Icrc-occupation and Others Forms of Administration of Foreign Territory

7/31/2019 Icrc-occupation and Others Forms of Administration of Foreign Territory

1/151

OccupatiOnand Other FOrms

OF administratiOn

OF FOreign territOry

expert meeting


2/151

International Committee of the Red Cross

19, avenue de la Paix1202 Geneva, Switzerland

T +41 22 734 60 01 F +41 22 733 20 57

E-mail: [email protected] www.icrc.org

ICRC, March 2012


3/151

Rort rard ad ditd by Trista Frraro

Lal advisr, ICRC

OccupatiOnand Other FOrms

OF administratiOn

OF FOreign territOry

expeRT meeTIng


4/151

2

CONTENTS

FOREWORD 4

ACKNOWLEDGEMENTS 6

INTRODUCTION 7

SUMMARY 10

FIRST MEETING OF EXPERTS: THE BEGINNING AND END OF OCCUPATION 16

PART ONE: THE BEGINNING OF OCCUPATION 17

A. THE PRESENCE OF FOREIGN FORCES: A NECESSITY FOR THE ESTABLISHMENT AND

MAINTENANCE OF OCCUPATION? 17

B. THE EXERCISE OF AUTHORITY BY FOREIGN FORCES 19

C. THE NON-CONSENSUAL NATURE OF BELLIGERENT OCCUPATION 20

D. THE CONCEPT OF INDIRECT EFFECTIVE CONTROL 23

E. DURATION AND GEOGRAPHIC AL SCOPE OF OCCUPATION 24

F. THE LEGAL FRAMEWORK APPLICAB LE TO THE INVASION PHASE 24

PART TWO: THE END OF OCCUPATION 26

A. EVALUATING THE END OF OCCUPATION: A THORNY TASK 27

B. THE CRITERIA FOR DETERMINING THE END OF OCCUPATION 28

C. THE FUNCTIONAL APPLICATION OF OCCUPATION LAW AND THE NOTION OF

RESIDUAL RESPONSIBILITIES 31

PART THREE: MULTINATIONAL OCCUPATION 33

A. THE APPLICABILITY OF OCCUPATION LAW TO UN OPERATIONS 33

B. OCCUPATION CONDUCTED BY A COALITION OF STATES 34

APPENDIX 1: BACKGROUND DOCUMENT BY PROF. MICHAEL BOTHE 36

APPENDIX 2: BACKGROUND DOCUMENT BY PROF. ADAM ROBERTS 41

APPENDIX 3: AGENDA AND GUIDING QUESTIONS AIMED AT FRAMING THE DISCUSSIONS 50

APPENDIX 4: LIST OF PARTICIPANTS 53

SECOND MEETING OF EXPERTS: DELIMITING THE RIGHTS AND DUTIESOF AN OCCUPYING POWER AND THE RELEVANCE OF OCCUPATION LAWFOR UN ADMINISTRATION OF TERRITORY 54

PART ONE: DELIMITING THE RIGHTS AND DUTIES OF AN OCCUPYING POWER 56

A. ARTICLE 43 OF THE HAGUE REGULATIONS OF 1907 AND ARTICLE 64 OF THE FOURTH

GENEVA CONVENTION AS KEY PROVISIONS FOR ASSESSING THE SCOPE OF AN OCCUPYING

POWERS RIGHTS AND DUTIES 56

B. THE ROLE OF HUMAN RIGHTS LAW IN OCCUPIED TERRITORY 61

C. TRANSFO RMATIVE OCCUPATION 67

D. PROLONGED OCCUPATION 72


5/151

3

PART TWO: THE RELEVANCE OF OCCUPATION LAW FOR UN ADMINISTRATION OF TERRITORY 78

A. THE DE JUREAPPLICABILITY O F OCCUPATION LAW TO UN ADMINISTRATION 78

B. THE RELATIONSHIP BETWEEN OCCUPATION LAW AND THE SECURITY COUNCIL RESOLUTION

ESTABLISHING THE INTERNATIONAL ADMINISTRATION 81

C. THE DE FACTO APPLICATION OF OCCUPATION LAW TO UN ADMINISTRATION 84

APPENDIX 1: BACKGROUND DOCUMENT BY DR SYLVAIN VIT 88

APPENDIX 2: BACKGROUND DOCUMENT BY PROF. STEVEN R. RATNER 96



THIRD MEETING OF EXPERTS: THE USE OF FORCE IN OCCUPIED TERRITORY 109

PART ONE: DELIMITING THE LEGAL FRAMEWORK APPLICABLE TO THE USE OF

FORCE IN OCCUPIED TERRITORY 110

A. DEFINING THE LEGAL REGIMES APPLICABLE 110

B. THEORIES AND CONDITIONS FOR DETERMINING THE LEGAL MODEL APPLICABLE 112

C. THE ROLE OF HUMAN RIGHTS LAW IN REGULATING THE USE OF FORCE IN OCCUPIED TERRITORY 116

D. THE ROLE OF OCCUPATION LAW IN REGULATING LAW ENFORCEMENT ACTIVITIES 119

PART TWO: THE APPLICATION OF THE CONDUCT-OF-HOSTILITIES MODEL IN OCCUPIED TERRITORY 120

A. WHEN DOES THE CONDUCT-OF-HOSTILITIES MODEL COME INTO PLAY? 120

B. THE LEGAL CLASSIFICATION OF HOSTILITIES ON OCCUPIED TERRITORY 124

C. DETERMINING THE LEGAL FRAMEWORK GOVERNING THE USE OF FORCE IN GREY AREAS 128

APPENDIX 1: BACKGROUND DOCUMENT BY PROF. ANDREAS PAULUS 131




6/151

4

FOREWORD

Occupation has been a recurring condition in the history o armed conict. Belligerents have oen

resorted to the eective control o a oreign territory (or parts thereo) in order to subjugate their adver-

saries and achieve their objectives. Long-standing legal eorts to regulate these situations have produced

the rules that now govern belligerent occupation and orm an important area o international humani-

tarian law (IHL). In act, belligerent occupation is regarded as a species o international armed conict

and treated as such by the relevant instruments o IHL, particularly the Hague Regulations o 1907 and

the Geneva Conventions o 1949.

Occupation was initially perceived as being a matter o inter-State relationships. Based on the premise

that occupation was a temporary situation neither causing nor implying any devolution o sovereignty,

occupation law, as reected in the Hague Regulations o 1907, was geared mainly towards preserving

the interests o the occupied State and its institutions. It also presumed a state o peaceul coexist-

ence between the occupant and the local population and insisted on the ormer involving itsel as little

as possible in managing the lives o those temporarily under its rule. Occupation law in its early

stages was not aimed primarily at ensuring comprehensive protection or the individuals living underoccupation; it concentrated on maintaining the sovereign rights o t he ousted government until the

conditions or its return were agreed upon by the bel ligerents.

Obviously, the nineteenth-century realities on which occupation law was based no longer exist. o an

increasing degree, contemporary occupation is characterized by tensions between the occupying power

and the local population (or at least some sections o the population), and by shis in the role played by

the occupying power in administering the occupied territory which oen means ull-edged exercise

o oreign authority. As a result o these developments, people living under occupation have, increas-

ingly, suered the adverse consequences o occupation, which can be aggravated by the persistence o

the situation.

Te experiences o World War II prompted a number o important attempts, immediately aer the end o

the war, to improve the law by ocusing attention on the welare o those living under occupation. Te need

to enhance protection or these people became one o the main objectives o the Geneva Conventions o

1949, particularly the Fourth Geneva Convention relative to the Protection o Civilian Persons in ime o

War, which lled in the gaps in the law at the time. Te Fourth Geneva Convention o 1949 and Protocol I

o 8 June 1977 additional to the our Geneva Conventions provided or substantial development o the legal

protection aorded by IHL to those living under occupation, notably by ensuring that their basic needs

were met. IHL was adjusted with a view to incorporating the new realities o occupation, which required,

more than in the past, attending to the preservation o the interests o the people under occupation.

