has to be made between public and private property. The general rule regarding public property is that the occupying power is allowed to seize it and use it in accordance with its needs but a distinction has to be drawn between immovable and movable property, the former being better protected than the latter.54 Indeed whereas the occupying power can only be regarded as an administrator and an usufructuary with regard to immovable public property such as for example public buildings, real estate, forests and agricultural estates belonging to the occupied state,55 all moveable property of the State which may be used for military purposes can be confiscated.56 This distinction can be logically explained by the fact that as is the case for the occupied territory in general, the public immovable property of the occupied country, should be returned to the legitimate sovereign at the end of the occupation, and the occupying power should thus take good care of it and can only use the fruits thereof without damaging its essence. The general rule with regard to private property is that it cannot be confiscated,57 with the exception that it might be requisitioned for the needs of the occupying army.58 In line with this rule, it is also worth mentioning that it seems that the occupant is also not allowed to interfere with purely private relationships and may not, for example, arbitrarily pass regulations that would require the passing of wealth from one individual to another, given that this would go against the fact that the powers of the occupant are based on protecting its military interests and promoting law and order.59 Concerning more specifically taxation, first of all, a distinction seems to have to be made between existing taxes and new taxes. Existing taxes should be levied, as far as possible, in accordance with the rules of assessment and incidence already in force in the occupied territory.60 They shall further be applied towards the costs of administering the occupied territory.61 The levying of new taxes would fall under the provision dedicated 52 53 54 55 56 57 58 59 60 61

Article 53 gciv. Article 47 hr. Yoram Dinstein, op. cit. note 13, §502. Article 55 hr; the list contained in this article is far from being exhaustive, see Yoram Dinstein, op. cit., §503. Article 54 hr. Article 46 hr. Article 52 hr. Ernst H. Feilchenfeld, op. cit. note 8, p. 89; David Kretzmer, op. cit. note 5, p. 92. Article 48 hr. Ibid. See also uk Military Manual, op. cit. note 4, §11.31.

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to levies and contributions for military needs.62 Some have however voiced the opinion that a new tax could be instituted via the powers outlined in Article 43 hr thus indirectly subordinating Articles 48 and 49 to the necessity exception contained in Article 43 hr.63 This approach was furthermore applied in what has commonly been referred to as the vat case64 before the Israeli Supreme Court which is considered to be a leading judgment with regard to the legitimacy of imposing new taxes in an occupied territory.65 To briefly conclude this section, all the above-mentioned rules clearly show that the authority of the occupying power is based on a balancing act between the interests of the occupied state and its population, on the one hand (mainly characterized by the obligation to maintain the status quo ante), and the ­interest of the occupying power and its military, on the other hand. Given that it concerns a balancing act there is no fixed model and no ‘one size fits all’ approach towards changes brought upon the occupied territory since this balancing act has to be made in every single case. As Wolfgang Heintschel von Heinegg, so rightfully stated: “Whether and to what extent the occupying power may interfere with the political and social structures in an occupied territory will (…) depend upon the circumstances of the individual situation, and is thus a question of fact”.66 We will show further on in this chapter that this is at the same time also beneficial to the flexibility that these provisions might offer. Lastly, before turning more in detail to the assessment of the authority of the occupying power granted by Article 42 hr and Article 64 gciv, it is interesting to briefly outline what is meant by ‘postliminium’, given that it concerns the restoration of the status quo ante following the end of the occupation and is thus also a consequence of the latter.67 Indeed, when the occupation ends, the occupied territory is restored to the State which has title over it and the latter recuperates all of the powers incumbent upon it before the occupation 62 63

64

65 66 67

In accordance with article 49 hr. See Yoram Dinstein, op. cit. note 13, §293. Yoram Dinstrein, “The Dilemmas Relating to Legislation under Article 43 of the Hague Regulations, and Peace-Building”, Background Paper prepared for Informal High-Level Expert Meeting on Current Challenges to International Humanitarian Law, Cambridge, June 25–27, 2005, Program on Humanitarian Policy and Conflict Research at Harvard University, p. 11. See also David Kretzmer, “The Law of belligerent occupation in the Supreme Court of Israel”, International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, pp. 227–228. hcj, Abu Aita et al. v. Commander of the Judea and Samaria region et al., Case n°69/81, 5 April 1984, [hereafter referred to as the vat case] as excerpted in English in Israel Yearbook on Human Rights, Vol. 13, 1983, pp. 349–359. Ibid., p. 349. Wolff Heintschel von Heinegg, op. cit. note 9, p. 860. Yutaka Arai-Takahashi, op. cit. 45, p. 24.

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­occurred. The limited powers which the occupation had granted to the occupant terminate with the ending of the occupation. However, a complete restoration of the status quo ante is not in fact possible. The notion of ­‘postliminium’ precisely refers to this state of affairs created after the occupation comes to an end.68 Importantly ‘postliminum’ can only occur when the occupied territory is restored to its legitimate owner and not when it is given to a third state.69 The legislation enacted by the occupying power in conformity with the prescriptions of the law of occupation is no longer in force but its legitimacy cannot be denied retroactively.70 In other words, the validity of rights lawfully acquired must be recognized and the lawful acts of the occupant remain valid after the end of the occupation.71 In contrast, acts by the occupant carried out in excess of the powers conferred upon it are to be considered null and void.72 The idea is nevertheless to create some kind of stable order even in situations of occupation. This system is however imperfect because for as long as the ­occupation lasts the occupant is the only judge of the need to change, suspend or amend the laws in the occupied territory.73 2

Article 43 of the Hague Regulations and Article 64 gciv: Definition and Delimitation of the Occupying Power’s Authority

Article 43 hr and Article 64 cgiv are the most essential rules defining and delimitating an occupying power’s authority in the occupied territory.74 The precise meaning of these articles remains unclear, however, and they have 68 69 70 71 72

73

74

Yoram Dinstein, “The international law of belligerent occupation and human rights”, I­ sraeli Yearbook on Human Rights, Vol. 8, 1978, p. 142. Gerard Von Glahn, op. cit. note 4, p. 261. Yoram Dinstein, op. cit. note 68, p. 142. Gerard Von Glahn, op. cit. note 4, p. 250; Johann-Christoph Woltag, “Post-liminium”, Max Planck Encyclopedia of Public International Law, March 2009, §687. Johann-Christoph Woltag, op. cit. note 71, §686; Yoram Dinstein, op. cit. note 68, p. 142; Gerard Von Glahn, op. cit. note 4, p. 260. See also Felice Morgenstern, “Validity of the acts of the belligerent occupant”, British Yearbook of International Law, Vol. 28, 1951, p. 320 stating that “where the limits are exceeded the acts of the occupant are ultra vires, and are absolutely void (…)”. Gerard Von Glahn, op. cit. note 4, p. 100. See also Alain Pellet, “The Destruction of Troy will not Take Place”, in Emma Playfair (ed.), International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and the Gaza Strip, Oxford, Clarendon Press, 1992, p. 203. Expert Meeting, Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by Tristan Ferraro, Legal Advisor, icrc, March 2012, p. 54 [hereafter Expert Meeting].

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been used by occupying powers to both justify a wide scope of authority and to minimize their responsibilities.75 Importantly, international law does not grant general legislative competence to the belligerent occupant,76 but we will see that the occupying power could nevertheless have some important legislative powers. According to Edmund H. Schwenk, “the clause ‘respecting the laws of the country unless absolutely prevented’ would be meaningless if the occupant had no legislative power whatsoever”.77 It is important, however, to determine the exact extent of the legislative powers granted to the occupying power even if this is not an easy task since, being based mostly on exceptions, there is no ‘one size fits all’ model applying to every single occupation. We can thus only establish general rules, the precise application of which will be case dependent. Article 43 of the Hague Regulations: A Key Provision of the Law of Occupation Article 43 has been referred to as “a key provision of the law of belligerent occupation”78 and some “sort of mini-constitution for the occupation administration”.79 The provision is part of customary law80 but its exact 2.1

75

76 77

78 79

80

Robert Kolb and Sylvain Vité, op. cit. note 14, p. 185; Eyal Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, idf Law Review, Vol. 1, 2003, p. 23; Melissa Patterson, “Who’s Got the Title? Or, The Remnants of Debellatio in Post-Invasion Iraq”, Harvard International Law Journal, Vol. 47, No 2, 2006, p.472. Christopher Greenwood, op. cit. note 5, p. 247. Edmund H Schwenk, “Legislative power of the military occupant under Article 43, Hague Regulations”, Yale Law Journal, Vol. 54, No. 2, 1944–1945, p. 395. Similarly, see also Eyal Benvenisti, op. cit. note 1, p. 90 arguing that this clause contains an implicit recognition of the occupant’s power to prescribe laws. Marco Sassoli, op. cit. note 13, p. 661. See also David Kretzmer, op. cit. note 63, p. 218 referring to Article 43 hr as prescribing the fundamental obligations of an occupying power. Eyal Benvenisti, op. cit. note 1, p. 69. See also hcj, Yesh Din v. Commander of idf forces in Judea and Samaria et al., Case n°2164/09, 26 December 2011 [also referred to as the Quaries case], §8: “As is well known, Article 43 has been recognized in our jurisprudence as a quasi-constitutional framework provision that sets out the general framework for the way the duties and powers of the military commander must be exercised in occupied territory” as cited in David Kretzmer, op. cit. note 63, p. 218. Wall opinion, op. cit. note 48, §89 in which the Court stated that it considers “that the provisions of the Hague Regulations have become part of customary law”. In this regard see also for example hcj, A Cooperative society lawfully registered in the Judea and Samaria Region v. Commander of the idf Forces in the West Bank et al., Case n°393/82 [hereafter the

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­ eaning remains unclear.81 In addition, at the time when the provision was m drafted, the concept of governance was very different from governance as we know it today and the tasks entrusted to the legitimate government (hence also to the occupying power if the latter came to temporarily take over effective control) were much less important than they are today, thereby creating additional challenges.82 Anyhow, Article 43 hr is still the starting point for the delimitation of the regime of occupation nowadays.83 Before we start analyzing the different constitutive elements of Article 43 hr, a general remark is in order. Article 43 hr is based on a functional approach. Indeed, as was already highlighted above, the occupant will have to exercise certain competences simply because the sovereign is not able to do so due to the existence of the situation of occupation. The maintenance of public order and civil life is a fundamental task of the power exercising effective control over the concerned territory. Consequently, Article 43 hr recognizes the powers and responsibilities of the interim administrator of the territory while trying at the same time to preserve the rights of the temporarily dispossessed sovereign.84 .

2.1.1 A Cumulation of Two Obligations in One Article 43 of the Hague Regulations contains two parts: (1) a duty to restore and ensure public order and safety; and (2) an obligation to respect the law in force in the occupied country ‘unless absolutely prevented’ from doing so. Before the adoption of the Hague Regulations these two obligations were contained in two different provisions.85 They were merged because when standing alone

81 82

83 84 85

Jama’it Ascan Case] as excerpted in English in Israel Yearbook on Human Rights, Vol. 14, 1984, p. 303. Marco Sassoli, op. cit. note 13, p. 663. For a more detailed analysis of the impact of the existence of a ‘laissez faire’ government at the time of the drafting of the initial provisions of the law of occupation and the challenges this subsequently created see Part i, Chapter iii, Section 1. of this thesis. Eyal Benvenisti, op. cit. note 1, p. 69. Robert Kolb and Sylvain Vité, op. cit. note 14, p. 188. Article 2 of the Brussels Declaration (1874) states that “the authority of the legitimate Power being suspended and having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety” and Article 3 that “with this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary”, Project of an International Declaration Concerning the laws and customs of war adopted during the Brussels Conference of 1874 and signed at Brussels, 27 August 1874, as cited in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflict.

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they might have seemed to provide the occupying power with far-reaching legislative powers.86 The merging of these two articles occurred based on a compromise that emerged out of the Hague Peace Conference of 1899.87 Indeed a debate emerged during this Peace Conference, firstly as to whether the power of the occupant should at all be regulated or not,88 and, secondly, whether Article 3 of the Brussels declaration should be retained or not.89 Ultimately consensus was reached on the suppression of Article 3 of the Brussels Declaration but subject to the condition that the sentence ‘while respecting, unless absolutely prevented, the laws in force in the country’ would be integrated within Article 2 of the Brussels Declaration.90 Indeed, and in line with the debate concerning the connotation to give to the regulation of powers of the occupying power, integrating this phrase would be the best possible way to prevent abuse given that in this way at least the power of the victor would be subordinated to the exigency of necessity.91 However, even if these two provisions were merged, the two obligations did not become dependent on one another and they should still be read ­ separately.92 Consequently, Article 43 contains the general rule with regard to

86 87

88

89 90 91

92

A collection of Conventions, Resolutions and Other Documents, Dordrecht, Martinus Nijhoff Publishers, 1988, p. 27. Similarly, the Oxford Manual of 1880 also separated both provisions under a quite similar formulation into Article 43 and 44, Manual on the laws of war of land published by the Institute of International law (Oxford Manual) as cited in Dietrich Schindler and Jiri Toman, op. cit., pp. 42–43. Yoram Dinstein, “The Israeli Supreme Court and the law of Belligerent Occupation: ­Article 43 of the Hague Regulations”, Israeli Yearbook on Human Rights, Vol. 25, 1995, p. 3. As a side note, it is interesting to note here that Article 43 hr was not subjected to any amendments or observations during the Second Peace Conference in The Hague in 1907; Eugène Hanssens, Le Pouvoir Legislatif sour l’occupation allemande en Belgique, Brussels, Larcier, 1919, p. 49. The Belgian delegate S.E.M. Beernaert indeed expressed his concern that such a regulation would empower the strong and victorious; see Conférence Internationale de la paix 1899, Ministère des Affaires Etrangères, la Haye, Imprimerie Nationale, 1899, 3e partie, p. 111. M. de Martens (and others) however expressed the idea that it is particularly in the interest of the weak to regulate the rights and obligations of the strong; ibid., p. 114. Ibid., p. 120. Ibid., p. 127. As M. de Bildt so rightfully affirmed “l’article presente l’avant que s’il laisse au vainqueur d’être juge, il exige qu’il y ait necessité de prendre les mesures dont il s’agit”; Conférence Internationale de la paix 1899, op. cit. note 88, p. 120. Yoram Dinstein, op. cit. note 65, p. 111; Gerard Von Glahn, op. cit. note 4, p. 34; David Kretzmer, op. cit. note 5, p. 57; Robert Kolb and Sylvain Vité, op. cit. note 14, p. 189.

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the legislative powers of the occupant and not only when the occupant is acting to restore and ensure public order and safety.93 2.1.2 “To restore and to ensure” Article 43 of the Hague Regulations refers to both ‘restore’ and ‘ensure’ with regard to public order and civil life. Both terms are however not synonymous and have a different meaning.94 Consequently, they entail two different obligations: to restore public order and civil life where it was previously disturbed and to ensure the continuance of public order and civil life.95 In other words, the occupying power, firstly, has to restore public order and civil life to the way it was before the war, and then, secondly, it is required to ensure that public order and civil life perpetuates.96 These two roles will have different consequences vis-à-vis the maintenance of the status quo principle. Restoring will not present too many challenges in this regard. However, the ensuring of public order and civil life might require the taking of additional steps (especially in the case of a prolonged occupation as we will demonstrate further below) and hence might put more tension on the maintenance of the status quo a­ nte.97 Furthermore, a distinction should also be made between the ensuring of public order and the ensuring of public life. It seems quite logical for the occupying power to have the obligation to ensure public order given that it is the power possessing the armed force.98 The measures required in order to ensure the continuance of civil life might, however, by definition be more intrusive. It is also important to mention that, in any case, given that the first obligation refers to the restoration of public order and civil life to the status quo before the war, the specific interpretation of the obligation will depend on the circumstances of the particular case.99 The restoring obligation will thus entail different specific obligations in different contexts. public order and civil life might, for example, still be quite intact in one case, whereas in another, it will 93 94 95 96

97 98 99

Edmund H. Schwenk, op. cit. note 77, p. 395; Yutaka Arai-Takahashi, op. cit. note 45, p. 93; Robert Kolb and Sylvain Vité, op. cit. note 14, p. 189. Yoram Dinstein, op. cit. note 13, §209. See also Robert Kolb and Sylvain Vité, op. cit. note 14, p. 191. Jama’it Ascan Case, op. cit. note 80, p. 306. hcj, Christian Society for the Holy Places v. Minister of Defence, Case n°337/71, 1971 as ­excerpted in English in the Israeli Yearbook on Human Rights, Vol. 2, 1972, p. 356 [hereafter Christian Society Case]. Robert Kolb and Sylvain Vité, op. cit. note 14, p. 191. Odile Debbasch, op. cit. note 16, p. 153. Edmund H. Schwenk, op. cit. note 77, p. 399.

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require the taking of quite some important measures before public order and civil life is effectively restored. The same holds true for the ensuring obligation, in one case it might require extensive measures whereas in another only minimal intervention will suffice. This was already mentioned at the beginning of this section: there is no single blueprint guiding the occupying power in its obligations towards the occupied territory.100 What is certain, however, is that “there can be no responsibility without power”,101 in others words, if the occupying power is responsible for restoring and ensuring public order and civil life, it also has to possess the authority necessary to fulfil these obligations. The specific authority needed might however vary from one case to another (and we will see that while some measures might be justified in some circumstances, they will not necessarily be so in others). 2.1.3 “L’Ordre et la vie publique” Here we expressely refer to the French formulation of the text since there is a clear discrepancy between the French text of Article 43 hr and the English one.102 The English translation does not seem to be adequate. Indeed whereas the French text refers to ‘l’ordre et la vie publique’, the English version refers to ‘public order and safety’, public safety being much narrower than ‘vie publique’. Since the French text is the only authentic text103 and given that based on the rules of the interpretation of treaties reference should be made to the authentic text,104 the translated English text should read: “public order and civil life”.105 Furthermore, if we were to utilize the English reference to safety, the distinction between both components of Article 43 hr would be blurred given that civil safety is actually encompassed within public order. Such an interpretation would go against the intent of the drafters of the provision, given that it is clear that they wanted to address both security and the issue of the welfare of the population in the occupied territory. Indeed the acts of the 1874 Brussels Conference clearly demonstrate that ‘ordre publique’ was to refer to security and general safety, whereas ‘la vie publique’ referred to social functions and to

100 Eyal Benvenisti, op. cit. note 1, p. 93; Robert Kolb and Sylvain Vité, op. cit. note 14, p. 186. 101 Yoram Dinstein, op. cit. note 13, §214. 102 Yoram Dinstein, op. cit. note 86, p. 2; Marco Sassoli, op. cit. note 13, p. 663; David Kretzmer, op. cit. note 5, p. 58. 103 Yoram Dinstein, op. cit., note 63, p. 1. 104 This rule can be deduced from Article 33 of the Vienna Convention on the Law of Treaties. 105 Marco Sassoli, op. cit. note 13, p. 664.

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every day life transactions.106 Consequently, if ‘public order’ refers to the security of the occupying troops as well as to the general security in the area (thus also including civil safety), ‘civil life’ refers to the welfare of the local population.107 Limiting the provision to its English translation would thus strongly limit its scope and hence we will read it in the way the French text was drafted and consider it to encompass both security and safety, on the one hand, and the welfare of the occupied population on the other. Some have even advanced that “the restoration of public order and civil life aims primarily, if not exclusively, at the interest of the population”.108 2.1.4

“While respecting, unless absolutely prevented, the laws in force in the country” Some powers, such as restoring and ensuring public order and civil life, cannot remain unexercised. In a situation of occupation the legitimate power has been displaced and it is the occupying power that has de facto authority over the occupied territory. Consequently the latter has been entrusted with the obligation to take care of public order and civil life. The occupying power does not however possess the extent of powers that the legitimate sovereign normally possesses vis-à-vis the occupied territory. Occupation does not transfer sovereignty and in order to protect the (normally) temporarily disposed sovereign, limitations have been placed on the factual power of the occupant.109 That is specifically why Article 43 hr provides that occupied territory must be administered “while respecting, unless absolutely prevented, the laws in force in the country”. We rightfully refer here to the occupants powers more in general and not only to the measures taken to restore and ensure public order and civil life given that the limitations established by the above-mentioned phrase also apply to other legislative measures which the occupant might take.110 ­Indeed as Edmund H. Schwenk so righfully noticed: it seems that Article 3 of the Declaration of Brussels retained its character as a general principle even though it became attached to Article 2, which dealt only with the duty of the occupant to restore public order and civil

106 Actes de la conférence de Bruxelles 1874, Bruxelles, F. Hayez: Imprimerie de l’Académie Royale de Belgique, 1874, p. 110. 107 David Kretzmer, op. cit. note 5, p. 60. 108 Edmund H. Schwenk, op. cit. note 77, p. 400. 109 Odile Debbasch, op. cit. note 16, p. 152; Eugène Hanssens, op. cit. note 87, p. 102. 110 Edmund H. Schwenk, op. cit. note 77, p. 395.

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life. As a result, the limitations contained in Article 43 of the Hague Regulations apply to the entire field of legislation.111 Now that we have established that the limitations established by the last part of Article 43 hr apply to all the legislative activities the occupying power might undertake, we should look more in detail at what exactly is meant by “unless absolutely prevented”. Or, in other words, when would an occupying power be absolutely prevented from respecting the laws in force in the occupied country? Some have argued that ‘absolutely prevented’ would refer only to military necessity.112 This might indeed have been the common view of the drafters of this phrase at the time,113 but most authors agree that nowadays such a view would be too narrow, if not actually incorrect.114 If such a view might have been compatible with the prevalence of the ‘laissez faire’ government, it would be difficult to square with contemporary governance.115 Indeed, some laws might henceforth be necessary during the course of the occupation, which do not correspond to military necessity in a strict sense of the term.116 It has therefore been generally admitted that safeguarding the welfare of the native population, albeit for some this is secondary to military necessity,117 can also justify the suspension or the passing of new legislation and should thus be included in the notion of necessity contained in Article 43 hr.118

111 Ibid., p. 397. 112 Such a (wrongful) conclusion is warranted by the historical fact that the term is merely a rephrasing of the word ‘necessity’ in Article 3 of the Brussels Declaration; Edmund H. Schwenk, op. cit. note 75, p. 401. 113 Eyal Benvenisti, op. cit. note 1, p. 91. He further confirms that such a view was in line with the context of the time and the prevalence of the ‘laissez faire’ government but that with the evolution of the tasks of the government, the tasks of the occupying power have also evolved. 114 Gerhard Von Glahn, op. cit. note 4, p. 97; Edmund H. Schwenk, op. cit. note 77, p. 400. 115 For a more detailed analysis of this evolution see Part i, Chap. iii, 1. Challenges induced by the changing social and international environment of this thesis. 116 Gerhard Von Glahn, op. cit. note 4, 97. 117 See for example Gerhard van Glahn, op. cit. note 4, p. 97 who clearly states that safeguarding the welfare of the native population in only a secondary aim for the passing of new law next to the military necessity of the occupying power but would nevertheless seem to justify the passing of such laws. 118 Theodor Meron, “Applicability of multilateral conventions to occupied territories”, American Journal of International Law, Vol. 72, 1978, p. 549; Odile Debbasch, op. cit. note 16, p. 154; Robert Kolb and Sylvain Vité, op. cit. note 14, p. 191; Yutaka Arai-Takahashi, op. cit. note 45, p. 106. See also uk Military Manual, op. cit. note 4, §11.25.

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Given that this notion of necessity encompasses a case-specific assessment it will evolve depending on the situation concerned. It is also not static and can thus evolve over time. It has also been increasingly agreed that some flexibility should be allowed in its interpretation, especially in cases of prolonged occupation. The evolution of necessity in situations of prolonged occupation as well as the risk such a more flexible interpretation might entail will be addressed in more detail further on in this chapter. 2.1.5 Obligation of Means and Not of Result The obligation to ensure and restore public order and safety is not an obligation of result but an obligation of means.119 Indeed Article 43 hr clearly states that the occupying power shall take all the measures in his power, to restore, and ensure, as far as possible, public order and safety. Article 64 gciv: A Further Specification of the Rule Contained in Article 43 of the Hague Regulations Article 64 gciv also deals with the legislative powers of the occupant. We will demonstrate that even though Article 43 hr remains at the basis of the analysis to determine the authority of the occupying power, Article 64 gciv further builds upon the latter and brings about some important clarifications and some new elements.

2.2

2.2.1 Relationship between Article 43 hr and Article 64 gciv Since both provisions deal with similar issues, it is first of all important to establish what the precise relationship between both provisions is. The icrc commentaries provide some important clarifications in this regard by affirming that: “Article 64 expresses, in a more precise and detailed manner, the terms of Article 43 of the Hague Regulations, which lays down that the occupying power has to respect the laws in force in the country ‘unless absolutely prevented’”.120 Article 64 gciv thus seems to further clarify the rule contained within Article 43 hr specifically with regard to the ‘necessity clause’ it contains. Some have even argued that it constitutes “an amplification” of Article 43 hr.121 The rationale behind this solution was clearly summarized by the Mexican delegate at the Diplomatic Xonference in Geneva during which the text was drafted. Indeed, in his opinion, given that the principal aim of the Convention is the 119 Marco Sassoli, op. cit. note 13, p. 664; Yoram Dinstein, op. cit. note 13, §210. 120 Commentaries gciv, op cit. note 14, p. 335. 121 Raymund T. Yingling and Robert W. Ginnane, “The Geneva Conventions of 1949”, The American Journal of International Law, Vol. 46, n°3, July 1952, p. 422.

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protection of civilians, the provision was not in any way to be a retrogression with what had already been established by the Hague Regulations.122 The fact that Article 64 gciv has to be seen as complementing and further explaining Article 43 hr is in line with the general principle regulating the relationship between the Hague Regulations and the Geneva Conventions as contained in Article 154 gciv stating that the Fourth Geneva Convention shall be supplementary to the Hague Regulations. The icrc commentaries to Article 154 gciv further applied this general principle in relation to a certain number of specific articles of the Hague Regulations, including precisely Article 43 hr, in relation to which it states: [Article 43 hr] imposes obligations of a general nature on the Occupying Power, intended to protect not only the inhabitants of the occupied territory, but also, for example, the State, political institutions, etc. The Geneva Convention does not deal with the observance of the laws in force except in so far as they are directly connected with civilian persons (…). With regard to the maintenance of public order and safety, the Fourth Convention only deals with such aspects as are directly connected with the protection of civilian persons (…). It may therefore be concluded that the Convention has taken from this provision of the Hague Regulations those parts essential for the protection of civilian persons. In all other respects, Article 43 of the Regulations remains valid.123 It can be concluded from the above-cited passage that whereas Article 43 hr remains at the basis of the determination of the authority of the occupying power to act in the occupied territory in general, for issues concerning more specifically the protection of civilians, one should look at Article 64 gciv. Indeed each convention has its own focus: while the provisions concerning occupation in the Hague Regulations were more concerned with the protection of the political interests of the ousted government, in line with what was the main preoccupation at that time, the Geneva Convention is more concerned with the protection of the population in the hands of the enemy.124 The occupying power can no longer be ‘the disinterested watchdog’ envisaged by the

122 Final Record of the Diplomatic Conference of Geneva of 1949, Federal Political Department, Berne, Vol. ii, Section A, p. 671 [hereafter final record Geneva]. 123 Commentaries gciv, op. cit. note 14, p. 517. 124 Eyal Benvenisti, op. cit. note 1, p. 72.

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Hague Regulations, but must from now on be ‘a proactive regulator’.125 To illustrate this point, the occupying power henceforth has, for example, certain obligations, albeit of means and not of result, with regard to the care and education of children,126 the ensuring of food and medical supplies,127 and concerning hygiene and public health.128 Most consider Article 64 gciv to be a reiteration of Article 43 hr and the latter consequently continues to be the focal point for discussing the occupant’s prescriptive powers.129 Even though we would agree that Article 43 hr still provides this main framework, we also believe that there are some important new elements introduced by Article 64 gciv such as the possibility to enact legislation which is essential to enable the Occupying Power to fulfil its obligations under the Fourth Geneva Convention (see, infra).130 2.2.2 Limited to Penal Legislation? Article 64 gciv only expressly refers to penal legislation, but does this mean that it is only applicable to penal legislation? This question should be answered in the negative. It is clear from the icrc commentaries that “the idea of the continuity of the legal system applies to the whole of the law in the occupied territory”.131 The express reference to only penal legislation in Article 64 gciv can be explained by the fact that this specific area of the law had not been sufficiently observed in the past.132 The icrc commentaries further specifiy that “there is no raison to infer a contrario that the occupation authorities are not also bound to respect the civil law of the country, or even the constitution”.133 125 126 127 128 129 130

Eyal Benvenisti, op. cit. note 1, p. 72. Article 50 gciv. Article 55 gciv. Article 56 gciv. Eyal Benvenisti, op. cit. note 1, p. 102. In this regard we partly rejoin the position of Eyal Benvenisti, op. cit. note 1, p. 102: “In my view, it is impossible to deny that Article 64 introduced innovative elements into the law of occupation to enable the occupant to achieve the aims of the gciv, and thus represents a departure from Article 43, rather than a more precise and detailed expression of it”. We only partly rejoin his position since, while acknowledging that there are some new elements contained in Article 64 gciv we would nevertheless not say that it represents a departure from Article 43 since also in our opinion Article 43 hr remains the basis on which to assess the occupying power’s legislative authority. 131 Commentaries gciv, op. cit. note 14, p. 335. 132 Ibid., p. 335. 133 Ibid, p. 335.

