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The
(in)compatability of international law with contemporary
occupations
The
centenary of the 1907 Hague Convention seems an
appropriate moment to re-examine the relevance of
international law to modern occupations. This article
does just that and finds it ‘not fit for purpose’.
Clare Taylor
“Occupation is an ugly word”, Paul Bremer, the US advisor
in Iraq, said in 2003; this is an opinion that is shared
by many. Nevertheless, as Bremer continued, “it is a
fact” and one which is of increasing importance to the
international community. Just as jus in bello –
the laws of war – are not contingent upon the legality
or moral right of war; the conduct of occupants is
unrelated to the right of that occupant to be in the
‘host’ state. It is therefore necessary to address the
issue facing contemporary occupants, such as Israel or
the US-led coalition force, namely that current laws are
unworkable given the nature of modern states and
contemporary occupations. This unfeasibility creates an
urgent need to reassess occupation law, determine its
relevance when applied to long-term occupation and
discuss whether it is maladaptive, or merely requires an
updated interpretation. It is not only the length of
occupations that is changing, rather the nature of
occupation has also mutated from an interim stage
between war and peace treaty to a force for changing the
political structure of the occupied state.
The controversial nature of the recent US-led occupation of
Iraq and the longer-lasting Israeli occupation of the
West Bank and Gaza Strip provoke an emotive response
among many people. Any changes to occupation law will
have a concomitant impact upon the way these occupations
are viewed. Whilst public opinion should not be allowed
to determine the legality or otherwise of any political
activity, it is clear that the high level of feelings
these occupations arouse cannot go unnoticed by
politicians, scholars, and jurists alike.
Occupation law as a specific element within international
law is approaching the centenary of its conception. This
particular facet of international law was codified in
the 1907[1] Hague Regulations, which represent the first
attempt to legislate the responsibilities of belligerent
occupants and remain to this day fundamental documents
of international law. It is therefore pertinent to
re-examine the nature of occupation law from a
contemporary perspective.
Although the Hague Regulations are the first, they are not
the only treaty governing the conduct of states during
occupation. The Fourth Geneva Convention of 1948
expanded substantially on the duties and
responsibilities outlined by the Hague Regulations.
However, this article will focus on what is commonly
held to be the primary directive for all occupants [2],
namely Article 43 of the Hague Regulations. When
translated from the original, and authentic, French this
Article states the following:
The authority of the legitimate power having in fact passed
into the hands of the occupant, the latter shall take
all the measures in his power to restore and ensure, as
far as possible, public order and civil life, while
respecting unless absolutely prevented, the laws in
force in the country[3]
Dinstein has described this Article as being ‘the linchpin
of the international law of belligerent occupation’ [4].
Whilst this view is prevalent among international
relations scholars, this study will seek to show that it
is paradoxical when applied to long-term occupations.
Even if occupants announce their intentions to uphold
occupation law, they will be unable to meet the
requirements of Article 43. On this matter, Marco
Sassoli concurs, noting that ‘sooner or later, a
prolonged military occupation faces the need to adopt
legislative measures in order to let the occupied
country evolve’ [5] thus putting the occupiers in breach
of Article 43. Greenspan points out that ‘human
existence requires organic growth and it is impossible
for a state to mark time indefinitely’ [6], yet this
marking of time is what a strict reading of occupation
law would require of both the occupier and the occupied.
