Occupation Law

ATHA Specialized Training on

International Humanitarian Law

May 31, 2010Stockholm, Sweden

This new theory distinguished “occupation” from “conquest” and was developed in two steps:

The first theoretical step was the recognition of the principle of the inalienability of sovereignty through sheer force. Occupation as such does not confer sovereignty over enemy territory.

The second step was the recognition of what Gregory Fox has termed “the conservationist principle,” which seeks to protect the bases of power of the ousted government and, hence, imposes limitations on the occupant’s authority to manage public property and modify existing legislation.

Evolution of Occupation Law

Eyal Benvenisti The Origins of the Concept of Belligerent Occupation 2008

What is a Military Occupation?

Practical approach

Factual control by a foreign military entity over a territory or a population

Does not require any form of declaration or intent by the invading forces

Motives of invading forces (liberation, self-defence, or pre-emptive doctrine) are irrelevant

When Does Occupation Law Apply?

Beginning and End: 

There is an international armed conflict

A foreign military force has made an incursion into enemy territory

This force is exerting control over national/local authorities, occupied population, and territoryArticle 42, Hague IV Articles 2 al. 2, 4 al. 1, 6 al. 3, GC IV; Article 3(b), AP I

End of Occupation

Tests for the End of Occupation

Hague TestEffective Military Control

Article 42

Geneva TestFunctions of a Government

Article 6

Hague Test: Force has withdrawn; or

Geneva Test: Force is no longer an autonomous security arrangement, i.e. when government has full responsibility for the security of its people and territory.

Transitory stage: Article 6(2), GC IV.

Key Aspects of Occupation Law

General

Occupying Power (OP) takes over the main responsibilities of national authorities, as a caretaker and administrator (law and order, public services). See Articles 43, 55, Hague

OP can implement exceptional measures to ensure its security (e.g. administrative detention). See Article 78, GC IV

Continuing application of IHL after occupation: protection of detainees. Under Article 6, GC IV continues to apply to

protected persons detained by the Occupying Power until the time of their release, even if the occupation itself has already ended.

Humanitarian Relief: Role of International Organizations

Key Aspects

The obligations to provide for the needs of the population are imposed on the OP. They cover food and medical supplies, public health and hygiene, and other supplies essential to the survival of the civilian population of the occupied territory.

If the population is inadequately supplied, the OP is obliged to accept relief operations. However, under no conditions should relief operations be seen as alleviating responsibility of OP.

Obstacles to Enforcement

States sometimes refuse to recognize a state of occupation thus declaring the laws irrelevant

Customary international law vs. the legal nature of non-customary international law

Variations in interpretations of legal doctrine

A situation must constitute the legal qualifications for occupation

The beginning and end are difficult to qualify

Long-term Occupation

Law of occupation not clear on:

Methods through which Occupying Power and international community can rebuild a modern, sovereign state in the occupied territory, and the limitations they should respect;

Role and authority of the representatives of the occupied population, and the standards under which they can negotiate an end to the occupation;

Human rights requirements and the accountability of the transitional authority;

Conditions under which an occupation can be terminated;

Process through which such a determination can be made.

Occupation and Peacebuilding

Occupation regime: Prevent significant transformation oflegal, political, or social structure without participation of the sovereign authority.

Peacebuilding efforts: To actively promote the emergence of democratic and stable government structure. Promote stability, equity, and viability of institutions.