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Consequently, it has been generally admitted that Article 64 gciv also applies to other laws,134 and is thus not limited to penal legislation.135 2.2.3 “Unless absolutely prevented” Further Explained We have established that Article 64 gciv further specifies the rule contained in Article 43 hr and more specifically what should be understood by the necessity clause therein. In this regard two possibilities are mentioned in Article 64(1) gciv: The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention [emphasis added]. The first possibility, namely the repealing or suspending of (penal) laws in cases where they constitute a threat to the security of the occupying power, is part of the military necessity usually read into the ‘unless absolutely prevented’ expression in Article 43 of the Hague Regulations. Legislation constituting a threat to its security would include, for example, laws relating to recruitment and the bearing of arms.136 The explicit expression of the second possibility, namely the repealing or suspending of the (penal) laws where they constitute an obstacle to the application of the present convention, is an important novelty. This provision would allow, for example, for the repealing of laws which endorse racial discrimination since it would make it impossible for the occupying power to act in conformity with Article 27 gciv.137 This precision was added. amongst others, to cover certain situations that arose during the Second World War.138 It is 134 Yoram Dinstein, op. cit. note 63, p. 5. 135 In this regard see Eyal Benvenisti, op. cit. note 1, p. 101 clearly stating that “following the adoption of the gciv, the great majority of commentators generally agreed that Article 64 addressed the occupant’s authority to legislate in both penal and non-penal matters”. See also, Robert Kolb and Sylvain Vité, op. cit. note 14, p. 194. 136 us Land Warfare Field Manual (July 1956), Washtington d.c., 15 July 1976, §371 [hereafter us Military Manual]. 137 Article 27(3) gciv states that: “(…) all protected persons shall be treated wit the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion [emphasis added]”; See Commentaries gciv, op. cit. note 14, p. 336. 138 In this regard Mr. Ginnane (usa) recalled that “on moving into Germany, the American army had found in existence a whole series of laws based on the nationalist ideology,

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generally admitted that this would nowadays also include other international obligations139 such as international human rights law, for example.140 International human rights law is not specifically mentioned because it did not yet exist in 1907 and in 1949 it was very much in its infancy.141 In the words of Marco Sassoli: “Today, an occupying power has a strong argument that it is ‘absolutely prevented’ from applying local legislation contrary to international law”.142 Importantly, there is however a difference between the suspension of laws which blatantly violate human rights and rules that would not completely be up to the norm with regard to human rights standards.143 The idea behind this exception is to suspend those laws clearly violating human rights law, “and not, in particular, merely to make it accord with [the occupant’s] legal conceptions”.144 The exact interplay between the obligations of the occupant under ihl and those under international human rights law (ihrl) will be analysed further in detail in Part ii, Chapter 2 of this study. It is nevertheless important to mention here that whereas, on the one hand, human rights can strengthen the law-making function of the occupant as we will show, it at the same time also imposes restrictions on the occupying power in a way similar to the way in which human rights constrain the sovereign in its actions towards the persons under its jurisdiction.145 including, in particular, racial discrimination”; Final Record Geneva, Vol. ii, op. cit. note 120, p. 670. 139 See for example Gregory H. Fox, op. cit. note 7, pp. 243–244 stating that “treaty obligations may be understood in their larger normative context in order to assimilate development in international law that elucidate and update their meaning”. 140 See uk military Manual, op. cit. note 4, §11.25 which states that ‘unless absolutely prevented’ contained in Article 43 of the Hague Regulations would include the case in which the laws in force would conflict with its obligations under international law, especially those contained in gciv but thus not limited to the latter. See also us Military Manual, op. cit. note 136, §371 stating that the occupant may also repeal or suspend laws the enforcement of which would be inconsistent with its duties (read its duties under international law). 141 Marco Sassoli, op. cit. note 13, p. 678; Robert Kolb and Sylvain Vité, op. cit. note 14, p. 195. 142 Marco Sassoli, op. cit. note 13, p. 678. See also Lindsey Cameron, “Does the Law of Occupation Preclude Transformational Developments by the Occupying Power”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 66. 143 Gregory H. Fox., “Transformative occupation and the unilateralist impulse”, International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, p. 260. 144 Commentaries gciv, op. cit. note 14, p. 336. 145 Eyal Benvenisti, op. cit. note 1, pp. 102–103. See also Vaios Koutroulis, “The application of International humanitarian law and international human rights law in situations of prolonged occupation: only a matter of time?”, International Review of the Red Cross, Vol. 94,

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Article 64 gciv has shifted the concept of necessity associated previously above all with military security and necessity (even if the welfare of the population had already been progressively associated therewith) to a broader conception, explicitly accommodating diverging needs of the inhabitants of the occupied territories.146 2.2.4

Further Specification of the Legislative Powers of the Occupying Power Not only does Article 64 gciv specify the exceptions contained within the “unless absolutely prevented” phrase of Article 43 of the Hague Regulations, it also further determines the legislative powers of the occupant. In this regard it further confirms that the occupant’s scope of authority and responsibility has to be interpreted fairly widely. Indeed, whereas the main legislative authority contained in the phrasing ‘unless absolutely prevented’ under Article 43 hr was still formulated only in negative terms, this is no longer the case under Article 64 gciv, which explicitly foresees three cases in which the occupant may act. Firstly, the occupying power can legislate to allow it to fulfil its obligations contained in the Fourth Geneva Conventions. This would include the promulgation of provisions in areas such as, for example, child welfare (in accordance with Article 50 cgiv), labour (see Article 51 gciv), food, hygiene and public health (see Articles 55 and 56 gciv).147 Secondly, it also has the right to enact provisions in order to maintain the orderly government of the territory in line with its obligations to restore and ensure public order and civil life as contained in Article 43 of the Hague Regulations. Thirdly, it is allowed to subject the occupied population to provisions necessary to ensure its security. The latter power has long been recognized under international law.148 Some have argued that these three categories are not all-inclusive149 and I would tend to agree with them. Indeed necessity is a sufficiently elastic concept and would not exclude other legislation that is reasonably required by the conditions of the particular occupation.150 No. 885, Spring 2012, p. 205 arguing that “adding human rights norms into the equation is intended to help the occupied population move towards regaining a normal way of life while simultaneously subjecting the Occupying Power to the restraints of an actual governement, and thereby limiting the danger of abusive application of ihl”. 146 Yutaka Arai-Takahashi, op. cit. note 45, p. 136. 147 Commentaries gciv, op. cit. note 14, p. 337. 148 Ibid., p. 337. 149 See for example, Yoram Dinstein, op. cit. note 13, §270. 150 Ibid., § 270.

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The Adopted Measures Should Not Only be in Accordance with Article 43 hr and Article 64 gciv but Should Also be Proportional Next to complying with Article 43 hr as further specified by Article 64 gciv, the measures adopted should also be proportional. We should thus not only review the reason behind the measure but also whether the measure is proportional. To illustrate this point, it is interesting to look at the Beit Sourik case before the Israeli Supreme Court.151 The Beit Sourik Village Council case was concerned with the construction of the separation fence in the area surrounding the village of Beit Sourik and others. In order to analyze the validity of the decision to construct this separation fence a two-step approach was taken. Firstly, the Court analyzed whether the construction of the separation fence was motivated by security or political reasons. This question is important since “the military commander cannot order the construction of the separation fence if his reasons are political”.152 Indeed, if the occupying power has the authority to maintain security in the area concerned (including the security of its troops) it cannot take decisions based on purely political grounds. Or in the words of the Israeli Supreme Court: “the separation fence cannot be motivated by a desire to ‘annex’ territories to the State of Israel”.153 In this regard the Court held that it had to be presumed that the decision to construct the security fence was based on security reasons and not on political ones. Once this had been established it was still important to, secondly, analyze whether the route of the separation fence passed the test of proportionality.154 Indeed, as was so correctly held in the Physicians for human rights case, the fact that a measure is necessary from a military point of view does not mean that it is necessarily lawful from a legal viewpoint.155 This is exactly where proportionality

2.3

151 hcj, Beit Sourik Village Council v. The Government of Israel and the Commander of the idf Forces in the West Bank, Case n°2056/04, 30 June 2004, §27 [hereafter the Beit Sourik Village Council Case]. 152 Beit Sourik Village Council Case, op. cit. note 151,§27. 153 Ibid., §27. 154 Ibid., §48. 155 hcj, Physicians for Human Rights and others v. the Commander of the idf Forces in Gaza, Case n°4764/04, 30 May 2004, §9: “Judicial review does not examine the wisdom of the decision to carry out military operations. The issue addressed by judicial review is the legality of the military operations. Therefore we presume that the military operations carried out in Rafah are necessary from a military viewpoint. The question before us is whether these military operations satisfy the national and international criteria that determine the legality of these operations. The fact that operations are necessary from a military viewpoint does not mean that they are lawful from a legal viewpoint. Indeed, we do not replace the discretion of the military commander in so far as military considerations are

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comes into play. In this regard the main question is whether the injury caused to the local inhabitants by the separation fence is proportionate, or whether it would be possible to satisfy the central security considerations by establishing a fence whose injury to the local inhabitants would be of a lesser extent.156 In Beit Sourik it was held that given that the important injury was caused not only to the lands of the inhabitants and their access to the latter but to the fabric of life of the entire population given that in many locations the fence would pass right by their homes and would strongly impede upon the link between the local inhabitants and the urban centres, the measure was deemed not to be proportionate.157 We should hence not only review the reason behind the measure but also whether the measure in question is proportionate. 3

The Law of Occupation: Flexible Enough to Encompass Change, Even in Long-Term Occupation?

The specific question under review here is whether the law of occupation itself can be interpreted in a sufficiently flexible manner to accommodate at least some of the changes needed in modern forms of occupation, with, in this chapter, a more particular focus on prolonged occupation.158 We will demonstrate that whereas the law is ultimately flexible enough, long-term occupation might require the interpretation of certains provisions to be adjusted to the specific circumstances that it poses.159 The exact delimitation of the powers of the occupant in prolonged occupation has proven to be quite a challenging task, particularly since it is ultimately very case-specific, but here we will nevertheless try to provide some guidelines on this matter. Prolonged Occupation: Affecting the Balance between the Status Quo and Change The starting point of this analysis is that Article 43 hr (and by extension Article 64 gciv), defining and delimitating the authority of the occupying power, tries 3.1

156 157 158

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concerned. That is his expertise. We examine their consequences from the viewpoint of humanitarian law. That is our expertise”. Beit Sourik Village Council Case, op. cit. note 151, §49. Ibid., §84. The extent of the powers left to the occupation by the law of occupation itself with regard to ‘transformative’ occupation will be analysed more in detail in Part ii, Chapter 3 dealing more specifically with the 2003–2004 occupation of Iraq. Expert Meeting, op. cit. note 74, p. 72.

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the strike a balance between stability and change.160 We have shown above that the obligation to maintain the status quo ante is not absolute161 and that the exceptions to the general duty of respect for existing laws are significant.162 Indeed ‘absolutely prevented’ is not a categorical as it sounds, and leaves sufficient room for manoeuvre.163 The other given is that the need for change is more important during prolonged occupation,164 hence shifting the balancing act more towards change and putting additional pressure on the obligation to maintain the status quo ante. However, it is not because it is more difficult to apply the law of occupation in such occupations, that it is therefore rendered inapplicable.165 It has been generally accepted that the law of occupation remains relevant in situations of long-term occupation.166 The principles of the law of occupation indeed seem to be sufficiently flexible to accommodate at least some of the needs of prolonged occupation,167 even if such occupations were not foreseen at the time when the provisions were drafted.168 In addition, too much rigidity would result in the occupied territory being ‘frozen in a time capsule’ and would ultimately leave the occupied territory and its population worse off.169 Not adapting the requirements for action to the exigencies of time would result in the creation of a ‘legal limbo’.170 As Marco Sassoli so rightfully argued: “as the legislative function is a continuous necessary function of every state on which the evolution of civil life depends, a legislative vacuum created by the disruption of the legitimate sovereign must at a certain point in time be filled by the occupying power”.171 Already in 1971, the Israeli Supreme Court in its Christian Society for the Holy Places case, the first published decision of the Israeli Supreme Court dealing with the Occupied Palestinian Territories,172 stated in this regard that: 160 161 162 163

164 165 166 167 168 169 170 171 172

Robert Kolb and Sylvain Vité, op. cit. note 14, p. 189; Eyal Benvenisti, op. cit. note 1, p. 89. Robert Kolb and Sylvain Vité, op. cit. note 14, p. 185. Christopher Greenwood, op. cit. note 5, p. 247. Yoram Dinstein, op. cit. note 13, §256; Wolff Heintschel von Heinegg, op. cit. note 9, p. 860; Yutaka Arai-Takahashi, op. cit. note 45, p. 113; Albert Leurquin, “l’occupation allemande en Belgique et l’article 43 de la Convention de La Haye du 18 Octobre 1907”, International Law Notes, April 1916, p. 55. Christopher Greenwood, op. cit. note 5, p. 263. Ibid., p. 263. Expert Meeting, op. cit. note 74, p. 72. Robert Kolb and Sylvain Vité, op. cit. note 14, p. 186. Yutaka Arai-Takahashi, op. cit. note 45, p. 113. Yoram Dinstein, op. cit. note 13, §279. Ibid., §271. Marco Sassoli, op. cit. note 13, p. 679. David Kretzmer, op. cit. note 5, p. 57.

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alongside an occupant’s right to do all that is necessary in the occupying territory for military purposes and the safety of its forces, it is a duty imposed by international law to be concerned with the welfare of the civilian population in the territory. A prolonged occupation brings in its wake social, economic and commercial changes, which oblige him to adapt the law to the changing needs of the population. The words ‘absolutely prevented’ in article 43 should, therefore be interpreted with reference to the duty imposed upon him vis-à-vis the civilian population, including the duty to regulate economic and social affairs [emphasis added].173 Article 43 is not a ‘rigid straitjacket’174 and is elastic enough to accommodate at least some of the changes dictated by prolonged occupation and the concurrent economic and social changes such situations might require.175 Flexibility vs. Protection: How to Find the Correct Balance and Prevent Abuse? Some flexibility is important for the occupying power to be able to meet the new needs created over time, especially in long-term occupation. Indeed, even de facto powers face circumstances that will require change.176 Even more so, in such cases the occupying power is also the only power capable of undertaking or at least authorizing the reforms needed to allow the occupied territory to keep up with the pace of change.177 Too much flexibility, however, generates the risk of abuse. Giving too much leeway to the occupying power might be as detrimental to the local population as leaving them ‘under-developed’. In order to be able to accommodate the necessary changes while at the same time continuing to guarantee sufficient protection to the local population, a correct balance needs to be found between flexibility and rigidity. This is not an easy task, however. Indeed as is the case with every balancing act, there is no 3.2

173 Christian Society Case, op. cit. note 96, p. 355. 174 Adam Roberts, “Tranformative Military Occupation: Applying the Laws of War and ­Human Rights”, in Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein, Leiden, Martinus Nijhoff Publishers, 2007, p. 492. 175 Albert Leurquin, op. cit. note 163, p. 55. See also, Lindsey Cameron, op. cit. note 41, p. 62 and Christopher Greenwood, International Humanitarian Law (laws of war), Revised ­report for the Centennial Commemoration of the First Hague Peace Conference 1899, in Frits Kalshoven (ed.), The Centennial of the First International Peace Conference: reports and conclusions, The Hague, Kluwer, 2000, p. 220. 176 Gregory H. Fox, op. cit. note 7, p. 223. 177 Robert Kolb, op. cit. note 21, p. 309.

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single guiding model, since the balance has to be struck for every single case. Defining the exact scope of the authority of the occupying power, especially in a long-term occupation, has rightfully been defined as one of the main challenges faced by the law of occupation today.178 Here we will nevertheless try to generate at least some guidelines in order to be able to assess the legitimacy of the needed changes. The welfare of the population, one of the elements contained in the necessity exception as we have demonstrated, is an elastic concept that depends on the particular circumstances and will evolve over time. The needs of the local population could thus justify the taking of additional measures during longterm occupation.179 Concern for the welfare of the local population is thus one of the key elements of the assessment.180 However, this criterion is not without risk of being abused since some very wide-ranging transformations can be adopted under the disguise of the preoccupation for the welfare of the population. The occupying power’s concern for the good of the local population is not always genuine.181 How does one then verify that a measure is based on a genuine concern for the occupied population? In this regard, Yoram Dinstein has developed what he has called the litmus test in order to distinguish between legitimate and illegitimate concerns for the welfare of the occupied population.182 According to him, in order to assess whether the concern for the local population is genuine one should look at whether the occupying power shows a similar concern for the welfare of its own population and more specifically at whether the occupying power is adopting similar measures for its

178 In this regard see Expert meeting, op. cit. note 74, p. 8. 179 David Kretzmer, op cit. note 5, p. 69. There are of course other elements that would justify the taking of measures such as military necessity/security concerns or in order to allow the occupying power to fulfill its obligations under gciv but we focus here on the welfare of the local population since specifically here we are more concerned with the changing needs of the occupied population over time in cases of prolonged occupation. 180 As Tristan Ferraro, “The law of occupation and human rights law: some selected issues”, in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 279, so correctly pointed out: “the notion of the welfare of the occupied population is of the utmost importance in particular in situations of occupation”. He however also further points out that the concept of the welfare of the local population is “characterised by its vagueness”. See also the concept of ‘Benevolent Occupant’ as outlined with reference to the jurisprudence of the Supreme Court of Israel by David Kretzmer, op. cit. note 5, pp. 57–72. 181 David Kretzmer, op. cit. note 5, p. 59. 182 Yoram Dinstein, op. cit. note 63, p. 9.

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own population.183 This concept is not free from criticism, however. Firstly, it is important to recall that the occupying power does not have the same powers towards the occupied country as it does towards its own territory, over which, contrary to the occupied territory, the latter has full sovereignty. Measures that are legally adopted in its own territory might be ultra vires with regard to the occupied territory, since the measure has to satisfy the necessity test whem applied to the occupied territory.184 Similarly, the situation of both countries might not be entirely comparable and what might be a good measure for the occupying power’s own population might not be such a good measure for the occupied population.185 Again, every measure is very case-specific, and should thus take all necessary specificities of the occupied territory into account. Even more seriously, adopting parallel legislation in the home and occupied country entails a risk of the gradual multiplication of the legislation of the occupant’s home country into the occupied territory, which could progressively amount to de facto annexation.186 In addition, we would tend to agree with Theodor Meron when he argued that the litmus test can only be useful in the negative, meaning that the absence of such legislation in the occupant’s home country would create a presumption of abuse but that the existence of such legislation would, on its own, not be enough to deem the measure to be sincerely concerned with the welfare of the local population.187 Yoram Dinstein himself acknowledges some of the limits of this concept but is still confident that the test might prove to be quite useful.188 We would agree with this but would like to nuance the usefulness of this test. Indeed if, in my opinion, the litmus test can provide some indications, it can never be conclusive and additional means of assessment are needed. Next to the litmus test proposed by Yoram Dinstein some other indicators have also been advanced. It has for example been advanced that one should look at the attitude of the local population to judge whether a measure 183 Yoram Dinstein, op. cit. note 13, §282. For an example of the application of this principle by the Israeli Supreme Court see vat case, op. cit. note 64, p. 357 in which Judge Shamgar argued that legislative steps taken by the occupant should be regarded as legitimate if it takes equal legislative steps towards its own population. Applying this principle to the vat case, he then concluded that the institution of the additional excise tax in the opt was legitimate since it had been done at the same time as the introduction of the ‘value added tax’ in Israel. 184 Expert Meeting, op. cit. note 74, p. 79. 185 Ibid., p. 79. 186 Theodor Meron, op. cit. note 118, p. 550. 187 Theodor Meron, op. cit. note 118, p. 550. 188 Yoram Dinstein, op. cit. note 13, §283.

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­effectively serves their interests or not.189 Similarly, allowing the local population to participate in the decision-making process might also increase the legitimacy of the adopted measures.190 In this regard some have held that the longer the occupation lasts, the more the local population should be consulted on matters related to the administration of the occupied territory, with the exception of when the security of the occupying power is at stake given that this security remains the exclusive prerogative of the occupying power.191 This is however not always easy to realize in practice, but the adherence and participation of the local population would, of course, be a good indicator with regard to the genuine character of a measure taken to its advantage. Another indicator lies in the absence of the interest of the occupying power as the driving force behind the adopted measure. Indeed, already in 1971 it was held, in the first case before the Israeli Supreme Court dealing with the opt, that with regard to the increased authority of the occupying power in situations of prolonged occupation, it was of particular importance to assess “whether the motive for change was the furtherance of the occupant’s interests or concern for the welfare of the civilian population”.192 Whereas a measure based on concern for the welfare of the local population would be legitimate as has been established above, a measure based on the interests of the occupying power would not. This has to be linked with the fact that the occupying power is not allowed to exploit the occupied territories for the benefit of its own population.193 It was further specified in the Jam’iyat Ascan case that: the military commander is [indeed] not allowed to take the national, economic, or social interests of his own country into account … even the

189 190 191 192

Robert Kolb, op. cit. note 21 p. 313. Ibid., p. 313. Expert Meeting, op. cit. note 74, p. 75. Christian Society case, op. cit. note 96, p. 355. It is also interesting to look at the dissenting opinion of Justice Cohen in this case stating that the power of the occupant “is designed first of all to restore public order and civil life to the status quo before the war and not to introduce new public order and civil life the likes of which the residents had never enjoyed”; ibid., p. 356. However, as was rightfully highlighted in David Kretzmer, op. cit. note 5, p. 59: whereas Cohn’s position might be tenable in a short term occupation this is far from being the case in a long-term occupation. 193 Outcome of the celebrations of the Centennial of the First International Peace Conference: report on the conclusions, un Document A/54/381 and corr. 1, in Frits Kalshoven (ed.), The Centennial of the First International Peace Conference: reports and conclusions, The Hague, Kluwer, 2000, p. 478. See also, Christopher Greenwood, op. cit. note 5, p. 220.

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needs of the army are the army’s military needs and not the national security interests in the broad meaning of the term.194 Robert Kolb also suggested a further path which was worth exploring. He suggested taking a look at the provisions listed in Article 6(3) gciv to constitute a core non-derogable nucleus of protection.195 The rights contained in this core nucleus should be respected at all times and measures derogating therefrom would at least be presumed to be illegitimate. As a reminder, Article 6(3) gciv encompasses the ‘one-year after’ clause stating that the law of occupation ceases to be applicable one year after the general close of military operations, except with regard to the provisions listed in the said article which remain applicable for the entire duration of the occupation. Before we explore this path somewhat further, we should recall that his rule has been criticized earlier on in this research, and we have shown that it has been definitely modified by the adoption of Article 3 api.196 The entire law of occupation thus remains applicable until the termination of the occupation. It seems nevertheless interesting to see whether these provisions that seem to be more indispensable, at least concerning the intent behind Article 6(3) gciv, can provide us with some guidance with regard to the question at hand here. The provisions listed in this article refer to the inviolability of rights (Art. 47 gciv); enlistment and forced labour and the protection of workers (Arts. 51 and 52 gciv); restricted destruction (Art. 53 gciv); relief (Arts. 59, 61–63 gciv); penal legislation and procedure (Art. 64–75 gciv); and the treatment of detainees (Arts. 76 and 77 gciv). While the idea advanced by Robert Kolb is interesting, here we would like to voice a similar criticism to the one that has been voiced against the ceasing of applicability after one year of the provisions not listed in Article 6(3) gciv. To this extent, we would like to recall the words of Orna Ben-Naftali, “[i]t would be unreasonable to assume that the drafters of the Convention intended for children to be deprived of proper schooling or for the population to be deprived of medical supplies and food in long-term occupations, as such an 194 Reference to Jam’iyat Ascan at 794 as cited in Beit Sourik Village Council Case, op. cit. note 151, §27. 195 Robert Kolb, op. cit. note 21, p. 315. 196 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Martinus Nijhoff Publishers, Geneva 1987, §146; See also Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, The Hague, Martinus Nijhoff Publishers, 1982, p. 57.

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intention would defy the Convention’s main objective”.197 Similarly, this would also, in our opinion, constitute a problem in view of the formation of a core non-derogable nucleus of norms of protection. It seems impossible to exclude such things as the education and care of children and the provision of food and medical supplies to the local population from such a core list of norms. Finally, a last possibility suggested is the creation of an external oversight mechanism in order to assess whether the measures have been genuinely taken for the good of the local population.198 Indeed the system as it stands today is far from perfect since as long as the occupation lasts the occupant is the only judge of the need for changes to be introduced as well as the genuine nature of the measures taken.199 If there seems to be a general consensus on the need for such a body it is not clear what kind of oversight mechanism should and could be established.200 The need for such a supervisory body and the format it should in our opinion adopt will be discussed further in detail in the general conclusion of this study (see infra, general concluding remarks). 4

Interim Conclusion: Some Inherent Flexibility within the Law of Occupation Itself

The leeway provided by the law of occupation is more important than one might a priori think. Indeed, the ‘necessity clause’ contained in Article 43 hr is not as strict as it appears at first sight and wide-ranging changes might be adopted, amongst other things, for security reasons or for the benefit of the occupied population. The law of occupation is thus in itself sufficiently flexible to accommodate change, at least to a certain extent. There is however a risk of abuse given that because of this inherent flexibility the exact boundaries of the occupant’s powers are not clear. We have attempted to provide some guidelines in order to assess whether the measures taken, especially in prolonged occupation, for the benefit of the local population are genuinely taken for the benefit of the latter. We are unfortunately not able to provide a general framework that would be applicable to 197 Orna Ben-Naftali, “PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and Other Legal Pathologies”, in Orna Ben-Naftal (ed.), ­International Humanitarian Law and International Human Rights Law: Pas de Deux, ­Oxford University Press, Oxford, 2011, p. 151. 198 Expert Meeting, op. cit. note 74, p. 76. 199 Gerard Von Glahn, op. cit., note 4 p. 100. 200 Expert Meeting, op. cit. note 74, p. 77.

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all measures adopted in all prolonged occupations. As we have already shown, the powers of the occupant being of a factual nature, the extent of its powers is specific to each case considered and no general conclusions might be drawn. What can be allowed in one circumstance might be ultra vires in another. Similarly, what might benefit the local population in one case might be detrimental to the local population in another occupation.

chapter 2

International Human Rights Law as a ‘Gap-Filler’ Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. The Martens Clause1

∵ Even though human rights were originally designed for peacetime, it has been generally admitted that the protection offered by human rights treaties does not cease to apply in cases of armed conflict, including situations of occupation. The general applicability of international human rights law (ihrl) in addition to the more specific rules of international humanitarian law (ihl) to situations of occupation has become widely accepted but a number of more specific questions remain unresolved, notably with regard to how human rights are actually implemented in situations of occupation and how they interact with the specific rules on occupation. The main issue raised in this chapter is to what extent and how ihrl might play a role in making the legal framework of occupation more adapted to current situations of occupation. This question is especially pertinent in cases of long-term occupation. In order to analyze this question, we will, first, briefly compare the two bodies of law. We will then demonstrate that ihrl is applicable both ratione loci and ratione materiae to situation of occupation. Finally, we will analyse the precise relationship between the two bodies of law in situations of occupation and conclude that ihrl can indeed, in certain circumstances, fill in the gaps left by the law of occupation.

1 Convention (iv) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, preamble.

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Comparison between Both Bodies of Law: Differences and Similarities

Whereas the laws of war and more specifically the regulation of state-to-state war are a relatively ancient branch of international law, international human rights law dates from the post-Second World War period and is thus relatively recent. Interestingly, the process of ‘humanization’ that has led to the creation of international human rights law has also affected international humanitarian law, including the law of occupation.2 As was already highlighted above (see supra, Part 1, Chapter, 1.1), the provisions of the 1907 Hague Regulations are mostly concerned with the protection of property and the 1949 Fourth Geneva Convention more specifically focuses on rules concerning the protection of civilians.3 As Theodore Meron rightfully stated: “[w]hereas the Hague Convention established important limitations on the occupant’s permissible activities, modern law obligates the occupant to assume active responsibility for the welfare of the population under its control”.4 An even more important example of humanization can be found in the analysis of the provisions contained in Section iii (treatment of persons in the power of a party to the conflict) of Additional Protocol i since these provisions seem to be largely inspired by the provisions of the International Covenant on Civil and Political Rights (iccpr).5 Accordingly there seems to be a parallel between the development of human rights law and the development of modern ihl and a clear influence of the former on the latter. ihl, at least in its modern form, and ihrl thus share the same underlying rationale, namely the protection of human life and dignity.6 However, the 2 See for example Theodor Meron, “The Humanization of Humanitarian Law”, The American Journal of International law, vol. 94, 2000, pp. 239–278. 3 Theodor Meron, op. cit. note 2, pp. 254–246. 4 Ibid., p. 245. 5 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds.), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 8 June 1977: Commentaries, Geneva, icrc, 1987, p. 844, commentary n°2935. 6 See for example Inter-American Commission on Human Rights, Report No. 55/97, Case No. 11.137: Argentina, OEA/Ser/L/V/II.98, Doc. 38, December 6 rev., 1997, § 192 [hereafter Tablada case]: “the American Conventions, as well as other universal and regional human rights instruments, and the 1949 Geneva Conventions share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity [emphasis added]”. See also Raul Emilio Vinuesa, “Interface, correspondence and convergence of human rights and international humanitarian law”, Yearbook of International Humanitarian Law, Vol. 1, 1998,

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­ recise way in which individuals are protected is different. Indeed, whereas p ihrl protects all human beings, the specific protection offered by ihl depends on the status of the persons concerned. Moreover, ihl is based on a careful balance between military necessity and humanity.7 Military necessity allows for measures that are indispensable to accomplish a legitimate military purpose and are not otherwise prohibited by ihl,8 meaning that in certain circumstances it allows for armed forces to engage in conduct resulting in destruction and the infliction of harm if the necessities of war so require and insofar as they remain within the limits of what is allowed under the laws of war. Understandably, the relationship of this principle with the need for humanitarian protection is thus tense. However, the process of the ‘humanization’ of international humanitarian law described above has also had an influence here. This has led ihl to progressively move more and more in the direction of humanity and away from military necessity.9 Still the specificities related to the existence of a situation of armed conflict need to be taken into account and the protected rights must be carefully balanced with the rules and principles of war, including military necessity. We will see later on in this chapter that the rationale of war also remains crucial when assessing the role of ihrl in situations of occupation. Finally, whereas ihl only applies in situations of armed conflict, international human rights law is applicable at all times. Indeed, aside from permissible derogations in times of emergency, ihrl continues to apply during wartime.10 The practical reach of the possibility for 7

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p. 70 and Kenneth Watkin, “Controlling the use of force: a role for human rights norms in contemporary armed conflict”, American Journal of International Law, Vol. 98, No. 1, p. 9. Michael N Schmitt, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law; vol. 50(4), 2010, p. 798. On the issue of military necessity and humanity, see also Gerald Draper, “Military Necessity and Humanitarian Imperatives”, in Revue de Droit Militaire et de Droit de la Guerre, Vol. 12/2, 1973, pp. 129–151 and N.C.H. Dunbar., “The Significance of Military Necessity in the Law of War”, in Juridical Review, Vol. 67/2, 1955, pp. 201–212. See Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, art. 14, as cited in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflict. A collection of Conventions, Resolutions and Other Documents, Dordrecht, Martinus Nijhoff Publishers, 1988, p. 6. Michael. N. Schmitt, op. cit. note 7, p. 805. Indeed most human rights conventions contain a clause enabling StateS Parties under certain conditions to temporarily derogate from some of their human rights obligations in times of emergency, subject to international supervision. See for example Article 4 of the International Convenant on Civil and Political Rights (iccpr): “1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating

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derogation is ­however strictly confined. First, there should be a state of emergency; second, this state of emergency should be officially proclaimed; and, third, there is a list of rights which are non-derogable. In addition, “measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature”11 and limited to what is “strictly required by the exigencies of the situation”.12 Concerning more specifically derogations in wartime, whereas indeed, as confirmed by Manfred Nowak, “an armed conflict usually represents the prototype of a public emergency that threatens the life of the nation”,13 even in such cases measures derogating from the Convention are only allowed if and to the extent that the situation constitutes a threat to the life of the nation.14 In addition, and most crucially for the specific question at hand, as Robert K. Goldman has righfully argued: “it is [in any case] questionable (…) whether this ground could be invoked by a State that is engaged in military operations, whatever their nature or origin, that occur exclusively in the territory of another state (…)”.15

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from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from Articles 6, 7, 8 (paragraphs i and 2), 11, 15, 16 and 18 may be made under this provision.3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation”. International Covenant on Civil and Political Rights, General Comment No. 29: states of emergency (Art. 4), CCPR//C/21/Rev.1/Add.11, 31 August 2001, §2 [Hereafter iccpr comment No. 29]. See Article 4 iccpr cited in footnote 11. Manfred Nowak, u.n. Covenant on Civil and Political Rights. ccpr Commentary, Kehl am Rhein, N.P. Engel, 1993, 947p. p. 74. In this regard see also T. Buergenthal, “To Respect and to Ensure Respect: State Obligations and Permissible Derogations” in Louis Henkin (ed.), The International Bill of Rights – The Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, p. 79; Joan Hartmann, “Derogation from Human Rights Treaties in Public Emergencies – A critique of the Implementation by the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations”, Harvard International Law Journal, vo. 22, 1981, pp. 1–52. iccpr comment No. 29, op. cit. note 11, §3. Robert K. Goldman, “Extraterritorial application of the human rights to life and personal liberty, inclusding habeas corpus, during situations of armed conflict”, in Robert Kolb and Glorio Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law,

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Even though they are applicable in both peace and in wartime, human rights instruments were not designed to regulate warfare.16 For the specific rules during wartime, we thus have to turn to ihl which in contrast to human rights law, has been specifically designed to place restraints on the conduct of warfare in order to diminish the effect of hostilities, especially on civilians.17 Importantly, if we can consider human rights law to offer greater protection in general, this ceases to be true in wartime situations. As was correctly highlighted by the Inter-American Commission on Human Rights, “the provisions of conventional and customary humanitarian law generally afford victims of armed conflicts greater or more specific protections than do the more generally phrased specific guarantees in the American Conventions and other human rights instruments”.18 To conclude, on a point of great practical importance, even though ihl seems to offer more specific protection during wartime, many victims have turned increasingly towards human rights courts to obtain reparation.19 This is due to the fact that whereas law enforcement and implementation ­mechanisms

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­Cheltenham, Edward Elgar, 2013, p. 105. This question is still open to debate. Marko Milanovic, “Hassan v. United Kingdom, ihl and ihrl, and Other News in (Extra)-Territoriality and Shared Responsibility”, ejil Talk, 18 December 2013, in this regard for example states that he “see[s] no good reason to categorically prohibit extraterritorial derogations”. This debate would merit further analysis but at first glance I would tend to agree that derogations at the very least seem difficult to square with extra-territorial interventions and this for two main reasons: firstly, there is no state of emergency in the state of the nation that would be invoking it, and secondly, because it is a situation on which these states willingly embark and so, even if we were to disregard the first element, it is a state of emergency that they have brought upon themselves (from their perspective, regardless of the state of emergency in the country of intervention). Tablada case, op. cit. note 6, §158. Ibid, §159. In this regard see also for example Terry Gill, “Some Thoughts in the Relationship Between International Humanitarian Law and International Human Rights Law: A plea for Mutual Respect and a Common-Sense Approach”, Yearbook of International Humanitarian Law, Vol. 16, 2013, p. 253: “The basic purpose of ihl is and always has been two-fold. First, to regulate and – to some degree – mitigate the conduct of hostilities between belligerent parties; and second, to provide protection to specific categories of persons and to certain objects, which are either particularly vulnerable or which required an enhanced degree of care and protection”. Tablada case, op. cit. note 6, §159. Cordula Droege and Louise Arimatsu, “The European Convention on Human Rights and International Humanitarian Law: Conference report”, Yearbook of International Humanitarian Law, Vol. 12, December 2009, p. 435.

