Under international humanitarian law, an occupation exists as a question of fact and once the factual criteria defining an occupation have been met, the law of occupation applies. There are three conditions required to trigger the application of the regime; territory, a hostile army, and authority. This area of law aims to balance three competing interests; the interests of the occupier, the occupied territory, and the ousted sovereign and the provisions in this regime endeavour to balance these interests. This month at the Diplomacy, Law and Policy Forum, we will be analysing key issues with this regime, namely, challenges with the continued application of human rights law in an occupation, the protection of the environment in an occupation, war crimes, and whether the law on the use of force grants a continued right to self-defence to the ousted sovereign.
The Law of Occupation
An occupation is defined under international law in Article 42 of the Hague Regulations (1907), which states that “[t]erritory 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”. This definition is contingent upon the lack of consent by the host state and its ability to exercise a sufficient amount of control over the territory. Therefore, it will not exist where a state has consented to the foreign army, or if consent has been given but then revoked, an occupation will exist when this consent has been revoked. Moreover, it is unclear what degree of sufficient control is required for an occupation to exist. It is generally understood that the vacuum of authority created by an invasion does not amount to an occupation which requires the occupying power to have substituted the ousted sovereign’s authority and be in control of the territory.1Tom Gal, ‘Unexplored Outcomes of Tradic; Applicability of the Law of Occupation to War by Proxy’ (2014) 12 J Int’l Crim Just 59 An occupation therefore does not exist in battle areas.2ibid.
The law of occupation seeks to balance three often conflicting and competing interests; that of the ousted sovereign, the occupying power and the occupied population. This is seen in almost every provision of the law which applies to this unique situation.3Andreas Th. Muller, ‘Promoting the Rule of Law of Occupation? An Uneasy Relationship’ (2018) 9 Goettingen J Int’l L 143 Article 43, for instance, says that the occupant is to “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”. This emphasises the temporary nature of an occupation and signifies the conservationist character of the law. In that, as sovereign title has not been passed on to the occupant, it cannot take action which would be the prerogative of a sovereign state, i.e. it must just restore and ensure public order and safety and cannot amend the laws in force in the country. The occupying power holds the territory in trust for the ousted sovereign.4Breven C. Parsons, ‘Moving the Law of Occupation into the Twenty-First Century’ (2009) 57 Naval L Rev 1 It is therefore hostile to the notion that the occupying power can alter the legal status of the territory beyond what is required.5Andreas Th. Muller, ‘Promoting the Rule of Law of Occupation? An Uneasy Relationship’ (2018) 9 Goettingen J Int’l L 143 However, this has proved contentious, particularly in the case of ‘transformative occupations’ such as that in Iraq which will be explored further later in this editorial.
Similarly, Article 64 of the Fourth Geneva Convention does allow for some changes in that it states that “[t]he 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”. It is generally accepted that this includes civil as well as penal laws and the ICRC’s Commentary states that the occupying power is allowed to pass laws to apply the Convention, such as in the realms of child welfare, labour, food, hygiene and public health. Moreover, it can legislate to maintain public law and order and for its own protection. Boon argues that this may involve suspending laws which allow for the right to bear arms or even the right to free speech.6Kristen E. Boon, ‘The Future of the Law of Occupation’ (2008) 46 Can YB Int’l L 107 Though amending free speech laws seems to go beyond what is required to maintain ‘law and order’.
The occupying power’s obligations include ensuring the availability of food and medical supplies, preventing the looting, plundering and exploitation of natural resources, and respecting a protected persons’ honour, their family rights, religious convictions and practices, and manners and customs.7Article 27, 56 of the Fourth Geneva Convention, see generally, Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2003 I.C.J. 3 (Order of Jan. 29) and Eyal Benvenisti, International Law of Occupation, Second Edition, 2011, Oxford University Press
Jurisprudence of International Courts and Tribunals
International courts and tribunals have determined the existence of an occupation in several cases and outlined the factual circumstances required for such a determination. The International Court of Justice (ICJ) has ruled that Uganda was an occupying power in the Ituri region of the Congo8Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2003 I.C.J. 3 (Order of Jan. 29) and that Israel was occupying Palestine in the Wall Advisory Opinion.9Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004 In the latter case, the Court also held that human rights law continues to apply in an armed conflict. The Eritrea Ethiopia Claims Commission also held that there was an occupation along the border between these two countries and also ruled that occupation could exist on a disputed territory.10Partial Award, Central Front, Ethiopia’s Claim no.2, April 28, 2004 para 29 An important case was that of R v. Naletilic & Martinovic before the International Criminal Tribunal for the Former Yugoslavia (ICTY) in which the court considered the factual circumstances required to trigger the law of occupation.11P v. Naletilic & Martinovic, IT-9 8- 3 4 -T (2003) at paras. 210-33 and 587) (WL) [Naletilic]. In this case, the court clarified what was required for the occupying power to exercise its authority over the territory and stated that “the occupying power must be in position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly”.12ibid.