Tis signicant step in the evolution o the law the advent o the Geneva Conventions o 1949 not-

withstanding, occupation law continues to ace difcult challenges, as recent occupations have shown.In act, occupying States have repeatedly contested the applicability o occupation law to situations o

eective oreign control over territory, which clearly shows their reluctance to be labelled as occupying

powers and/or to see their actions constrained by this body o law. Tis trend o denying the applica-

bility o occupation law can be explained partly by the act that the concept o occupation has a pejora-

tive connotation and has oen been characterized, usually by its critics, as unlawul and contrary to

the overall objective o international peace and security set by the United Nations Charter. Reerences to

unlawul occupation can be misguiding, as they conuse the issue o the lawulness o the resort to the

use o orce with that o the rules o conduct to be applied once armed orce has been used, and thereore

also obscure the undamental distinction betweenjus ad bellum andjus in bello. Regarded rom a purely

IHL perspective, occupation law applies equally to all occupations, whether or not they are the result o

orce used lawully within thejus ad bellum.

1

1 As the US military tribunal stated in the celebrated Hostages trial, international law makes no distinction between a lawuland an unl awul occupant in dea ling with t he respective duties o occupant and population in occupied territory () Whetherthe invasion was lawul or criminal is not an important actor in the consideration o this subject. US Military ribunals atNuremberg, USAv. Wilhem List et al., rials o War Criminals beore the Nuremberg Military ribunals Under Control CouncilLaw No. 10, Vol. 11 (1950), p. 1247.


7/151

5

Recent occupations have demonstrated that even when States consent to be bound by occupation law

in the course o their military operations abroad, they sometimes take a sel-serving approach to its

application. Some States have even taken the view that occupation law cannot cope with the political,

humanitarian and legal challenges created by contemporary occupation; they argue that these situations

are very dierent rom classical occupation and should be governed by rules that are more specic than

those contained in occupation law at present.

Te emergence o such views, particularly in the wake o the 2003 occupation o Iraq, has placed occupa-

tion law under considerable strain. Contemporary occupations have also raised a number o important

legal questions directly o consequence or those living under or administering the occupation. Tese

include questions related to the ollowing issues: the beginning and end o occupation, the administra-

tion o occupied territories by coalitions, the occupying powers rights and duties, the use o orce in

occupied territory and the potential application o occupation law to the United Nations administration

o oreign territory. All these require more attention rom the legal community.

On the basis o the issues listed above, as well as others that have recently posed a challenge to occupa-

tion law,2 the International Committee o the Red Cross (ICRC) concluded that it was necessary to ana-

lyse whether and how ar the rules o occupation law might have to be reinorced, claried or developed.

For this reason, in 2007, it initiated a project on occupation law aimed at examining questions arising in

connection with recent situations o occupation and other orms o administration o oreign territory.Te project, which included consultations with key stakeholders and three meetings o experts, was

intended as a ollow-up to discussions held at a meeting o experts in 2003 on the applicability o IHL

and occupation law to multinational peace operations.

Tis report, a major outcome o the ICRC project on occupation and other orms o administration

o oreign territory, aims only to document the debates that took place during the three meetings o

experts. It should also shed some light on the adequacy o occupation law in its present state. Te con-

clusion that emerges rom the ICRC project is that occupation law, because o its inherent exibility, is

sufciently equipped to provide practical answers to most o the humanitarian challenges arising rom

contemporary occupations. Accordingly, it is the ICRCs view that occupation law does not require any

urther development at present; it requires only some clarication, by way o interpretations made in the

spirit o the law that ensure that the needs o the occupied population are met and the security interests

o the occupying power preserved at the same time.

Te ICRC hopes that this report, which addresses only some selected, albeit undamental, issues in

relation to occupation and which does not represent the ICRCs legal positions on these issues, will

contribute meaningully to the task o clariying some o the most signicant issues and provisions o

occupation law.

Dr Knut Drmann

Head of the Legal Division, ICRC

2 Some o these issues were mentioned in the ICRC report submitted to the 28th and 30th International Conerences o the Red

Cross and Red Crescent; the report was titled International Humanitarian Law and the Challenges o Contemporary Armed

Conficts.


8/151

6

ACKNOWLEDGEMENTS

Te present report is an ofcial publication o the International Committee o the Red Cross (ICRC). It

is the outcome o a project conducted by the ICRC rom 2007 to 2011.

Te conceptualization, draing and publication o the report would not have been possible without

the commitment and contributions o many individuals. Our personal gratitude goes, rst o al l, to the

experts in their personal capacity, without whose commitment, expertise and clarication this expert

process could not have been brought to a successul conclusion.

We would also like to express our thankulness to Dr ristan Ferraro, Legal Adviser in the ICRCs Legal

Division, who was in charge o the project on occupation and other orms o administration o oreign

territory and who prepared and edited this report.

Finally, we would like to sincerely thank all our colleagues at the ICRC who contributed to the text o

the report through their comments, provided valuable support in the organization and ollow-up o the

expert meetings or helped with the publication o the report.

Dr Knut Drmann

Head o the Legal Division, ICRC


9/151

7

INTRODUCTION

Recent years have seen a signicant number o extraterritorial military interventions. In addition to the

persistence o traditional orms o occupation,1 some o these interventions have given rise to new orms

o oreign military presence on the territory o a State, sometimes consensual but very oen imposed.

Tese new orms o military presence have to a certain extent revived occupation law. Further, they

have raised various legal questions,2 particularly in these our areas: determining the beginning and end

o occupation; delimiting the rights and duties incumbent upon an occupying power; identiying pre-

cisely the legal ramework governing the use o orce in occupied territory; and assessing the relevance

o the concept o occupation or the United Nations administration o territory.

Determining the beginning and end o occupation : despite the act that occupation law is a recognized

branch o international humanitarian law (IHL), past practice demonstrates that most occupants have

devised claims or the inapplicability o occupation law while maintaining eective control over a or-

eign territory or part thereo. Tis is evidence o States reluctance to be perceived as occupying powers.

IHL instruments do not provide clear standards or determining when an occupation starts and whenit ends. Te denition o occupation is vague under IHL; in addition, other actors, such as the continu-

ation o hostilities and the continued exercise o some degree o authority by local authorities, can also

conspire to complicate the legal classication o a situation o occupation. Tis demonstrates the need

or more precise guidance regarding when and how the law o occupation applies.

Delimiting the rights and duties incumbent upon an occupying power: it has become clear over the

years that States oen interpret occupation laws prescriptions in a sel-serving way and with a view to

reducing constraints on their discretionary powers. Tis trend might be suggestive o a pervasive scepti-

cism about the relevance o occupation law to contemporary occupations.

In act, occupation law has been challenged repeatedly on the basis that it is il l-suited or contemporary

situations. Some States have attempted to justiy their reluctance to accept the application o this body

o law on the grounds that the situations in which they nd themselves or in which they might nd

themselves dier considerably rom the traditional concept o belligerent occupation. Tereore, they

argue, current occupation law is not sufciently equipped to cope with the particularities o the various

kinds o occupation that now exist.

Recent occupations have prompted a great deal o commentary on occupation laws alleged ailure to

authorize the introduction o wholesale changes in the legal, political, institutional and economic struc-

ture o the territory under the eective control o a oreign power. It has been claimed that occupation

law places an undue emphasis on preserving the continuity o the socio-political situation o the occu-

pied territory. It has also been claimed that in act, the transormation o an oppressive governmental

system or the rebuilding o a society in complete collapse by means o occupation could be in the inter-ests o the international community; and urther, that such undertakings might even be necessary or

the maintenance or restoration o international peace and security.

1 Occupation may be dened as the eective control o a oreign territory by hostile armed orces. Tis denition derives romArticle 42 o t he Hague Regulations o 1907, which states that erritory is considered occupied when it is actual ly placed underthe authority o the hostile army. Te occupation extends only to the territory where such authority has been established andcan be exercised. Tus, occupation is a actual situation, one regulated by IHL. Occupation law applies in all cases o totalor partial occupation o oreign territory, whether or not the occupation meets with armed resistance. As a general rule, itprovides the legal ramework or the temporary exercise o authority by the occupant, strik ing a bala nce between the occupierssecurity needs and the interests o the ousted authority as well as those o the local population. Under occupation law, thesovereign title relating to the occupied territory does not pass to the occupant, who has, t hereore, to preserve as ar as possiblethe status quo ante. In other words, the occupying power must respect, as ar as possible, the existing laws and institutions othe occupied territory. It is however authorized to make changes where necessary to ensure its own securit y and to uphold itsduties under occupation law, particularly the obligation to restore and maintain public order and saety and the obligation toensure orderly government in t he areas concerned.