The legal paradox of occupation
The conservationist principle promulgates the notion that
international law places two concomitant obligations on
occupants. Firstly, the occupant shall ‘not acquire (or
attempt to acquire) sovereignty over the territory’, and
secondly, the occupant shall ‘leave the legal and
political structures of the occupied territory
intact.’[7] Fox comments that occupiers are ‘temporary
de facto powers and that ‘[t]raditional law views
occupiers as trustees, preserving the status quo ante
bellum.’[8] Furthermore, in accordance with the
conservationist principle, occupiers have no legal or
political legitimacy over the territory once the
occupation has ended. As such, occupants are ‘not
competent to enact reforms that fundamentally alter
governing structures in the territory and create
long-term consequences for the local population.’[9]
Article 43 of the Hague Regulations places a requirement on
occupiers to ‘restore and ensure…public order and civil
life’ whilst simultaneously ‘respecting…the laws in
force in the country’. Although these instructions are
qualified by the phrases ‘as far as possible’ and
‘unless absolutely prevented’ respectively, this study
will show that the two clauses of Article 43 are
mutually exclusive. Therefore, in cases of long-term
occupation, the occupant faces the dilemma of choosing
which clause to contravene. If the decision is taken not
to respect public order and civil life, there is a risk
that the international community will take action
against them on humanitarian grounds, notwithstanding
the risk to their own troops. However, deciding not to
respect the laws in force in the country leaves
occupants facing the possibility of opposition, in the
form of (potentially armed) resistance from the
indigenous population. Neither scenario is particularly
attractive given current international conditions.
If contemporary occupiers are unable, or unwilling, to meet
the requirements of international occupation law in its
current interpretation then the question arises of what
should be done. There are three possible answers:
Firstly, that the situation continues as it is with a
disregard for law and a lack of punishment for
transgressors. Secondly, enforcement could be improved,
so that occupiers have to adhere to the existing
requirements placed upon them, and thirdly the law could
be reinterpreted and added to in order to protect both
occupants and the occupied.
Paths through the paradox?
Taking these options in order, a continuation of the
status quo is not a valid option. By their very
nature, laws are intended to be upheld, and the arrival
of a hegemonic power that views itself as the arbiter of
international law is insufficient reason for
‘inconvenient’ laws to be disregarded as and when it
suits the hegemon [10]. This applies to both the
occupation of Iraq and US support for Israel in its
continued occupation of the West Bank. As Greenwood
asserts, ‘although it is difficult to apply the law of
belligerent occupation in a prolonged occupation, that
law is not thereby rendered inapplicable’ [11].
Turning now to the second suggestion – increased
enforcement of current interpretations of occupation law
– the purpose of occupation has shifted since 1907, from
a temporary situation that led to a peace treaty,
towards transformational occupations that last for many
years. The Hague Regulations were designed primarily to
protect the rights of the ousted sovereign, as opposed
to the occupied population. Were the international
community, through the auspices of the UN, to ensure
strict adherence to current occupation law this could be
detrimental towards occupied peoples. It may involve
upholding laws that suppress basic freedoms and hinder
civil society, as would be the case in the occupation of
a state previously ruled by a dictatorial and repressive
regime. Furthermore, it would go against contemporary
norms of promoting self-determination and protection of
human rights, [12] thus negating this as a realistic
option.
What remains, therefore, is the need for a reinterpretation
of current occupation law, which may lead to changes.
This is particularly necessary given the comprehensive
nature of contemporary occupations. [13] David Scheffer
notes that there is a strong case for retaining current
occupation laws as they restrict the allowable behaviour
of aggressive occupiers and create direct
accountability. [14] However, ‘liberating armies’ would
be better regulated by a ‘modern occupation regime that
can be created under the UN Charter’. [15] Benvenisti
also addresses this need for change and points out that
the occupation of Iraq, and Resolution 1483, have made
it evident that ‘the old doctrine [needs] an overhaul to
bring it up to date with contemporary legal and
political perceptions’. [16]
Occupants, such as the US-led coalition forces in Iraq and
Israel, are all too aware of the contradiction within
Article 43. The Israeli Supreme Court has noted that
application of occupation law ‘may be qualified in some
ways owing to special circumstances, one being the long
duration of the occupation’. [17] The problems of
long-term occupation were also noted by the UN, albeit
indirectly, in Resolution 1483. Fox describes this
document as ‘schizophrenic’ and notes the dichotomy
between the ‘commitment to reform and fidelity to
international law’[18] that occurs within one paragraph.