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are very developed under ihrl, they are not at all under ihl.20 Indeed, if various international procedures to monitor and enforce compliance with human rights law been developed, including providing individuals with the right to complain to judicial bodies, this is far from being the case with regard to ihl. In practice, this means that it will be easier for individuals to obtain reparation if they manage to prove that a norm of international (or regional) human rights law has been violated. 2

Applicability of International Human Rights Law to Situations of Occupation

The application of international humanitarian law to situations of occupation is quite straightforward. Indeed, Common Article 2 to the Geneva Conventions states that the Conventions “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if said occupation meets with no armed resistance”. The application of international human rights law to situations of occupation is more complex. Two main questions need to be addressed to this extent: first, the question of applicability ratione loci, or in other words the issue of the extraterritorial application of human rights obligations; and, second, the question of applicability ratione materiae. 2.1 Applicability Ratione Loci: The Question of the Extraterritorial Application of International Human Rights Obligations Human rights law was originally developed to protect individuals against the arbitrary exercise of power by the authorities of the territorial state.21 The increasingly interconnected and globalized world brings along a certain number of challenges, including challenges increasing the vulnerability of individuals. In an increasing number of situations, state conduct is likely to affect the human rights of individuals beyond the borders of the territorial state. Hence the 20

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Cordula Droege and Louise Arimatsu, op. cit. note 19, p. 437; See also Michat Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties, Antwerp, Intersentia, 2009, p. 64. See also Vera Gowlland-Debas and Gloria Gaggioli, “The relationship between international human rights and humanitarian law: an overview”, in in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 93. Fons Coomans and Menno T. Kamminga, “Comparative Introductory Comments on the extraterritorial application of human rights treaties”, in Fons Coomans and Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, Antwerp, Intersentia, 2004, p. 1.

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question arises whether a country can be bound by its international human rights obligations outside of its territory. The question of the extraterritorial application is a complex one. In order to shed some light on the problem, we will, first, analyse the question of extraterritoriality in the main universal human rights treaties. We will then have a look at the caselaw of the European Court of Human Rights (ECtHR) given that it is the most extensive on the subject and can be considered an example for other human rights regimes. Finally, we will conclude that, even though the exact reach of extraterritorial application of human rights is not yet clear, occupation would in any case trigger the extraterritorial application of human rights obligations. 2.1.1 Extraterritoriality of Universal Human Rights Treaties Most universal human rights treaties have a provision according to which States undertake to ensure respect for the concerned human rights to those within their jurisdiction, although the exact formulation of this provision varies.22 Article 2(1) of the iccpr for example mentions that “each State party (…) undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant [emphasis added]”. Some authors read ‘and’ as referring to a cumulative condition: States are thus obliged to ensure respect for the rights contained in the covenant only towards those individuals who are both within their territory and subject to their jurisdiction.23 Such a position is also defended by certain States such as the United States of America as well as by Israel.24 Others however read ‘and’ as ‘or’ and consequently, in their view, the obligation also rests on States vis-à-vis individuals subject to their jurisdiction even if they are not situated within their territory. This last view seems to be supported by the Human Rights Committee (hrc). In its general comment on the general legal obligation imposed on States Parties to the Covenant, it indeed affirmed that 22

23 24

Orna Ben-Naftali and Yuval Shany, “Living in Denial: the application of human rights in the occupied territories”, Israel Law Review, vol. 37, 2003–2004, p. 59; Marko Milanovic, “Al-Skeini and Al-Jedda in Strasbourg”, European Journal of International Law, vol. 23 No. 1, 2012, p. 122; Fons Coomans and Menno T. Kamminga, op. cit. note 21, p. 2. See for example Dietrich Schindler, “Human Rights and Humanitarian law: Interrelationship of the laws”, American University Law review, vol. 31, issue 4, 1982, p. 939. Robert Kolb and Sylvain Vité, Le droit de l’occupation militaire: perspectives historiques et enjeux juridiques actuels, Brussels, Bruylant, 2009, p. 315; Orna Ben-Naftali and Yuval Shany, op. cit. note 27, p. 34; Expert Meeting, Occupation and other forms of administration of foreign territory, report prepared and edited by Tristan Ferraro, legal adviser, icrc, March 2012, p. 61.

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“States Parties are required by Article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party [emphasis added]”.25 Previously the hrc had already held in Burgos/Delia Saldias de Lopez v. Uruguay that “it would be unconscionable to so interpret the responsibility under Article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory”.26 The International Court of Justice has furthermore also confirmed the above-mentioned position in its advisory opinion on the Wall: The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory (…) The travaux préparatoires of the Covenant confirm the Committee’s interpretation of Article 2 of that instrument. These show that, in adopting the wording chosen, the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory. They only intended to prevent persons residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within the competence of that State, but of that of the State of residence (…).27

25

26 27

International Covenant on Civil and Political Rights, General Comment No. 31: nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/ C/21/REV.1/add.13, 26 May 2004, §10 [hereafter iccpr comment No. 31]. Human Rights Commission, Burgos/Delia Saldias de Lopez v. Uruguay, Communication N°52/1979, un Doc CCPR/C/OP/1 (1984), §12.3. International Court of Justice (icj), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, i.c.j. Reports 2004, §109 [hereafter Wall opinion].

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Contrary to the iccpr, the International Covenant on Economic, Social and Cultural Rights (icescr) is silent with regard to its field of application.28 The Committee on Economic, Social and Cultural Rights, however, in its concluding observations on Israel of the 23rd of May 2003, reaffirmed its view that “the State party’s obligations under the Covenant apply to all territories and populations under its effective control”.29 The icj also confirmed this position in its advisory opinion on the Wall with regard to the opt.30 Concerning the other un international human rights Conventions, it seems only reasonable to adopt a similar approach and accept that they also apply to territories over which a State party has effective control.31 2.1.2

The Jurisprudence of the ECtHR with Regard to the Extraterritoriality of Human Rights Obligations The jurisprudence of the ECtHR is of particular relevance here since it is the most developed and has had an important impact on other human rights bodies and the icj.32 From the outset it is important to mention that two main models have been developed to deal with questions of the extraterritorial application of human rights norms, namely the spatial and the personal model.33 In this section, we are going to assess how the ECtHR has dealt with the question of extraterritorial application and the application of these two models. We will conclude that even though the jurisprudence of the ECtHR on the matter is far from being coherent it can nevertheless be argued that occupation would 28 29 30

31

32 33

Wall opinion, op. cit. note 27, § 112. Committee on Economic, Social and Cultural Rights, Concluding observations on Israel, 23 May 2003, E/C.12/1/Add.90, §31. Wall opinion, op. cit. note 27, §112: “The International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of application. This may be explicable by the fact that this Covenant guarantees rights which are essentially territorial. However, it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction”. Orna Ben-Naftali and Yuval Shany, op. cit. note 22, p. 60. See also: Ralph Wilde, “triggering state obligations extra-territorially: the spatial test in certain human rights treaties”, Israel Law Review, vol. 40, 2007, pp. 507–508 (also see the extensive bibliography to which he refers in these pages with regard to this issue). Michat Gondek, op. cit. note 20, p. 371. For a more detailed analysis of these models see: Marko Milanovic, Extraterritorial Application of Human Rights Treaties. Law, Principles, and Policy, Oxford; Oxford University Press, 2011, pp. 118–227. In the context more specifically of the relationship between ihl and ihrl in situations of occupation, these tests have been recalled in Expert Meeting, op. cit. note 24, p. 62.

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in any case generate the extraterritorial application of the human rights obligations under the European Convention. The spatial model of extraterritorial application establishes jurisdiction whenever a state exercises effective control over an area. It is the most straightforward of the two models given that it remains the closest to the territorial principle. It was hence thus also the first model to be developed as well as applied in practice.34 It is thus interesting to note that the first few cases dealt with by the former European Commission on Human Rights, the predecessor of the ECtHR, seems to have been based on some exercise of authority or control by a State party over the applicants,35 thus hinting more towards some form of personal model of jurisdiction. However, these mostly concerned consular and diplomatic cases, which represent fairly exceptional situations “because they involve particularly obvious and attributable exercises of power by designated state agents”36 and thus concern cases in which the link with the State’s home governement is clear and straightforward. The more ‘traditional’ extraterritorial application cases followed the more classical development in which the spatial model came first, and the personal model was developed later on in order to complement it. The founding case concerning the spatial mode seems to have been the case of Cyprus v. Turkey (1975), in which the Court held that “the High contracting parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad [emphasis added]”.37 Even though there is a reference to actual authority and responsibility over persons, the “essential predicate was that Turkey had established so great a presence in Cyprus that it was in a position effectively to control administration in the region”.38 The importance of effective territorial control in order to establish jurisdiction 34 35

36

37 38

Marko Milanovic, op. cit. note 33, p. 128. Michat Gondek, op. cit. note 20, p. 123. See more specifically: European Commission on Human Rights (ECommHR), X v. Germany, Application no. 1611/62, 25 September 1965, p. 17 Collection of Decisions (1966) 42; European Commission on Human Rights (ECommHR), X v. uk, Application no. 7547/76, 15 December 1977, 12 dr, p. 73; European Commission on Human Rights (ECommHR), Ilse Hess v. uk, Application no. 6231/73 (admissibility decision), 28 May 1975, 2 dr (1975), p. 72. Sarah Miller, “Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention”, European Journal of International Law, Vol. 20, No. 4, 2009, p. 1238. European Commission on Human Rights (ECommHR), Cyprus v. Turkey, Application no. 6789/74 & 6950/75, 26 May 1975, 2 dr (1975), p. 133. Sarah Miller, op. cit. note 36, p. 1237.

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was later clearly confirmed by the Loizidou case, in which it was stated that “[b]earing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory [emphasis added]”.39 The rationale between this territorial approach was later on further explained by the ECtHR in its Cyprus v. Turkey Judgment of 200140 Indeed it seems only logical that when a State other than the sovereign State is exercising effective control over all or part of a territory, the former is responsible for violations of the echr occurring in the area over which it has effective control.41 Holding the sovereign State responsible for such violations while it lacks effective control over the territory in question “would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention’s fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court”.42 The Bankovic case, far from being controversial on a certain number of issues, after recalling that jurisdiction remains predominantly territorial43 and that extraterritorial jurisdiction is definitely an exception,44 confirmed the spatial model of extraterritorial jurisdiction.45 We are not going to enter into the details of the controversy here but will only limit ourselves to mentioning two important points relating to (1) the espace juridique, and (2) the indivisibility of rights.46 The point made by the Court in Bankovic limiting 39

European Court of Human Rights (ECtHR), Loizidou v. Turkey (preliminary objections), Application no. 15318/89, 23 March 1995, §62. 40 European Court of Human Rights (ECtHR), Cyprus v. Turkey, Application no. 25781/94, 10 May 2001. 41 hpcr, “From Legal Theory to Policy Tools: International Humanitarian Law and International Human Rights Law in the Occupied Palestinian Territory”, Policy Brief, Harvard Program on Humanitarian Policy and Conflict Research, May 2007, p. 5. 42 ECtHR, Cyprus v. Turkey, op. cit. note 40, §78. 43 European Court of Human Rights (ECtHR), Bankovic and others v. Belgium and others, Application no. 52207/99 (admissibility), 12 December 2001, §59 [hereafter Bankovic case]. 44 Ibid., §61. 45 Ibid., §71: “In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government”. 46 For a more detailed analysis of the Bankovic case see more specifically Rick Lawson, “Life after Bankovic: On the Extraterritorial application of the European Convention on

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­jurisdiction to the espace juridique of the contracting states and hence excluding the rest of the world47 (and in this particular case the Former Yugoslav Republic) therefrom was probably the most controversal element of the Bankovic case. This position has since long been overturned so there is no need to spend any further time on this issue. Concerning the indivisibility of rights, the Court had stated that these rights cannot “be divided and tailored in accordance with the particular circumstances”.48 This reasoning was made in response to the argument of the applicants according to which States should secure the Convention’s rights “in a manner proportionate to the level of control exercised in any given extra-territorial situation”.49 This is an interesting point since a similar debate is ongoing with respect to the obligations contained in the law of occupation and more specifically in relation to the distinction between invasion and occupation (see supra, Part 1, Chapter 1, 1.6) as well as in relation to the debate surrounding the occupation of Gaza (see box 1). The Court in its Al-Skeini judgment confirmed that the controlling State has the responsibility to ensure the entire range of substantive rights set out in the Convention within the area under its control.50 Limiting extraterritorial application to only situations in which states would exercise sufficient control over a specific area would lead to the exclusion of a number of situations in which such application would also be strongly needed.51 This led to the development of the complementary personal model of jurisdiction.52 The ECtHR for the first time endorsed the personal in addition to the spatial model in the Issa case, in which it stated that next to the State’s responsibility being potentially engaged when it has effective control over an area situated outside its national territory, “a State may also be held accountable for violation of the Convention rights and freedoms of persons who are

47 48 49 50 51 52

­ uman Rights”, in Fons Coomans and Menno T. Kamminga, Extraterritorial Application H of Human Rights Treaties, Antwerp, Intersentia, 2004, pp. 83–123; Oliver De Schutter, “Globalisation and Jurisdiction: Lessons from the European Convention on Human Rights”, Baltic Yearbook of International Law, vol. 6, 2006, pp. 185–247; Ralph Wilde, op. cit. note 38, pp. 503–526; Alexander Orakhelashvili, “Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights”, European Journal of International law, vol. 14, No 3, June 2003, pp. 529–568. Bankovic case, op. cit. note 42, §61. Ibid., §75. Ibid., §75. European Court of Human Rights (ECtHR), Al-Skeini and others v. the United Kingdom, Application no. 55721/07, 7 July 2011, §138–139 [hereafter the Al-Skeini case]. Marko Milanovic, op. cit. note 33, p. 170. Ibid., p. 173.

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in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State (…)”.53 The logic behind the extraterritorial application of human rights in Issa is thus no longer purely spatial. A State might thus also have jurisdiction when it exercises authority or control over a person abroad. It is, hovewer, still unclear what would precisely amount to state authority and control over a person which would be necessary for triggering the extraterritorial application of human rights obligations. Different examples have in practice led to the application of the personal model: (1) physical custody;54 (2) control over an individual in a specific place or by specific agents;55 (3) the exercise of legal powers;56 (4) extraterritorial enforcement;57 and (5) being subjected to some form of legal process in the foreign state.58 It is not only the exact extent of the personal model which remains unclear. The relationship with the spatial model is also a question that needs further clarification. The much awaited Al-Skeini case was “set to become the leading Strasbourg authority on the extra-territorial application of the echr”.59 However, it did not fulfil the expectations laid upon it. In this decision the ECtHR started by recalling that even though jurisdiction is mainly territorial, two exceptional circumstances might give rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries: state agent control and authority (personal model) or effective control over an area (spatial model).60 When applying these principles to the case at hand, the Court however seems to adopt some kind of hybrid solution, somewhere in between the personal and territorial model. The Court indeed stated that: It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In 53 54 55 56 57 58 59 60

European Court of Human Rights (ECtHR), Issa and others v. Turkey, Application no. 31821/96, 16 November 2004., §69–71. Marko Milanovic, op. cit. note 33, p. 187. Ibid., p. 193. Ibid., p. 199. Ibid., p. 199. Ibid., p. 202. Ibid., p. 121. Al-Skeini case, op. cit. note 50, §131–132.

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these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention [emphasis added].61 The court in the Al-Skeini case indeed seemed to develop some variation of the effective control test, leading to the introduction of a reference to the exercise of public authority over a certain territory into the personal model, hence, in my opinion, to a conflation between both models. Strangely the Court did not adop the easy solution of stating that occupation entails effective overall control over territory and that therefore there is a jurisdictional link between the uk and the deceased. As Anna Cowan so rightfully puts it: “Could the Court not have said that a situation of belligerent occupation raises a presumption of effective control by the occupying power?”.62 The Al-Skeini judgment has in any case not contributed to the establishment of a coherent regime of the extraterritorial application of the echr. 2.1.3

Conclusion on the Extraterritorial Application of International (and Regional) Human Rights Obligations The exact reach of the extraterritorial application of human right obligations is not yet completely clear and is still strongly evolving. Ultimately, however, which precise model ought to apply is not of much importance regarding the question of the extraterritorial application of human rights obligations in situations of occupation. It is in my opinion clear that regardless of the specific model or combination of models applied, occupation would in any case trigger the extraterritorial application of human rights law.63 It can indeed be easily argued that occupation constitutes a form of territorial control that is sufficiently effective in order to admit that the human rights obligations of the occupying power apply extraterritorially.64 Or as Françoise Hampson correctly

61 62 63

64

Al-Skeini case, op. cit. note 50, §159. Anna Cowan, “A New Watershed? Re-evaluating Bankovic in the Light of Al-Skeini”, Cambridge Journal of International and Comparative Law, Vol. 1, 2012, p. 225. The Human Rights Committee has found the iccpr to be applicable to the opt on different occasions and the primary basis for extraterritorial application in both the icj Wall opinion and the armed activities cases. Application in both cases seems to have been to the occupied status of the territories in question; see M. Milanovic, op. cit. note 33, p. 141. Robert Kolb and Sylvain Vité, op. cit. note 24, p. 330. See also Noam Lubell, “Human Rights Obligations in military Occupation”, International Review of the Red Cross, Vol. 94, No. 885,

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stated: “in a situation of military occupation, a State is in a position to secure human rights in the same way as in national territory”.65 It is however essential to note that the ‘effective control’ test used to trigger the law of occupation is not exactly the same as the notion used in the framework of the extraterritorial application of human rights obligations.66 Both notions are admittedly based on the same idea: some form of control is needed in order to be able to exercise the respective obligations. However, the extraterritorial application of human rights obligations goes beyond situations of occupation alone. In other words, human rights law can be applied extraterritorially outside of situations of occupation but once there is occupation, the threshold for triggering the extraterritorial application of human rights law is in any case also met.67 2.2 Applicability Ratione Materiae Even though, strictly speaking, human rights law had been designed for peacetime, it has been generally accepted that the protection offered by human rights conventions does not cease to apply in the case of armed conflict. Only two States (the United States and Israel) take the position that where the law of armed conflict is applicable human rights law is not;68 the icj, the international treaty bodies and the un organs take the view that both bodies of law

65

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67 68

Spring 2012, p. 319, “military occupation is perhaps one of the least controversial circumstances [of the extraterritorial application of ihrl], and there is a solid foundation for the assertion that the Occupying Power must abide by international Human Rights Law”. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working paper on the relationship between human rights law and international humanitarian law by Françoise Hampson and Ibrahim Salama, 21 June 2005, un Doc. E/CN.4/sub.2./2005/14, §83 [hereafter Commission on Human Rights Report]. With the nuance, of course, that the occupying power only has de facto powers and no sovereign powers and can thus hence act only within the limits allowed by the law of occupation and more particularly by Article 43 hr and Article 64 gciv (see supra, Part ii, Chapter 1). See Marco Milanovic, op. cit. note 33, p. 142: ‘One issue that needs to be considered is whether the state jurisdiction threshold for the application of hr treaties is the same as or different than the threshold for the establishment of belligerent occupation’. This issue has also been explicitly raised by Eyal Benvenisti, The International law of occupation, Oxford, Oxford University Press, 2nd edition, 2012, p. 67. Marco Milanovic reaches a similar conclusion; see Marco Milanovic, op. cit. note 33, pp. 146–147. Terry Gill, op. cit. note 17, p. 255. Eyal Benvenisti even goes as far as to qualify the us and Israel as persistent objectors in relation to this position; see Eyal Benvenisti, op. cit. note 66, p. 13.

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can be applicable in times of war.69 As early as in 1963, the Commission on Human Rights in its Resolution 2005/63 on the protection of the human rights of civilians in armed conflicts mentioned that “human rights law and international law are complementary and mutually reinforcing”,70 that “the protection provided by human rights law continues in armed conflict situations, taking into account when international humanitarian law applies as lex specialis”71 and that “conduct that violates international humanitarian law (…) may also constitute a gross violation of human rights”.72 With regard more specifically to the iccpr, the hrc stated that: the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not ­mutually exclusive.73 The continued applicability of ihrl in wartime was also confirmed by case law. The icj in its nuclear weapons advisory opinion held that: “the protection of the International Covenant on Civil and Political Rights does not cease in times of war”.74 Whereas in this opinion explicit reference was only made to the iccpr, the Court later on expanded this determination to human rights conventions more in general. Indeed, in its Wall opinion the icj more generally stated that it “considers that the protection offered by human rights conventions does not cease in case of armed conflict”.75 In practice, the Court analyzed the applicability of the iccpr, the icescr and the Convention on the Rights on the Right of the Child in the context of the construction of the wall in the Occupied Palestinian Territories. In its armed activities judgement the icj again analysed the applicability of the iccpr, the icescr and the Convention 69 70 71 72 73 74 75

Commission on Human Rights Report, op. cit., note 65, §69. Commission on Human Rights, Human Rights Resolution 2005/63 on the protection of civilians in armed conflicts, 20 April 2005, preamble. Ibid., preamble. Ibid., art. 1. iccpr comment No. 31, op. cit. note 25, §11. See also iccpr comment No. 29, op. cit. note 11, which also implies that the Covenant continues to apply in armed conflict. International Court of Justice (icj), Legality of the Threat or of Nuclear Weapons, Advisory Opinion, i.c.j. Reports, 1996, p.226, §25 [hereafter Nuclear Weapons Opinion]. Wall opinion, op. cit. note 27, §106.

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on the Rights of the Child, as well as the applicability of a more local human rights instrument: the African Charter on Human and People’s Rights. These two last cases are of particular interest for the question at hand given that they more specifically apply human rights law in the context of occupation. In the context of the occupation of the Palestinian territories, the Court clearly held that both ihl as well as ihrl were of particular relevance in this case.76 However, most regrettably, as we will see more in detail below, it did not enter into detail on the specific rules that would be applicable and how the two bodies of rules exactly relate to each other in such situations. In the Armed Activities case, the Court concluded by stating that Uganda was the occupying Power in Ituri at the relevant time and that As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the drc. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party [emphasis added].77 The Court made a further reference to the “obligations under the rules of ihrl and ihl, which are relevant and applicable in the specific situation.78 However, it again did not specify what these relevant and applicable norms of ihrl and ihl would exaclty entail and how they would precisely relate to each other. Finally, Article 72 api also clearly suggests that both ihl and ihrl are applicable in situations of armed conflict: the provisions of this Section are additional to the rules concerning protection of civilians and civilian objects in the power of a Party to the conflict contained in the Fourth Geneva Convention (…), as well as to other applicable rules of international law relating to the protection of fundamental human rights during armed conflict. 76 77

78

Wall opinion, op. cit. note 27, §106. International Court of Justice (icj), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, i.c.j. Reports 2005, §178 [hereafter Armed Activities case]. Ibid., §190.

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The general applicability of human rights law to situations of occupation has become widely accepted but a number of questions remain unresolved, notably with regard to how human rights are actually implemented in situations of occupation and how they exactly interact with the specific rules on occupation. 3

The Relationship between International Humanitarian Law and International Human Rights Law in Situations of Occupation

Even though the applicability of human rights law to situations of armed conflict falling under ihl, including situations of occupation, has been widely recognized, the exact relationship between both branches of law is less clear. The purpose of this part is to try to establish more clarity on this issue. 3.1 A Preliminary Analysis of the Relationship Apart from a very few who still argue that where the law of armed conflict is applicable, human rights law is not; most of the international community recognize that both ihl and ihrl can be applicable in situations of armed conflict and that hence there is some complementarity between the two bodies of law in such situations.79Amongst those advocating complementarity, two main views can however be distinguished: that ihl should be adjusted to conform more closely to ihrl,80 and conversely, that ihl precisely remains the main body of reference in times of war, and that ultimately preference should be given to the rule that is most adapted and relevant to the situation at hand.81 The latter is the position that should be preferred in my opinion and I fully agree with Gill’s statement according to which this view is indeed the soundest given that “it reflects both the essential reality of armed conflict and the fact that States have clearly devised two separate – but essentially ­complementary – bodies of law to deal with that reality”.82 79

80

81 82

See also Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, p. 409. He furthermore refers to scholars who might be stating otherwise as an ‘endangered species’; ibid., p. 403. Marko Milanovic, for example, advocates such a position and states that we must ‘further humanize ihl’ by the application of ihrl, but also recognizes that this might water down ihrl; see Marko Milanovic, op. cit. note 33, p. 231. See Terry Gill, op. cit. note 17, p. 255. Terry Gill, op. cit. note 17, p. 256.

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The issue of the relationship between ihl and ihrl is of particular importance in the context of occupation given that it is an atypical situation of armed conflict, situated somewhere between peace and war, and thus by its very nature it is going to give rise to issues situated at the confines of these two regimes.83 The exercise of authority over a territory and its inhabitants as well as the maintenance of safety and public order dictated by Article 43 of the 1907 Hague Regulations do not fall under the traditional conduct of hostilities paradigm. In the words of Yoram Dinstein, the interaction between the two bodies of rules in situations of occupation “is a matter of cardinal import”.84 The icj, in its opinion on the Wall, after recognizing that both ihl and ihrl applied to the situation of the opt, identified three possible situations regarding their interaction: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both branches of law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex s­ pecialis, international humanitarian law.85 It is important to first of all note that, and this appears very clearly from the above-cited paragraph, a conflict of norms only emerges when a particular issue is regulated by both branches of law. If a specific situation is only regulated by one of the two branches, it is quite straightforward which body of law will be applicable to the situation at hand. In brief, even though both bodies of law apply cumulatively they will only in exceptional cases arrive at different, mutually exclusive results.86 When a single issue is regulated by both ihl and ihrl the question is rather complex, however. If both bodies of law do not contradict each other, such as 83

84 85 86

Danio Campanelli, “The law of military occupation put to the test of human rights law”, International review of the Red Cross, Volume 90, Number 871, September 2008, p. 654. On this point, see also Jens David Ohlin, arguing that in light of the fact that the occupying power acts as a de facto temporary sovereign, ihrl play an important role in situations of occupation; Jens David Ohlin, “Acting as a sovereign versus Acting as a Belligerent”, in Jens David Ohlin (ed.), Theoretical Boundaries of Armed Conflict and Human Rights, New York, Cambridge University Press, 2016, pp. 147–148. Yoram Dinstein, The International Law of Belligerent Occupation, Cambridge, Cambridge University Press, 2009, §185. Wall opinion, op. cit. note 27, §106. Expert Meeting, op. cit. note 24, p. 139.

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is the case for the prohibition of torture for example, then there is not really an issue. Problems really arise when both bodies are regulating the same issues and contradict each other. The most salient example being the right to life and the connected issue of the use of force, of course; another example would be detention.87 In order to settle such issues the Court refers to the principle of lex specialis. The reference to this term by the Court has been subject to much criticism. Some have argued that when applied strictly, this rule would mean that where rights are provided by both ihl and ihrl, ihl would always override ihrl.88 Even though I admit that the Court could have chosen a less ‘loaded’ term to deal with the conflict of norms in this case, I also believe that the interpretation stating that ihl would simply override ihrl in such cases is not the correct interpretation of the term lex specialis used by the Court. If anything, as Arai-Takahashi argues, it should be read as lex specialis complementa, not lex specialis derogata.89 Similarly, Dinstein states that ‘the term derogat in this connection must not be construed as a total exclusion of the law of human rights’.90 In the meantime, probably as a response to the many criticisms voiced about the use of term lex specialis, the Court has ceased to refer to it as was apparent in the Armed Activities case. If the total exclusion of ihrl in case of conflicting norms is not the right way to read the lex specialis principle, how should we then resolve conflicts between both norms in situations of armed conflict? Since ihl has been specifically drafted to address situations arising in the framework of armed conflict and is thus, a priori, the most suitable, it should always constitute the starting 87

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With regard to this problem see more specifically Marco Sassòli and Laura M. Olson, “The relationship between international humanitarian and human rights law where it matters: Admissible killings and internment of fighters in non-international armed conflicts”, International Review of the Red Cross, Vol. 90, No. 871, September 2008, pp. 599–627. In this article detention is highlighted as one of the major challenges with regard to the relationship between ihl and ihrl. Even though the article concerns more specifically non-­international armed conflicts, the problem is also relevant in situations of occupation. The following article is also interesting in that respect: Bruce Oswald, “The Law on Military Occupation: Answering the Challenges of Detention during Contemporary Peace Operations”, Melbourne journal of international law, vol. 8(2), pp. 311–326. See also Expert Meeting, op. cit. note 24, p. 139. See, for example, Reference should be Andrea Bianchi, “Dismantling the Wall: the ICJ’s Advisory Opinion and the Likely Impact on International Law”, German Yearbook of International Law, Vol. 47, pp. 370–371 (2004). Yutaka Arai-Takahashi, op. cit. note 79, p. 421. Yoram Dinstein, op. cit. note 84, §195. On this point see also for example Heike Krieger, “A conflict of norms: the relationship between humanitarian law and human rights law in the icrc customary law study”, Journal of Conflict & Security Law, Vol. 11, No. 2, 2006, p. 271.

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point. In situations of armed conflict, ihl is thus the special law whereas ihrl is the general one.91 ihrl thus has a more secondary role, helping to “elucidate those elements of ihl rules which remain ambiguous and regulated in different provisions”92 and “complement the law (…) on specific issues and enhance protection where possible”.93 In cases where ihrl would nevertheless provide the more detailed (or only) rule, it might become the ‘primary’ rule but in such cases it should always be interpreted in light of ihl in order for it to be suited to the specificities of war. Failing to take the specificities of war into account would not be without risks. These risks are even more stringent in situations of occupation. Indeed not taking into account the complexities of occupation may ultimately result in a weakening of the protection owed to the occupied population. As Benvenisti rightly points out, “due to the inherent lack of faith in the impartiality of the occupant, the latter may not be granted the same margin of appreciation that sovereigns enjoy (…)”.94 To conclude on the general relationship between both bodies of rules, ihrl can serve to fill in the gaps left by the ihl rules regulating occupation. When doing so, however, ihrl rules should always be interpreted in light of ihl. This position seems, furthermore, to have been confirmed by case law. Firstly, as was also highlighted by Dinstein, the International Criminal Tribunal for the Former Yugoslavia (icty) in the Kunarac case was of the view ‘that notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law’.95 Such a position seems more recently to have also been confirmed by the ECtHR, which stated in its Hassan decision that: “even in situations of international armed conflict, the safeguards under the convention continue to apply, albeit interpreted against the background of the ­provisions 91 92 93 94

95

Yoram Dinstein, op. cit. note 84, §196. Yutaka Arai-Takahashi, op. cit. note 79, pp. 405–406. Eyal Benvenisti, op. cit. note 66, p. 14. Eyal Benvenisti, op. cit. note 66, p. 349. On a similar note, Jonathan Thompson Horowitz for example also claims that “that a state has substantial latitude under international human rights law to determine how it is allowed to meet its human rights obligations” and “if that discretion is not reined in, an occupation could make significant social and legal changes that masquerade as human rights initiatives but are in fact unnecessary and even used for the sole benefit of the occupant”; Jonathan Thompson Horowitz, “The Right to Education in Occupied Territories: making more room for Human Rights in Occupation law”, Yearbook of International Humanitarian Law, Vol.7, 2004, p. 235. International Criminal Tribunal for the former Yugoslavia (icty), Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23-T& IT-96-23/1-T, 22 February 2001, §471. See also Dinstein, op. cit. note 84, §196.

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of ihl [emphasis added]”.96 Similarly, in a general comment to the right to life, the African Commission on Human and Peoples’ Rights also held that “[d]uring the conduct of hostilities, the right to life needs to be interpreted with reference to the rules of international humanitarian law”.97 This position has furthermore also been corroborated during the expert meeting organized by the icrc on the law of occupation: “In the event that there was no specific rule of ihl on a particular subject, human rights law would apply, but would be construed in the light of ihl”.98 Trying to Establish the Specific Relation between Both Bodies of Law: Elements Influencing the Relationship Since the exact relationship between ihl and ihrl in situations of armed conflict, including occupation, depends on a certain number of factors, it is impossible to establish a ‘one size fits all’ model. In order to nevertheless establish some clarity on the matter, I have identified three elements that influence the relationship in situations of occupation and that might help us to identify some guiding principles: first, the concrete situation on the ground; second, the length of the occupation; and third, the nature of the right concerned.