2 In its reports on IHL and the challenges o contemporary armed conicts submitted on the occasion o the 28th and 30thInternational Conerence o the Red Cross and Red Crescent, the International Committee o the Red Cross identied occupationas one o the subject matters raising challenges in the eld o IHL, and the source, potentially, o a great deal o reection anddebate. See 28th International Conerence o the Red Cross and Red Crescent, IHL and the Challenges o Contemporary ArmedConicts, September 2003, Doc. 03/IC/09, Pt. II, pp. 14-15; 30th International Conerence o the Red Cross and Red Crescent,IHL and the Challenges o Contemporary Armed Conicts, October 2007, Doc. 30/IC/07/8.4, Pt VII, pp. 29-30.


10/151

8

Tus, the ar-reaching political and institutional changes undertaken in recent occupations have entailed

an element o tension between occupation laws requirement to respect the laws and institutions in place

and the perceived need to undamentally alter the institutional, social or economic abric o the occu-

pied territory. o deuse this tension, it has been suggested that IHL should permit certain transorma-

tive processes and recognize the occupants role in this respect. Tis raises the question o the restraints

imposed by IHL on the occupant with regard to its rights and duties. Occupation law does not give carte

blanche to the occupying power. However, contemporary interpretations o its rights and duties under

this body o law are granting the occupying power a growing degree o latitude in the administration o

the occupied territory. Tereore, limits to the manoeuvrability conerred on the occupying power need

to be identied more clearly, particularly in cases o prolonged occupation.

Human rights law may also play an important role in delimiting the occupying powers rights and duties.

Indeed, this body o law is widely recognized as applicable in situations o occupation, at least as regards

certain types o activity. Consequently, human rights law may impose ormal obligations relevant to

the occupant; it is also widely regarded as a potential basis or altering existing local laws. Recently, the

International Court o Justice (ICJ) afrmed the importance and relevance o human rights law in times

o occupation and the occupants legal obligation to take it into account while taking action and while

developing policies in the occupied territory. 3 Tereore, it is o the utmost importance to identiy how,

and to what extent, human rights law applies in occupied territory. From this perspective, the explora-

tion o the legal interplay between human r ights law and occupation law becomes essential, particularlyin relation to matters where IHL is silent, vague or unclear.

he legal ramework governing the use o orce in occupied territory: another issue raised by recent

instances o occupation relates to the identication o the legal ramework governing the use o orce by

the occupying power. Occupation is oen characterized by the continuation or resumption o hostili-

ties between the occupying orces on the one hand and the armed orces o the occupied territory and/

or other organized armed groups more or less afliated to the ousted government on the other. Force

might also be used by the occupying power within the ramework o its obligation to restore and main-

tain public order in the occupied territory. Te simultaneous existence o these situations might result

in conusion as to which legal model is applicable to the use o orce in occupied territory. It is thereore

necessary to clariy how the rules governing law enorcement and those regulating the conduct o hos-

tilities interact in the context o an occupation.

Te relevance o occupation law or UN administration o territory: in addition to the various challenges

posed by contemporary occupations, a number o questions arise in relation to the applicability o occu-

pation law to operations under the command and control o the United Nations (UN). Te UN has

sometimes, in the course o its operations, ound itsel having to assume certain governmental unc-

tions temporarily in lieu o the territorial sovereign. It is critical to determine whether occupation law

is capable o being applicable to such operations, the precise conditions that must be ullled or its

applicability, and, in case occupation law is deemed applicable, whether occupation by international

organizations is subject to the same legal constraints imposed on individual States exercising eective

control over oreign territory.

In act, operations carried out under the auspices o the UN, such as those in Kosovo and East imor,

share many similarities with traditional mil itary occupation. Consequently, where UN operations imply

the international administration o a territory particularly when the international authorities are

vested with extensive executive and legislative powers the rules governing occupation appear increas-

ingly relevant. In this situation, IHL might provide practical solutions to many o the problems that arise

and might direct the policies undertaken by the international administration. In any case, the applica-

bility o IHL to internationally administered territories has to be delineated more precisely in the light

o the specic nature and objectives o these operations.

Given the concerns mentioned above, the International Committee o the Red Cross (ICRC) concluded

that the legal issues raised by contemporary orms o occupation had to be dealt with more thoroughly.Basing itsel on what it had learnt during its operations, the ICRC decided that the our subjects men-

tioned above required urther legal analysis.

3 (ICJ), Advisory Opinion on the Legal Consequences o the Construction o a Wall in the Occupied Palestinian erritory, 9 July2004, 102 et seq. ICJ,Armed Activitie s on the err itory o the Congo (Democratic Republico the Congo v. Uganda), decision o19 December 2005, 178.


11/151

9

Tese subjects have been at the core o the exploratory process on occupation and other orms o

administration o oreign territory undertaken by the ICRC in 2008. Within this ramework, three

meetings o experts involving representatives o States and international organizations, as well as par-

ticipants rom academic circles and NGOs were organized in 2008 and 2009, with a view to addressing

in more detail the legal issues raised by the subjects listed above. All the experts participated in their

personal capacity;4 the meetings were held under the Chatham House Rule.

Tis report is not exhaustive; its aim is to urnish a aithul narrative o the main points discussed and

positions expressed during these three meetings o experts on occupation and other orms o adminis-

tration o oreign territory. It must be noted that the report does not reect the ICRCs views on the

subjects addressed at the meetings.5 It provides glimpses o the current state o debate on these subject

matters. In this respect, the ICRC hopes that the report will contribute signicantly to the clarication

o some o the most important provisions o occupation law.

Tis document is divided in two parts. Te rst part summarizes the main results o the d iscussions

among experts. Te second part consists o a more detailed report by the ICRC o the proceedings o

the three meetings. It also includes the agenda o each meeting, the list o the participants, and some

experts written contributions.

4 Te views expressed during the discussions were not intended to reect the views o the institutions or States to which theexperts belonged.

5 However, the ICRC played an important role in shaping the subject matter o the report a nd raming the ex perts discussions.


12/151

10

SUMMARY1

1. FIRST MEETING OF EXPERTS:THE BEGINNING AND END OF OCCUPATION

The beginning of occupationhe experts discussed the cumulative constitutive elements o the notion o eective control over

a oreign territory, which underpins the denition o occupation set out in Article 42 o the Hague

Regulations o 1907.

Te presenceo oreign orces: this criterion was considered to be the only way to establish and exert rm

control over a oreign territory. It was identied as a prerequisite or the establishment o an occupation,

notably because it makes the link between the notion o eective control and the ability to ull the

obligations incumbent upon the occupying power. It was also agreed that occupation could not be estab-

lished or maintained solely through the exercise o power rom beyond the boundaries o the occupied

territory; a certain number o oreign boots on the ground were required.

Te exercise o authority over the occupied territory: the experts agreed that, once enemy oreign orces

were present, it was their ability to exert authority in the oreign territory that mattered, not the actual

and concrete exercise o such authority. Using a test based on the ability to exert authority would

prevent any attempt by the occupant to evade its duties under occupation law by deliberately not exer-

cising authority or by installing a puppet government. It was also agreed that occupation law did not

require authority to be exercised exclusively by the occupying power. It allows or authority to be

shared by the occupant and the occupied government, provided the ormer continues to bear ultimate

and overall responsibility or the occupied territory.

Tenon-consensual nature o belligerent occupation: absence o consent rom the State whose territory

is subject to the oreign orces presence was identied as a precondition or the existence o a state o

belligerent occupation. For occupation law to be inapplicable, this consent should be genuine, valid and

explicit. Te experts elt that because occupation law does not provide or any criteria or evaluating it,

consent should be interpreted in the light o current public international law. Eventually, the existence

o a presumption o absence o consent when oreign orces intervened in a ailed State was approved.

With regard to the invasion phase, the experts almost without exception expressed their support or

Pictets theory as reected in the ICRCs Commentary on the Fourth Geneva Convention (Article 6),

according to which certa in provisions o occupation law would be applicable during the invasion phase

as a matter o law or policy. In relation to the practical application o Pictets theory, it was stressed that

only some provisions o occupation law would be applicable to the invasion phase. Discussions on the

search or alternative protective rameworks led to the emergence o a consensus that Part III, Section

I o the Fourth Geneva Convention titled Provisions common to the territories o the parties to theconict and to occupied territories would apply as a matter o law to invasion, providing the civilian

population in this area a certain minimum amount o protection.