Furthermore, ‘when an occupation goes on for years, its
prolongation brings about the imperative need to open
more widely the range of legislation, which the
occupying power is entitled to enact’,[19] thus
requiring either a change to current interpretations of
Article 43, or a stagnation of civil life for the
population under prolonged occupation.
In 1907 occupation was regarded as being a ‘transient
situation for the short period between hostilities and
the imminent peace treaty’. [20] The interests of the
ousted government were of primary interest at this time.
A century later, contemporary concerns reflect trends in
international relations towards a ‘greater deference to
the principles of self-determination and fundamental
human rights’.[21] This change in priorities is one
factor causing problems for current long-term occupants.
The reality is that with this change in understanding comes
the probability of longer occupations and the increased
likelihood of the need to rebuild state institutions and
facilities. However, as Toby Dodge points out, for cases
such as Iraq, ‘[t]here is at the moment, no successful
or indeed evolving blueprint on post-intervention state
building’. [22]
It is evident that no two situations of occupation are
alike and ‘no a priori formulation can furnish
concrete rules for the specific circumstances of every
occupation’.[23] Moreover, those who analyse occupation
law agree that it is time for a new examination of
current interpretations; however there is less certainty
surrounding what should replace the existing body of
rules. It has been suggested that calls for the revision
of occupation law are simply ‘a recognition of a reality
which has already formed’. [24] If this is a valid
theory then any revision would simply reflect prevalent
opinions. There is, however, opposition to the calls for
change.
To
change or not to change?
It has been argued that there is merely a requirement for
the current laws of occupation to be more strictly
adhered to. Pellet, for example, notes that ‘the passage
of time is not a circumstance allowing the occupier to
exempt himself from the application of the rules of
jus in bello’. [25] As a corollary to this,
Greenwood suggests that ‘although it is obviously
difficult to apply the law of belligerent occupation in
a prolonged occupation, that law is not thereby rendered
inapplicable’. [26] Both authors therefore suggest that
the law, as it stands, is sufficient and merely needs to
be enforced more effectively.
Conversely, others feel that a more suitable and less
objectionable solution would be a Security Council
mandate ordaining both deployment of troops and civilian
administration, thereby allowing for changes that could
not be sanctioned under current international occupation
law. This option was dismissed outright by the US in the
case of Iraq, in favour of a Security Council
Resolution. Scheffer suggests that the ‘unique
circumstances’ of any long-term occupation would be ‘far
better addressed by a tailored nation-building mandate
of the security council’. [27] This argument closely
follows that promulgated by Gerson in the 1970s. He
argued that a return to a trusteeship system would be
the most suitable option for prolonged occupations [28].
However, this notion has been widely rejected because it
is redolent of imperialism.
A further proposal is that ‘occupation law will continue to
apply, albeit with qualified interpretations if
necessary’ [29] unless the UN Security Council mandates
occupying powers to act outside the normal constraints
of occupation law (as it did with Iraq). The involvement
of the Security Council has been recently highlighted by
several authors, including Benvenisti, who comments that
Resolution 1483 has ‘awakened the law of occupations
from its slumber’ [30]. He further notes the relevance
to international law, namely the ‘establishment of
monitoring processes’ [31] for the occupant’s behaviour,
a situation which heretofore has been somewhat lacking
in belligerent occupations. Scheffer also highlights the
possibility that modern, liberating and transformational
occupations should be ‘regulated under a modern
occupation regime that can be created under the U.N.
Charter’ [32].