3.2

3.2.1

The Situation on the Ground: Conduct of Hostilities vs. Law Enforcement Before delving into the core of the matter, it is first of all important to mention that the premise according to which ihrl does not cease to apply in situations of armed conflict also applies to the right to life. As was clearly stated by the icj in its nuclear weapons advisory opinion: the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation 96 97

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European Court of Human Rights (ECtHR), Hassan v. uk, Application no. 29750/09, 16 September 2014, § 104 [hereafter Hassan Case]. General Comment No. 3 on the African Charter on Human and Peoples’ Rights: the right to life (article 4), adopted during the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights, held from 4 to 18 November 2015 in Banjul, the Gambia. Expert Meeting, op. cit. note 24, p. 63.

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of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities [emphasis added].99 The conclusion reached by the icj on the relationship between ihl and ihrl in relation to the deprivation of life furthermore seems straightforward: ihl has been specifically drafted to regulate the conduct of hostilities and hence is the primary body of law to be taken into account when determining the conditions under which someone can be lawfully deprived of his/her life in an armed conflict context. In practice, it is however not always that easy. Occupation is the perfect illustration of a situation in which the determination is not that straightforward. Indeed, due to its very nature of being situated somewhere between war and peace, hostilities do not always continue to be conducted in situations of occupation, especially when it endures.100 In addition, the occupying power also being specifically tasked with maintaining safety and public order, occupation is the archetype of a situation where both the conduct of hostilities and law enforcement will coexist: the former being regulated by ihl, the later by ihrl.101 The exact relationship between the two bodies of law will thus be strongly influenced by the situation on the ground.102 The question of the applicable model is far from being a theoretical one. Indeed both models are very different and ihrl is far more life-protecting that ihl. When the occupying power resorts to force under the law enforcement model, the use of force is regulated in a similar way to that of policing forces. Consequently, physical force under the law enforcement model shall only be used if absolutely necessary and resorting to lethal force is only allowed as a 99 Nuclear Weapons Opinion, op. cit. note 74, §24. 100 Danio Campanelli, “The law of military occupation put to the test of human rights law”, International review of the Red Cross, Volume 90, No. 871, September 2008, p. 654. 101 As highlighted by Kenneth Watkin, ”Use of force during occupation: law enforcement and conduct of hostilities”, International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, p. 273: “[i]t is in the context of maintaining public order and safety that the issue often arises of how the two governing frameworks of humanitarian and human rights law interact with each other”. 102 This point has amongst others also be raised by Terry Gill, op. cit. note 17, p. 260 who argued that “specific factual circumstances also play a role in determining the relationship between the two bodies of law”. Similarly, Noam Lubell, op. cit., note 64, p. 324 also states that the context can affect the substantial obligations. He refers more specifically in this regard to both the situations on the ground and the legal context in which the occupying power is operating; ibid., p. 324.

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very last resort103 Firearms can therefore only be used against persons “when strictly unavoidable in order to protect life”.104 If the lawful use of force and firearms is unavoidable, law enforcement officials have to, amongst other things, exercise restraint, act in proportion to the seriousness of the offence and the legitimate objective to be achieved and minimize damage and injury, and respect and preserve human life.105 The use of force under ihl, on the other hand, starts from the premise that combatants (and civilians directly participating in hostilities) can be expressly targeted. As was clearly stated in the Hostages Case, “a belligerent is allowed to apply any amount of force to compel the submission of the enemy, including the destruction of life of armed enemies and others persons whose destruction is incidentally unavoidable”.106 Of course, this power is also not unlimited and there are a certain number of principles that need to be respected such as the principle of humanity which forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes,107 and the principle of proportionality, which requires losses resulting from a military action not to be excessive in relation to the military advantage.108 The logic is however principally different from and contrary to the fact that lethal force can only be used as a very last resort under the law enforcement framework; ihl is based on the principle that combatants can be killed. Not only are the tests under ihrl far more protective, the tests to be applied are also much stricter. The application of the correct legal framework to the use of force concerned is thus of crucial importance. The theory is quite straightforward: ihl applies to the conduct of hostilities, ihrl to law enforcement. As Cordula Droege righfully put it: “[t]he closer the 103 See Basic Principles on the Use of Force and Firearms by law enforcement officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 [hereafter Basic P ­ rinciples on the use of force]. See also Noam Lubell, “Applicability of Human Rights Law in Situations of Occupation”, Proceedings of the Bruges Colloquium, Current challenges to the law of occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 50; Robert Kolb and Silvain Vité, op. cit. note 24, p. 355; Manfred Nowak, op. cit. note 13, p. 111. 104 Basic Principles on the use of force, op. cit. note 103, Article 9. 105 Ibid, Article 4. 106 United States Military Tribunal, Nuremberg, Case No. 47, Trial of Wilhelm List and others, United Nations War Crimes Commission. Law Reports of Trials of War Criminals. Volume viii, 1949, p. 66 [hereafter List case]. 107 See for example uk Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, §2.4. 108 Ibid., §2.6.

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situation is to the battlefield, the more humanity law will prevail over human rights law, whereas for law enforcement, human rights law prevails”.109 The application of this principle is however far from being a simple matter in practice. First, these two stages are not that clearly delimitated in practice. In some instances it might thus be rather hard to determine whether it is conduct of hostilities or law enforcement. Second, the situation on the ground can evolve quickly and a relative calm occupation can rapidly turn into a more hostile one again. Third, it is also far from being exceptional for these two stages to co-exist simultaneously. Fourth, the qualification of the person against whom force is to be used can also influence the balance. The situation can thus be quite puzzling for the soldiers of the occupying power on the ground.110 ihl is furthermore silent with regard to the model that should be applied to the use of force in situations of occupation. Whilst it is clearly stated in Article 43 of the 1907 Hague Regulations that the occupant “shall take all measures in his power to ensure, as far as possible, public order and safety”, the law of occupation is however silent on how the occupying power should specifically ensure this public order and safety and when and how force may be used in that regard.111 Different legal regimes have been identified to regulate this question: ihl, ihrl, jus ad bellum, the occupying power’s domestic law or the domestic law of the occupied territory.112 In my opinion, however, only ihl and ihrl are suitable candidates: Jus ad bellum can in my opinion be discarded right away since it does not seem to be suitable to regulate the case at hand; the domestic 109 Cordula Droege, “The interplay between international humanitarian law and international human rights law in situations of armed conflict”, Israel Law Review, vol. 40, 2007, p. 344. 110 Noam Lubell, op. cit. note 103, p. 51. 111 Expert Meeting, op. cit. note 24, p. 109. Centre Universitaire de Droit International Humanitaire/University Centre for International Humanitarian Law, Expert Meeting on the Right to Life of Armed conflict and Situations of Occupation, Organised by the University Centre for International Humanitarian Law, convened at the International Conference Centre, Geneva, 1–2 September 2005, p. 21 [hereafter cudh/uchl report]. If we look at the definition provided by Nils Melzer, “Conceptual Distinction and Overlaps between Law Enforcement and the Conduct of Hostilities”, in Terry Gill and Dieter Fleck (eds.), The Handbook of the International Law of Military Operations, Oxford, Oxford University Press, 2010, p. 33: “the generic concept of law enforcement comprises all territorial and extraterritorial measures taken by the State or other collective entity to maintain and restore public security, law and order (…)”; the occupant’s obligation to maintain public order and safety should thus normally fall under law enforcement. We are however in a specific situation here in which the law of occupation requires the occupying power to restore and ensure public order and safety whilst at the same time being in a situation in which hostilities might also still be conducted. 112 Expert Meeting, op. cit. note 24, p. 112.

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law of the occupied territory poses a certain number of insurmountable practical issues as it seems unreasonable to require the occupying power to know the specific domestic law enforcement rules applicable in the occupied territories; and, even the more plausible option of applying the domestic law of the occupant, would not be without the specific constraints imposed by international law in order to ensure the protection of the occupied population. The question of the precise interaction between both bodies of law when force is being used in occupied territoriesn still remains, however. Three specific approaches have been put forward in order to address this question: the ‘situation-based’ or ‘sliding-scale’ approach; the ‘jump theory’; and the ‘mixed-model’ approach. The ‘situation-based’ or ‘sliding scale’ approach bases the choice and application of the model on the situation at the time the occupant decides to resort to force.113 The ‘jump theory’ is quite similar to the ‘sliding-scale’ approach with the important difference that the experts subscribing to this theory believe that the transition between both models is not that smooth and that the switch to the conduct of hostilities model necessitates the existence of specific conditions.114 It is however not so clear what these conditions should be. Finally, the ‘mixed-model’ approach is not that clear and does not make much sense in my opinion. It would consist of the creation of sui generis rules constituting a blend of ihl and ihrl rules which could be specifically suited to the situation at hand.115 This would however risk undermining some of the fundamental principles of ihl such as, for example, the principle of distinction between combatants and civilians since it would result in creating some sort of sui generis regime applicable to both. The sliding-scale approach thus seems to be the only plausible approach and furthermore confirms my point that the determination of the applicable model should be based on the situation on the ground. It is also capable of addressing the important challenge caused by the fact that the situation can evolve over time and that conduct of hostilities and law enforcement might thus alternate with each other. In order to assist in the correct determination of the applicable body of law to a specific case, different elements have 113 Expert Meeting, op. cit. note 24, p. 112. A similar approach was also adopted by Marco Sassoli in relation to a different but not completely incomparable situation, namely the behaviour of international forces in Afghanistan, in which the balance between ihl and ihrl varies based on the presence or absence of control over the territory where the attack occured; Marco Sassoli, “The International Legal Framework for Stability Operations: When May International Forces Attack or Detain Someone in Aghanistan”, International Law Studies, Vol. 85: The War in Afghanistan: A Legal Analysis, 2009, pp. 451–452. 114 Expert Meeting, op. cit. note 24, p. 115. 115 Ibid., p. 115.

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been identified under the sliding-scale approach: (1) the nature of the threat faced by the occupant and the status of the individual responsible for the threat (combatants or civilians), (2) the duration of the occupation, (3) the level of control exercised by the occupant over the territory in question and (4) the nature of the occupation.116 Concerning the nature of the threat faced by the occupant, strongly linked to the question of the status of the person from which the threat is emanating, it is completely logical and in line with the main principles of ihl that the response should be different based on whether the occupying power is dealing with a threat emanating from members of the armed forces of the occupied power or from civilians. If we can expect a military response vis-à-vis the combatants, a police-type response is more appropriate when the civilians of the occupied territory are disturbing the public order. There are however a certain number of grey areas such as the question whether the occupying power has the right to attack soldiers who are still active even though they do not represent a direct threat in a situation of occupation where there are no longer any active hostilities.117 With regard to the duration of the occupation: the longer the occupation lasts, the more it will tend to stabilize in practice. The law enforcement model might thus become more important over time. This does not however mean that hostilities cannot re-emerge sporadically in which case ihl might again become more important. Similarly, the more control an occupying power has over the territory in question, the less it will need to resort to actual fighting and the more predominant the law enforcement model will be. Concerning the nature of the occupation a distinction is made between a calm occupation, on the one hand, and a troubled, violent, hostile or volatile occupation, on the other, which actually concurs with the distinction between the presence or absence of actual fighting.118 In order to determine whether the occupation is calm or hostile 116 Expert Meeting, op. cit. note 24, p. 113. 117 Robert Kolb and Sylvain Vité, op. cit. note 24, p. 357. 118 See also cudh/uchl report, op. cit. note 111, p. 22 defining ‘calm’ occupation as an occupation in which there has been no ‘resumption’ or ‘outbreak’ of hostilities and hence establishing a similar distinction. The report in addition clearly demonstrates that this is not a theoretical question given that there are factually very different occupations and that whereas some occupations are fairly calm (cf for example the Turkish occupation of Northern Cyprus), there are others in which the occupying powers has barely enough effective control for it to maintain its status as an occupying power because of constant violence and disorder (cf. Iraq); ibid., pp. 22 and 27. On the distinction between ‘a violent’ as opposed to a ‘calm’ occupation, see also for example also Kenneth watkin, op. cit. note 100, p. 276. Similary, Yutaka Arai-Takahashi refers to a volatile occupation as opposed to a calm occupation, op. cit. note 79, p. 439.

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the indicators that were identified in order to establish the difference between internal disturbances and non-international armed conflicts might provide some assistance. Next to the different indicators highlighted in the framework of the sliding-scale approach, some have also argued that a distinction should be made based on whether the occupying power is acting on the basis of the obligation to maintain law and order as contained in Article 43 hr or whether the occupant is acting for its own security.119 In the first situation law enforcement will be presumed to be the applicable body of law, whereas in the second the actions will presumably fall under ihl.120 Whereas this might also serve as an indicator, the precise facts on the ground should remain predominant when determining which body of rules should be used. In other words, when the actions of the occupant under Article 43 hr still result in conduct of hostilities in practice, the presumption should be rebutted and ihl should be applied. Whilst the different identified indicators might help in determining which model should precisely be applicable in a specific situation, most seem to ­argue that the starting point, or in other words, the default body of law applicable to the use of force in occupied territory, should be law enforcement, except when it is clear that the threat is emanating from the armed forces of the occupied territory.121 Even though I fully understand their line of reasoning, I believe that this position should be nuanced. Occupation remains a situation of armed conflict so the rationale behind ihl should always continue to be taken into account even when the situation stabilizes. Indeed it seems quite straigthforward that it is much more easy to abide by the prescriptions of law enforcement in peacetime than in situations of occupation, which remains a situation of armed conflict even if it is a special one. I thus believe that a certain leniency should be given to the occupying power and its actions should be evaluated less strictly than police actions in peacetime.122 The precise relationship between ihl and ihrl with regard to the use of force in occupied territory is thus strongly influenced by the facts on the ground. As Andreas Paulus has argued so effectively: It will be the responsibility of the military leadership of the occupying powers (and its lawyers) to determine in detail which rules of human 119 cudh/uchl report, op. cit. note 111, p. 21. 120 Ibid., p. 21. 121 Expert Meeting, op. cit. note 24, p. 116 and cudh/uchl report, op. cit. note 111, p. 22. See also Kenneth Watkin, op. cit. note 101, p. 324. 122 A similar argument was made by certain experts during the icrc expert meeting on occupation. See Expert Meeting, op. cit. note 24, pp. 119–120.

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rights law to apply in a given situation (…) The more a situation of occupation resembles ordinary government, the more the occupying power will have to follow the same rules as governments in peacetime. However the more a belligerent occupation reverts back to hostilities, the more a relationship between the fighting forces will be governed by the lex specialis designed for such a situation, namely the law on the conduct of hostilities.123 It can be easily understood that such interplay between bodies of law, moreover depending on the facts on the ground, might be rather confusing for the troops on the ground. I would therefore like to rejoin those advocating in favor of effective training and development of specific Rules of Engagement on this matter.124 3.2.2

The Length of the Occupation: The Longer the Occupation Lasts, the More Important International Human Rights Law Becomes In the previous point we have established that the balance between international humanitarian law and international human rights law evolves based on the facts on the ground and more specifically on the basis of whether the occupation has stabilized or whether the hostilities are still ongoing. The relationship thus evolves over time. Following up on that, we will state that, more in general, the duration of the occupation has an effect on the relationship between ihl and ihrl.125 Indeed, the longer the occupation lasts the more shortcomings international humanitarian law tends to reveal and thus the more important the role of international human rights law becomes.126 The challenges arising under long-term occupation have been described in detail

123 Andreas Paulus, “The Use of Force in Occupied Territory: The Applicable Legal Framework”, in Expert Meeting, op. cit. note 24, p. 142. 124 cudh/uchl report, op. cit. note 111, p. 29. 125 In this regard see for example Tristan Ferraro, “The law of occupation and human rights law: some selected issues”, in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 279 arguing that indeed, “hrl may [also] play an increasing role in so far as the changing needs of the occupied population would become even more compelling over time”. See also Noam Lubell, op. cit., note 64, p. 329 stating that “[t]he duration of the occupation is (…) also part of the context in which the human rights obligations must be assessed”. 126 Vaios Koutroulis, “The application of International humanitarian law and international human rights law in situation of prolonged occupation: only a matter of time?” International Review of the Red Cross, Vol. 94, No. 885, Spring 2012, p. 197.

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in Part 1, Chapter 2 of this study so we will limit ourselves to a brief overview of the question here. Since the law of occupation is based on the view that occupation is inherently short-term in nature and in light of the obligation to maintain the status quo ante, it is not able to meet all the needs of the population in a long-term occupation.127 Occupation lawindeed remains too general in order for it to determine a long-term framework.128 International human rights law thus serves to meet the additional needs of the population created by the prolongation of the situation of occupation.129 As was stated in the report of the expert meeting: “when occupation lasts longer, and is stabilized, the occupying power must increasingly act like the government of a State. In this case, the relevant human rights instruments and the principle of proportionality require the full range of application of human rights law as in times of peace”.130 In light of the risks potentially caused by granting the same margin of manoeuvre to the occupant as to a legitimate sovereign, this power should not be without clear boundaries. Concretely this means that when ihrl complements ihl in order to give more leeway for action to the benefit of the population in a long-term occupation, the additional possibilities offered by human rights law should be construed in light of the main principles underlying the law of occupation, and hence are also subject to the checks and balances provided by the latter (see supra Part 2, Chapter 1 for an overview of these checks and balances). 3.2.3 The Specific Right Concerned: A Case-by-Case Approach The specific right under consideration also has an impact on the relationship between humanitarian law and human rights law and this on two main levels. First, the specific nature of the human right concerned might have an influence on the extent to which the obligations dictated by it can be squared with the constraints of the law of occupation. This point will be illustrated by the differences between civil and political rights, on the one hand, and economic, social and cultural rights on the other. Second, the specific relationship will also depend on the specific area to be regulated and more precisely on the extent to which it is already regulated by ihl. Or, in other words, on how much human rights are required to fill in the gap left by the law of occupation in a specific area. A detailed analysis of every specific area in which such questions 127 Orna Ben-Naftali and Yuval Shany, op. cit. note 27, p. 97. 128 Expert Meeting, op. cit. note 24, p. 67. 129 Orna Ben-Naftali and Yuval Shany, op. cit. note 27, p. 97. See also Vaios Koutroulis, op. cit. note 125, p. 198. 130 Expert Meeting, op. cit. note 24, p. 139.

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might arise falls outside the ambit of this research but the examples have been carefully selected in order to allow us to adequately cover different relevant scenarios. (a)

The Nature of the Specific Right Concerned: Political and Civil Rights vs. Economic, Social and Cultural Rights in Situations of Occupation The difference between political and civil rights, on the one hand, and economic, social and cultural rights, on the other, is not without importance for the question at hand. Whereas the former are mostly associated with negative obligations, or in other words obligations to refrain from interfering with certain rights, the latter revolve more around positive obligations of the concerned rights, i.e. the active obligation to fulfil certain tasks.131 The implementation of the latter category of human rights thus generally requires a more long-term approach and the power to transform social structures.132 Consequently, they seem to be a priori more difficult to implement in situations of occupation than political and civil rights which only require the occupying power to refrain from actions that would violate the rights contained in the iccpr. We will however show that they are nevertheless not that ill-suited to be applied in situations of occupation. The realization of economic, social and cultural rights is based more in particular on three kinds of obligations: the obligations to respect, protect and fulfill.133 The obligations to respect and protect are quite similar to what would be required for civil and political rights and are thus not problematic as such. The problem lies more specifically with the obligation to fulfil. Indeed, the latter requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right in question.134 It thus seems a priori difficult to square with the conservationist principle at the centre of the law of occupation. Consequently, the 131 Philip Alston and Gerard Quinn, “The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights”, Human Rights Quarterly, Vol. 9, 1987, p. 159. See also Noam Lubell, op. cit., note 64, p. 331 and Jonathan Thompson Horowitz, op. cit. note 94, p. 235. 132 Robert Kolb and Sylvain Vité, op. cit. note 24, p. 312. 133 See for example the International Covenant on Economic, Social and Cultural rights, General Comment 12: The right to adequate food (Art. 11), E/C.12/1999/5, 12 May 1999, § 15 and the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14: the right to the highest attainable standard of health, E/C.12/2000/4, 8 November 2000, §33 [hereafter icescr general comment 14]. 134 icescr general comment 14, op. cit. note 132, §33.

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question has been raised whether an occupying power can be expected to carry out these fullfilling obligations given that they might go beyond what is allowed under the law of occupation.135 Besides being characterized by the three above-mentioned types of obligations, another element is crucial regarding the implementation of economic, social and cultural rights, namely the progressive realization of these rights.136 Article 2(1) icescr indeed reads as follows: “Each State Party to the present Covenant undertakes to take steps (…) with a view to achieving progressively the full realization of the rights recognized in the present Covenant [emphasis added]”. The progressive realization is a ‘flexibility device’ which allows countries to move towards full realization at their own pace ‘to the maximum of their available resources’, as long as they move as expeditiously and effectively as possible towards full realization.137 This has led some to argue on the basis of precisely this flexibility, and I would tend to agree with them, that the application of the rights enshrined in the ­i cescr in situations of occupation would not be such a major challenge.138 The occupying power would thus be required to implement them ‘to the maximum of its available ressources’ and only progressively to ensure their full realization. Similarly, as is also the case for the legitimate sovereign, progressive realization does not mean that everything can be done at one’s own pace and there are a certain number of core obligations that need to be realized immediately.139 This also constitutes an important limit to the discretion of the occupying power, which is in any case obligated to ensure the core obligations under the icescr as soon as possible. This flexibility furthermore also makes the further realization of economic, social and cultural rights easier to square with the conservationist principle. As was already demonstrated in Part 2, Chapter 1, the obligation to maintain the status quo ante is not absolute and, even more so, changes might be actually needed to ensure the best possible protection of the occupied population, especially in a long-term occupation. The permissibility of such changes should however be assessed on a case-by-case basis. The flexibility offered by the implementation of the rights enshrined in the icescr makes it easier for the occupying power to conform to the limits of the conservationist principle since it allows it to go only as far as is required by 135 Noam Lubell, op. cit., note 64, p. 330. See also Expert Meeting, op. cit. note 24, p. 59. 136 Philip Alston and Gerard Quinn, op. cit. note 131, p. 172. 137 International Covenant on Economic, Social and Cultural Rights, General Comment 3: the nature of States Parties’ obligations (art. 2, par. 1), 1 January 1991, § 9 [hereafter icescr General Comment 3]. 138 Expert Meeting, op. cit note 29, p. 64. 139 icescr General Comment 3, op. cit. note 137, § 10.

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the situation at hand. If the core obligations need to be ensured as soon as possible, the realization of the remainder of the obligations can be tailored to the needs of the occupation concerned, making it easier to stay within the limits established by the law of occupation. (b) The Specific Area to be Regulated by the Right Concerned The question of the exact relationship between ihl and ihrl will strongly depend on the specific area to be regulated. It will thus have to be assessed at the level of each and every individual human rights norm.140 As was already highlighted above problems only arise when the area concerned is “a matter of both branches of law”.141 The examples used in this part thus all fall within the said category but also at the same time carefully illustrate the different possible scenarios that can exist within this category. They furthermore also encompass both civil and political rights and economic, social and cultural rights to further illustrate the difference identified above. (i)

The Right to Life

The specific issue of the dichotomy between the conduct of hostilities and law enforcement was already addressed (see supra, 3.2.1). This part will be centred more on the right to life in general instead of the more specific rules regarding the use of (lethal) force. The right to life under ihrl is a non-derogeable right prohibiting the arbitrary deprivation of life.142 The issue of the right to life in armed conflicts has been addressed in the icj’s nuclear weapons advisory opinion, where it was concluded that whether a particular loss of life is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself”.143 The InterAmerican Commission of Human Rights adopted a similar position: when assessing claims alleging violations of the American Convention in a situation of armed conflict, it should not only do so on the basis of the article of the said Convention protecting the right to life but it “must necessarily look to and 140 Sylvain Vité, “The Interrelationship between the law of occupation and economic, social and cultural rights: the examples of Food and Health”, in Expert Meeting, op. cit. note 24, p. 91. 141 Wall opinion, op. cit. note 27, §106. 142 See Article 6(1) iccpr: “Everyone human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. See also Christian Tomuschat, “The Right to Life – Legal and Political Foundations”, in Stefan Oeter, Evelune Lagrange and Christian Tomuschat, The Right to Life, Leiden, Brill, 2010, p. 5. 143 Nuclear Weapons Opinion, op. cit. note 74, §25.

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a­ pply definitional standards and relevant rules of humanitarian law as sources of authoritative guidance”.144 It further established that this is the case since the American Convention does not contain any rules specifically regulating the right to life in situations of armed conflict, such as the principle of distinction between combattants and civilians, or even more importantly in which instances civilian casualties are a lawful consequence of military operations.145 In this case, ihl offers the most specific rules since it was particularly drafted to regulate the right to life in cases of armed conflict. The same reasoning of course applies in situations of occupation with the caveat highlighted above that it is slightly complicated in practice by the fact that it also has an important law enforcement component. However, even when applying human rights law to law enforcement activities, the specificities of war still need to be taken into account as was already clearly argued above. (ii)

Deprivation of Freedom

The area of detention has also been identified as a potential problematic area of interaction within the framework of occupation.146 Article 9§1 iccpr establishes that “no one shall be subjected to arbitrary arrest or detention”. The law of occupation however foresees the possibility of internment and assigned residence as security measures, which a priori seems difficult to square with the prohibition of arbitrary detention.147 A few points need to be raised concerning this matter, however. Firstly, internment and assigned residence during occupation is strictly limited to situations in which there are ‘imperative reasons of security’. Such deprivation is thus based on the logic of military necessity.148 Only in cases dictated by these imperative reasons of security will the regime 144 145 146 147

Inter-Am. C.H.R., Case 11.137, Juan Carlos Abella v. Argentina, §159. Abella case, op. cit. note 143, §161. Expert Meeting, op. cit. note 24, p. 63. See Article 78 gciv: “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention”. 148 See Jean Pictet (ed.) Commentaries to Convention iv relative to the Protection of Civilian Persons in Time of War, Geneva, icrc, 1958, p. 368 [hereafter Commentaries gciv].

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foreseen by Article 78 gciv trump the ordinary rules concerning deprivation of liberty. Secondly, this regime is not free from important safeguards: it includes a right to appeal and a periodical review before a competent administrative body. The ECtHR ruled on the adequacy of a review before an administrative body in the Hassan Case.149 The first point raised in this regard by the Court is that “in relation to detention taking place during an international armed conflict Article 5 [the article protecting against arbitrary detention under the echr] must also be interpreted in a manner which takes into account the context and the rules of international humanitarian law”.150 The armed conflict context must thus be taken into account when assessing the arbitrariness of the detention under human rights law. It might indeed not be practically possible in the course of armed conflict to organize a review before an independent court as is generally required in order to guarantee protection against arbitrariness under the human rights regime.151 The ‘competent body’ foreseen by, for example, Article 78 gciv, “should [however] provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness”.152 Whereas a security detention regime such as the one foreseen by Article 78 gciv does not per se violate the protection guaranteed by the human rights regime, it should however ensure that the procedural safeguards established in the framework of such a regime effectively protect against arbitrariness.153 In such cases, human rights law can help to determine how the administrative body foreseen by Article 78 should operate in order to respect the prescripts of human rights law. As Lawrence Hill-Cawthorne has rightfully argued, “in consequence, the Court retains its oversight function and can fill an important enforcement gap in ihl by applying ihl norms through the prism of the Convention rights”.154 Concretely, in the case of review by an administrative body, in order to establish sufficient guarantees against arbitrariness, it should be ensured that (1) the first review takes place shortly after the person is taken into detention, and (2) subsequent reviews are made at frequent intervals to ensure that any 149 Hassan case, op. cit. note 96. 150 Ibid., § 106. On this point see also Lawrence Hill-Cawthorne, “Protection fors persons deprived of their liberty in international armed conflict”, in Proceedings of the Bruges Colloquium: Detention in armed conflict, 16–17 October 2014, Collegium, No. 45, Autumn 2015, p. 36. 151 Hassan case, op. cit. note 96, §106. 152 Ibid., § 106. 153 On this point see also, Vaios Koutroulis, “Internement of Civilians in Armed Conflict”, in Proceedings of the Bruges Colloquium: Detention in armed conflict, 16–17 October 2014, Collegium, No. 45, Autumn 2015, p. 44. 154 Lawrence Hill-Cawthorne, op. cit. note 160, p. 37.

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person who does not fall within the regime foreseen by Article 78 gciv is released without undue delay.155 In the words of Vaios Koutroulis: “this result is achieved through the ‘accommodation’ of article 5 to ihl prescriptions”.156 The area of the regulation of detention, in which both bodies of law coexist, presents an interesting case. It indeed provides a good illustration of two important conclusions made in the framework of this study: first, when applying human rights prescripts to detention in an armed conflict situation, the specificities of the armed conflict context should be taken into account; second, ihrl can help in filling in the gaps by the law of occupation where needed. (iii)

The Right to Food and the Right to Health

This example typically illustrates the concrete application of economic, social and cultural rights in situations of occupation. With regard to the right to food and the right to health, the occupying power is required to take care of the basic and immediate needs of the population, as would be the case in a situation of emergency.157 The occupant has the duty of ensuring the food and medical supplies for the population to the fullest extent of the means available to it.158 In relation to the right to health, the occupying power has the duty, to the fullest extent of the means available to it, to ensure and maintain tmedical and hospital establishments and services, as well as public health and hygiene in the occupied territory.159). Human rights law refers more specifically to the right to adequate food and to an adequate level of health, which goes further than what is foreseen under international humanitarian law and is based on a more long-term approach and strategy.160 Interestingly, however, the law of occupation here also refers to the ‘extent of the means available’ which is also an important element in relation to the regulation of economic, social and cultural rights under the ihrl regime (see supra, 3.1.3 a). When it comes to the 155 Hassan case, op. cit. note 96, §106. 156 Vaios Koutroulis, op. cit. note 153, p. 44. 157 Sylvain Vité, “The interrelation of the law of occupation and economic, social and cultural rights: the examples of food, health and property”, International Review of the Red Cross, volume 90, No 871, September 2008, p. 636. 158 See Article 55 gciv. 159 See Article 56 gciv. 160 Robert Kolb and Sylvain Vité, op. cit. note 24, pp. 412–413 and pp. 416–417 respectively. For a more detailed analysis of the right to food and the right to health see for example Ashjorn Eide, “Adequate Standard of Living” in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds.), International human rights law, Oxford; Oxford University Press, 2nd edition, 2014, pp. 195–216.

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right to food and the right to health the occupying power thus seems to have the obligation to fulfil its obligations to the maximum extent possible. In a regular, short-term occupation this will most probably mean that these two rights should indeed be ensured similarly as in emergency situations. The situation, however, becomes more complex in a long-term occupation. In such cases what should the occupant precisely do in order to fulful its obligations to the maxim extent possible, and furthermore, is it desirable to request it to do so, since this risks creating tensions with the conservationist principle.161 Indeed positive obligations require long-term strategies and important modifications to the existing system within the occupied territory. On the other hand, not doing anything regarding the right to food and the right to health creates the risk of being ultimately detrimental to the occupied population. We have already established that due to their very nature, economic, social and cultural rights offer an important realm of flexibility since their full realization shall also be progressively attained and based on the available ressources. This exercise is however not without constraints and should be clearly framed within the limits of the law of occupation in order to avoid abuse. As was held by Justice Sussman within the framework of the case of Christian Society for the Holy Places v. Minister of Defence case before the Israeli Supreme Court: “[i]n this context, it is of special importance whether the motive for change was the furtherance of the occupant’s interest or concern for the welfare of the civilian population”.162 Making obligations depend on the means available in situations of occupation might lead to a rather peculiar problem if the occupying power were to have more means at its disposable than the legitimate sovereign. As was correctly raised by Noam Lubbel: what would then happen if once returned the legitimate sovereign is incapable of maintaining the level of realization of the rights concerned which had been attained r by the occupying power?163 Would the legitimate sovereign be able to return to a lesser level of protection since it is not capable of maintaining the current level? Or would this constitute a violation of the principle of standstill?164 And how would this furthermore relate to the concept of postliminium according to which the acts that were lawfully adopted by the occupying power, i.e. within the limits imposed by the law of 161 These questions are also raised by Noam Lubell, op. cit. note 103, p. 57. 162 As cited in Adam Roberts, “Prolonged military Occupation: The Israeli-Occupied Territoires since 1967”, American Journal of International Law, vol. 84, January 2000, p. 91. For a more detailed overview of how the law of occupation can nevertheless accommodate the much needed changes under long-term occupation, see supra, Part ii, Chapter 1). 163 Noam Lubell, op. cit. note 103, p. 55. 164 Ibid., p. 55.