Te concept o indirect eective control: the theory o indirect eective control holds that a State may be

considered an occupying power or the purposes o IHL when it enorces overall control over de acto

local authorities or other organized groups that have eective control over a territory or part thereo. In

the course o the discussions, this theory was met with approval.

It was also agreed that occupation could be limited geographicallyto very small places. However, the

discussions on the time span necessary or acknowledging the establishment o eective control over a

territory or part thereo revealed some divergence o opinion.

1 Te aim o this summary is to identiy the major trends o the discussions during the three meetings, as perceived by the conveners.Divergent views and specic opinions on the subjects addressed during the debates can be ound in the text o the report.


13/151

11

The end of occupationDetermining precisely when an occupation had ended was deemed to be a very difcult task. However,

it was emphasized that the legal criteria or establishing the end o an occupation should mirror those

used or determining when it had begun. Tereore, the continued physical presence o oreign orces,

their ability to exercise authority over the territory concerned in lieu o the territorial sovereign and the

continued absence o the territorial sovereigns consent to the oreign orces presence should, cumula-

tively, be studied when assessing the termination o occupation. Should any o these conditions cease to

exist, the occupation ought to be regarded as having terminated. Te discussions about the criteria or

determining, or the purposes o IHL, the existence o a state o occupation took place with the idea o

classical occupation in mind. During the debates, the possibility that the sui generis character o some

situations may alter the criteria previously identied at the meeting was not discarded by some experts,

particularly in terms o means to exercise eective control.

Te presence o oreign orces: classical occupation presupposes the presence o a certain number o or-

eign troops in the occupied territory. It was elt that eective control could not usually be exercised

without the continued physical presence o t he oreign orces. Tereore, the absence o any hosti le

armed orces on the territory in question was thought to be a prerequisite or establishing that an occu-

pation had ended.

Te role oconsent: it was agreed that genuine consent to the oreign presence could be given duringthe occupation and could mark its termination. In this respect, Article 47 o the Fourth Geneva

Convention could not be interpreted as prohibiting the local government to give over time its con-

sent to the oreign presence, thereby precluding the applicability o occupation law. Te importance

o assessing the end o occupation in the light o the actual situation was also emphasized. Where the

actual situation remained unchanged or example, i oreign orces continued to exert eective con-

trol over the oreign territory the consent given by the local government would be meaningless and,

ultimately, the occupation would endure.

Teexercise o authority: the view according to which only a ull transer o powers and competences

to the local authorities would end an occupation was ound to have no basis in IHL. It was submitted

that oreign troops could retain some competences over the oreign territory without necessarily being

regarded as continuing the occupation. Te discussions highlighted the need to identiy a more precise

legal ramework or governing situations where oreign orces still exert some level o authority but not

enough to qualiy as eective control under IHL. With regard to the legal basis or residual responsibili-

ties incumbent upon the ormer occupying power, opinion was split in two: one group o experts argued

that remnants o authority would be governed by occupation law despite the absence o eective control

or the purposes o IHL; the other group held that the residual responsibilities o the ormer occupant

should be governed by other bodies o law such as human rights law.

Multinational occupationIt was agreed that occupation law could be applicable de jure to multinational operations, including

those under UN command and control, provided the conditions or its applicability were met. It wasargued that the criteria or assessing a state o occupation involving UN orces ought not to dier rom

those or more classical orms o occupation. Te unctional approach was deemed appropriate or iden-

tiying which countries participating in a coalition would be considered occupying powers or the pur-

poses o IHL. Tus, the nature o a States involvement in a multilateral occupation was regarded as a key

actor in determining whether it was an occupying power.


14/151

12

2. SECOND MEETING OF EXPERTS: DELIMITINGTHE RIGHTS AND DUTIES OF AN OCCUPYING POWERAND THE RELEVANCE OF OCCUPATION LAW FOR UNITEDNATIONS ADMINISTRATION OF TERRITORY

Delimiting the rights and duties of an occupying powerTe obligation to restore and ensure as ar as possible public order and saety while respecting, unless

absolutely prevented, the laws in orce in the country:2 the participants emphasized the need to interpret

this obligation broadly in order to a llow the occupant to u ll its duties under occupation law. A broad

interpretation would be o part icular assistance to the occupant in administering the occupied territory

or the benet o the local population while ensuring the security o its own armed orces. Te experts

took the view that this obligation did not grant the occupant the authority to enter into treaties on behal

o the occupied territory. Tey also pointed out that nothing under IHL would prevent the occupant

rom concluding treaties in its own name or the purposes o ullling its duties under occupation law.

Terole o human rights law in occupied territory: the applicability o human rights law to situations

amounting to occupation was accepted almost unanimously. Te experts also elt that it would be useu l

to have a ramework or interpretation in order to address the simultaneous application o human rights

law and IHL. In this regard, it was airmed that IHL was the lex specialis in situations o occupa-tion.3 However, a majority o the experts argued that this did not denitively preclude the application o

human rights law. Tey explained that it meant only that human rights law could not be applied in an

unqualied manner; it should be applied in a manner that respects the balance set by the lex specialis

between humanitarian considerations and military necessities. Conversely, it was also contended that

IHL was not automatically the lex specialis in situations o occupation because the issue o its inter-

relationship with human rights law could not be settled by a general analysis o the two legal regimes.

Instead, some experts suggested, the lex specialis ought to be determined by using a rule-by-rule or

case-by-case approach.

Applying the International Covenant on Economic , Social and Cultural Rights (ICESCR)in occupied terri-

tory: Most o the experts shared the ICJs view that oreign orces are bound by the ICESCR in exercising

the powers available to them as an occupying power and that they should not impede implementation

o the ICESCRs provisions in those elds where power has been transerred to the local authorities..

Te nature o the obligations enshrined in t he ICESCR, as well as the exibility given by the instru-

ment or their implementation, was regarded by some experts as acilitating application o the ICESCR

during occupation. It was argued nonetheless that the concept o progressive realization contained in

the ICESCR,4 which epitomizes the exibility o the instrument, should not be interpreted as an excuse

or not implementing the core o each right. Citing the examples o the right to ood and the right to

health, some experts argued that the occupants obligations were not limited to the minimum dened by

IHL, but a lso encompassed the complementary contribution made by human rights law.

ransormative occupation: the concept o transormative occupation was dened as an operation, the

main objective o which was to overhaul the institutional and political structure o the occupied terri-tory, oen to make it accord with the occupying powers own preerences. It was agreed that such occu-

pation had no basis under current IHL, in particular because the transitory character o the rights and

duties incumbent upon the oreign administrator precludes making denitive large-scale changes in the

institutional structure o the occupied territory. However, a distinction was made between ull-edged

transormative projects entailing disruptions o sovereignty and smoother changes aimed at getting the

basic inrastructure o the occupied society to work in accordance with the relevant norms o occupation

2 Article 43 o the Hague Regulations o 1907. Tis provision, combined with Article 64 o t he Fourth Geneva Convention, setsout the core duties incumbent upon the occupying power under IHL.

3 Lex specialis was dened as a principle according to which, in choosing between two ru les, the one that was more specic andpertinent should be given precedence, since a special rule would usually give a clearer answer to the question at hand than ageneral one.

4 Tis concept o progressive realization is drawn rom Article 2 o the ICESCR. In this provision, the ICESCR recognizes thedierences in States ability to ull the rights outlined in the covenant. Te concept o progressive realization constitutesa recognition o the act that it will generally not be possible to ully realize all economic, social and cultural rights in a shortperiod o time. However, progressive realization should not be misinterpreted as depriving economic, social and culturalrights o all meaningul content. Te purpose, rather, is to give governments exibility in recognition o the dierences intheir economic state and their capabilities. It is not an escape clause. It includes the idea o continuous improvement and theobligation o the government to ensure that no regressive measures are taken.