This discussion has attempted to show that in prolonged
occupations, the occupant is faced with an impossible
choice between restoring and ensuring public order and
civil life, or respecting the laws in force at the start
of the occupation. Whatever the future holds, the need
for a new interpretation of occupation law is more
pressing now than ever before. It is to be hoped that
the international law of occupation will be ‘revised to
reflect the realities of the twenty-first century, so
that the protection or transformation of societies at
risk can be achieved within a realistic and acceptable
framework of law’. [33]
References
[1] 1907 Hague Convention (IV) Respecting the Laws and
Customs of War on Land – Annex – Section III – Military
Authority over the territory of the hostile state
(hereafter referred to as Hague Regulations)
[2] Sassoli, Marco, "Legislation and Maintenance of
Public Order and Civil Life by Occupying Powers," The
European Journal of International Law 16, no. 4
(2005).p.662. Dinstein, Yoram, "Legislation under
Article 43 of the Hague Regulations: Belligerent
Occupation and Peacebuilding," (Harvard: Program on
Humanitarian Policy and Conflict Research, 2004). p.2
[3] 1907 Hague Convention (IV) Respecting the Laws and
Customs of War on Land – Annex – Section III – Military
Authority over the territory of the hostile state.
Reproduced in Roberts, Adam and Guelff, Richard, eds.,
Documents on the Laws of War, 2nd ed. (Oxford: Clarendon
Press, 1989). p.55
[4] Dinstein, "Legislation". p.2
[5] Sassoli, "Legislation". p.679
[6] Greenspan, M., The Modern Law of Land Warfare.
p.225. Cited in Benvenisti, Eyal, The International Law
of Occupation (Princeton, NJ: Princeton University
Press, 1993).
[7] Ibid.p.236
[8] Ibid.p.234
[9] Ibid.p.240
[10] For a more detailed discussion of the arrival and
impact of hegemonic law see Vagts, Detlev F., "Hegemonic
International Law," American Journal of International
Law 95, no. 4 (2001). Bhuta, Nehal, "A Global State of
Exception? The United States and World Order,"
Constellations 10, no. 3 (2003). or Alvarez, Jose,
"Hegemonic International Law Revisited," American
Journal of International Law 97, no. 4 (2003).
[11] Greenwood, Christopher, "The Administration of
Occupied Territory in International Law," in
International Law and the Administration of Occupied
Territories, ed. Playfair, Emma (Oxford: Clarendon
Press, 1992).p.263
[12] Benvenisti, Occupation Law.p.6. Gerson, The West
Bank.pp.10-11
[13]Edelstein defines two types of occupation;
‘security’ occupations that ‘seek to prevent the
occupied country from becoming a threat’ and
‘comprehensive’ occupations that whilst serving security
interests also ‘aim to create a certain political system
and a productive economy’. Edelstein, "Occupational
Hazards.".p.54
[14] Scheffer, David, "Beyond Occupation Law," American
Journal of International Law 97, no. 4 (2003).p.850
[15] Ibid.p.851
[16] Benvenisti, Eyal, "Water Conflicts During the
Occupation of Iraq," American Journal of International
Law 97, no. 4 (2003). p.864
[17] Ibid.p.44
[18] Fox, "Occupation."p.260
[19] Dinstein, "Legislation."p.8
[20] Benvenisti, Occupation Law.p.27
[21] Gerson, The West Bank.p.11
[22] Dodge, Toby, "Iraqi Transitions: From Regime Change
to State Collapse," Third World Quarterly 26, no. 4-5
(2005).p.706
[23] Benvenisti, Occupation Law. p.16
[24] Bhuta, Nehal, "The Antinomies of Transformational
Occupation," The European Journal of International Law
16, no. 4 (2005).p.723
[25] Pellet, Alain, "The Destruction of Troy Will Not
Take Place," in International Law and the Administration
of Occupied Territories, ed. Playfair, Emma (Oxford:
Clarendon Press, 1992).p.192
[26] Greenwood, "Administration."p.263
[27] Scheffer, "Beyond Occupation." p.843
[28] Gerson, The West Bank.
[29] Scheffer, "Beyond Occupation." p.849
[30] Benvenisti, "Water Conflicts."p.861
[31] Ibid.p.864
[32] Scheffer, "Beyond Occupation."p.851
[33] Ibid.p.860
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