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occupation, have to be upheld by the legitimate sovereign after the end of the occupation (see supra, Part 2, Chap. 1, 1). (iv)

The Right to Property

A different scenario can be found with regard to the right to property. Indeed here the regime foreseen under ihl is much more detailed than the regime established by ihrl.165 Article 17(2) of the Universal Declaration on Human Rights indeed merely states that “no one shall be arbitrarily deprived of his property”. Under the law of occupation, any destruction of property by the occupying power is prohibited unless this is rendered absolutely necessary by millitary operations; pillage is explicitly prohibited; and the occupying power shall be only regarded as an administrator or usufructuary of buildings and other immoveable property belonging to the occupied power.166 The regime regulating the right to property under ihl is much better tailored to the specificities of occupation and hence should be more predominant when regulating the protection of property under occupation. Conclusion on the Relationship between ihl and ihrl in Situations of Occupation To conclude, we reiterate what has been stated by the icj in its Wall opinion: “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both branches of law”.167 When the rights exclusively fall under international humanitarian law or international human rights law, the conclusion is quite straightforward: the applicable body of law is humanitarian law or human rights law respectively. Things become more complicated when a right falls under both branches of law. In such cases, we have to assess which body of law offers the more detailed rule or the most specific form of protection. In order to do so, we also need to take into account the facts on the ground, the duration of the occupation and the balance between ihl and ihrl in the specific area concerned. Even more importantly, even when applying international human rights law to situations of occupation, we always have to keep in mind the rationale behind international humanitarian law in general, and the law of occupation more in particular. Ultimately, this means that, where

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165 Robert Kolb and Sylvain Vité, op. cit. note 24, p. 422. See also Sylvain Vité, op. cit. note 157, p. 651. 166 See Article 53 gciv, Article 47 of the Hague Regulations of 1907, and Article 55 gciv respectively. 167 Wall Opinion, op. cit note 27, §106.

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needed, the concerned human rights norm can be implemented only to the extent allowed by the law of occupation.168 4

Interim Conclusion: International Human Rights Law Can to a Certain Extent Play an Important Role as a Gap-Filler

In this chapter, we have first shown the differences and similarities between international humanitarian law and international human rights law. Importantly, even though there are major differences between both bodies of law, they both ultimately have the same aim: the protection of human beings. We have then demonstrated that both bodies of law are applicable during armed conflict, including situations of occupation. Whereas this is straightforward with regard to ihl, which is applicable solely in cases of armed conflict, it is more complicated as far as ihrl is concerned. Indeed, we had to prove both applicability ratione loci and ratione materiae. Once we had proven that both bodies of law were applicable to situations of occupation, we entered in the core of the subject: the relationship between both of these bodies. It was clearly shown that even though ihrl definitely has a role to play in situations of occupation, its exact relationship and interaction with ihl is still difficult to establish and will often vary on a case-by-case basis. This is especially problematic with regard to the practical application of the established principles on the ground. The limitations of flexible solutions in the field have been highlighted, amongst others, by Marco Sassoli and Laura Olsen with these precise words: “[i]f the permissible conduct varies, depending on the specific situation, how can a soldier know which rules to apply?”169 According to them the problem can only be solved be precise instructions and rules of engagement.170 This seems to be difficult to realize with regard to occupation, especially when it lasts for a long period of time. And it equally seems difficult to establish general rules resolving possible conflicts between both bodies of law in situations of occupation given that the exact relationship between the bodies of law depends on a diversity of factors. One thing that always needs to be kept in mind, however, is that regardless of the specific relationship between both bodies of law in a given situation, ihl always remains the main framework of reference. Consequently when human rights obligations are applied in situations of occupation, these will always have to be interpreted in the light of ihl. 168 Noam Lubell, op. cit., note 64, p. 324. See also Sylvain Vité, op. cit. note 157, p. 634. 169 Marco Sassòli and Laura M. Olson, op. cit. note 87, p. 616. 170 Ibid., p. 616.

chapter 3

The United Nations Security Council as a ‘Modulator’ of the Law of Occupation The recognition and the more specific guidelines in Security Council Resolution 1483 [concerning the occupation in Iraq] are significant in the revival and renovation of an old, but necessary, doctrine benvenisti, 20031

∵ The occupation of Iraq in 2003–2004 brought renewed attention to the law of occupation or as Eyal Benvenisti has pointed out it “revive[d] the law of occupation from its slumber”.2 At the same time it raised some questions which the law had never (or barely) been confronted with before then, more in particular how to deal with occupations “whose main objective is to overhaul the institutional and political structures of the occupied territory”.3 As David Scheffer so intelligibly pointed out: “The occupation of Iraq which is intended to be a transformational process following liberation from a despotic and criminal regime, requires strained interpretation of occupation law to suit modern requirements”.4 As has already been highlighted on numerous occasions in this research, the changes brought upon the occupied territory are difficult to square with the law of occupation. In addition, the occupation of Iraq also raised the question of the interplay between the law of occupation and un Security Council (unsc) resolutions adopted under Chapter vii. In response 1 Eyal Benvenisti, “Water Conflicts During the Occupation in Iraq”, American Journal of International Law, Vol. 97, 2003, p. 872. 2 Eyal Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, idf Law Review, Vol. 1, 2003, p. 36. 3 See also Expert Meeting, Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by Tristan Ferraro, Legal Advisor, icrc, March 2012, p. 67 [hereafter Expert Meeting]. 4 David J. Scheffer, “Beyond Occupation Law”, The American Journal of International Law, Vol. 97, No 4, October 2003, p. 843.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004353978_009

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to the general question formulated in this research relating to the i­ll-suited character of the law with regard to contemporary forms of occupation, the more specific question raised in this chapter is whether the un Security Council could modulate the law of occupation to make it better suited to such forms of modern-day occupation which are a priori difficult to square with the traditional understanding of the concept. In order to address this question, we will first outline the general powers of the unsc when acting under Chapter vii. We will then assess the relationship between the law of occupation and the powers of the unsc in the situation of the occupation of Iraq. This will lead us to conclude that the unsc can indeed derogate from (at least) some of the provisions of the law of occupation when acting under Chapter vii and can consequently ‘modulate’ it to better suit contemporary requirements. 1

Powers of the United Nations Security Council under Chapter vii

The aim of this first section is not to provide an in-depth analysis of the powers of the unsc as a whole. Entire PhDs could and indeed haven been written on this subject alone.5 The goal is merely to expose the main rules governing the powers of the unsc, and more specifically when acting under Chapter vii, in order for them to be subsequently applied to the precise study of this chapter, namely whether the unsc can derogate from the law of occupation when acting under Chapter vii of the un Charter. Article 24 of the un Charter confers upon the unsc ‘the primary responsibility for the maintenance of international peace and security’. The article further specifies that ‘[i]n discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for discharging these duties are laid down in Chapters vi, vii, viii, and xii. For the sake of the argument here, it is precisely the powers of the unsc under Chapter vii that are relevant, given that from the different chapters, Chapter vii is the only one that allows for

5 For an excellent study on more specifically the Chapter vii Powers of the unsc see Erika de Wet, The Chapter vii Powers of the United Nations Security Council, Oxford, Hart Publishers, 2004, 413p. See also Terry Gill, “Legal and Some Political Limitation of the Power of the un Security Council to exercise its Enforcement Powers under Chapter vii of the Charter”, Netherlands yearbook of international law, vol. 26, 2005, pp. 33–138.

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the adoption of binding measures.6 It is also only when acting under Chapter vii that the unsc would have the power to derogate from international law.7 The precondition for the unsc to act on the basis of Chapter vii is the existence of a threat to the peace, a breach of the peace or an act of aggression.8 The unsc possesses a wide margin of discretion when assessing whether a threat to peace, a breach of peace or an act of aggression has occurred given that it is not bound by any fixed definition of these concepts or by any checklist to follow in this regard.9 Especially the concept of a ‘threat to peace’, being less straightforward than the other two, allows for quite some margin and, in practice, we note that the understanding of what constitutes a ‘threat to peace’ has been considerably broadened since the beginning of the 1990s.10 Not only does the unsc have a very wide degree of discretion in determining when to act, but its powers when acting under Chapter vii are also extensive.11 This does not however mean that these powers are unlimited. First, Article 24(2) un Charter states that the unsc “shall act in accordance with the Purposes and Principles of the United Nations”. The purposes and principles contained respectively in Articles 1 and 2 of the Charter12 thus constitute a legal limitation to the action

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Stefan Talmon, “The Security Council as World Legislature”, American Journal of International Law, Vol. 99, 2005, p. 179. Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), The Charter of the United Nations: A Commentary, Oxford, Oxford University Press, 3rd edition, 2012, p. 828. Article 39 un Charter; Terry Gill, op. cit. note 5, p. 39: “Article 39 is generally interpreted as meaning that the Council must determine that a threat to the peace exists, or that a breach of the peace or act of aggression has occurred before it can take enforcement action under the relevant provisions of Chapter vii of the Charter”. See also Michael Bothe, “Human Rights and international humanitarian law as limits for Security Council Action”, in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 376. Terry Gill, op. cit. note 5, p. 39. See also, Evelyne Lagrange, “Le Conseil de Sécurité des Nations Unies peut-il violer le droit international”, Revue Belge de Droit International, 2004/2, p. 569. Stefan Talmon, op. cit. note 6, p. 180. See also Gregory H. Fox, The Occupation of Iraq, Georgetowm Journal of International Law, Vol. 36, 2004–2005, p. 254. Erika de Wet, op. cit note 5 p. 133; Michael Bothe, op. cit. note 8, p. 376. The purposes include the maintenance of peace and security; the development of friendly relations; international cooperation and the promotion and encouragement of respect for human rights and fundamental freedoms; and to be a centre for harmonizing the actions of nations in the attainment of these common ends. The principles to be respected when acting in pursuit of the above-mentioned purposes are: the sovereign equality of

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of the unsc.13 There has been some debate on whether this list is exhaustive or whether the purposes and principles to be respected by the unsc should be interpreted flexibly.14 The question is not so relevant for the issue at hand, however; even if, arguably, some of the more fundamental principles of ihl such as the principle of distinction or humanity might potentially fall within these limitations, they would in any case not include norms of the law of occupation. Some have furthermore argued that the entire Charter constitutes a legal limit to the actions of the unsc given that international organisations are bound by their internal law, especially their founding treaty”.15 The unsc cannot thus not derogate from the Charter itself. Also this would not constitute an issue in the present case given that, to put it bluntly, there is no reference to the law of occupation in the Charter. If the unsc has a general duty to respect the principles and purposes stated in Articles 1 and 2 of the un Charter, and admittedly also the un Charter in its entirety, it does not have a duty to respect international law as such when acting under Chapter vii.16 Consequently, the unsc can thus deviate from general international law when acting under Chapter vii.17 That a conflict might occur between the obligations of the un Member States under the un Charter and their obligations under any other international agreement has been expressly recognised by Article 103 of the un Charter. In such cases the obligations under the Charter will prevail. Article 103 thus expressly established the superior character of the law of the un Charter over other international obligations.18 Besides the hierarchy created by the existence of peremptory norms,

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States, the peaceful settlement of disputes, the prohibition of the use of force, the provision of assistance to the un, and the non-intervention in the internal affairs. Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), The Charter of the United Nations: A Commentary, Oxford, Oxford University Press, 3rd edition, 2012, p. 813. Ibid., pp. 813–814. Ibid., p. 815. Terry Gill, op. cit. note 5, p. 73; Marten Zwanenburg, Accountability of peace support operations, Leiden, Martinus Nijhoff Publishers, 2005, p. 142. Erika de Wet, op. cit. note 5, p. 182. See also Jan Wouters and Jed Odermatt stating that “the significance of the Council’s ability to modify substantially existing international agreements should not be underestimated”; Jan Wouters and Jed Odermatt, “Quis custodiet consilium securitatis?: Reflections on the Law-Making Powers of the Security Council”, in Vesselin Popovski and Trudy Fraser (eds.), The Security Council as global legislator, London, Routledge, 2014, p. 75. Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), op. cit. note 13, p. 2112.

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which will be assessed further below, Article 103 of the un Charter contains the only other reference to a hierarchical principle of general international law.19 Importantly for the question at hand, the scope of Article 103 un Charter is not limited to the articles of the Charter itself but concerns also binding decisions taken by un organs such as the Security Council.20 The unsc can thus derogate from general international law when acting under Chapter vii.21 It is thus not so much a question of whether the unsc can impinge on international law when acting under Chapter vii but to what extent it can do so.22 Indeed, this power is not absolute. Besides the obligation to respect the purposes and principles of the un already outlined above, it has also been quite generally recognized that the unsc itself is also bound by jus cogens norms.23

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Theodor Meron, “On a Hierarchy of International Human Rights”, American Journal of International Law, Vol. 80, 1986, p. 3. Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversifications and Expansion of International Law, Adopted by the International Law Commission at its Fifty-eight session, in 2006, and submitted to the General Assembly, as a part of the Commission’s report covering the work of that session (A/61/10, para. 251), Yearbook of the International Law Commission, 2006, vol. ii, Part Two, §35 [hereafter ilc fragmentation of international law report]. See also International Court of Justice, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April1992, 1.c.j. Reports 1992, §42: “Whereas both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention”. Marten Zwanenburg, “Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation”, International Review of the Red Cross, Vol. 86, No 856, 2004, p. 745; Batram S. Brown, “Intervention, Self-Determination, Democracy and the Residual Responsibilities of the Occupying Power in Iraq”, uc Davis Journal of International Law & Policy, Vol. 11, 2004–2005, p. 547; Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), op. cit. note 13, p. 828. Erika de Wet, op. cit. note 5, p. 182. Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), op. cit. note 13, p. 818; Antonio Cassese, International Law, Oxford, Oxford University Press, 2nd edition, 2005, p. 206; Erika de Wet, op. cit. note 5, p. 133; Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Leiden, Martinus Nijhoff Publishers, 2009, p. 82.

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This is however not so straightforward for everyone.24 I would nevertheless tend to agree with the argument that the unsc is also bound by jus cogens norms and that Article 103 un Charter would thus not allow the unsc to derogate from jus cogens norms. In this regard I would like to rejoin the opinion expressed by Judge Lauterpacht: The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot – as a matter of simple hierarchy of norms – extend to a conflict between a Security Council resolution and jus cogens.25 Deciding otherwise would also allow States to create international organisations to circumvent jus cogens norms.26 In line with the above it is thus only 24

25

26

The fact that the unsc would also be bound by peremptory norms is according to, for example, Marten Zwanenburg, op. cit. note 16, p. 143 open to criticism. See also Bernd Martenczuk, “The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?” European Journal of International Law, Vol. 10 No. 3, 1999, pp. 545–546: “However, it is doubtful whether jus cogens can constitute a binding limitation on the Council’s discretion under Chapter vii. The notion of jus cogens has its foundation in Article 53 of the Vienna Convention on the Law of Treaties. Therefore, it is essentially a concept from the law of international treaties that cannot easily be transplanted into the law of the United Nations”. He further illustrates his position by the fact that the unsc acting under Chapter vii is allowed to derogate from the prohibition of the use of force, clearly a jus cogens norm. However, it is generally believed that next to the prohibition on using force, the two exceptions to it (namely unsc authorization of the use of force under Chapter vii and the use of force in self-defence) are also of a peremptory nature and would thus in any case not prove that the unsc is not subject to ius cogens norms. On this last point see, for example, Alexander Orakhelashvili, Peremptory norms in international law, Oxford, Oxford University Press, 2006, p. 51 arguing that “the jus ad bellum as a whole is peremptory”. International Court of Justice (icj), Case concerning the application of the Convention on the prevention and punishment of the crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Further requests for the indication of provisional ­measures, Order of 13 September 1993, i.c.j. Reports 1993, Separate opinion of Judge Lauterpacht, §100 [hereafter Bosnian Genocide case Separate Opinion Judge Lauterpacht]. Some go even further and argue that the unsc has unrestricted powers when dealing with the maintenance of international peace and security. In this regard see, for example, Gabriel H. Oosthuizen, “Playing the Devil’s Advocate: The United Nations Security Council in Unbound by Law”, Leiden Journal of International Law, Vol. 12, 1999, pp. 549–563. Erika de Wet, op. cit. note 5, pp. 188–189.

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logical that un action would be limited by peremptory norms, just like the action of States is limited by them. According to Article 53 of the Vienna Convention on the Law of Treaties (vclt): a peremptory norm of general international law [or norms of jus cogens] is 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.27 Such norms should not be confounded with another type of norm also enjoying a different status: namely obligations erga omnes.28 There might be an overlap between both categories in the sense that all norms of jus cogens will be erga omnes but not all erga omnes rules necessarily have a peremptory character.29 In addition, erga omnes, literally meaning obligations that are owed by the entire international community as a whole, primarily have a procedural focus, whereas rules of jus cogens are “substantive rules recognized to be of a higher status as such”.30 The existence of norms of international law, which have a higher status than others, has been widely recognised. There is however no clarity on which norms exactly have peremptory character.31 According to the Commentaries to Article 26 of the Articles on State Responsibility for Internationally Wrongful Acts (arsiwa) concerning compliance with peremptory norms: The criteria for identifying peremptory norms of general international law are stringent. Article 53 of the 1969 Vienna Convention requires not merely that the norm in question should meet all the criteria for recognition as a norm of general international law, binding as such, but further that it should be recognized as having a peremptory character by the international community of States as a whole.32 27 28 29 30 31 32

Vienna Convention on the law of treaties concluded at Vienna on 23 May 1969, United Nations – Treaty Series, 1980, p. 344. Malcolm N. Shaw, International Law, Cambridge, Cambridge University Press, 7th Edition, 2014, p. 88. ilc fragmentation of international law report, op.cit. note 20, §38. Malcolm N. Shaw, op. cit. note 28, p. 88. Theodor Meron, op. cit. note 19, p. 4; Marten Zwanenburg, op. cit. note 16, p. 145; Erika de Wet, op. cit. note 5, p. 191. Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Text adopted by the International Law Commission at its fifty-third

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There is thus no simple way of identifying a general rule of international law as having jus cogens character.33 Article 53 vclt furthermore only provides for a definition of what should be understood by a peremptory norm of international law and the consequences of a treaty conflicting with jus cogens norms; it does not lay down which rules are specifically to be considered as jus cogens norms.34 During the drafting of the vclt, the participants chose to refrain from suggesting a catalogue of peremptory norms given that this would have raised a certain number of uncertainties.35 The following are, however, nowadays generally accepted as having jus cogens status: the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination, apartheid and torture as well as the basic rules of ihl applicable in armed conflict, and the right to self-determination.36 Other rules might also have a peremptory character “inasmuch as they are accepted and recognized by the international community of States as a whole as norms from which no derogation is permitted”.37 The Commentaries to Article 40 arsiwa expressly state that: It should be stressed that the examples given above may not be exhaustive. In addition, Article 64 of the 1969 Vienna Convention contemplates that new peremptory norms of general international law may come into

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s­ ession, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/56/10). Yearbook of the International Law Commission, 2001, vol. ii, Part Two, as corrected, commentary (5) to article 26 ARSIWA, p. 85 [hereafter Commentaries ARSIWA]. Draft Articles on the Law of Treaties with commentaries, 1966, Text adopted by the International Law Commission at its eighteenth session, in 1966, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 38), Yearbook of the International Law Commission, 1966, vol. ii, commentary (2) to Article 50 vclt (now Article 53), pp. 247–248 [hereafter Commentaries vclt]. Egon Schwelb, “Some Aspect of International Jus Cogens as formulated by the International Law Commission”, American Journal of International Law, Vol. 61, 1967, p. 963. Theodor Meron, op. cit. note 19, p. 14. Commentaries vclt, op. cit. note 33, commentary (3) to Article 50 vclt (now Article 53), p 248: “The Commission decided against including any examples of rules of jus cogens in the article for two reasons. First, the mention of some cases of treaties void for conflict with a rule of jus cogens might, even with the most careful drafting, lead to misunderstanding as to the position concerning other cases not mentioned in the article. Secondly, if the Commission were to attempt to draw up, even on a selective basis, a list of the rules of international law which are to be regarded as having the character of jus cogens, it might find itself engaged in a prolonged study of matters which fall outside the scope of the present articles”. ilc fragmentation report, op. cit. note 20, §33. Ibid., §33.

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existence through the processes of acceptance and recognition by the international community of States as a whole, as referred to in Article 53. The examples given here are thus without prejudice to existing or developing rules of international law which fulfil the criteria for peremptory norms under Article 53.38 Amongst the generally recognized rules of jus cogens, two merit further attention here given that they play an important role with regard to the determination of the powers of the unsc in a situation of occupation: the rights to self-determination of the people,39 and forthrightly, the basic rules of ihl applicable in armed conflict. In this part, reference will be made solely to the main characteristics of both of these categories. In order to avoid repetition, a more in-depth analysis of these norms of jus cogens will be provided directly with regard to the Iraqi example (see, infra). It is nevertheless important to from the outset, to establish that these two categories will limit the realm of the unsc, even when acting under Chapter vii. Firstly, concerning self-determination, it is quite an elusive concept and is hence not easy to define.40 Article 1(1) common to both the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr) provides some information on the content of the right to self-determination as it should be understood nowadays (i.e. outside of the colonial context): “All peoples have the right of self-­determination. By virtue of that right they freely determine their political ­status and freely pursue their economic, social and cultural development”.41 That self-determination is an important concept is evident from the fact that

38 Commentaries ARSIWA, op. cit. note 32, commentary (6) to Article 40 arsiwa, p. 113. 39 As we have established earlier on in this research, occupation not only affects the rights of the legitimate sovereign but also the rights of the occupied population. In addition, as stated by Samatha Besson, “Sovereignty”, Max Planck Encyclopedia of Public International Law, §153: “While classical sovereignty was state sovereignty, the subject of modern sovereignty is the people”. Consequently, occupation nowadays also increasingly affects the right to self-determination of the people. 40 Helen Quane, “The United Nations and the evolving right to self-determination”, International and Comparative Law Quarterly, Vol. 47, July 2008, p. 537. 41 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (xxi) of 16 December 1966; International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (xxi) of 16 December 1966.

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it first features in both the iccpr and the icescr.42 It was also already mentioned as a potential example of a jus cogens norm in the commentaries to the vclt in 1966.43 The importance of the concept is thus nowadays uncontested.44 Secondly, with regard to the reference to the basic principles of ihl amongst the norms of jus cogens, it is especially difficult to establish which precise norms of ihl have attained peremptory status. Indeed as Paul C. Szasz so righfully noted: “The difficulty is that, in the absence of an authoritative determination of what, if any, ihl principles have attained that unassailable status, any limits on the power of the unsc in this regard are vague”.45 This question is nevertheless not without importance for the issue at hand. That at least some norms of ihl would be of a peremptory nature seems to have been suggested by the icj in its Nuclear weapons advisory opinion: It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ (…) that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law. [emphasis added]46 42

43 44

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Noëlle Quénivet and Shilan Shah-Davis, “Confronting the Challenges of International Law and Armed Conflict in the 21st Century”, in Noëlle Quénivet and Shilan Shah-Davis (eds.), International law and armed conflict: challenges in the 21st century, The Hague, t.m.c. Asser Press, 2010, p. 17. See Commentaries vclt, op. cit. note 33, commentary (3) to Article 50 vclt (now Article 53), p. 248. Antonio Cassese, Self-determination of peoples: a legal reappraisal, Cambridge, Cambridge University Press, 1995, p. 170; James Crawford, Brownlie’s Principles of public international law, Oxford, Oxford University Press, 2012, p. 596; Hector Gros Espiell, “Self-determination and jus cogens”, in Antonio Cassese (ed.), u.n. Law/fundamental Rights: Two Topics in International Law, Alphen aan den Rijn, Sijthoff & Noordhoff, 1979, p. 167. Paul C. Szasz, “un Forces and International Humanitarian Law”, in Michael N. Schmitt and Leslie Claude Green (eds.), International Law across the Spectrum of Conflict: essays in honor of Professor l.c. Green on the occasion of his eightieth birthday, Newport, Naval War College, 2000, p. 514. International Court of Justice, Legality of the Threat or of Nuclear Weapons, Advisory Opinion, i.c.j. Reports, 1996, §79 [hereafter Nuclear Weapons Opinion]. See also Commentaries arsiwa, op. cit. note 32, commentary (5) to Article 40 arsiwa, p. 113; Cezary Mik, “Jus Cogens in Contemporary International Law”, Polish Yearbook of International Law, Vol. 33, 2013, p. 35.

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Unfortunately, the icj refused more specifically to assess which ihl rules would exactly be of peremptory nature, i.e. what the exact content of these intransgressible basic rules of ihl would be.47 Erika de Wet has for example defined the intransgressible basic rules of ihl as referring to the prohibition of hostilities directed at a civilian population as well as the rules governing means and methods of warfare.48 Judge Bedjaoui, in his declaration concerning the Nuclear weapons advisory opinion held that in his view, “most of the principles and rules of humanitarian law and, in any event, the two principles, one of which prohibits the use of weapons with indiscriminate effects and the other the use of arms causing unnecessary suffering, form part of jus cogens”.49 Ian D. Seidermann states that there seems to be strong evidence for considering the protections guaranteed under common Article 3 as jus cogens.50 He refers more specifically to the acts that are prohibited ‘at any time and in any place whatsoever’ listed in the said article.51 These would include: the prohibition of violence against life and person, the taking of hostages, the outrages upon personal dignity and the passing of sentences and the carrying out of executions without previous judgement.52 It has also been argued that those provisions generating grave breaches would be of a peremptory nature.53 Such a conclusion seems to be in line with the fact that war crimes, i.e. ‘grave breaches’ of ihl have been argued to constitute jus cogens norms.54 Generally, 47 48

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Marten Zwanenburg, op. cit. note 16, p. 145. Erika de Wet, “Jus Cogens and Obligations Erga Omnes”, in Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law, Oxford, Oxford University Press, 2013, p. 544. Nuclear Weapons opinion, op. cit. note 46, Declaration of President Bedjaoui, p. 273: “1 have no doubt that most of the principles and rules of humanitarian law and, in any event, the two principles, one of which prohibits the use of weapons with indiscriminate effects and the other the use of arms causing unnecessary suffering, form part of jus cogens”. Ian D. Selderman, Hierarchy in International Law: The Human Rights Dimension, Antwerp, Intersentia, 2001, p. 96. Ibid., p. 96. See Article 3 common to the Geneva Conventions. In this regard see Lauri Hannikainen, Peremptory norms ( jus cogens) in international law: historical development, criteria, present status, Helsinki, Finnish Lawyers’ Publishing Company 1998, p. 606: “there is a strong presumption that at least the prohibitions of the ‘grave breaches’ are peremptory”. See International Criminal Tribunal for the former Yugoslavia (icty), Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, 14 January 2000, § 520: “(…) most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens, i.e. of

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it seems that it is admitted that at least the fundamental principles of ihl have attained peremptory status.55 The situation of the more specific rules of ihl is less clear.56 Some, albeit a minority, have also argued that all rules of ihl are of a peremptory nature.57 This last position seems to be incorrect in my opinion and I would rather support the position that only, or at least, the most fundamental principles of ihl are of a peremptory nature.58 To conclude this part, the unsc can thus derogate from general international law when acting under Chapter vii but is limited in this regard by the norms of jus cogens. Importantly, admitting that the unsc can derogate from international law when acting under Chapter vii does not mean, however, that it is not bound at all.59 This nuance will be of particular importance for the application of these findings to the situation in Iraq. 2

An Assessment of the Situation in Iraq: Coexistence between the Law of Occupation and a un ‘Mandate’

The situation in Iraq presents different specificities. First, it was one of the few instances in which states actually explicitly acknowledged the law of occupation to be applicable to them.60 This is quite exceptional given that States usually try to escape such a qualification due to the pejorative character associated with the fact of being an occupier. In this regard, however, Paul Bremer, the lead u.s. Administrator for the transition in Iraq, pertinently noted: “­ Occupation is

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a non-derogable and overriding character”. See also M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes”, Law and Contemporary Problems, Vol. 59, No. 4, 1996, p. 68. Mary Ellen O’Connell, “Historical Development and Legal Basis”, in Dieter Fleck (ed.), The handbook of international humanitarian law, Oxford, Oxford University Press, 2013, §136, p. 38. Ibid., p. 38. See for example, Nuclear Weapons opinion, op. cit. note 46, dissenting opinion by Judge Weeramantry, p. 496: “The rules of the humanitarian law of war have clearly acquired the status of jus cogens, for they are fundamental rules of a humanitarian character, from which no derogation is possible without negating the basic considerations of humanity which they are intended to protect”. The potential jus cogens nature of some of the provisions of the law of occupation will be analyzed more in detail further below. Erika de Wet, op. cit., note 5, pp. 186–187. Marten Zwanenburg, op. cit. note 21, p. 745.

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an ugly word, not one Americans feel comfortable with, but it’s a fact”.61 Second, the occupation of Iraq was not only regulated by the law of occupation but also explicitly by the unsc through a series of resolutions adopted under Chapter vii.62 As Eyal Benvenisti and Guy Keinan correctly indicated: “Resolution 1483 marks the first time the Security Council resorted to the concept of occupation to describe, authorize and delimit the authority of foreign troops in control of enemy territory”.63 Third, the occupation of Iraq concerned an occupation “of territories in substantial need of legal reform”,64 where there was no previous authority to return authority to.65 Traditional occupation law however presupposes the continued existence of local government.66 As Thomas D. Grant so rightfully indicated: “The Coalition in Iraq presents a case distinct from certain past cases of occupation, in the sense that, though the Iraqi state continues to hold all rights to its territory, there remains (…) no government organ that can exercise those rights apart from the coalition itself”.67 Fourth, and as a consequence of the previous distinctive fact, the occupation in Iraq has often been referred to as ‘transformative occupation’, i.e. guided by transformative purposes, which a priori seems incompatible with the law of occupation. It is important to recall here that ‘transformative’ occupation is not a legal category as such and consequently has no legal connotation whatsoever. The term is merely used to describe a factual characteristic. The occupation of Iraq in 2003–2004 is thus of particular interest for the study at hand given that it allows an assessment of the interaction between 61 62

63 64 65

66

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Paul Bremer to a Washington Post Report as cited in Thomas D. Grant, “Iraq: How to Reconcile Conflicting Obligations of Occupation and Reform”, asil insights, June 2003. I would like to recall here the importance of establishing a clear distinction here between operations authorized by the un and operations established and commanded by the un (see Part 1, Chap. i on the comparison between occupation and un Territorial Administration above). The occupation of Iraq is not part of an operation established and commanded by the un. It concerns the occupation by a coalition of individual States backedup by an unsc mandate. Eyal Benvenisti and Guy Keinan, “The Occupation of Iraq: A Reassessment”, International Law Studies Services us Naval War College, Vol. 86, 2010, p. 277. Gregory H. Fox, “Transformative occupation and the unilateralist impulse”, International Review of the Red Cross, Vol. 94, No 885, March 2012, p. 265. Melissa Patterson, “Who’s Got the Title? Or, The Remnants of Debellatio n Post-­Invasion Iraq”, Harvard International Law Journal, Vol. 47, No 2, 2006, pp. 469–470; Thomas D. Grant, op. cit. note 61. Michael N. Schmitt and Charles H.B. Garraway, “Occupation Policy in Iraq and International Law”, International Peacekeeping: the Yearbook of International Peace Operations, Vol. 9. 2004, p. 32. Thomas D. Grant, op. cit. note 61.