15/151

13

law. Compliance with the obligation to restore and maintain public order and civil l ie in occupied terri-

tory might ca ll or some transormations and oblige the occupant to engage in important reorms. Five

reasons that might justi y transormation during occupation were put orward: respect or human r ights

law; consent o the local population; the particular characteristics o prolonged occupation; the case o

occupied ailed States; and decisions taken by the UN Security Council.5

Prolonged occupation: it was recognized that nothing under IHL would prevent occupying powers rom

embarking on long-term occupation. Occupation law would continue to provide the legal ramework

applicable in such cases. It was pointed out that prolonged occupation could aect the implementation

o occupation law and special measures usually unnecessary during short-term occupation might be

called or. Decisions related to the social, economic and, sometimes, political realms might need to be

taken in order to maintain as normal a lie as possible in the occupied territory. It was also agreed that

the welare o the local population should be established as the main principle guiding the measures and

policies undertaken by the occupying power in the administration o the occupied territory. Decisions

made by the occupying power should always respect the principles contained in the Hague Regulations

and the Fourth Geneva Convention, which are exible enough to accommodate most o the needs that

arise during prolonged occupation. Te need to set limits on the measures an occupying power may

adopt to ensure the well-being o the local population was emphasized. o that end, it was suggested

that the participation o the local population in decision-making could serve as a litmus test. External

mechanisms o control could also be set up.

The relevance of occupation law for UN administration of territoryhe de jure applicability o occupation law to UN administration : despite the potential dissonance

between occupation law and the transormative purpose o the U N administration o territory, this

corpus juris was identied as applicable de jure to UN administrations provided the criteria implied in

Article 42 o the Hague Regulations were met.

Te criterion o consent was regarded as a major hurdle or the de jure applicability o occupation

law to UN administration o territory, since the UN, which generally seeks the consent o the host

State, would not appear to be the hostile entity required by Article 42 o the Hague Regulations. Te

case o the UN administration o Kosovo illustrated how difcult making a concrete and objective

evaluation o the consent criterion could be. Te discussion about determining the cr iterion o consent

revealed dierences o opinion on the methods a nd means o interpreting t he notion o consent, as

well as on identiying the entity whose consent was required.

Te relationship between occupation law and the Security Council resolution establishing the international

administration :it was suggested that the Security Council would be entitled to determine whether a par-

ticular instance o consent to UN presence was valid, thus excluding the application o occupation law.

However, this suggestion did not go uncontested: some participants rejected the idea that the Security

Council could unilaterally exclude the application o occupation law merely by reclassiying a belligerent

occupation as an international administration not subject to IHL, regardless o the prevailing acts. Te

possibility that the Security Council was permitted to act in this way was thought to contradict the coreidea that the applicability o IHL depended on the prevailing acts, not on the legal classication o the

situation in question.

Te necessity o supplementing a Security Council resolution with rules taken rom various relevant legal

instruments was also emphasized. In this regard, a deault rule theory was identied. Tis holds that

since a UN mandate would never be sufciently detailed to permit the precise identication o the rules

applicable to the UN administration, it would be necessary to determine the deault legal regime to be

added to the Security Councils mandate. Te deault regime in turn would be determined by the legal cri-

teria or determining whether a situation amounts to occupation, particularly by the criterion o absence

o consent. When the UN administration is deployed with the consent o the host State, the deault regime

would be human rights law. Should the UN administration be deployed without the consent o the sov-ereign, occupation law would serve as the deault regime supplementing the Security Council resolution

setting out the UN mandate.

5 A majority o experts asserted that a Security Council resolution could, under certain circumstances, shape the provisions ooccupation law that might be applicable.


16/151

14

Te de acto application o occupation law to UN administration: the possibility o applying occupa-

tion law by analogy irrespective o whether it applied de jure was also discussed. It was agreed that

occupation law could oer practical guidance to the UN on matters such as the maintenance o public

order and saety and the management o private and public property. Tose who opposed this view said

that human rights law provided a more appropriate legal ramework, one that was more protective, and

ought thereore to be the body o law that governed UN administration.

3. THIRD MEETING OF EXPERTS:THE USE OF FORCE IN OCCUPIED TERRITORY

Delimiting the legal framework applicableto the use of force in occupied territoryDening the legal regimes applicable: three dierent legal regimes relevant or regulating the use o orce

in occupied territory were identied. Te experts elt that IHL, in particular the rules governing occupa-

tion and those regulating the conduct o hostilities, would orm a rst set o legal provisions. Attention

was also drawn to the importance o human rights law in relation to the use o orce by the occupying

power. However, there was some divergence o views regarding the extraterritorial reach o this body o

law. Tird, the relevance o the occupying powers domestic law was emphasized insoar as it played animportant role in determining the occupying orces armed response to a threat.

Teories and conditions or determining the legal model applicable: given the dierences between the law

enorcement and conduct-o-hostilities models, it was deemed important to nd ways o determining

precisely when and how each o these would apply in occupied territory. Te experts agreed that an

approach that a llowed or parallel application o both would be best.

Te experts discussed criteria that would both justiy the application o either model and the transition

between them. wo trends emerged. Te rst one relates to a so-called situation-based or sliding

scale approach. Under this approach, the choice and application o the model would be based on the

actual situation prevailing at the time the occupying power decides to resort to orce. Tis approach

allows or a smooth transition between the two models based on the level o threat aced by the occu-

pying power. Te ollowing considerations would be instrumental in determining when to shi rom

the law enorcement model to the conduct-o-hostilities one in a specic situation: the nature o the

threat aced by the occupying power and the dierences in the level o control exerted by it, as well as

the nature and duration o the occupation.

Te second trend reected the view that the transition between the law enorcement and conduct-o-

hostilities models was not as straightorward as suggested by the sliding scale approach. In act, a

specic trigger was required to eect the shi rom the law enorcement to the conduct-o-hostilities

model. Fullment o the criteria used to determine the existence o a non-international armed conict

was suggested as this t rigger, which, under certain circumstances, would warrant application o the

conduct-o-hostilities model. Tus, the organization o the parties involved and the intensity o thearmed conrontation would need to be examined: they would determine which model would apply when

orce was resorted to in occupied territory.

Finally, it was stressed that where the two models are applied simultaneously, law enorcement should

be the deault model. Tereore, except when the occupying power aces a threat that clearly originates

in the armed orces o the occupied territory and/or afliated armed groups, application o law enorce-

ment rules and standards should be presumed.

Te role o human rights law in regulating the use o orce in occupied territory: a minority o participants

emphasized human rights laws ability to regulate the use o orce in all circumstances, including occupa-

tion. Tey said that the exibility o the provisions o human rights law pertaining to the use o orce wouldpermit their application in almost all situations aced by the occupying power, ranging rom the enorce-

ment o the law against criminal acts such as robbery or drug trafcking to open hostilities pitting the occu-

pying orces against insurgent armed groups. Tis position was contested on the basis that each body o

law IHL and human rights law is designed or undamentally dierent sets o circumstances. IHL aims

to regulate the use o orce in armed conict while human rights law is intended primarily or peacetime.


17/151

15

Terole o occupation law in regulating law enorcement activities : some experts declared that it was

necessary to dispel the misconception that occupation lawper se could not provide a valuable legal

ramework or regulating the use o orce in law enorcement operations. In act, they said, the law

enorcement model applied in occupied territory, as a matter not o human rights law but o occupa-

tion law as stipulated in key provisions o the Hague Regulations and the Fourth Geneva Convention.

It was suggested that the combination o Article 43 o the Hague Regulations and Articles 27 and 64 o

the Fourth Geneva Convention would constitute a workable legal ramework or regulating the use o

orce in occupied territory. Te interpretation and application o law enorcement standards in occupied

territory was then discussed. In this regard, it was argued that law enorcement standards should be

applied more liberally when occupying orces resorted to orce during police operations. Tis position

was challenged on the basis that any use o orce by the occupying power in situations other than the

conduct o hostilities remained subject to the law enorcement standards o precaution, proportionality

and necessity similar to those deriving rom human rights law.

The application of the conduct-of-hostilities modelin occupied territoryWhen does the conduct-o-hostilities model come into play?It was claimed that occupation,per se, would

not justiy the use o this model without a clear maniestation o organized armed violence. A distinc-

tion was drawn between armed violence linked to t he original international armed conict and t hatemanating rom armed groups not afliated to the occupied State.