This was also reiterated by the ICJ in DRC v. Uganda in which the court held that it needed “to satisfy itself that the Ugandan 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 Government”, further stating that the mere presence of Ugandan troops was not enough to establish an occupation.13Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2003 I.C.J. 3 (Order of Jan. 29) and Kristen E. Boon, ‘The Future of the Law of Occupation’ (2008) 46 Can YB Int’l L 107 This confirms that the law of occupation is not to be applied during the invasion phase, however, again it is not clear what turns an invasion into an occupation (under Article 43).14Marten Zwanenburg, Michael Bothe & Marco Sassoli, ‘Is the law of occupation applicable to the invasion phase?’ (2012) 94 Int’l Rev Red Cross 29 Boon argues that effective control is required for an occupation, but this is very difficult to establish in practice.15Kristen E. Boon, ‘The Future of the Law of Occupation’ (2008) 46 Can YB Int’l L 107
Changing the Laws in Occupied Territory
Occupiers have received censure for changing the laws in occupied territory beyond that which is allowed under the law of occupation. The United States was criticised during its occupation of Iraq in 2003 for violating the regime as it went as far as to establish a new Iraqi constitution. John Yoo went so far as to say that “[i]nternational law authorizes a victorious nation both to establish its own temporary occupation government and to make changes in the laws of the defeated nation prior to the conclusion of a treaty of peace. This authority includes the power to make fundamental institutional changes to the government of an occupied nation”.16John Yoo, ‘Iraqi Reconstruction and the Law of Occupation’ (2004) 11 U C Davis J Int’l L & Pol’y 7 He justified this on the basis of Security Council Resolutions on Iraq which allow for states to take ‘all necessary means’ to disarm Iraq and to restore international peace and security in the area saying that this allows for not only the use of force against Iraq but also the subsequent occupation.17ibid. He fails to mention that these Resolutions were from the Iraqi occupation of Kuwait during the first Gulf War in 1990.
Moreover, he states that Article 43 of the law of occupation allowed the US to make extensive changes to, and substantially dismantle and overhaul, Iraq’s laws, as that would ensure public order and safety.18ibid. Also he argues that preserving aspects of Saddam’s legal and administrative regime could be harmful to America’s national security and therefore could be changed under Article 64.19ibid. This process was known as ‘deBaathification’ and he cites state practice from the First and Second World Wars when countries occupied other states and overturned the court system, passed new laws regarding trade, taxes, and commerce, and also established new governance structures.20ibid. Dinstein also agrees with this and says that in Article 43, “ the adverb “absolutely” is not as absolute as it sounds and, in fact, is of small consequence” though this seems to conflict with the ordinary meaning of the term ‘absolutely’ and is not in line with the norms of treaty interpretation.21Yoram Dinstein, ‘The International Law of Belligerent Occupation and Human Rights’ (1978) 8 Isr YB Hum Rts He goes on to state that absolute prevention actually means necessity and the occupant may do what is necessary for itself or for the civilian population.22ibid.
However, fundamental changes in the law and government of occupied territory seems to be exactly what Article 43 seeks to prevent as it no longer balances the rights of the ousted sovereign. The occupation of Iraq was labeled a ‘transformative occupation’ for this reason and the US and UK campaign to change domestic laws was needlessly aggressive.23Kristen E. Boon, ‘The Future of the Law of Occupation’ (2008) 46 Can YB Int’l L 107 Most of these reforms targeted the economy and involved the World Bank and International Monetary Fund in the reconstruction of the country and management of its natural resources.24ibid. Moreover, the process of ‘deBaathification’ that coalition forces engaged in required the dismantling and overthrowing of many government departments and structures.25ibid. Indeed, the law aims to ensure occupying powers remain close to local standards and traditions as they were before the occupation, only allowing changes when absolutely necessary.