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the law of occupation and the relevant unsc resolutions, especially in the light of the changes which were aspired to in the situation in Iraq that were a priori incompatible with the law of occupation. The Situation in Iraq under ihl Preliminary Question: The Impact of the Jus Ad Bellum on the Occupation A great dealt of controversy arose with regard to the legal basis for the war in Iraq and whether there was even such a legitimate basis in the first place.68 A detailed analysis of this question falls outside the ambit of this research so we will limit ourselves to exposing the main elements of the controversy here. The question raised here is the question of respect for the rules regulating the use of force under international law. Briefly, the general rule in this regard is that the use of force in inter-state relations is prohibited. Indeed as stated in Article 2(4) un Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the ­Purposes of the United Nations”. There are only two generally recognized exceptions to this principle: States are allowed to use force in self-defence in accordance with Article 51 un Charter or when the use of force has been authorized by the unsc acting under Chapter vii. Both exceptions seem to be difficult to sustain with regard to the invasion of Iraq in the framework of ‘Operation Iraqi Freedom’ which began in March 2003.69 The coalition forces nevertheless tried 2.1 2.1.1

68

69

Youngjin Jung, “In pursuit of Reconstructing Iraq: Does Self-Determination Matter?” Denver Journal of International Law & Policy, Vol. 33, 2004–2005, p. 391 qualified the war in Iraq as “perhaps the single most controversial issue in the year 2003”. See also Conor McCarthy, “The paradox of the international law of military occupation: sovereignty and the reformation of Iraq”, Journal of Conflict & Security Law, Vol. 10, No 1, 2005, p. 48; Lindsay Moir, International Law, Just ad Bellum and the War on Terror, London, Hart Publishing, 2010, p. 75; Mahmoud Hmoud, “The Use of Force Against Iraq: Occupation and Security Council Resolution 1483”, Cornell International Law Journal, Vol. 36, 2003–2004, p. 436; Christopher Greenwood, “The Legality of the Use of Force: Iraq in 2003”, in Michael Bothe, Mary Ellen O’Connell and Natalino Ronziti (eds.), Redefining Sovereignty: The Use of Force after the Cold War, New York, Transnational Publishers Inc., 2005, p. 387; Adam Roberts, “Transformative military occupation: applying the laws of war and human rights”, American Journal of International Law, Vol. 100, July 2006, p. 605; and Steven Wheatley, “The Security Council, Democratic Legitimacy and Regime Change in Iraq”, European Journal of International Law, Vol. 17, No. 3, 2006, p. 532. In this regard see for example, Lindsay Moir, op. cit. note 68, p. 75: “It would seem to be impossible to bring Operation Iraqi Freedom within the traditional notions of self-defence

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to justify the use of force based on two main arguments: (1) the unsc authorized military action against Iraq to implement the terms of the ceasefire that suspended the hostilities of the 1991 Gulf War;70 and (2) the use of force in anticipatory self-defence against terrorist armed groups armed with Weapons of Mass Destruction.71 Both of these reasons should be discarded. Firstly, the argument that Iraq’s mere breach of the terms of the Resolution 687(1991) ceasefire agreement would justify the use of force in this specific situation without a further, contemporary, unsc resolution on the issue definitely overstretches the rules with regard to the authorisation of the use of force by the unsc.72 In other words, there should have been an explicit authorisation of the use of force. Secondly, and even more clearly, most believe that there is no such thing as anticipatory self-defence since the armed attack in respect to which force is being used should at the very least be imminent.73 Consequently, given that there is no legal justification authorising the use of force, the military action against Iraq in 2003 represents a clear violation of the jus ad bellum.74 Importantly, for the case at hand, the illegality of the operation leading to the occupation with regard to the use of force does not however affect the application of the law of occupation. Indeed, the jus ad bellum should not influence the application of the jus in bello and ihl thus applies regardless of the lawfulness of the use of force.75 As was already stated in the Hostages Case:

70

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73 74

75

(....)”; and p. 106: “there was no prior authorisation by the Security Council for Operation Iraqi Freedom”. John Yoo, “International Law and the War in Iraq”, American Journal of International law, Vol. 97 2003, p. 575. See also Mahmoud Hmoud, op. cit. note 68, p. 438; Christopher Greenwood op. cit. 68, p. 395. John Yoo, op. cit. note 70, p. 438. Lindsay Moir, op. cit. note 68, p. 106. See also Mahmoud Hmoud, op. cit. note 68, pp. 441– 442. For an opposite view on this question, hence supporting the argument advanced, see John Yoo, op. cit. note 70, pp. 563–576.and Christopher Greenwood, op. cit. 68, pp. 414–415. Mahmoud Hmoud, op. cit. note 68, pp. 443–444. Lindsay Moir, op. cit. note 68, p. 106; Anne-Marie Slaughter, “The Use of Force in Iraq: Illegal and Illegitimate”, Proceedings of the American Society of International Law, Vol. 98, 2004, p. 262; Richard Falk, “The Iraq War and the Future of International Law, Proceedings of the American Society of International Law, Vol. 98, 2004, p. 263; Alex J. Bellamy, “International Law and the War with Iraq”, Melbourne Journal of International Law, Vol. 4, 2003, p. 519. Next to this being supported by many international scholars, it also seems to be further supported by state practice given that “other leading nations (primarily France, Germany and Russia) (…) have argued that international law did not justify the war in Iraq”; John Yoo, op. cit., p. 563. Remarks of Jean-Phillipe Lavoyer (Head of the Legal Division, International Committee of the Red Cross),, “Jus in Bello: Occupation Law and the War in Iraq”, Proceedings of the

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At the outset, we desire to point out that International law makes no distinction between a lawful and unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. (....) Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.76 The question surrounding the legality, or lack thereof, of Operation Iraqi Freedom thus has, in any case, no impact on the rights and duties of the Coalition forces under the law of occupation.77 2.1.2

A Brief Assessment of the Occupation of Iraq under the Law of Occupation The unsc in Resolution 1483 “calls upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907”. An explicit reference is thus made here to respect for the law of occupation. In this section we will first of all provide a general assessment of the occupation of Iraq with regard to the law of occupation. We will then look more closely at what actually causes problems, namely the transformative purpose of the occupation in Iraq. (a)

The Occupation of Iraq with Regard to the Law of Occupation: A General Overview On the 20th of March 2003 the us and UK-led coalition started launching air attacks against Iraq.78 These air attacks were latter followed by the deployment of allied forces on the ground.79 Quite quickly this deployment of troops on the ground involved some territorial control warranting the question of whether Iraq was being occupied by the coalition. As has already been established on numerous occasions in this study, the existence of a situation of occupation is a question of fact. Shortly after the us military entered Bagdad, Saddam

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American Society of International Law, Vol. 98, 2004, p. 121; Lindsay Cameron, “Does the Law of Occupation Preclude Transformational Developments by the Occupying Power?”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 61; Batram S. Brown, op. cit. note 21, p. 25. United States Military Tribunal, Nuremberg, Case No. 47, Trial of Wilhelm List and others, United Nations War Crimes Commission. Law Reports of Trials of War Criminals. Volume viii, 1949, p. 59 [hereafter List case]. Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 66, p. 32. Knut Dörmann and Laurent Colassis, “International Humanitarian Law in the Iraq Conflict”, German Yearbook of International Law, Vol. 47, 2004, p. 310. Ibid., p. 297.

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Hussein’s government lost its ability to govern, and the coalition partners established authority over the territory of Iraq.80 The former government was thus rendered incapable of publicly exercising its authority in the area, and the coalition forces assumed authority in the area in place of the sovereign. The conditions for occupation being met, it was generally admitted that from April 2013 there was a foreign military occupation in Iraq, even before the establishment of the Coalition Provisional Authority (cpa).81 The subsequent establishment of the cpa would definitely erase the remaining doubts, if there were still any at that point. Indeed, as was established in Part 1, Chapter one of this study, the establishment of a fully-fledged administration, albeit not required per se, is nevertheless a strong indication of a existence of a factual situation of occupation. The existence of a situation of occupation was further corroborated by the explicit recognition in unsc Resolution 1483(2003) of “the specific authorities, responsibilities, and obligations under applicable international law of the States as occupying powers under unified command (the ‘Authority’) [emphasis added]”.82 unsc Resolution 1483 thus expressly recognized that status of the occupying powers of the us and the uk.83 Even if, based on the factual character of the assessment of a situation of occupation, such a reference is of course not constitutive of occupation, it nevertheless provides a strong and authoritative indication of the factual realisation of such a situation on the ground. If it was generally accepted that the us and the uk were occupying forces in Iraq at that time,84 it was less clear-cut for the other members of the coalition forces.85 This question has furthermore only received very incidental 80

81 82 83 84 85

Remarks of Joshua L. Dorosin (Attorney-Adviser, Office of the Legal Adviser, u.s. Department of State),“Jus in Bello: Occupation Law and the War in Iraq”, Proceedings of the American Society of International Law, Vol. 98, 2004, p. 117. Adam Roberts, “The end of occupation; Iraq 2004”, International and Comparative Law Quarterly, Vol. 54, 2005, p. 30. United Nations Security Council, Resolution 1483(2003), S/RES/1483(2003), 22 May 2003, preamble [hereafter unsc Resolution 1483(2003)]. In this regard see also Nehal Bhuta, “The Antinomies of Transformative Occupation”, The European Journal of International Law, Vol. 16, No 4, 2005, p. 735. Gregory H. Fox, op. cit. note 10, p. 232. See also Batram S. Brown, op. cit. note 21, p. 32. Daniel Thürer and Malcolm MacLaren, “’Ius Post Bellum’ in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian law”, in Klaus Dicke (ed.), Weltinnenrecht: festschrift für Jost Delbrück, Berlin, Duncker & Humblot, 2005, p. 760. See also Liesbeth Lijnzaad, “How Not Be an Occupying Power: Some Reflections on un Security Council Resolution 1483 and the Contemporary Law of Occupation”, in Liesbeth Lijnzaad, Johanna Van Sambeek and Bahia Tahzib-Lie (eds.), Making the Voice of Humanity Heard:

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attention.86 Again the question of which countries exactly were occupying powers is Iraq needs to be assessed on a factual basis. The fact that no other countries besides the uk and the us were expressly mentioned and even the fact that unsc Resolution 1483(2003) expressly states “that other States that are not occupying powers are working now or in the future may work under the Authority”87 is thus irrelevant in this respect. In order to respond to this question, the icrc adopted a pragmatic view by stating that if the national contingents in question had been assigned responsibility for and were exercising effective control over a portion of Iraqi territory they should also be considered as occupying powers.88 In this regard it had for example been argued that Poland, member of the us and UK-led Coalition, actively participating in the conflict and eventually in a situation in which it controlled the Southern part of Iraq, might also have been seen as an occupying power in the 2003–2004 occupation of Iraq, even if it consistently contested this.89 Given that unsc Resolution 1483(2003) “can be seen as the latest and most authoritative restatement of several basic principles of the contemporary law of occupation”,90 it is also interesting within the framework of this study to briefly assess how these basic principles are reflected with regard to the situation in Iraq. When analysing the different official documents concerning the occupation of Iraq, be it unsc resolutions, uk and us documents, or orders issued by the cpa, the basic tenets of the law of occupation are definitely reflected therein. To this extent, the sovereignty and territorial integrity of Iraq are recalled in numerous instances,91 as well as its corollary, the right of the Iraqi people to freely determine their own political future and control their own natural resources, or in others words, the right to self-determination.92

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Essays on Humanitarian Assistance and International Humanitarian Law in Honour of HRh Princess Margriet of the Netherlands, The Hague, Martinus Nijhoff, 2004, pp. 300–301. Remarks of Jean-Phillipe Lavoyer, op. cit. note 75, p. 122. unsc Resolution 1483(2003), op. cit. p. 82, preamble. Remarks of Jean-Phillipe Lavoyer, op. cit. 75, p. 122. Liesbeth Lijnzaad, op. cit. note 85, pp. 302–303. Eyal Benvenisti, op. cit. note 2, p. 37. unsc Resolution 1483(2003) op. cit. note 82, preamble; United Nations Security Council, Resolution 1511(2003), S/RES/1511(2003), 16 October 2003, preamble [hereafter unsc Resolution 1511(2003)]; United Nations Security Council, Resolution 1500(2003), S/RES/1500(2003), 14 August 2003, preamble [hereafter unsc Resolution 1500(2003)]. See for example unsc Resolution 1483(2003), op. cit. note 82, preamble; unsc Resolution 1511(2003), op. cit. note 91, preamble; Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security ­Council, un doc. S/2003/538, 8 May 2003 in Stefan Talmon, The Occupation of Iraq.

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In this regard “the day when Iraqis govern themselves must come quickly (…)”.93 Similarly, reference is also made on more than one occasion to the temporary character of occupation as well as the underlying obligation to transfer administrative to representative Iraqi authorities as soon as possible.94 The importance of two of the three basic tenets, namely the non-transferal of sovereignty/respect for self-determination and the temporary character of occupation, are thus well reflected in the documents pertaining to the occupation in Iraq. A good illustration of the reference to these elements can be found in unsc Resolution 1511(2003): Reaffirm[ing] the sovereignty and territorial integrity of Iraq, and underscor[ing], in that context, the temporary nature of the exercise of the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities and obligations under applicable international law recognized and set forth in resolution 1483(2003), which will cease when an internationally recognized, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority (…).95 The situation of the third basic tenet, the obligation to maintain the status quo ante, is of course more complex given the transformative character of the occupation in Iraq and will be analysed in detail further below. (b)

The Problem of the Transformation in Iraq with Regard to the Law of Occupation The term ‘transformative occupation’ has been used to describe the occupation in Iraq. It is important to recall here that ‘transformative occupation’ is not a legal concept and hence has no legal consequences as such. It is a purely

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V ­ olume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 1398 [hereafter Letter Dated 8 May 2003]. unsc Resolution 1511(2003), op. cit. note 91, preamble. Similarly, one of the main stated commitments by the us was “the commitment to leave as soon as possible – Iraq belongs to the Iraqi people”; us Department of Defense, “A Commitment to Post-War Iraq: Basic Principles”, Statement, 12 March 2003, in Stefan Talmon, op. cit., p. 1331. See for example, Letter Dated 8 May 2003, op. cit. note 92, p. 1398. unsc Resolution 1511(2003) op cit. note 91, §1 and §6; Coalition Provisional Authority Regulation Number 1, CPA/REF/16 May 2003/01, The Coalition Provisional Authority, Section 1, 1), in Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 3 [hereafter cpa Regulation 1]. unsc Resolution 1511(2003), op. cit. note 91, §1.

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factual description. The term has been defined as referring to an occupation “whose main objective is to overhaul the institutional and political structures of the occupied territory”.96 Or those “whose stated purpose (whether or not actually achieved) is to change States that have failed, or have been under tyrannical rule”.97 As Adam Roberts, in his own words, so bluntly stated: the traditional assumption of the laws of war is that bad (or potentially bad) occupants are occupying a good country (or at least one with a reasonable legal system that operates for the benefit of the inhabitants). In recent years, especially in some democratic States, various schools of thought have been based on the opposite idea, crudely summarized as good occupants occupying a bad country (or at least one with a bad system of government and laws).98 Similarly Gregory H. Fox stated that “Conserving the existing law makes sense when the alternative is repression or even plunder by an occupier. But when the alternative is great protection of human rights and the introduction of democratic politics, the principle appears regressive and even anachronistic”.99 Given that the law of occupation was not designed for such a sweeping transformative purpose, the question arose whether such changes would be compatible with the law. Before delving into the heart of the matter, it is important to mention that, even though Iraq might seem to be the first case of transformative occupation given the important interest (and debate) it has generated,100 this is not exactly true. The occupation of Germany after the Second World War provides the first example of a ‘transformative’ occupation aimed at democratization since its goal seemed to have been the abolishment of Nazi laws.101 The allies were confronted with a similar problem to the case of Iraq: how to reconcile these 96

Expert Meeting, op. cit. note 3, p. 67; See also Tristan Ferraro, “The law of occupation and human rights law: some selected issues”, in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 276. 97 Adam Roberts, op. cit. note 68, p. 580. 98 Ibid., p. 601. 99 Gregory H. Fox, op. cit. note 64, p. 241. 100 The 2003 occupation in Iraq provoked an important debate among scholars on the merits of transformative occupation; Gregory H. Fox, op. cit. note 64, p. 237. 101 Yutaka Arai-Takahashi, “Preoccupied with occupation: critical examination of the historical development of the law of occupation”, International Review of the Red Cross, Vol. 94, No 885, Spring 2012, p. 65. See also, Adam Roberts op. cit. note 68, pp. 601–605; Gregory H. Fox, op. cit. note 10, p. 290.

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modifications with a law that a priori forbids them from doing so. The allies however reasoned outside of the occupation framework referring to the existence of a situation of debellatio in order to be exempted from the constraints of the Hague Regulations.102 Debellatio refers to the situation in which the adversary has been completely and totally defeated and destroyed.103 In others words there is no longer a legitimate authority to be preserved and there is therefore no occupation of the territory of the previous entity.104 Consequently, in the case of the total defeat and disintegration of the governing regime the sovereign title passes to the occupant.105 Hence, instead of being limited to exercising only the de facto powers attributed to an occupying power, it can exercise the full powers of sovereignty given that “under such circumstances occupiers were free to annex or reshape occupied territory without regard for the prior sovereign”.106 In addition, as Gregory H. Fox pertinently noted: even if this occupation would have caused a problem with regard to the conservationist principle, this was not taken into account when the law of occupation was modified in light of post-WWII practice.107 There are definitely some factual similarities between the occupation of Germany after wwii and the situation of Iraq given that in both cases “no viable alternative local authority 102 Eyal Benvenisti, The International law of occupation, Oxford, Oxford University Press, 2nd edition, 2012, p. 160; David J. Scheffer, op. cit.note 4, p. 848. Not everyone agreed with this reasoning but those believing that it was nonetheless occupation deemed that the transformations made where consistent with Article 47 gciv; to this regard see Yutaka AraiTakahashi, op. cit. note 101, p. 66. As Robert Y. Jennings intelligibly pointed out: “To insist that the Allied occupation should conform to the limits of the Hague Regulations would be to insist on the maintenance of a governmental vacuum; it is inconceivable that that is the law”; Robert Y. Jennings “Government in Commission”, British Yearbook of International Law, Vol. 23, 1946, p. 135. 103 Michael N. Schmitt, “Debellatio”, Max Planck Encyclopedia of Public International Law, October 2009. Robert Y. Jennings states that in this particular case: “The Allies (…) enjoyed a final victory as decisive as any in the history of warfare: not only is the whole of German territory under Allied occupation, not only have her fighting services surrendered unconditionally, but her former legitimate government has been completely destroyed”; Robert Y. Jennings, op. cit., p. 135. 104 Eyal Benvenisti, op. cit note 102 p. 161. 105 Eyal Benvenisti, op. cit. note 1, p. 862. 106 Suzanne Nossel, “Winning the Postwar”, Legal Affairs, May/June 2003. In addition, interestingly, as Gregory H. Fox pertinently noted: “even if this occupation would have caused a problem with regard to the conservationist principle, this was not taken into account when the law of occupation was modified in light of post-WWII practice”; H. Fox, op. cit. note 10, p. 246. 107 Gregory H. Fox, op. cit. note 64, p. 246.

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existed”.108 This has led some authors to argue that the occupation of Iraq would have better been regulated by the concept of debellatio than the law of occupation.109 There are, in my opinion, three main problems with regards to such a position. Firstly, one of the arguments for discarding the law of occupation in favour of debellatio is the fact that transformative purposes would be incompatible with occupation. This is of course true, but one cannot discard a legal framework merely on the basis that it would be impossible or difficult to respect it. Secondly, the unsc has explicitly recognized the us and uk as being occupying powers in Iraq.110 Even if this is not constitutive of occupation per se, it provides a strong indication that such a situation in fact existed (which was furthermore the case in Iraq as established above). Thirdly, the notion of debellatio nowadays is generally believed to have become obsolete.111 Indeed, more recent developments in international law such as the fact that it is no longer possible to acquire title over territory by force as well as the appearance of the right to self-determination of peoples are difficult, or even impossible, to square with the notion of debellatio.112 Debellatio is “said to occur when at the end of a war a country is so completely defeated that it has virtually ceased to exist as a State”.113 It is a “remnant of an archaic conception that assimilated state into government”.114 Nowadays, however, next to the rights of the (territorial) State there is also the right of self-determination of the people. The right to self-determination is very clearly a right of the people not of the state.115 108 Thomas D. Grant, op. cit. note 61. For a more detailed overview of this alleged parallel see Foreign and Commonwealth Office Legal Advisers, Paper prepared by John Grainger, Legal Counsellor at the fco, at the request of the Cabinet Office, “Rights under International Law to Occupy and Administer Iraq after a Conflict’, Transmitted on 31 January to Mr Pattison, in Stefan Talmon, op. cit., p. 1364 [hereafter fco legal paper]. Or as Gregory H. Fox, op. cit. note 64, p. 247 noted; “The Allies stripped the German state of its Nazi infrastructure in much the same way that the cpa removed all traces of the Ba’athist legacy”. 109 See for example Melissa Patterson, “op. cit note 65, pp. 467–488. 110 Yoram Dinstein, “Jus in Bello issues arising in the hostilities in Iraq in 2003”, Israel Yearbook on Human Rights, Vol. 34, 2004, p. 13. 111 Michael N. Schmitt, “Debellatio”, Max Planck Encyclopedia of Public International Law, October 2009; Eyal Benvenisti, op. cit. note 102, p. 163, David J. Scheffer, op. cit. note 3, p. 848. 112 Benvenisti, op. cit. note 102, pp. 94–95 and Scheffer, op. cit. note 4, p. 848. 113 Adam Roberts, “What is military occupation”, British yearbook of international law, vol. 55(1), 1984, p. 268. 114 Benvenisti, op. cit. note 102, p. 163. 115 Youngjing Jung, op. cit. note 68, p. 398. See also James Crawford, The Rights of Peoples : “Peoples” or “Governments”? in James Crawford (ed.), The Rights of Peoples, Oxford, Clarendon Press, 1988, p. 59.

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Even if a state would be so defeated that it would cease to exist, the right of the people of that state to self-determination would still subsist. Indeed, even failed States do not lose their right to sovereignty, which subsists through its people. The fact that even the case of a total defeat the law of occupation could not be discarded seems to be confirmed by Article 47 gciv concerning the inviolability of rights and this would further confirm such a position.116 The numerous provisions reaffirming the sovereignty and territorial integrity of Iraq as well as the abundant references to the self-determination of the people of Iraq and their role in the process of unsc Resolution1483 (and subsequent documents) definitely confirms the demise of the debellatio doctrine.117 Indeed, as the numerous references in the official documents surrounding the occupation of Iraq confirm, the sovereignty and territorial integrity of Iraq have not been compromised by the downfall of Iraq whereas this would have been the case if we would have applied the debellatio doctrine.118 On the other hand, total defeat is also not totally without consequences with regard to the conservationist principle. It is difficult to maintain aspects that do not exist in the first place. In this regard, the occupation of totally defeated or failed States will always, per se, put additional pressure on the obligation to maintain the status quo ante. Now that we have excluded any doubts with regard to the fact that the situation in Iraq falls under the occupation regime, we have to assess whether the changes that were undertaken are compatible with the law of occupation. The occupying powers created the Coalition Provisional Authority in order to temporarily administer the territory of Iraq.119 The cpa is “vested with all executive, legislative and judicial authority necessary to achieve the objectives under relevant u.n. Security Council resolutions, including Resolution 1483(2003), and the laws and usages of war”.120 The unsc “calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective ­administration 116 117 118 119

Suzanne Nossel, op. cit. note 106. Eyal Benvenisti, op cit. note 2, p. 36. Eyal Benvenisti, op cit. note 1, p. 862. The joint us/uk letter stated in this regard that “[i]n order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and coalition partners (…) have created the Coalition Provisional Authority (....) to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction [emphasis added]”; Letter Dated 8 May 2003 op. cit. note 92, p. 1398 [hereafter Letter Dated 8 May 2003]. 120 cpa Regulation 1, op. cit. note 94, p. 3.

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of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own future”.121 This operative clause contains interesting keywords: ‘effective administration’, ‘promote the welfare of the Iraqi people’ and ‘the restoration of conditions of security’. This in my opinion clearly refers to the first obligation contained in Article 43 hr, namely to take all the measures in its power to restore, and ensure, as far as possible, public order and civil life, as well as more generally to the authority provided to the occupying power under the law of occupation. Similarly, the cpa regulation delimitating the powers of the cpa also specifically deals with the applicable law. In this regard it is explicitly stated that “[unless] suspended or replaced by the cpa or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of April 16, 2003 shall continue to apply in Iraq, insofar as the laws do not prevent the cpa from exercising its rights and fulfilling its obligations (…)”.122 This is a clear reference to the second part of Article 43 namely that the laws in force shall be respected, ‘unless absolutely prevented’ from doing so. As was already established in Part 2, Chapter 1 of this thesis, the occupying power has quite some leeway with regard to the administration of the occupied territory. The obligation to maintain the status quo ante is thus not as radical as it might appear at first sight and the occupying power is actually allowed to make a fair amount of changes to the occupied territory if needed. Remarkably, the need for reform and reconstruction in Iraq itself barely raised any questions.123 The question is thus not so much whether reform and reconstruction were needed but rather how to square the extensive reform and reconstruction that were needed with the status of occupation in Iraq. We will refer to two sets of examples to illustrate this point here.

121 unsc Resolution 1483(2003), op. cit. 82, §4. 122 cpa Regulation 1, op. cit. note 94, Section 2, p. 3. 123 See for example Conor McCarthy, op. cit. note 68, p. 43 stating that: “the fundamental need for reconstruction and reformation of Iraq is a matter beyond dispute”. See also Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 66, p. 31 stating that “Iraq desperately needs economic reconstruction and development, as well as political and legal reform (....)”. The need for reform was also recognized by the un Secretary-General in his report pursuant to paragraph 24 of Security Council Resolution 1483(2003), S/2003/715, 17 July 2007, §84: “It is against the backdrop of this situation, further exacerbated by the recent war and the attendant breakdown of social services, that the development of Iraq and the transition from a centrally planned economy to a market economy needs to be undertaken”.

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The first example, the de-Ba’athification of Iraq, clearly illustrates that even changes that at first sight appear to be quite far-reaching, can sometimes be justified under the law of occupation itself. De-Ba’athification refers to the disestablishment of the Ba’ath Party of Iraq by the cpa and more specifically to the elimination of the party’s structures and the removal of its leadership from positions of authority and responsibility in Iraqi society.124 In the preamble to the cpa Order relating to the de-Ba’athification of Iraqi Society clear reference is made to the concern caused “by the continuing threat to the security of the Coalition Forces posed by the Iraqi Ba’ath Party”.125 Justification for these changes seems to be found in the obligation to restore and maintain public order and safety.126 Article 64 gciv, complementing the authority of the occupying power under Article 43 hr, furthermore explicitly states that “the ­Occupying Power may subject the population of the occupied territory to provisions which are essential (…) to ensure the security of the Occupying Power (…) ”.127 Such an approach seems to be confirmed by cpa Order 62 disqualifying from Public Office, amongst others, members of the Ba’ath Party and thus also contributing to the de-Ba’athification of Iraq since explicit reference is made therein to “the obligation of the cpa to restore and maintain order and the right of the cpa to take measures for its security and public order”.128 The process of the de-Ba’athification of Iraqi society, as extensive a measure as it may sound, thus definitely falls within the authority of an occupying power under the law of occupation.129

124 Coalition Provisional Authority Order Number 1, CPA/ORD/16 May 2003/01, DeBa’athification of Iraqi Society, in Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, pp. 1363–1364.p. 53 [hereafter cpa Order 1]. 125 cpa order 1, op. cit. note 124, p. 53. 126 Conor McCarthy, op. cit. note 68, p. 54. It is interesting to recall here that cpa Order 1 on the De-Ba’athification of Iraqi Society was issued on the 16th of May 2003, thus before the adoption of unsc Resolution 1483 adopted on the 22nd of May 2003. Any potential additional authority granted by the unsc did thus not exist when cpa Order 1 was adopted. 127 Art. 64(2) gciv. 128 Coalition Provisional Authority Order Number 62, CPA/ORD/62 February 2004/62, DeBa’athification of Iraqi Society, in Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 318. 129 In this regard see also Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 66, p. 35 establishing more in general that “[m]ost Coalition actions in the field of governance have been consistent with international law”.

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The second example concerns the economic changes in Iraq. The economic changes envisaged in Iraq were so far-reaching that it became clear from the outset that they would be difficult, if not impossible, to square with the law of occupation. Indeed, the entire economic system was transformed from a centrally controlled protectionist socialist model to a capitalist, privatised and free trade model.130 It was also the projected economic modifications that attracted the most criticism.131 As Conor McCarthy rightly indicated: “two more diametrically opposed economic policies are hard to envisage”.132 Given that the entire economic system was overturned, the economic reforms required extensive changes to the pre-existing structures. A good illustration of the extent of the changes needed in the economic sphere can for example be found in cpa Order 39 dealing with foreign investment.133 The reforms enacted by the cpa regarding foreign investment are probably the most far-reaching.134 In the section dealing with the relation to existing Iraqi law it is indeed explicitly stated that the said order “replaces all existing foreign investment law [emphasis added]”.135 Except for some specific provisions concerning taxation, there are no specific provisions in the law of occupation dealing with the economy in the occupied territory.136 We thus have to apply the general principle contained in Article 43 hr.137 Such extensive reforms would definitely fall outside the scope of Article 43 hr.138 This was even recognized by the Coalition forces at a very early stage as proven by, for example, the Confidential Memorandum addressed by Attorney General Lord Goldsmith to Prime Minister Tony Blair in March 2003, before the adoption of unsc Resolution 1483, explicitly ­stating 130 131 132 133

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Conor McCarthy, op. cit note 68, p. 55. See also Gregory H. Fox, op. cit note 10, p. 282. Eyal Benvenisti and Guy Keinan, op. cit note 63, p. 271. Conor McCarthy, op. cit note 68, p. 55. Coalition Provisional Authority Order Number 39, CPA/ORD/39 September 2003/39, Foreign Investment, in Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, pp. 199–203 [hereafter cpa Order 39]. Gregory H. Fox, op. cit. note 10, p. 287. cpa Order 39, op. cit note 133., p. 200. Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 66, p. 35. See also Confidential Memorandum by the Attorney General the Rt Hon the Lord Goldsmith qc Addressed to Prime Minister Tony Blair, “Iraq: Authorisation for an Interim Administration”, 26 March 2003, in Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 1365 [hereafter Confidential Memorandum]. Confidential Memorandum, op. cit. note 136, p. 1365. Conor McCarthy, op. cit note 68, p. 66; Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 66, p. 55. See also confidential Memorandum, op. cit. note 136, p. 1366.

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that “the imposition of major structural economic reforms would not be authorized by international law”.139 It thus became clear at a very early stage that such changes would require additional authority since they did not fall within the realm of possibilities for changes under the law of occupation itself. That the Coalition forces were very well aware of this is also proven by the fact that the cpa orders concerning extensive economic changes explicitly refer to the close cooperation “with the [Iraqi] Governing Council to ensure that economic change occurs in a manner acceptable to the people of Iraq”.140 It is thus clear that whereas the law of occupation is capable of accommodating some of the changes adopted in Iraq, this is not the case for all of the changes undertaken. As David J. Scheffer noted “[p]romoting the welfare of the Iraqi people, though laudable, is a goal that cannot be guided by occupation law alone, regardless of how liberally it may be construed”.141 2.2 Role of the un Security Council in the Occupation in Iraq Given that the law of occupation was not able to accommodate all of the changes undertaken in Iraq, alternative authority justifying those additional changes had to be found. Hence the broader question of this chapter ­whether, based on its powers as they have been outlined above, the unsc would be able to ‘modulate’ the law of occupation in order to make it fit certain specific situations. 2.2.1

Does the Role of the Iraqi Governing Council Impact the Assessment of the Situation? There are three authorities identified in unsc Resolution 1483: the cpa, the un (Special Representative) and the Iraqi Interim Administration, but the distribution of responsibilities amongst these authorities is not clear.142 Before entering into the core of this question, it is interesting to briefly assess the role of the Iraqi Interim Authority with regard to the question of the changes g­ enerated 139 Confidential Memorandum, op. cit. note 136, p. 1366. 140 cpa order 39, op. cit. note 133, p. 199; Coalition Provisional Authority Order Number 40, CPA/ORD/19 September 2003/40, Bank Law, Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 207 [hereafter cpa Order 40]; Coalition Provisional Authority Order Number 56, CPA/ORD/1 March 2004/65, Central Bank Law, Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 275. 141 David J. Scheffer, op. cit. note 4, p. 844. 142 See Thomas D. Grant, “The Security Council and Iraq: An Incremental Practice”, American Journal of International Law, Vol. 97, 2003, p. 823.