It was made clear that the occupying power would be entitled to use the conduct-o-hostilities model

when military orce was used against the armed orces o the occupied State, afliated militias or other

resistance movements ullling the criteria o Article 4(A)(2) o the Tird Geneva Convention, particu-

larly i active hostilities persisted or had resumed within the ramework o the original international

armed conict. However, it was pointed out that hostilities and other acts o violence directed towards

the occupying power would usually emanate rom organized armed groups not ormally belonging to

the occupied State within the meaning o IHL. Te experts elt that IHLs response, when such armed

groups not belonging to the occupied State carried out hostile activities in occupied territory, was not

clear and necessitated clarication regarding when IHL rules on the conduct o hostilities would begin

to apply. Te threshold or determining the existence o a non-international armed conict within the

meaning o Article 3 common to the our Geneva Conventions was considered a workable test or deter-

mining when the conduct-o-hostilities model would apply to instances o orce being used by the

occupying power against organized armed groups not ormally belonging to the occupied State.

Te legal classication o hostilities on occupied territory: a distinction was made between armed con-

rontations pertaining to the original international armed conict rom which the occupation derived

and those related to a new non-international armed conict emerging alongside the occupation. It

was agreed that, or the purposes o IHL, a non-international armed conict could occur in conjunction

with an occupation.

Finally, an attempt was made to determine the legal ramework governing the use o orce in operationsthat were both a police operation against individuals violating the laws in orce in occupied territory

(including measures promulgated by the occupying power) and a military operation against legitimate

military targets under IHL. Te participants were clearly divided on this question. Some claimed that

the presumption o the law enorcement models application would prevail; others were clearly inclined

to promote the application o the conduct-o-hostilities model as a matter o law. In the end, the

majority o experts avoured the prevalence o the conduct-o-hostilities model in such circumstances.


18/151

16

FIRST MEETING OF EXPERTS:THE BEGINNINGAND END OF OCCUPATION26-27 MAY 2008, GENEVA

Te applicability o occupation law has been compromised in a number o situations by the unwilling-

ness o States to be perceived as occupying powers. In act, past practice demonstrates to a certain

extent the general reluctance o States to consider occupation law to be applicable, even when the

criteria or its applicability seem, at rst glance, to have been met. Tere are various explanations or

this, notably: the pejorative connotation o the concept o occupation and the act that acknowledgement

o a state o occupation will necessarily trigger the application o the obligations set by occupation law

restricting powers that an occupier will oen regard as being discretionary.

Extraterritorial military operations raise a broad range o legal questions. However, the ICRC and otherhumanitarian organizations, as well as mil itary actors, ace the same crucial question at the outset: How

should the situation on the ground be classied? In this respect, establishing clearly when a state o

occupation begins and ends appears to be o the utmost importance in determining the nature and the

extent o the belligerents obligations and rights as well as the status and the ate o individuals under

their control.

Te concept o occupation has long been neglected in legal literature, but recent situations o occupa-

tion and the salient case o Iraq have renewed interest in occupation law. However, attention has been

ocused more on substantive rules o occupation than on issues raised by the establishment and ter-

mination o occupation. Tere has been relatively little interest in the standards used to determine the

existence o a state o occupation. Tis is quite surprising since the question o whether an occupation

has been established is central and must be dealt with beore any substantive question o occupation law

can be addressed.

IHL instruments do not provide a clear standard or determining whether a state o occupation exists. In

act, the criteria or occupation are described in very general terms; and ICRC experience shows that it is

quite difcult to identiy with precision the beginning and the end o an occupation. Denition is made

more complicated by the diering characteristics o recent oreign military presence as well as by the

means used by States in order to implement eective control o territories not their own. Adam Roberts

put it rather well some time ago: Te core meaning o the term [occupation] is obvious enough, but as

usually happens with abstract concepts, its rontiers are less clear.1

It is not always easy to determine when eective control over a oreign territory has been established,in particular when invasion has become occupation. Te denition contained in Article 42 o the 1907

Hague Regulations is somewhat vague; and the situation may be urther complicated by various ac-

tors, such as: the continuation o hostilities; the continued exercise o a degree o authority by the local

government; geographical considerations or the invaders reusal to assume the obligations stemming

rom its eective control. Tereore, it is necessary to ormulate more precisely the conditions whose

ullment will dene a state o occupation.

Another important issue concerns the law applicable during the invasion phase. Te ICRC has always

adopted a broad interpretation avouring the application o the Fourth Geneva Convention o 1949, with

a view to maximizing legal protection or civilians. In this connection, the ICRC believes that eorts

should be made to clariy the exact nature o the protection aorded by the law to civilians who are inthe power o a belligerent, but are neither on a territory occupied by that belligerent nor on that belliger-

ents territory. Te ICRC has identied this area o the law as raising important humanitarian concerns

and deserving clarication.

1 Adam Roberts, What is military occupation? British Yearbook o International Law, Vol. 55, 1984, p. 249.


19/151

17

Te end o occupation is also very difcult to determine. Progressive phasing out, partial withdrawal,

retention o a certain amount o authority over areas previously subject to eective control and main-

tenance o military presence on the basis o consent that is perhaps not validly given: all these actors

have complicated the task o legal classication and raised numerous questions about the termination

o occupation.

Recent military operations have made it unambiguously clear that there is a need to dene more pre-

cisely the legal criteria or identiying a state o occupation when multinational orces, sometimes oper-

ating under a Security Council mandate, are involved. Are the criteria or dening the beginning and

end o occupation the same in t his case? In a coalition, who are the occupying powers? For the purposes

o IHL, are all the troops contributing countries considered occupants? Given the growing involvement

o international organizations and coalitions o States in extraterritorial operations, these questions

assume importance and deserve urther legal clarication.

Main points addressed during the meeting o experts

PART ONE: THE BEGINNING OF OCCUPATION

In the introductory presentation, one expert set out the elements comprising eective control, which is

at the heart o the concept o occupation.2

He stressed the importance, or the purposes o occupationlaw, o the cumulative criteria o military presence, potential exercise o authority and absence o the

local authorities consent. Te discussions ollowing the presentation ocused on each o these elements.

Te notion o indirect eective control, and the temporal and geographical scope o occupation, were

subjects o urther debate. Finally, a working session was devoted to the legal ramework applicable to

the invasion phase preceding the establishment o occupation.

A. HE PRESENCE OF FOREIGN FORCES: A NECESSIYFOR HE ESABLISHMEN AND MAINENANCE OF OCCUPAION?Military presence as an element o the eective control3 test provoked constructive discussions

among the experts. A majority o participants concluded very quickly that the presence o oreign

armed orces in a disputed area was a prerequisite or the establishment o an occupation. However,

one expert took a more nuanced approach, arguing that i military presence was a condition sine qua

non or the establishment o an occupation, it would not necessarily be one or maintaining an occu-

pation. Te expert stressed that eective control, once it was established, could to some degree be

exerted remotely. Tis view was challenged on the basis that the maintenance o an occupation

would still necessitate a military presence on the ground, as an expression o continued eective

control over the territory in question. Tereore, according to most o the experts, occupation could

not be established or maintained solely through power exercised rom beyond the boundaries o the

occupied territory; it required a certain number o oreign boots on the ground, as it were.

Te necessity o having troops on the ground was driven home by the clear rejection o the view

that occupation could be enorced solely by either naval or air power. In addition, another pointwas stressed: control o air space did not by itsel meet the requirement o eective control or the

purposes o IHL. Tereore, only eective control on land would characterize military occupation

within the meaning o IHL. It was then speciied that the prerequisite o having oreign troops

on the ground did not mean that eective control required their presence on each square metre

o the occupied territory. Reerring to US Field Manual27-10 (1956), one expert stressed that the

size o the oreign orces could not be pre-determined and would vary according to the circum-

stances, in particular the topographical eatures o the territory, the density o the population or

the degree o resistance encountered on the ground. Tus, in certain circumstances, an occupying

power could exercise eective control by positioning its troops in strategic places o the occupied

territory, enabling it to dispatch them airly quickly to make its authority elt in the area concerned.

2 See Appendix 1 to the report.3 Te notion o eective control is not ound in treaty law; it reects an idea developed in the legal discourse pertaining to

occupation to describe the circumstances and conditions under which one could determine the existence o a state ooccupation under IHL. As such, eective control is reached when the three criteria derived rom Article 42 o the HagueRegulations o 1907 and discussed inra in the report are ullled.