This criticism is justified in one respect though; in that the issue with maintaining the laws in force at the time unless absolutely prevented from doing so is the fact that we now have instances of long-standing and protracted occupations which have lasted for many decades. These include those in Palestine, Western Sahara, and Northern Cyprus.26Andreas Th. Muller, ‘Promoting the Rule of Law of Occupation? An Uneasy Relationship’ (2018) 9 Goettingen J Int’l L 143 The law of occupation envisaged short-term occupations in which the sovereignty of the occupying power needed to be temporary and the ousted sovereign’s interests had to be maintained.
This is particularly the case when it comes to applying human rights law in occupied territory, as the welfare of the population ought to be upheld given the duration of the occupation. Some suggest therefore that there should be a shift in considering the law of occupation to require the maintenance of the status quo to requiring it to uphold good governance.27ibid. The Israeli Supreme Court in Christian Society for the Holy Places v. Minister of Defense noted that “a prolonged military occupation brings in its wake social, economic, and commercial changes which oblige [the occupying power] to adapt the law to the changing needs of the population” and argued that the intention behind the act is what matters.28HCJ 337/71 Christian Society for the Holy Places v. The Defense Minister, P.D. 26(1) 574, 582  (Isr.) Therefore, it requires analysing whether the motive for any legislative reform was for civilian welfare or for the occupant’s interests. However, Leighton notes that this analysis, while maybe founded on the right norms, went too far as it considers roads for settler communities to be for the benefit of Palestinians.29Shelby Leighton, ‘Al-‘Aqaba: What One Village Can Teach us about the Law of Occupation’ (2014) 45 Geo J Int’l L 523 Indeed the court in that case itself says that:
“the concern of the occupant for the needs of the civilian population in an occupied territory is not always genuine, and at times it is imperative to guard the inhabitants from the bear’s hug of the occupant. There is no objective criterion in practice for drawing a distinction between sincere and insincere concern for the civilian population. But, to my mind, in most instances the criterion may be simple enough, namely, whether or not the occupant is equally concerned about his own population. In other words, if the occupant enacts, for example, a law for the prevention of cruelty to animals in an occupied territory, the proper question is whether there is a similar (not necessarily an identical) law in his own country. If the answer is affirmative, there can usually be no objection to the legislation under Article 43; if it is in the negative, an objection is definitely in order.”30HCJ 337/71 Christian Society for the Holy Places v. The Defense Minister, P.D. 26(1) 574, 582  (Isr.)
However, if obligations are placed on an occupying power to ensure the welfare of the occupied population, it may need to take into account the socio-economic status of the occupier and the means at its disposal.31Marten Zwanenburg, ‘Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation’ (2004) 86 Int’l Rev Red Cross 745 Moreover, a key issue with the law of occupation as it stands is its lack of any accountability or reporting mechanisms, and many states continue to deny the existence of an occupation at all.32Kristen E. Boon, ‘The Future of the Law of Occupation’ (2008) 46 Can YB Int’l L 107 This may be because they either argue that the territory is theirs or because they do not wish to discharge the many responsibilities of being an occupying power. An oversight mechanism could be created from a coalition of nations or under the United Nations which would review the occupying power’s security and governance plans prior to it being implemented.33Breven C. Parsons, ‘Moving the Law of Occupation into the Twenty-First Century’ (2009) 57 Naval L Rev 1 It would gauge these plans and the laws it seeks to pass in light of international humanitarian law and human rights law in order to prevent abuse. Arguably this may also give the occupation a veneer of legitimacy which states might balk at but it may also prevent situations such as the occupation of Iraq in which there was no oversight of the wide reaching reforms the coalition undertook.
The law of occupation was codified over a hundred years ago and is seen by many as outdated for the realities of modern occupation.34Kristen E. Boon, ‘The Future of the Law of Occupation’ (2008) 46 Can YB Int’l L 107 The law is also often overlooked as states do not wish to acknowledge that they are an occupying power owing to the many obligations incumbent on them under this regime. However, the law aims to prevent transformative occupations in which the ousted sovereign’s interests are set aside in favour of the occupier’s. This is a worthwhile aim for short-term occupations but may not be feasible or practical in those which are prolonged and which require the occupier to pass laws for the welfare of the occupied population. Though knowing when the occupied population’s interests are being upheld over the occupier’s is an onerous task and one which would be better discharged by an oversight mechanism. This may also ensure that the law is in line with current realities.