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in Iraq. It can be noted that in those cpa orders mandating important changes extensive reference is made to the role of the Iraqi Governing Council (igc) in this regard.143 cpa Order 39 overriding all foreign investment law in this regard states that is has worked closely with and acted in coordination with the igc and further acknowledges the latter’s desire to bring about significant changes to the Iraqi economic system.144 Does the cooperation with the igc and the recognition of its role in the changes made to the economic system, on its own, provide additional authority for the cpa? It is doubtful, in my opinion, that these references constituted any more than the recognition of the importance of the right to self-determination of the Iraqi people and might just be a response to what had been noted in the uk confidential memorandum that “[d]ifferent considerations could apply if it were suggested that the people of Iraq themselves were engaged in undertaking such governmental and administrative reforms”.145 This acknowledgment is not completely without importance given that the right of self-determination being of a jus cogens nature provides limits even to the authority of the unsc acting under Chapter vii as will be further established below. However, it looks more like some kind of disclaimer than something that would legally provide extra authority to the cpa to supersede the law of occupation. The iGc being constituted and approved by the cpa it is difficult to imagine it having a completely independent role.146 In addition, it was lacking both decision-making and implementation powers and its legislative proposals were subjected to the veto of the cpa.147 It seems like the iGc had been specifically created to “introduce an Iraqi voice

143 144 145 146

Conor McCarthy, op. cit note 68, p. 57. cpa Order 39, op. cit. note 133, pp. 199–200. Confidential Memorandum, op. cit. note 136, p. 1366. unsc Resolution 1483(2003), §9 stated that it would “support the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqi’s (…) [emphasis added]; Coalition Provision Authority Regulation Number 6, CPA/REG/13 July 1003/05, in Stefan Talmon, op. cit., p. 18: “affirming that the cpa and the Special Representative of the u.n. Secretary General have worked together and will continue to work together in a cooperative and consultative process to support the formation and operation of the Governing Council and welcomed the formation of the Governing Council on July 13, 2003 [emphasis added]”. Thomas D. Grant, op. cit. note 61: “the interim administration itself seems to be conceived in the resolution as a creature of the Authority”. 147 Nehal Bhuta, op. cit. note 83, p. 737. See also Gregory H. Fox, op. cit. note 10, p. 204: “Unofficial sources confirm the Council’s subordinate role, with many describing a cpa ‘veto’ power over all Governing Council actions”.

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into ­policy-making during the occupation”.148 The fact that unsc Resolution 1511(2003) clearly stated that “the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period”149 does not change this assessment. As the representative of Mexico rightfully stated during the discussions surrounding the ­adoption of unsc Resolution 1500(2003), the main goal of which was to welcome the establishment of the igc:150 In that context, we associate ourselves with the Security Council consensus on welcoming the establishment of the provisional Governing Council as a first logical step towards establishing a genuinely representative government that exercises the sovereignty of the Iraqi people. That welcome does not constitute legal recognition. Nor should it be interpreted as endorsement. It is not, because the Governing Council is still under the authority of the occupying Powers.151 The fact that sovereignty remains in the hands of the legitimate power is an element of the definition of occupation itself and can hardly, as such, justify additional changes made to the occupied territory.152 Indeed nowhere in the law of occupation is it written that consent by the occupied authority would relieve the occupant from its conservationist duties.153 On the contrary Article 47 gciv clearly states that “[p]rotected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said t­ erritory 148 149 150 151

Gregory H. Fox, op. cit. note 10, p. 247. unsc 1511(2003), op. cit. note 91, §4. unsc Resolution 1500(2003), op. cit 91, §1. United Nations Security Council, records of the 4808th meeting, “The situation in Iraq and Kuwait”, S/PV.4808, New York, 14 August 2003 [hereafter proceedings unsc meeting 1500], Intervention Mexico, p. 5. 152 On the contrary, Article 47 gciv clearly states that “[p]rotected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory [emphasis added]”. 153 Gregory H. Fox, op. cit. note 10, p. 248.

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(…) by any agreement concluded between the authorities of the occupied territories and the Occupying Power [emphasis added]”. In addition, as Conor McCarthy intelligibly pointed out: “Although the igc, in an abstract sense, acts as an incarnation of Iraq’s sovereignty, it does not have the capacity to exercise this sovereignty, much less confer the imprimatur of its inherent sovereignty to impart legitimacy under international law to cpa promulgations”.154 2.2.2 A Need for un Involvement? In a paper prepared by the legal advisors to the uk Foreign and Commonwealth Office, assessing a possible occupation of Iraq, it was very clearly stated that in light of the relevant provisions regulating occupation, it is likely that the aspect of the reconstruction of institutions and infrastructures post-conflict could fall outside the competencies of an Occupying Power under international law. For these reasons, it is important that a further Security Council Resolution be adopted under Chapter vii as soon as possible to confer upon the coalition and/or other States and international organisations as appropriate the necessary powers.155 Similarly, in a confidential memorandum by the Attorney General the Rt. Hon. Lord Goldsmith qc addressed to Prime Minister Tony Blair it was also clearly stated that in his view a further Security Council resolution is needed to authorise imposing reform and restructuring in Iraq and its Government. In the absence of a further resolution, the uk (and the us) would be bound by the provisions of international law governing occupation, notably the Fourth Geneva Convention and the 1907 Hague Regulations.156 From the above it appears that the unsc would have the authority to authorise changes going beyond what is authorized by the law of occupation. 154 Conor McCarthy, op. cit. note 68, p. 59. 155 Foreign and Commonwealth Office Legal Advisers, Paper prepared by John Grainger, Legal Counsel at the fco, at the request of the Cabinet Office, “Rights under International Law to Occupy and Administer Iraq after a Conflict’, Transmitted on 31 January to Mr ­Pattison, in Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 1363 [hereafter fco legal paper]. 156 Confidential Memorandum op. cit., 136, p. 1365.

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F­ urthermore, it has been clearly defined in cpa Regulation 1 that the executive, legislative and judicial authority of the cpa is to be exercised under relevant unsc resolutions (including Resolution 1483) and the laws and usages of war.157 Consequently, all the regulations and orders issued by the cpa are expressly based on the authority of the cpa administrator, relevant u.n. Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war.158 The occupation in Iraq is thus regulated both by the law of occupation and by the relevant unsc resolutions. The question of the interactions between both sources of law thus arises, particularly since the unsc seemed to authorise changes that would not normally be allowed under the law of occupation. Can the unsc authorise changes that would normally fall outside the law of occupation? In other words, can the unsc derogate from the law of occupation even in a situation of recognized occupation? Reconciling apparently inconsistent legal regimes is far from being an easy task.159 2.2.3 Is the un up to the Task? The general theory concerning the powers of the unsc have already been highlighted above. We will now attempt to apply it specifically to the situation at hand. A certain number of principles need to be recalled. First, the unsc resolutions adopted under Chapter vii are legally binding. Second, in accordance with Article 103 of the un Charter, “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. Third, the only limits to the powers of the unsc when acting under Chapter vii are those imposed by the peremptory norms of international law. (a)

The Contradictory Situation Seemingly Created by unsc Resolution 1483(2003) unsc Resolution 1483(2003) in itself creates a rather contradictory situation given that, on the one hand, it calls upon all concerned to fully comply with the law of occupation,160 whilst, on the other, it also seems to provide a mandate for some far-reaching reforms, which are incompatible with the obligation to 157 cpa Regulation 1, op. cit., note 124 p. 3. 158 In this regard see the 100 orders taken by the cpa as clustered in Stefan Talmon, The Occupation of Iraq. Volume ii. The official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, pp. 53–677. 159 Remarks of Joshua L. Dorosin, op. cit. note 80, p. 119. 160 unsc Resolution 1483(2003), op. cit. note 82, §5.

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maintain the status quo ante, one of the cornerstones of the law of occupation.161 unsc Resolution 1483(2003) indeed “appeals to Members States (…) to assist the people of Iraq in their efforts to reform their institutions and rebuild their country (....) in accordance with this resolution”.162 It is further specified that efforts should be made ‘to restore and establish national and local institutions for representative governance, including (....) to facilitate a process leading to an internationally recognized representative government of Iraq’, that economic reconstruction should be promoted and that international efforts to promote legal and justice reform should be encouraged.163 These transformative objectives, taken in their entirety, go well beyond the confines of the law of occupation,164 and consequently are in tension with the treaty obligations of the Occupying Powers.165 (b) The unsc Acting under Chapter vii and the Law of Occupation: A Question of Identification of Peremptory Norms unsc Resolution 1483 while proclaiming changes going beyond the limits imposed by the law of occupation does not however specifically refer to the relation between the proclaimed changes and the law of occupation.166 If we ­apply the general principles outlined in the first section of this chapter, the basic assumption is that indeed the unsc has the power to derogate from the law of occupation given that it is acting under Chapter vii of the un Charter. The only limit to the authority of the unsc in this regard is constituted by peremptory norms of international law. It is thus important to briefly assess whether some of the rules contained in the law of occupation are of a peremptory nature. From the outset it is already important to mention that one peremptory norm, even if it is outside the law of occupation as such, will constitute an important limit in the case at hand, namely the right to self-determination.167 161 See unsc Resolution 1483(2003), op. cit., §8. On this apparent paradox see Conor McCarthy, op. cit note 68 p. 67. See also Marten Zwanenburg, op. cit. note 21, p. 766. 162 unsc Resolution 1483(2003), op. cit. note 82, §1. 163 unsc Resolution 1483(2003), op. cit. note 82, §8 (c), (e) and (i). 164 Adam Roberts, op. cit. note 81, p. 36. 165 Thomas D. Grant, op. cit. note 61. 166 Adam Roberts, op. cit. note 81, p. 36. 167 Eyal Benvenisti and Guy Keinan, op. cit. note 63, p. 276: “the law of occupation internalizes a delicate balance between conflicting interests of occupant and occupied, and is heavily influence by the effort not to alienate the indigenous people’s right to continue to exercise its right to self-determination”; Jorge Cardona Llorens, “Les principes fondamentaux du droit international et les limites aux transformations dans les territoires occupés”,

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This right was not significant at the time of the adoption of the main rules regulating occupation and was therefore not taken into account at the time of the drafting of these main instruments.168 As was already alluded to in Part 1, Chapter 2 of this thesis, the development of the right of self-determination represents an important challenge for the law of occupation. Indeed, given that self-determination “is very much the human rights counterpart of the right of sovereignty and territorial integrity held by the States in which those people live”,169 it is only logical that it will limit the powers of the occupant in a way similar to the limits imposed on it by sovereignty. The unsc and the Coalition partners were definitely aware of the limits that the principle of selfdetermination imposed upon them as evidenced by the numerous references in the official documents regulating the occupation of Iraq to the right of the Iraqi people to freely determine their own political future and the importance of returning, as soon as possible, full authority to a newly established representative government. The reference to cooperation with the iGc can also be linked with this. The right of self-determination constituting a jus cogens norm definitely limits the power of the unsc to derogate from the law of occupation. But as Eyal Benvenisti and Guy Keinan intelligibly pointed out:“[it] is also reasonable to argue that the Security Council is more trustworthy than the occupant to be entrusted with such a complex matter, and therefore it may be granted the authority to limit or influence the exercise of the right to selfdetermination to a greater extent than the occupant would, as is the case in territories directly administered by the un”.170 Concerning the potential peremptory character of some norms of the law of occupation, and of norms of ihl more generally, this has been widely underresearched. Here we will nevertheless try to establish at least some of the main principles in this regard here. It seems to be quite generally accepted, with the exception of a few, that it would, in any case, be wrong to consider the totality of occupation law as reflecting jus cogens norms.171 As David J Scheffer correctly noted: “Given the wide variety of circumstances that may trigger or even justify military occupation, it would be a mistake to regard many of the codified provisions of occupation law as peremptory norms of international

168 169 170 171

Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 67; Youngjing Jung, op. cit., p. 393. Youngjing Jung, op. cit. note 68, p. 393. Manfred Nowak, u.n. Covenant on Civil and Political Right : ccpr commentary, Kehl am. Rhein, Engel, 2nd ed., 2005, Commentary to Article 1 iccpr, p. 40. Eyal Benvenisti and Guy Keinan, op. cit. note 63, p. 276. David. J Scheffer, op. cit. note 4, p. 843.

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law applicable in all situations of military occupation without deviation or qualification”.172 Furthermore, the peremptory character of norms should be assessed considering each norm separately and not by just presuming that an entire body of law is peremptory.173 There are some rules of the law of occupation that could potentially be considered peremptory.174 It is however not clear which rules of the law of occupation would have such a status. In this regard it is interesting to briefly look at the separate opinion of Judge Lauterpacht, already partly cited above, with regard to the taking of further provisional measures in the Bosnian Genocide case: The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty – cannot as a matter of simple hierarchy of norms – extend to a conflict between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite proposition thus – that a Security Council resolution may even require participation in genocide – for its unacceptability to be apparent.175 If we follow the test proposed by Judge Lauterpacht and apply it to the case at hand at least those norms from which derogation would appear to be completely absurd and counternatural would be of a peremptory nature. Lindsay Cameron has rightly indicated in line with this reasoning that: “one cannot imagine the Security Council adopting a resolution that obliges occupying powers to treat people inhumanely. However, it is easy to imagine a resolution that authorises, or obliges the occupying power to deviate from the regular regime of legislative powers”.176 The test provided by Judge Lauterpacht can thus already be a good indication for the debate at hand. Similarly, other indicators might also help to identify potential jus cogens rules or, on the other hand, to exclude some norms of the law of occupation from this realm. Some have for example also argued that

172 173 174 175 176

David. J. Scheffer, op. cit note 4. p. 852. Lindsay Cameron, op. cit. note 75, p. 65. David. J. Scheffer, op. cit note 4., p. 843; Marten Zwanenburg, op. cit. note 21, p. 762. Bosnian Genocide case Separate Opinion of Judge Lauterpacht, op. cit. note 25, §100. Lindsay Cameron, op. cit. note 74, pp. 65–66.

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those provisions generating grave breaches would be of a peremptory n ­ ature.177 With regard to the law of occupation this would concern Article 49 gciv and the prohibition of transferring protected persons outside of the occupied territory and transferring part of its own population into the territories it occupies.178 Considering this provision to be of a peremptory nature would fit the conclusion of the icj in its Wall opinion that some of the obligations violated by Israel would include erga omnes obligations, and more specifically “the obligation to respect the right of the Palestinian people to self-­determination, and certain of its obligations under international humanitarian law”.179 The Court further stated that: Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.180 We have established above that whereas all jus cogens norms are also obligations erga omnes, the opposite is not always true. The above-mentioned f­ inding 177 In this regard see Lauri Hannikainen, op. cit. note 53, p. 606: “there is a strong presumption that at least the prohibitions of the ‘grave breaches’ are peremptory”. 178 According to Article 85(4)(a) api: “In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol:(a) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention”. See also the reference in Article 8 of the Rome Statute of the International Criminal Court, Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an international criminal court, done at Rome on 17 July 1998, u.n. Doc. A/CONF.183/9, defining as war crimes, hence ‘grave breaches’, ‘unlawful deportation or transfer’ (Article 8, 2. (a) (vii)). 179 See International Court of Justice (icj), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, i.c.j. Reports 2004, §155. 180 Ibid., § 159. For an in-depth analysis of the obligation not to recognize see Stefan Talmon, “The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?” in Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, Leiden, Martinus Nijhoff Publishers, 2006, pp. 99–226.

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by the Court would nevertheless, at the very least, provide a presumption of the peremptory nature of some relevant ihl norms.181 In our opinion, if we were to constitute a list of provisions of the law of occupation that would be of a peremptory character Article 49 gciv should definitely be included given that it constitutes a grave breach of ihl. Some have argued that they would also include the overarching principles of human treatment and judicial due process,182 or those norms referring to the basic protection of the civilian population.183 Such a position seems to be in line with what the icj has declared in its opinion on the legality of the use of force: the rules of ihl that are so fundamental to respecting the human person are intransgressible.184 In other words, the unsc is allowed to authorise a deviation from the law of occupation only “in areas that do not negatively affect core principles”.185 After having provided a tentative view on which norms of the law of occupation might be considered as potentially having a peremptory character, it is perhaps even more important for the case at hand to establish that certain norms would not have such a character. This is especially important with regards to Article 43 hr and Article 64 gciv. These provisions contain the core of the authority of the occupying power and the conservationist principle underlying it. unsc Resolution 1483 derogates from these provisions by extending some of the powers of the occupants in Iraq beyond what would normally be allowed under the law of occupation. This can only be done if the relevant provisions would not be of a peremptory nature. In light of some of the indicators established above, these provisions are neither included on the grave breaches provisions list, nor do they concern, at least directly, the basic protection of the civilian population. If we apply the ‘Lauterpacht test’, it would not be considered absolutely absurd to have the unsc derogate from this provision. The reaction of most States and international scholars with regard to this deviation from the conservationist principle by the unsc, which will be further outlined below, seems to confirm this. Finally, the said provisions are not absolute, 181 Such a conclusion seems to have also been drawn by, for example, Marten Zwanenburg, op. cit. note 21, p. 762: arguing that “While it has been maintained that such obligation do not appear to have the character of ius cogens norms, the icj in its advisory opinion on the wall did suggest that at least certain norms of the law of occupation may have a peremptory character”. 182 David J. Scheffer, op. cit. note 4, p. 852. 183 Ibid., p. 852. 184 Nuclear Weapons Opinion, op. cit note 46, §79; See the first section of this chapter. 185 Erika de Wet, “Beginning and End of Occupation – un Security Council’s impact on the Law of Occupation”, Proceedings of the Bruges Colloquium: Current Challenges to the Law of Occupation, 20–21 October 2005, Collegium, No. 34, Autumn 2006, p. 41.

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g­ iven that they already, in se, allow for derogations.186 Indeed, pre-existing laws should, for example, be maintained ‘unless absolutely prevented”. This, in my opinion, confirms that they are not of a peremptory nature187 and the unsc thus has the powers to derogate from them. All the unsc does in the end is to extend the realm of exceptions beyond what is normally allowed under the law of occupation itself. Whereas I argue here that the unsc could derogate from the conservationist principle, I have indicated in Part 1, Chapter 1, of this thesis with regard to the end of occupation in Iraq that the unsc would not be able to decide that the occupation had effectively ended if the facts on the ground would contradict this. Would this, per se, imply that article 42 hr, containing the definition of occupation, is of a jus cogens nature? As Liesbeth Lijnzaad has so rightly indicated “the matter of the factual determination of the situation on the basis of the Hague Regulations in combination with the role of the un Security Council in that respect would seem to merit further study”.188 In my opinion it would be hard to sustain, in light of what has been established above, that Article 42 hr is of jus cogens nature. In any case, the question is, in my opinion, irrelevant. What it certainly means is that a unsc resolution could not contravene a factual determination, which is of a completely different order.189 Allowing the unsc to derogate from a factual determination would invalidate a whole body of law. This can hardly be the intention given that it would deprive the civilian population of an entire body of law specifically designed to protect them in a situation where they come into extremely close contact with the enemy forces. In addition, this would also conflate the fundamental separation between the jus in bello and the jus ad bellum.190

186 For a similar position, see Steven Wheatley, op. cit. note 68, p. 533. 187 Reasoning a contrario on the basis of one of the factors that would indicate the peremptory character of a norm of ihl according to Lauri Hannikainen, op. cit. note 53, p. 605, namely the fact that “many provisions stipulate the protection of persons in absolute terms [emphasis added]”. 188 Liesbeth Lijnzaad, op. cit. note 85, p. 304. 189 Such a position seems to have been confirmed by Michael Bothe during the question time following the presentation of Erika De Wet on the beginning and end of occupation, Collegium, No. 34, Autumn 2006, pp. 41–42: “Security Council Resolution are binding but cannot change the facts”. 190 Marco Sassoli, Marco, “Legislation and Maintenance of Public Order and Civil Life by occupying powers”, European Journal of International law, Vol. 16, No. 4, 2005, p. 684.

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(c)

unsc Resolution 1483(2003) and the Authorisation of Additional Changes unsc Resolution 1483 seems to have allowed the occupying powers to undertake changes going beyond the scope of the activities normally permitted under the law of occupation.191 According to the legal advice provided by the uk Attorney General with regard to the effect of unsc Resolution 1483 on the powers of the occupants: The resolution clarifies the legitimate scope of activity of the Occupying Powers and authorises them to undertake actions for the reform and reconstruction of Iraq going beyond the limitations of Geneva Convention iv and the Hague Regulations. In some cases such actions must be carried out in coordination with the srsg or in consultation with the iia.192

The last sentence of this quote is particularly interesting. Indeed we can note a clear difference between the text of paragraphs 4 and 8 of Resolution unsc 1483, believed to contain the essence of the powers conferred to the occupants by the resolution. Whereas paragraph 4 refers to the more traditional authority of the occupant, paragraph 8 contains the more far-reaching changes such as the changes to be brought to the Iraqi economy. This difference is also translated in the authorities that are being called upon to realize such changes. Indeed, paragraph 4 only refers to the cpa, whereas in paragraph 8 the measures must by realized by the un Special representative for Iraq in coordination with the cpa and the people of Iraq. It is clear that, at least on paper, the authority going beyond what is traditionally allowed by the law of occupation is not to be exercised by the cpa alone. Again, the drafters of unsc Resolution 1483 were perfectly aware of the limits imposed upon them by the law of occupation. Unfortunately most of the debate surrounding the adoption of unsc Resolution 1483 is not to be found in the public domain so it is not easy to clearly determine what the views of the un Member States were in this regard.193 The few records that were made public seem to offer some support for the a­ rgument 191 Marten Zwanenburg, op. cit. note 21, p. 757. 192 Legal advice by the uk Attorney General, “Iraq: Effect of the Security Council Resolution 1483 on the Authority of the Occupying Powers”, Letter dated 9 June 2003 from Cathy Adams, The Legal Secretariat to the Law Officers, Attorney General’s Chambers, to Huw Llewellyn, Legal Counsellor, Foreign and Commonwealth Office, in Stefan Talmon, op. cit., p. 1377 [hereafter Legal Advice on unsc 1483]. 193 Marten Zwanenburg, op. cit. note 21, p. 764.

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that part of the law of occupation was set aside,194 even if it does not provide a clear endorsement of the projected reforms.195 Reference is made to ‘the flexible framework’,196 or the ‘credible framework’,197 or yet again “the sound basis consistent with international law”198 provided by the resolution, in order to support the people in Iraq in their reconstruction efforts. The only intervention that explicitly sets aside the possibility for the unsc to authorise changes going beyond what is allowed under the law of occupation is the intervention by Pakistan: Pakistan, like several other members of the Security Council, has agreed, due to the exigencies of the circumstances, to the delegation of certain powers by the Security Council to the occupying Powers, represented by the Authority (....). They should be exercised in ways that conform with ‘the principles of justice and international law’ (…) and especially in conformity, with the Geneva Convention and the Hague Regulations, besides the Charter itself.199 Interestingly, once more the different interventions re-emphasise ownership by the Iraqi people in line with the right to self-determination and reiterate the importance of the sovereignty and integrity of Iraq.200 Some have argued that unsc Resolution 1483 seems to have created “a carve-out” from the law of occupation.201 I would see it more in terms of modulating the existing law than suspending those provisions that would appear to be incompatible with the far-reaching changes. The effect is the same, but the nuance is important. In my opinion, the law of occupation remains applicable and the unsc merely extends, even if to an important extent, the changes the 194 Marten Zwanenburg, op. cit. note 21, p. 766; Eyal Benvenisti and Guy Keinan, op. cit. note 63, p. 267. 195 Gregory H. Fox, op. cit. note 10, pp. 259–260: “While one may find implicit support for reconstruction in Council debate, no member state clearly described the resolution as providing the cpa with a legal basis to act beyond the parameters of the law of occupation. 196 United Nations Security Council, records of the 4761st meeting, “The situation in Iraq and Kuwait”, S/PV.4761, New York, 22 May 2003 [hereafter proceedings unsc meeting 1483], Intervention by the usa, p. 3. 197 Ibid., Intervention by France, p. 4. 198 Ibid., Intervention by the uk, p. 8. 199 Ibid., Intervention by Pakistan, p. 11. For a more thorough analysis of what is actually meant by Pakistan’s intervention see Conor McCarthy, op. cit. note 68, pp. 69–70. 200 Proceedings unsc meeting 1483, op. cit. 201 Thomas D. Grant, op. cit. note 61.

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occupying power is normally authorised to make under the law of occupation itself. It is a derogation from the law not an invalidation of the law as such. Indeed as has been established on numerous occasions in this research, the conservationist principle is not absolute. It is important to note that whereas unsc Resolution 1483 has authorised the cpa to engage in reconstruction and reform to a greater extent that would be permissible under occupation law alone, “the resolution does not grant the Coalition full legislative and executive authority in Iraq, so there is still a need to consider the legality of specific proposals against the requirements of occupation law and the terms of the resolution”.202 To conclude, a last point merits brief attention: some have argued that whilst, indeed, the unsc can derogate from the law of occupation it should have done so explicitly.203 This was not the case with regard to the occupation in Iraq and the mandate authorising additional changes was at the very most implied in the case at hand.204 It was indeed left very vague since it was at the same time authorising some wide-ranging reforms and recalling respect for the law of occupation.205 The mandate provided by the unsc was deliberatly left vague and was the result of a compromise.206 Most probably because not everyone would have accepted an explicit derogation.207 In addition, as Thomas D. Grant intelligibly remarked: “Vagueness in a legal text permits flexibility, and flexibility equips the cpa to adapt to the unforeseen shifts in Iraq’s legal-political landscape”.208 It is nevertheless interesting to note that on other occasions where international actors were authorized to undertake important reforms in post-conflict States, the unsc’s language was more direct.209 It is however important to recall that the examples referred to in this regard constituted un Territorial Administrations, which, contrarily to occupation, in most 202 Legal Advice on unsc 1483, op. cit. note 192, p. 1381. 203 In this regard see Marten Zwanenburg, op. cit. note 21, p. 767; Lindsay Cameron, op. cit. note 75, p. 66. This is however not the position of everyone. For a more nuanced position see for example Michael N. Schmitt and Charles H.B. Garraway, op. cit. note 66, p. 31. “To the extent that cpa activities exceed the rights granted in occupation law, a Security Council mandate must ‘authorize’ them, at least implicitely [emphasis added]”. 204 See Thomas D. Grant, op. cit. note 142, p. 823. 205 Marten Zwanenburg, op. cit. note 21, p. 766. 206 Thomas D. Grant, op. cit. note 142, p. 824. Gregory H. Fox, op. cit. note 10, p. 259 also refers to unsc Resolution 1483(2003) as being a ‘compromise document that accommodated conflicting views among Council members’. 207 In this regard see for example the position of Pakistan as expressed above. 208 Thomas D. Grant, op. cit. note 142, p. 829. 209 Gregory H. Fox, op. cit. note 10, p. 261.

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cases specifically imply the making of transformations in the territory in question and the rehabilitation of the State.210 3

Interim Conclusion: A Compelling Case for Modulation of the Law of Occupation by the unsc When Necessary

Whereas the occupation in Iraq definitely challenged the conservationist principle, it nevertheless did not invalidate it. The mere fact that the occupying powers at least tried to accommodate the challenges raised by the extent of the transformations ambitioned in Iraq shows that, on the contrary, the conservationist principle is still very much alive. Otherwise they could have just as well have ignored it altogether. The developments in Iraq are not in themselves an argument for revising the existing law of occupation,211 nor for “declaring the conservationist principal as an anachronism”.212 Such an approach would be quite dangerous since it would ultimately increase the possibilities for abuse. Most seem to agree that the unsc would be in a position to derogate from those provisions of the law of occupation which are not peremptory in nature, even if some argue that it should be done explicitly, which was not the case in Iraq. While agreeing that indeed such a derogation would be better if explicit, I nevertheless believe that the derogation provided by the unsc authorized the cpa to take measures that would normally be incompatible with the law of occupation. Even if not perfect, this system at least has the merit to establish some kind of control over the actions of the occupying powers. The importance of this supervisory role for the unsc clearly emerges from the proceedings relating to the adoption of unsc Resolution 1483: Spain referred to the “important and independent role for the United Nations”,213 France to the fact that “the Security Council must therefore continue to be closely involved in the situation in Iraq”,214 and even more clearly, Pakistan welcomed “the continuing role that the United Nations will play in the oversight functions”.215 210 Steven R. Ratner, “Foreign Occupation and International Territorial Administration: the Challenges of convergence”, The European Journal of International Law, vol. 16(4), 2005, pp. 701–702; Gregory H. Fox, Humanitarian Occupation, Cambridge, Cambridge University Press, 2008, p. 7. 211 Marten Zwanenburg, op. cit. note 21, p. 768. 212 Gregory H. Fox, op. cit. note 64, p. 26 referring to the situations of Kosovo and East Timor as examples. 213 Proceedings unsc meeting 1483, note 196, p. 6. 214 Ibid., p. 4. 215 Ibid., p. 11.

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It can definitely be argued that unsc Resolution 1483 and the role of the unsc in Iraq as a whole have adapted (or at least tried to adapt) the law of occupation to the challenges brought upon it by the transformative occupation of Iraq. This further proves that the unsc can indeed modulate the law to better suit the specificities of the occupation at hand, as long as the limits imposed by the peremptory norms are respected. Whether this involvement was a good thing altogether, especially in light of the situation in Iraq today, is a different question, but the will and capacity to accommodate the law to the changing circumstances was at least there. While recognizing the importance of the role that the unsc should have in assisting in such transformative processes, some have argued that there is a better way for it to address transformation needs. Indeed, David J. Scheffer, for example, believes that the question of reform in Iraq would be “far better addressed by a tailored nation building mandate of the Security Council”.216 Hence under the regime of un Territorial Administration rather than by a ­U NSC-backed occupation. His main argument for this is that it would have left the law of occupation ‘intact’ whereas the solution adopted here challenged the very core of the occupation regime. As he metaphorically stated: “[o]ccupation law should be returned to the box from which it came”.217 A similar concern was voiced by Melissa Patterson: “The strength of this well-established pedigree, however, is susceptible to dilution since the Coalition’s actions in Iraq have been inconsistent with occupation law’s basic premises”.218 As we have however demonstrated earlier on in this research (see supra, Part 1, Chapter 1), un Territorial Administration does not in se invalidate the application of the law of occupation so that claiming that the law of occupation should have been left ‘in its own box’ might not be such a compelling reason. In addition, as was stated earlier with regard to the plea for express derogation, inscribing the situation in Iraq under un Territorial Administration might have most probably been a valuable option as well. But such an option was, in any case, not available in the situation at hand given that the us, one of the permanent members of the unsc and hence a beholder of the veto power, was openly opposed to the creation of an “un-based governing authority for Iraq”.219 One has 216 David J. Scheffer, op. cit. note 4, p. 843. 217 Ibid., p. 859. See also Gregory H. Fox, op. cit. note 64, p. 241: “Enshrining transformative occupation into doctrine threatens to reverse that hard-won legitimacy, for its only consequence would be to empower unilateral state occupiers”. 218 Melissa Patterson, op. cit. note 65, p. 469. 219 Office of the us Under Secretary of Defense for Policy, What the un Should and Should Not Do [in Post-War Iraq], in Stefan Talmon, The Occupation of Iraq. Volume ii. The official

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to make do with one has been allotted. A multilateral option is unfortunately not always available (due to a lack of political will, a veto by a unsc permanent member, etc.).220 In any case, there is one point on which most seem to agree: a formal modification of the law is not desirable. First, that would overestimate the problem caused by transformative occupation. Indeed, transformative occupation is not as common as the indignation thereto might suggest. Iraq was the only example of such an occupation in the post-cold war era221 and is far from being “a casebook example of occupation”.222 Second, exceptions should remain exceptions rather than becoming the norm.223 Explicitly providing for more derogation from the conservationist principle would ultimately lead to an even more increased risk of abuse. As Rüdiger Wolfrum has rightfully pointed out in this regard: “The involvement of the Security Council or a regional international organization is more effective in preventing the abuse of such powers than a watered-down international humanitarian law that merely expands the discretionary powers of a belligerent occupant”.224 In the case of inconsistencies between the law of occupation (for as long as the provisions concerned are not of a peremptory nature) and the measures the occupant believes that need to be adopted, the best solution thus seems to be the seeking of authorisation from international bodies, in order “to secure a variation in the application”.225

220 221 222 223 224

225

Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Oxford, Hart Publishing, 2013, p. 1333. More in general this documents makes it clear that whereas the un should have a role in Iraq, the Authority should maintain the most important role. Gregory H. Fox, op. cit. note 64, p. 264. Ibid., p. 242. Eyal Benvenisti and Guy Keinan, op. cit. note 63, p. 267. Adam Roberts, op. cit. note 68 p. 622. Rüdiger Wolfrum, “The Adequacy of International Humanitarian Law Rules on Belligerent Occupation: To What Extent May Security Council Resolution 1483 Be Considered a Model for Adjustment”, in Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein, Leiden, Martinus Nijhoff Publishers, 2007, p. 508. = Adam Roberts, op. cit. note 68, p. 622.