20/151

18

Some experts also established a direct li nk between eective control and the presence o oreign

orces on a contested area by underlining the relatedness o Article 42 o the Hague Regulations,

which denes the concept o occupation, and Article 43 o the same instrument, which lays out the

main obligations incumbent upon the occupying power (i.e. to restore and ensure public order and

saety). Tese experts asserted that oreign orces present in a specic area could be regarded as occu-

pying orces only i they were able to meet the obligations set orth under Article 43 o the Hague

Regulations. It was also stressed that the link between eective control and the presence o oreign

orces on contested territory stemmed rom Article 41 o the Oxord Manual o 1880. Further, these

experts noted that the concept o eective control would be meaningless i the occupying power was

not in a position to ull its responsibilities under occupation law. Tis would eventually run counter

to the principle o eectivity upon which the law o occupation was premised.

Another participant, while expressing support or the connection established between Articles 42

and 43 o the Hague Regulations, specied that the ull ment o the duties incumbent upon the

occupying power could only be incremental, as one could not expect an occupier to meet all its obli-

gations as soon as it gained eective control over a territory. Making it necessary or the purposes

o IHL or oreign troops to respect all their duties under occupation law as the starting point o

occupation would thereore be unrealistic and would eventually ex pand the gap al ready existing

between the invasion phase and the establishment o occupation, leading ultimately to a protection

gap. Te expert stressed that occupation required only a progressive realization o the occupiersduties and could exist even i an occupying power was not in position to meet all its obligations

under occupation law. He concluded by declaring that this theory was supported by the act that

many o the provisions o occupation law were obligations o means, not o results.

Nevertheless, one participant disagreed with the connection made between the two Articles (42 and

43) o the Hague Regulations or the purposes o determining the existence o an occupation. He cast

particular doubt on the act that the applicability o Article 42 would depend on the enorcement o

the duties set orth in Article 43, arguing instead that only the contrary was correct (that Article 42

conditioned the applicability o Article 43). According to this expert, mixing those two central pro-

visions could result in requiring the oreign orces to concretely and eectively exert authority over

the oreign territory4 and would thereore endanger the applicability o occupation law. Tis expert

asserted that, in act, a oreign orce could still exert eective control even i it reused to ull its

responsibilities under occupation law or i it let the local government administer the occupied terri-

tory. Unilateral reusal to meet the obligations arising rom occupation law, whatever orm that took,

should thereore have no bearing on t he classication o a situation as an occupation.

Another expert was reluctant to accept military presence as a condition sine qua non, regarding

it as one element among others to actor into the classication exercise. For this expert, the

key element o the eective control test was interdiction/prevention o independent governmental

authority. He asserted that occupation law obligations would take eect as soon as the oreign orces

had deliberately eliminated the ability o the local authorities to carry out independently the unc-

tions o government. his view was vigorously contested by several experts who stated that the

negative perspective o the test (prevention o the exercise o governmental unctions) was per senot sufcient to establish an occupation. During that period, they said, occupation law would not

be applicable since the interdiction o governmental unctions, without replacement by the oreign

orces authority, would only lead to a vacuum o power and would not constitute occupation or the

purposes o IHL. In act, IHL would require another element, constituting the positive aspect o the

eective control test, i.e. the ability o the oreign orces to exert authority in lieu o the legitimate

government. In this connection, some orm o military presence would also be required in order to

exert eective control over an area.

Te experts a lso stressed that eective control could not be dened in reerence to the general capa-

bilities o the oreign orces as compared to those o their opponent. Rather, the test would reer to

the eects o the oreign orces presence on the exercise o authority in the contested area, in par-ticular their specic ability to exert authority over the territory concerned in lieu o the legitimate

government. In other words, most o the experts agreed that the test or an occupation should not be

which o the belligerents had the military capability to impose their will, but rather which o them

4 For instance, by administering the oreign territory in lieu and in place o the local authorities.


21/151

19

had the military capability by virtue o their presence in a given area to impose their authority and

prevent their opponent rom doing so, and eventually to be in eective control o that area.

In conclusion, almost all the ex perts agreed that mi litary presence was a prerequisite or identi-

ying the beginning o a n occupation. Nonetheless, some o them also stressed t hat it could lose

its relevance and apply in a nuanced manner or the end-o-occupation test. In this regard, some

participants seemed to suggest that military presence would not be a condition sine qua non or

determining the end o occupation.

B. HE EXERCISE OF AUHORIY BY FOREIGN FORCESBecause o its importance in the occupation test, the notion o exercise o authority was discussed in

depth by the participants. Tey identied three main issues o concern: the nature o the authority,

the necessity or otherwise o substantiating such authority and the legal signicance o the

sharing o authority between the occupying power and local government.

A consensus developed quickly among the experts about the nature o the authority to be exercised

by the occupying power. Te experts agreed that authority should reer to the notion o govern-

mental unctions since occupation had to do with political direction o the territory concerned and

could not be enorced by anything short o governmental control.

he discussions then turned to the ICJs decision o December 2006 in the case o Democratic

Republic o Congo (DRC) v. Uganda: the ICJ stated that occupation required the exercise oactual

authority by the oreign orces (emphasis added). 5 In others words, the ICJ decided that oreign

troops should substantiate their authority in order to qualiy as an occupying power. Te experts

unanimously expressed their disagreement with the test proposed by the ICJ, stating that such an in-

terpretation would be too narrow and would not reect lex lata. For the experts, the ICJs judgment,

by emphasizing actual over potential control, represented a signicant change o course with regard

to the interpretation and application o the test laid down in Article 42 o the Hague Regulations.

Te experts asserted that while the ICJs ocus on actual exercise o authority could introduce more

certainty as to whether an area was occupied or not, it would also acilitate the creation o more

legal black holes that would remain beyond the scope o responsibility o any authority, resulting

ultimately in a protection gap or the individuals trapped in such areas.

Tereore, most o the experts supported a test based on the abilityo enemy oreign orces to exert

authority over a specic area. As illustration, one expert reerred to the situation o Denmark during

World War II when German armed orces, despite their military supremacy, had chosen not to exert

authority and had let the Danish Government do so instead. Were the test proposed by the ICJ to

be applied to this situation, Germany could not be said to have occupied Denmark. Te experts also

emphasized that the necessity to opt or a test based on the ability to exert authority was urther sup-

ported by policy considerations. Indeed, the interpretation o Article 42 o the Hague Regulations

disconnecting the existence o occupation rom the actual and concrete exercise o governmental

authority by the military power vis--vis the local population would eventually dissuade the occu-pying power rom evading its obligation to govern the occupied territory.6 In addition, a test based

on the ability to exert authority would prevent any attempt by the occupying power to evade its

duties under occupation law through the installation o a government by proxy, which would exert

governmental unctions on its behal.

Nonetheless, one expert expressed reluctance to rely on a test based on the ability to exert authority

on the grounds that it would create uncertainty and could appear very abstract. He emphasized the

necessity o having actual ev idence that the occupying power was exerting some authority over the

5 ICJ,Armed Activitie s on the err itory o the C ongo (Democratic Republic o the Congov. Uganda), decision o 19 December 2005, 173.

6 It was argued that requiri ng the oreign orces to concretely exercise authority (or instance, by establishing a provisional civiladministration) would open the door to bad-aith interpretation o this criterion. Indeed, it would be enough or the occupierto reuse to assume its duties under the law in order to be seen as not actually exerting authority over the territory it hadjust invaded . U ltimately, such a n approach could encourage the oreign orces to re rain rom maintain ing law and order ormeeting the basic needs o the local population in order to not be seen as the occupying power. Tis would leave the localpopulation without any protection since its own government would be incapable o governing the area and t he oreign troopsunwilling to do so.


22/151


23/151

21

purposes or which consent was given by the host State could make occupation law pertinent and

lead to its application by analogy. Tis would be the case particularly when consent was given with a

view to delegating to the oreign orces the administration o a terr itory or part thereo.

Tese views were challenged by a majority o the experts who held that absence o consent was a cen-

tral element and a precondition or establishing occupation. According to these experts, consent given

by the host State would always result in the inapplicability o occupation law. One participant doubted

whether a single example could be ound o a situation being described as belligerent occupation and

consequently occupation law applied aer the host States consent had been secured. However, most

o the experts agreed that consent could play a subtler role in establishing the end o occupation.

Te experts then discussed the characteristics o the notion o consent or the purposes o occupa-

tion law. In this connection, a majority o the experts were o the opinion that such consent should

be genuine, valid and explicit or occupation law to be inapplicable.

he extreme diiculty o evaluating whether these various elements had been met was recog-

nized. Some o the experts reerred in particular to the concept o engineered consent, dened

as a process by which States intervening in a oreign territory would ensure, by any means or legal

constructions available to them, that the presence o their armed orces would appear to have the

consent o the host State. Te examples o Panama and Czechoslovakia were mentioned in this con-nection. Te experts specied that the notion o engineered consent was a means or these States

to avoid being classied as occupying powers and tainted by the pejorative connotation o the term.

Tereore, the concept o engineered consent made the task o assessing the authenticity, as well

as the validity, o the consent a very thorny one. Nonetheless, most o the experts were o the view

that the inherent complexity o interpreting the notion o consent would not detract rom its overall

importance in determining the applicability o occupation law. Most o these experts elt that the

absence o consent should still be considered a precondition or occupation.

Tere was some divergence o opinion on interpreting the notion o coerced consent. In this con-

nection, one expert reerred to the extraterritorial military intervention in Haiti in 1994 and the

Indonesian invasion o East imor in 1975 as examples o coerced consent. Another participant

challenged this, stating that those cases represented only a orm o pressure that would not amount

to coercion.

aking the opportunity to comment on this very point, a large majority o the experts stressed that

IHL and occupation law in particular did not constitute a sel-contained regime and did not provide

any criteria or evaluating consent. Te experts said that the issue o consent should be interpreted

in the light o current public international law, in particular by reerence to the law o treaties, dis-

carding a specic interpretation o the notion o consent or the purposes o occupation law. In this

regard, it was noted that Article 52 o the Vienna Convention on the Law o reaties states that a

treaty was void only when a State had been coerced by the threat or use o orce in violation o the

principles o international law embodied in the UN Charter. Consequently, not every pressure or

every threat or use o orce would induce coerced consent. In others words, the threat or use o orcein accordance with the UN Charter, resulting in a State consenting to the presence o oreign orces,

could not lead to the application o occupation law.

Another expert, while supporting the interpretation o the notion o consent in the light o the law o

treaties, asked what should happen when an agreement signed by oreign orces and a host State was

in violation o the host States domestic law. Should the Vienna Convention be used as the source o

reerence or addressing the question o consent, Article 46 o the Convention could be deemed appli-

cable and could enable the occupied State to invalidate under certain circumstances any agreement

signed in violation o its domestic law. In this connection, the expert expressed some doubts about the

agreement negotiated between the United States and Iraq, since the procedures used were allegedly in

violation o Iraqi constitutional law. Te same expert also asserted that even when coerced consent isvalidated a posteriori by the Security Council, questions will remain concerning the applicability o

occupation law. Te expert reerred to the examples mentioned above as grey areas that represented

a orm o unresolved consent. Some o the experts suggested that the applicability o occupation law

should be presumed in such instances, that it should unction as a deault regime.Te discussions

then turned to the question o the validity o the consent. Tere were some dierences o opinion:


24/151

22

certain experts held that it was necessary that the consent to the oreign orces presence be given by

authorities legally entitled to do so under domestic law. According to this position, only the de jure

government would be able to give its consent to the intervention o oreign troops.

One expert challenged this view, arguing that the consent should be given not by the de jure govern-

ment, but by the de acto government eectively exercising authority over the territory concerned

beore the arrival o oreign military orces. Tis expert explained that a situation could be classied

or the purposes o IHL only on the basis o the acts on the ground; and t hat this ultimately entailed

determining who had de acto eective authority in order to identiy which authority would be en-

titled to legitimize the oreign military presence.

Another expert asked what would happen when consent was given by a powerless de jure government

and what legal ramework o reerence might apply in such a situation. Should the logic o the inter-

national political system prevail, consent given by an ineective de jure government should be suf-

cient grounds or not classiying the situation as an occupation. Other experts argued that the principle

o eectiveness underlying IHL and the related requirement to stick to the acts on the ground would

necessitate applying occupation law when consent emanated rom a powerless de jure government.

Another expert espoused a nuanced version o the latter view, arguing t hat it would be relevant only

in situations where the de jure government had ceased to exist; the expert mentioned the situationprevailing in Aghanistan in 2001 as a case in point.

It was then afrmed that consent should always be explicit, to avoid the ambiguities attached

to assessing consent given implicitly. Te discussions that ollowed highlighted the necessity o

distinguishing between absence o opposition to the oreign troops presence and ormal consent,

the ormer not necessarily implying the latter and thereore not providing sufcient grounds or

setting aside the application o occupation law. In the same vein, some experts mentioned that it

was normal practice or States deploying troops abroad to sign an agreement with the host State,

which would determine the legal ramework applicable, rather than permit occupation law to be

come applicable automatically. However, it was emphasized that the absence o a Status o Forces

Agreement did not necessarily mean that the oreign orces presence was not consensual or that

occupation law should apply by deault. It is entirely possible that the local government consented

to the oreign troops presence even when no such agreement had been signed. In this connection,

the experts highlighted the necessity o considering situations on a case-by-case basis.

Te difculty o evaluating consent was also emphasized since consent was always the result o a

political process that involved a balance o power. In this connection, all depended on the relative

power o the States involved in the agreement. Consequently, an agreement made when the dier-

ence in power is great may not be genuine, but that does not mean that occupation law would neces-

sarily apply. Te experts underlined that it was very difcult to determine consent since, ultimately,

its identication was mainly a political rather than a legal process.

Other experts underscored the importance o the Security Councils role as well as that o the inter-national community in evaluating the genuineness and validity o consent. However, one expert

expressed the necessity o nuancing the role o regional organizations in this regard, since they

would always avour consent given by a de jure government over that provided byde acto author-

ities, these regional organizations generally being reluctant to accept the displacement o legitimate

authorities by opposition groups.

Te debates then ocused on the issue o coerced consent being given legitimacy a posteriori by a

Security Council resolution. Te case o Kosovo served as a background or the discussions. One

expert argued that the consent o the Republic o Yugoslavia in 1999 had been extorted and that

the subsequent agreement authorizing the presence o oreign orces in Kosovo was null and void,

thereore leading to the application o occupation law.

However, most o the experts were o the opinion that it would be very difcult to classiy a situation

as an occupation once consent even i initially extorted by coercion had been validated by the

Security Council. Another expert argued that, irrespective o the notion o consent, only the man-

date o the Security Council should matter or the purposes o dening the applicable law. Should


25/151

23

the mandate o the Security Council require the deployment o oreign orces in a territory, in par-

ticular UN orces, the question o consent would become irrelevant since the Security Council reso-

lution would be the only legal ramework o reerence.

Some experts challenged the latter view on the basis that it made no distinction between the unc-

tions mandated by the Security Council and the legal ramework regulating those unctions. It was

also emphasized that, in general, Security Council resolutions did not provide any clear-cut indica-

tion o the applicable legal regime. In addition, another expert asserted that i a Security Council

resolution did not expressly reject application o occupation law, this body o law might be relevant

and applicable, should the conditions or its applicability be met.

One expert was emphatic that the Security Council could override IHL by virtue o Articles 25 and

103 o the UN Charter, but could not change denitions and concepts and declare that there was

no occupation i the situation on the ground proved otherwise. However, another expert chal lenged

this, stating that under public international law, the Security Council could do whatever it wanted,

even twist the acts i it needed to.

Te working session concluded with an exchange o v iews on the issue o consent in a situation that

involved the deployment o oreign orces in a ailed State. One expert argued that lack o consent

should be inerred rom the absence o eective governmental authorities. He argued that occupa-tion law would be the legal ramework o reerence or oreign orces, should the other, previously

identied criteria be met. A consensus then developed among the experts that when oreign orces

intervened in a ai led State, consent must be presumed to be absent; the experts a lso called or this

view to be advocated.

D

Documents

Icrc-occupation and Others Forms of Administration of Foreign Territory