General Concluding Remarks The basic tenets of the old law on occupation [seem to] have withstood the test of time (…).1 benvenisti

∵ 1

A Recapitulation of the Main Findings

The central aim of this book was to assess to what extent the law of occupation is still suitable to deal with contemporary situations of occupation such as long-term and transformative occupation and to establish what could and should be done about this. It is argued that whereas these modern forms of occupation indeed represent an important challenge to the law of occupation, the law should nevertheless not be invalidated as a consequence of these challenges. And this for three reasons. First, the law of occupation in itself is flexible enough to accommodate some of the needed changes. The leeway provided by the law of occupation is more important than might appear at first sight. Indeed, the ‘necessity clause’ contained in Article 43 hr may serve as a basis for wide-ranging changes adopted, amongst others, for security reasons or for the benefit of the occupied population. The difficulty however resides in retaining this flexibility whilst at the same time providing some clear boundaries to the occupant’s power in order to prevent abuse. Even more so since, the powers of the occupant being of a factual nature, no general conclusions can be drawn and what might be allowed in certain circumstances is not necessarily allowed in others. It is thus impossible to establish a ‘one size fits all’ model and the legality assessment should be made on a case-by-case basis. We have nevertheless provided some guidelines in this book in order to assist in making this determination. Second, the ihl regime can be further complemented by international human rights law (ihrl). It was clearly shown that even though ihrl definitely has a role to play in situations of occupation, the exact relationship and interaction with ihl is still difficult to establish and here as well it will often need to be assessed on a case-by-case basis. This is ­especially 1 Eyal Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, idf Law Review, Vol. 1, 2003, p. 38.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004353978_010

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problematic with regard to the practical application of the established principles on the ground. Here as well some indicators have been identified in this research in order to help in this assessment. We are in any case of the opinion that, regardless of the specific relationship between both bodies of law in a given situation, ihl always remains the main framework of reference and that when human rights obligations are applied in situations of occupation, these will always have to be interpreted in the light of ihl. Third, the unsc when acting under Chapter vii can to a certain extent ‘modulate’ the law of occupation to adapt it to particular situations. This part was mainly illustrated with reference to the 2003–2004 Iraqi occupation. Whereas the occupation in Iraq definitely challenged the conservationist principle, it nevertheless did not invalidate it. The mere fact that the occupying powers at least tried to accommodate the challenges raised by the extent of the transformations ambitioned in Iraq shows that on the contrary the conservationist principle is still very much alive. Otherwise they could just as well have ignored it altogether. In addition, most seem to agree that the unsc would be in a position to derogate from those provisions of the law of occupation which are not peremptory in nature, even if some argue that this should be done explicitly, which was not the case in Iraq. While agreeing that indeed such a derogation would be better if it was explicit, I nevertheless believe that the derogation provided by the unsc authorized the Coalition Provisional Authority to take measures that would normally be incompatible with the law of occupation. Even if not perfect, this system at least has the merit of establishing some kind of control over the actions of the occupying powers by an authoritative international body. Even though I fully acknowledge that these contemporary situations indeed strongly challenge the law of occupation, I believe that these three ways are sound enough in order not to advocate a modification of the law of occupation tout court. Some, albeit in the minority, have nonetheless advocated that such a modification is necessary.2 In my opinion a formal modification of the law is however neither desirable, nor feasible. First, it is not desirable since creating more exceptions will ultimately weaken the law. It would give the occupying power more leeway, and consequently would create more risk of abuse and diminish the protection provided to the occupied state and the occupied population. As Adam Roberts rightfully stated: changes brought upon the occupied territory “should remain the exception rather than becoming the 2 See for example Davis P. Goodman, “The Need for Fundamental Change in the Law of ­Belligerent Occupation”, Stanford Law Review, Vol. 37, No. 6, 1984–1985, pp. 1573–1608 and Major Breven C. Parsons, “Moving the Law of Occupation into the Twenty-First Century”, Naval Law Review, Vol. 57, 2009, pp. 1–48.

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norm”.3 In addition, the 2003–2004 occupation of Iraq and the Israeli occupation of the Palestinian Territories present atypical features so they should not foster too many general conclusions.4 At the same time, these cases precisely also strongly show that the law of occupation and its basic tenets are still very much alive and kicking. The numerous violations alleged by the international community with regard to the situation of the opt as well as the extent to which the transformations realised in the framework of the occupation of Iraq have raised questions and criticism show that it is still generally believed that the law of occupation needs to be respected. It is not because the core of the law of occupation is challenged that the obligations that are established by it are eroding. Second, it is also not feasible. Indeed, the momentum that existed after the Second World War and which allowed for the drafting of the Geneva Conventions no longer exists today and trying to modify the laws might prove to be impossible or at the very least very challenging, especially in light of today’s geopolitical context.5 In other words, “it would not be prudent to attempt a wholesale reform of the existing provisions of ihl”.6 As Adam Roberts very pertinently summarized:

3 Adam Roberts, “Transformative military occupation: applying the laws of war and human rights”, American Journal of International Law, Vol. 100, July 2006, p. 622. Similarly, Orna ­Ben-Naftali, Aeyal M. Gross and Keren Michaeli, “The Illegality of the Occupation regime: The Fabric of Law in the Occupied Palestinian Territory”, in Adi Ophir, Michal Givoni and Sara Hanafi (eds.), The Power of Inclusive Exclusion: Anatomy of the Israeli Rule in the opt, New York, Zone Books, 2009, p. 63 also argue that: “one lesson to be drawn (…) is the importance of retaining a clear distinction between fact and norm, between the rule and the exception, lest the exception becomes a new rule and generates a new conception of reality”. 4 Philip Spoerri, “The Law of Occupation”, in Andrew Clapham and Paola Gaeta (eds.), The Oxford handbook of international law in armed conflict, Oxford, Oxford University Press, 2014, pp. 182–183. 5 Christophe Greenwood, International Humanitarian Law (laws of war), Revised report for the Centennial Commemoration of the First Hage Peace Conference 1899, in Frits Kalshoven (ed.), The Centennial of the First International Peace Conference: reports and conclusions, The Hague, Kluwer, 2000, p. 200 states that an agreement on a new law is very unlikely to be reached. Similarly; Robert Kolb, “Etude sur l’occupation est sur l’article 47 de la IVéme Convention de Genève du 12 aout 1949 relative à la protection des personnes civiles en temps de guerre: le dégré d’intangibilité des droits en territoire occupé”, African Yearbook of International Law, 2003, p. 321 states that “la faisabilité politique d’un tel projet peut prêter à des doutes dirimants”. 6 Daniel Thürer and Malcolm McLaren, “Ius Post Bellum’ in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian Law?” in Klaus Dicke (ed.), Weltinnenrecht: festschrift für Jost Delbrück, Berlin, Duncker & Humblot, 2005, p. 779.

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The case for attempting to devise new law in this way is weak. The heart of occupation law remains a sensible and essentially conservationist set of rules to cover a type of emergency situation that frequently arises in war. (…) It is simply not worth going down that road when other remedies for any claimed defect of the law on occupations are at hand in the form of human rights law [and] un Security Council authorization (…).7 2

Forward Looking: A Few Thoughts on the Establishment of an Oversight Mechanism

The different remedies outlined to address the challenges to the law of occupation arising out of contemporary forms of occupation are, however, very much case dependent and what will be specifically allowed depends on the specific situation at hand. Even more so what might be allowed in one case of occupation might not necessarily be allowed in another case. Consequently, it is not possible to formulate a single code of conduct for the ‘perfect’ occupant. As Eyal Benvenisti pointed out: “Codes and strict definitions would fail to accommodate the contingencies that occupants face during their rule, as much as they would fail to instruct any other government”.8 Consequently the exact boundaries remain quite unclear and the risk of abuse persists. Additionally, the occupying power remains pretty much the only judge of validity as long as the occupation endures. Instead of attempting to secure neither a desirable nor a feasible, and above all, an unnecessary transformation of the law, the focus should, in my opinion, rather lie on the enforcement of the already existing rules. Effective enforcement is a sore point under ihl in general. As Antonio Cassese intelligibly pointed out: “An important deficiency of modern ihl is that there is no effective mechanism for determining when a belligerent has violated ihl”.9 This problem is particularly salient in situations of occupation given that the impact of the foreign forces on the protected persons is especially important in such situations. In this regard, the need for the creation of an international oversight mechanism with regard to occupation has been expressed. Eyal Benvenisti has for example argued that: “A serious effort to achieve coherence and effectiveness should include the development of a 7 Adam Roberts, “Transformative military occupation: applying the laws of war and human rights”, American Journal of International Law, Vol. 100, No. 3, July 2006, p. 622. 8 Eyal Benvenisti, The International Law of Occupation, Princeton, Princeton University Press, 1993, p. 216. 9 Antonio Cassese, “Current Challenges to International Humanitarian Law”, in Andrew Clapham and Paola Gaeta (eds.), The Oxford handbook of international law in armed conflict, Oxford, Oxford University Press, 2014, p. 12.

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blueprint for an early intervention body that would come to life whenever occupation takes place, based on the determination of the Security Council”.10 Similarly, Orna Ben-Naftali has stated that, whereas a formal modification of the law is not needed, “the sina qua non condition for enabling some advancement of [the law of occupation] is the establishment of an international supervisory mechanism equipped with the means to fulfil a number of tasks (…)”.11 Major Breven C. Parsons further confirms the need for such an oversight mechanism: “Given that the history of occupation in the past century is rife with examples of abuses of the law of occupation, it is clear that a mechanism to ensure international oversight of occupations would be useful in every type of modem occupation”12 The question of the creation of such a supervisory body also arose during the expert meeting on occupation and other forms of territorial administration organized by the icrc. From the debates during that meeting, it became clear that there is a broad agreement on the need for such a supervisory mechanism.13 Most also seemed to agree that such a body should be established under the auspices of the un Security Council.14 There was however no agreement on the nature of such a mechanism nor on its specific working procedures.15 The description provided by Eyal Benvenisti with regard to such a body ­remains quite abstract even though he already provides some interesting elements. He states the following: It is hoped that in the future the realizations of these and other shortcomings of the law of occupation will pave the way for the creation of ­international institutions that will be entrusted with the task of monitoring activities in the occupied territories, give authoritative opinion regarding their legality, and assist in the enforcement of those decisions upon recalcitrant occupant.16 10 11

12 13

14 15 16

Eyal Benvenisti, The International Law of Occupation, Oxford, Oxford University Press, 2nd edition, 2012, p. 347. Orna Ben-Naftali, “Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism”, in Antonio Cassese (ed.), Realizing Utopia: the Future of International Law, Oxford, Oxford University Press, 2012, p. 539. Major Breven C Parsons, “Moving the Law of Occupation into the Twenty-First Century”, Naval Law Review, Vol. 57, 2009, p. 41. Expert Meeting, Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by Tristan Ferraro, Legal Advisor, icrc, March 2012, p. 76 [­hereafter Expert Meeting]. Ibid, pp. 76–77. Ibid., p. 77. Eyal Benvenisti, op. cit. note 8, p. 216.

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Here I have deliberately referred to the description provided in the first edition of his book. Indeed the way Benvenisti described the tasks of this supervisory body in the first version of his book appears more realistic than the alleged “accumulated body of knowledge” also guiding other occupations as referred to in the second edition of his book17 I strongly believe that the oversight mechanism should remain case-bound and should not attempt to draw too many general conclusions. If we want it draw more general conclusions it will undoubtedly have to remain fairly general given that what is precisely allowed or not is very case-specific. If, on the contrary, we want this body to really assess concrete violations it should be case-specific. A basic mandate for oversight should thus be provided but this mandate should be tailored to each specific occupation.18 Orna Ben-Naftali has attempted to describe in more detail how such an oversight mechanism should operate in her opinion. The way she conceives it, this international supervisory mechanism shall: (i) determine that the situation qualifies as occupation; (ii) receive from the occupant a clear plan for the governing of the territory, for the envisioned duration of the occupation, and for the orderly transfer of authority to the local population; (iii) review, and when necessary, revise the plan; (iv) supervise the implementation of the plan; (v) monitor that the occupying power(s) apply the lbo [Law of Belligerent Occupation] by governing the territory and facilitating the ­re-establishment of local governance while protecting the humanitarian interests of the inhabitants; and (vi) hold the occupant(s) accountable for the violation of the lbo through resort to reporting, judicial review, and, when necessary ­enforcement. = What kind of enforcement?19 She further states that it should concern a neutral body of professional experts, both military and legal, and that it should be established by and report to the un Security Council.20 This attempt by Orna Ben-Naftali, although very laudable, in my opinion raises a certain number of problems. First, granting this body the express task 17 18 19 20

Eyal Benvenisti, op. cit. note 10, p. 347. In this regard see also Major Breven C. Parsons, op. cit. 12, p. 43. Orna Ben-Naftali, op. cit. note 11, p. 551. Ibid., p. 551.

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of determining the existence of a situation of occupation is confusing at the very least. Of course, if we create a specific body to supervise an occupation, such a body should only be triggered in the event of an actual occupation. However, providing this body with the explicit task of determining that such a situation exists, in my opinion, poses a risk with regard to the factual nature of an occupation. Second, the set-up of this body is also very ambitious and perhaps also slightly unrealistic. It is mainly based on the active participation by the occupant. Indeed, the latter shall provide the oversight mechanism with ‘a clear plan for the governing of the territory, for the envisioned duration of the occupation, and for the orderly transfer of authority to the local population’.21 Whereas such collaboration might be conceivable in some instances, albeit in my opinion these will be very limited, it appears very difficult to realise a situation of collaboration in practice. One of the precise reasons why the ­international fact-finding commission envisaged by Article 90 api has never been used is because it is based on the consent of the parties concerned.22 Indeed, it does not have the right to institute fact-finding missions proprio motu making it very much dependant on the goodwill of the states concerned23 If possible of course, there should be such consent and cooperation, because that would definitely make the process more effective, but in case such cooperation is not possible, the oversight mechanism should be able to proceed without it. In the remaining pages of this book I will attempt to outline how I believe that such an oversight mechanism should function. I will particularly draw inspiration from the different mechanisms with similar aims which are already in place. It is important to mention from that outset that this assessment will not be limited to the existing bodies under ihl, on the contrary. Indeed both the international humanitarian fact-finding commission inscribed in Article 90 api and the mechanisms foreseen in the Four Geneva Conventions 21

22

23

Orna Ben-Naftali, op. cit. note 11, p. 551. Interestingly, a similar vision seems to be expressed by Major Breven C. ­Parsons who has stated that such a body should “review, approve and monitor the occupant’s security plan and method of governance”; Major Breven C. Parsons, op. cit. note 12, p. 42. Knutt Dörmann, “Dissemination and Monitoring Compliance of International Humanitarian Law”, in Wolff Heintschel von Heinegg and Volker Epping (eds.), International humanitarian law facing new challenges: symposium in honour of Knut Ipsen, Berlin, Springer, 2007, pp. 238. Michael Bothe, “Fact-Finding as a Means of Ensuring Respect for International Humanitarian Law”, in Wolff Heintschel von Heinegg and Volker Epping (eds.), International humanitarian law facing new challenges: symposium in honour of Knut Ipsen, Berlin, Springer, 2007, p. 265.

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(cf.  ­Article  149 gciv for example) have never been used in practice.24 The mechanisms that, even though not originally specifically foreseen for monitoring ihl, seem to nevertheless have achieved some positive results in practice are the Commission of Enquiry and Fact-Finding under the un system.25 As was clearly highlighted in the hpcr Advanced Practitioner’s on Commissions of Inquiry: Over the past few decades, commissions of inquiry have become an increasingly prominent component of international, regional and national responses to allegations of violations of international human rights law (ihrl) and international humanitarian law (ihl) in the context of armed conflicts and international disturbances.26 The assessment of the Commission of Enquiry in Darfur as a means of inspiration seems to be of particular relevance for the case at hand. Indeed, not only the fact that it was established by the unsc but also the fact that its mandate included, next to human rights law, also explicitly violations of ihl27 as well as the further steps that were taken towards effective criminal indictments make it a particular well-suited example.28 24

25

26

27 28

Knutt Dörmann, op. cit. note 22, pp. 237–238; Vera Gowlland-Debas and Gloria Gaggioli, “The relationship between international human rights and humanitarian law: an overview”, in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 93; Antonio Cassese, op. cit. note 11, p. 13; Benvenuti and Bartolini, “Is there a need for new international humanitarian law implementation mechanisms?” in Robert Kolb and Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law, Cheltenham, Edward Elgar, 2013, p. 601. Some inspiration for this part was found at the experts’ meeting on “Fact-finding Mechanisms and International Humanitarian Law” co-organised by the Belgian Interministerial Commission for Humanitarian Law and the Foreign and Commonwealth Office of the United Kingdom (June 2nd 2015, Brussels). Program on Humanitarian Policy and Conflict Research, hpcr Advanced practitioner’s handbook on commissions of inquiry: Monitoring, reporting and fact-finding, March 2015, p. 1 [hereafter hpcr handbook] Similarly, the United Nations Human Rights Office of the High Commissioner, Commissions of Inquiry and Fact-finding missions on international human rights and humanitarian law. Guidance and practice, New York and Geneva, 2015, p. v [hereafter ohchr guidance] also stated that: “International commissions of inquiry and fact-finding missions are now a key tool in the un response to situations of ihl and ihrl”. unsc Resolution 1564 (2004), 18 September 2004, §12. See Philip Alston, “The Darfur Commission as a Model for Future Responses to Crisis ­Situations”, Journal of International Criminal Justice, Vol. 3, 2005, pp. 600–607.

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I will however not be arguing that we should specifically use these mechanisms but their functioning has inspired the specific occupation oversight mechanism as I would picture it. Furthermore, I do not claim to be able to discern the ultimate truth but only wish to provide further inspiration and inform the debate. From the outset I also recognize that some of the envisaged elements might be ambitious and difficult to realise in practice but I have tried to take some of the pitfalls into account while at the same time trying to find an effective solution. The supervisory body should be triggered by the existence of a situation of occupation. It should have a permanent element but should be specifically modulated in the functions of each specific case with which it will be confronted. The permanent element lies particularly in the establishment of a pool of experts on the law of occupation that could be activated when needed. The specific activation decision would lie with the un Security Council. There should preferably be agreement by the parties concerned given that it has been shown that this significantly increases the chances of success.29 However, if such consent could not be attained, which is quite likely, there should be a possibility to enforce the establishment of such a supervisory body via unsc action under Chapter vii.30 It is important to mention here that occupation presents an additional challenge with regard to the issue of consent. Indeed, normally inquiry and fact-finding requires the consent of the territorial state in which these activities will take place. How would this work in the case of an occupation where the effective territiorial control and the sovereign title are in the hands of two different parties? Ideally, the consent would, in my opinion, have to be obtained from both the occupying and the occupied powers, even if we might consider a situation in which only the legitimate holder of the title over the territory would consent, even though this would give rise to quite a few challenges in practice. In any case, the unsc seems to be the most adapt organ to establish such a body since it can act even in the case of a lack of consent. It is also a realistic option. Indeed the unsc has recalled on more than one occasion that systematic violations of ihl might constitute a ‘threat 29

30

Zeray Yihdego, “The Gaza Mission: Implications for International Humanitarian Law and un Fact-Finding (Focus: ihl and icl: The Future, the Present and the Past: The Future)”, Melbourne Journal of International law, Vol. 13, No. 1, 2012, p. 162. Consent could indeed be substituted by a binding decision of the unsc acting under Chapter vii if needed; Axel Berg, “The 1991 Declaration on Fact-Finding by the United Nations”, European Journal of International Law, Vol. 4, 1993, p. 108. See also Zeray Yihdego, op. cit. note 29, p. 162 establishing that the unsc when acting under Chapter vii can ­impose fact-finding missions upon states.

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to peace’ triggering unsc action under Chapter vii.31 The unsc in this regard seems to be the only sound option even if we of course need to keep in mind the potential drawbacks, such as the use of the veto power, for example, and the consequent blocking of the unsc on the matter. Apart from unsc involvement with regard to the setting up of such a body for a specific occupation, the remainder of the process should be as apolitical as possible. By this I mean that this body should really be based on expertise and not on political decisions such as geographical representation for example. Whereas “recognised competence and proven substantial knowledge and expertise” constitutes an important criterion for all fact-finding and enquiry undertakings, it is quite uncommon for such a body to completely disregard political elements.32 Indeed, geographical representation is often a key element in the composition of such a body.33 In my opinion, however, in the case at hand the focus should be placed on knowledge of the law of occupation (and also, incidentally, on the human rights norms concerned given that, as we have proven above, ihrl plays an increasing role in contemporary situations of ­occupation). The independence, impartiality and integrity of the body will specifically result from the selected expertise, free from political bias (to the greatest extent possible, of course). This also entails, in my opinion, that this oversight mechanism should not per se exclude experts from the concerned country(ies) as long as they can demonstrate that they are sufficiently impartial and with a focus only on their expertise. Such a solution might even to a certain extent benefit the quality of the findings and conclusions reached. If we were to take the case of the opt for example it would be particularly helpful to have Israeli experts on board given that they have, in addition to the necessary knowledge of the law, also extensive knowledge of the specific case at hand. I am of course fully aware of the fact that it is far from common to include people from the country concerned in such a body,34 but I believe that a real focus on ­expertise could 31 32 33 34

Michael Bothe, op. cit. note 23, p. 261. ohchr guidance, op. cit. note 26, p. 18. Ibid., p. 19. Impartiality is an important element for such commissions of inquiry and f­act-finding missions. In this regard see ohchr guidance, op. cit note 26, p. 20. See also Orna ­Ben-Naftali who, although recognizing that the membership of the body “would rectify some of the glaring inadequacies of the composition of the Council (i.e. the coexistence between permanent and non-permanent members) [and] reflect the plurality of experience with occupation (i.e. some members should be drawn from nations that have been occupied and occupants)” hence also trying to limit some of the political effects as I advocate, also clearly states that is should “exclude, in the case of specific state occupation, experts from that state”; Orna Ben-Naftali, op. cit. note 11, p. 551.

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potentially trump any potential bias. In any case these ‘local’ experts will not be the sole experts involved in the assessment, thereby providing an extra safety net in this regard. Concerning the specific composition, most fact-finding and enquiry missions have been composed of either 3 or 5 members.35 In the case at hand a distinction should be made between the permanent pool of experts to be established, which might contain a more important number of experts, and the number of experts needed in each specific case. The latter is subject to fluctuations with regard to the needs of each case, mostly depending on the workload and the available expertise at the given time, but I do agree with the fact that it should always be composed of an odd number given that this definitely facilitates decision-making, in case they would fail to reach consensus.36 The oversight mechanism should have two main tasks: (1) monitoring, and (2) fact-finding. The main ambit of monitoring is to monitor the situation in order to ensure compliance and thus to follow up the situation in order to prevent violations. As for fact-finding, it is, in my opinion, of particular importance in situations of occupation given the factual nature of occupation as well as the importance of the facts on the ground with regard to the specific application of the law. Fact-finding concerns “any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation (…)”37 and should “be comprehensive, objective, impartial and timely”.38 It is a technique that has been quite commonly used in the field of human rights. It has nevertheless also sometimes been extended to include, even with some success, the assessment of ihl violations.39 Importantly, fact-finding should not be limited to the correct outlining of the facts, but this providing of information should also effectively contribute to assisting in the enforcement where ­needed. ­Indeed as Michael Bothe correctly stated: “Certainty about facts is often a first step in ensuring compliance with an obligation”.40 The idea is 35 36 37 38 39

40

ohchr guidance, op. cit. note 26, p. 18. Ibid., p. 18. unga Resolution 45/59, 9 December 1991, “Declaration on Fact-finding by the United ­Nations in the Field of the Maintenance of International Peace and Security”, §2. Ibid., §3. Paolo Benvenuti and Giulio Bartolini, op. cit. note 22, p. 612. “The response to violations of ihl has been particularly significant characterized by the establishment of independent Commissions of Inquiry on violations of ihl and human rights during armed conflicts”. For a particular illustration see Philip Alston, op. cit. note 28, pp. 600–601: “‘The Report of the International Commission of Inquiry in Darfur’ has been widely praised for its contribution to efforts to bring an end to grave violations of humanitarian law and human rights law in Darfur and to bring those responsible for such violations to justice”. Michael Bothe, op. cit. note 23, p. 249.

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to have carefully ­documented and well-argued analytical reports that might serve as a basis for further action, notably with regard to the undertaking of potential enforcement steps. Indeed, “what was novel for the Darfur Commission was the explicit charge (…) to make a formal determination on the question of whether genocide had taken place and to identify the perpetrators of major violations”.41 Sound legal analysis should thus constitute an important part of the fact-finding activities of the envisaged oversight mechanism. As was highlighted by the hpcr Handbook: “[t]he interplay between the facts and the relevant legal norms allegedly violated is essential”.42 A strong legal analysis can in my opinion also dispel to the maximum the potential political considerations the situation might raise. Concretely, the different steps of the analysis should be: (1) establishming the facts; (2) analysing the facts in light of the applied bodies of law; (3) reaching conclusions with regard to the existence of ­violations, if any; and (4)  issuing recommendations and, more ­generally, preparing ­measures to foster enforcement and accountability.43 The relevant bodies of law in the case of occupation, as was already mentioned before, would include ihl and ihrl as well as the assessment of the ­co-applicability between the two bodies in light of the specific circumstances of the case at hand. The report adopted by the oversight mechanism should thus be structured along three main points: (1) the applicable law; (2) the factual findings; and (3) the legal analysis based on the two previous points.44 41 42 43 44

Philip Alston, op. cit. note 28, p. 604. hpcr Handbook, op. cit. note 26, p. 20. ohchr guidance, op. cit. note 26, p. 11. hpcr Handbook, op. cit. note 26, p. 70.

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Index Al-Bassiouni case 38, 42 Al-Skeini case 172–174 Annexation de facto 110, 156 prohibition of 71, 131 Armed Activities case 28, 177, 180 arsiwa 206–208 Article 3 api 76–77, 158 Article 2 gciv 26, 47, 94 Article 6(3) gciv 60, 74–76, 158 Article 47 gciv 62, 130–131, 222, 228 Article 64 gciv 19, 58, 118, 126, 137, 145, 224, 235 Article 42 hr 21, 23–24, 33, 35, 45, 48, 54–57, 86 Article 43 hr 19, 31, 58, 118, 126, 137, 145, 224, 235 Article 24 un Charter 202 Article 103 un Charter 203–205 Article 53 vclt 206–207

Cyprus v. Turkey (1975) 170 Cyprus v. Turkey (2001) 171

Balancing act/exercise 20, 72, 106, 128, 136, 153 Bankovic case 171–172 Beit Sourik case 113, 151–152 Brussels declaration of 1874 15 Bosnian Genocide Case 233 Burgos/Delia Saldias de Lopez v. Uruguay case 168

Gaza 31, 33–46, 49, 53, 54

Chapter vii powers 64–65, 92, 119, 200, 201–211 Christian Society for the Holy Places case  153, 197 Coalition Provisional Authority (cpa) (or Coalition) 118, 216–217, 223–230, 239, 240 Commissions of Inquiry 250–251 Conduct of hostilities 182–189 Consent of the local population 116–117 of the sovereign 2, 10, 30, 47, 48, 62, 67, 78, 87, 89–95, 100 Conservationist principle 72, 73, 111, 115, 117, 120, 126, 127, 131, 192, 197, 222, 235, 239, 240, 242, 244

Darfur 250, 254 De-Ba’athification (of Iraq) 224 Debellatio 220–222 Detention 97, 98, 180, 194–196 Disengagement (of Gaza) 31, 33, 39 East Timor 79, 91–93, 97, 100 Economic, social and cultural rights 169, 191–193, 196–197 Erga omnes obligations 206, 234 Espace juridique 172 Extraterritorial application Spatial model 44, 59, 110, 169–173 Personal model 44, 59, 110, 169, 170, 172–174 Fact-finding 249–252, 263

Hamas 34, 36, 37, 43, 45, 46 Hostages case 11, 16, 25, 37, 184, 214 Humanization (of war) 12, 15, 18, 162 International Covenant on Civil and Political Rights (iccpr) 162, 167, 169, 176, 191, 194,  208, 209 International Covenant on Economic, Social and Cultural Rights (iccescr) 169, 176,  192, 208, 209 International legal personality 81–82 Invasion 21, 24, 54–59 Iraq 2, 4–6, 61, 62, 63–68, 81, 115, 116, 118, 201, 208, 211–239, 240, 241 Iraqi Governing Council (igc) 227–229 Issa case 172, 178 Jus ad bellum 11, 66, 82, 95, 185, 213–215, 236 Jus cogens 65, 105, 107, 119, 204–211, 227, 232, 233, 236 Jus in bello 11, 21, 28, 66, 82, 88, 95, 214, 236

288 Kosovo 79, 91 Kunarac case 181 Law enforcement 3, 165, 182–189 Legislative powers (of the occupant) 133, 138, 141, 145, 150, 233 Legitimate power 22, 24, 25, 28, 61, 62, 67, 73, 127, 129, 143, 228 Lex specialis 176, 179, 180, 183 Lieber instructions 13, 14, 22 Litmus test 155–156 Loizidou case 171 Maintaining public order and civil life 58, 111, 139, 141–143, 150, 223 Martens Clause 15, 161 Military necessity 69, 118, 128, 129, 144, 148, 163 Nagorno-Karabakh 29 Naletilic Case 25, 28, 56 Northern Cyprus 74, 109, 187 Nuclear Weapons advisory opinion 176, 182, 193, 209, 210 Occupation exceptional character 69, 71, 74, 103, 131 factual (situation or assessment) 14, 21–22, 25, 34, 54, 57, 59, 64, 65, 74, 77, 82, 83, 88, 89, 92, 95, 160, 216, 236, 243, 249, 253 functional approach 40–41 pacific 2, 47–48 provisional state of affairs 1, 3, 12, 74–77, 80, 101, 108, 111, 116, 190, 191 by proxy 32, 67 long-term 3, 5, 45, 73, 74, 76, 77, 102, 108–114, 152–154, 158, 161, 189, 190, 192, 197, 243 transformative 3, 5, 81, 102, 114–120, 212, 215, 218–226 (Iraq), 241, 242 Occupied Palestinian Territories (opt) 5, 48, 51, 52, 76, 157, 179, 245, 252 ‘One size fits all’ model 6, 136, 138, 182, 243 Operation Iraqi Freedom 213 Operation Protective Edge 37 Oxford Manual of 1880 15

Index Peacekeeping 83, 84, 86, 90, 93 Physicians for human rights case 151 Pictet theory 55–59 Political and civil rights 191–193 Postliminium 136–137, 197 Protected persons 17, 56, 58, 62, 130–133, 234, 246, 249, 253 Right to food and right to health 196–198 Right to property 198 Rousseau-Portalis doctrine 15, 16 Self-determination 62, 105–107, 208, 231 Settlements 33, 73, 110, 133, 134 Sliding-scale approach 186–188 Sovereignty (non-transfer of) 12, 19, 69–72, 101, 109, 110, 127, 131, 218 State failure 95, 117 State of Emergency 164 Trust 17, 71 Tsemel case 27, 36 ‘Unless absolutely prevented’ 19, 22, 128, 129, 138–139, 143–145, 148–150, 177, 223, 236 unsc resolution 1483 (2003) 64, 115, 116, 118, 200, 215–218, 222, 225, 226, 228, 230, 231, 235, 237–240, 241 unsc resolution 1546 (2004) 63, 64–66 un Transitional Administration in East-Timor (untaet) 91, 92, 97 un Administration Mission in Kosovo (unmik) 91 vat case 136 Wall opinion 46, 75, 112, 168, 169, 178, 179, 198, 234 Welfare (of the local/occupied population) 104, 106, 113, 128, 142–144, 150,  154–157, 162, 197, 222, 223, 226 West Bank 33, 40, 46, 49, 53, 73, 109, 110, 112, 113, 133 World War-First (or wwi) 17, 129 Word War ii-Second (or wwii) 17, 19, 47, 130, 133, 134, 148, 162, 245