As stated in the introduction (Chapter 1), the doctrine of occupation was a necessary by-product of the evolving refinement of the concept of sovereignty. It extended the protection of the sovereign’s title also during military conflict. It resolved the “spatial problem” of exercising public authority over foreign citizens beyond national jurisdiction and protected the ousted sovereign’s bases of power. Due to this function, the law of occupation has been since its inception intimately related to the law of sovereignty, and to a large extent served as its mirror-image: changes in the identity of the sovereign (the prince or the people) and its authority (unfettered discretion or subject to human rights limitations) indirectly led to changes in the law of occupation.
In a certain sense, the fundamental inroads into the unfettered discretion of the prince-sovereign and the empowerment of individuals and of peoples could cast doubt about the continuing utility of the law of occupation. International law has moved beyond the sovereign-to-sovereign approach to regard sovereigns as the tools to promoting individual rights. With an impressive body of law protecting human rights and effective machinery for enforcing them, one might ask what could be the further use of the law of occupation. If British forces occupying Iraq or Russian soldiers operating in Georgia are subject to the constraints of the European Convention on Human Rights and to the jurisdiction of the European Court of Human Rights—constraints that hold occupants accountable for maintaining relatively high levels of responsibility for protecting individuals and maintaining the rule of law—why bother about the quaint law of occupation? As this book has tried to suggest, the answer lies in the defining element of occupation: its exceptional, temporary character. This law seeks to define the essential consequences of the fact that the entity that wields public authority does not derive its authority from the people it governs, nor from any right to govern, but only from the fact of effective control. Occupation is a state of exception, where the authority that wields public power is inherently suspect for not seeking to promote the interests of the people whose lives it regulates. As the survey has shown, at the heart of almost every modern occupation lies a conflict of interests among the occupant, the local population, and the ousted government, a conflict over policies and goals. The modern occupant is no longer the impartial trustee of indigenous private interests, as was envisaged in the Hague Regulations. Rather, it is usually an interested party, with short- and long-term objectives, and with the effective capability to implement those objectives.(p. 349)
The exceptional nature of the regime calls for exceptional, specific legal ramifications also when measuring occupation policies under human rights law. For example, due to the inherent lack of faith in the impartiality of the occupant, the latter may not be granted the same margin of appreciation that sovereigns enjoy, and perhaps no margin at all. This is not to suggest that occupation policies should always be deemed illegal; there may be many instances where the occupant’s measures would be justified as compatible with the law of occupation and with human rights law. But a healthy suspicion in the occupant’s motives should always inform a review of its policies by the various monitoring and adjudicating bodies. Such an approach would counterbalance the lack of domestic democratic processes that are the primary bulwark against governmental abuse in peacetime.
The temporary rule of the occupant also requires it continuously to justify its presence in the foreign country. A legal framework that respects human and peoples’ rights can no longer support the thesis that the occupant may hold the territory “as a pledge of his military success, and thereby impress upon the enemy the necessity ofsubmitting to terms of peace.”1 In the eyes of the drafters of the law of occupation in the nineteenth century, occupations were to be quickly resolved by peace agreements. There was no need to impress upon the occupant the obligation to terminate its rule, indeed it was the occupant’s right to hold on to its rightful asset obtained through battle. This vision is long gone. It is incompatible with the obligations toward the population and to the people’s right to exercise self-determination. This vision assigns the burden of stalemate on negotiations for the settlement of the conflict between the occupant and the occupied solely with the ousted government. Such an allocation of the burden of stalemate is not conducive to political solutions; rather, it encourages the ousted government to seek military responses. For these reasons the law of occupation ought not to condone an occupant which holds out in bad faith, using its control of the occupied territory as leverage. Indeed, such a position is no different from outright annexation. Instead, a more appropriate system of incentives would denounce such acts as illegal, would view the continued rule of the recalcitrant occupant as an aggression, and would treat measures aimed at the occupant’s own interests as illegal and void. There is a fine line between reasonable bargaining and obstinate holdout, a line that is very difficult to draw and one upon which there would sometimes be more disagreement than consent. In many instances, however, it would not be too difficult to conclude that there is, beyond reasonable doubt, bad faith on the part of the occupant that could taint its status in the territory under its control.
At the same time, there can equally be situations where the ousted government has lost its right to revert to its prior possessions due to its own illegal policies toward the inhabitants of the occupied territory. The advent of human and people’s rights has also modified that side of the sovereign-to-sovereign equation that had informed the law of occupation. The occupant that respects such rights and promotes their exercise should therefore not be regarded as violator but, to the contrary, as facilitator of the exercise of rights recognized by international law. Because (p. 350) of the inherent suspicion of occupant’s intention, the legal validity of the arrangements it facilitated will depend on indigenous endorsement through free and fair processes.
the responsibility [is] not just to prevent and react, but to follow through and rebuild.… [T]here should be a genuine commitment to helping to build a durable peace, and promoting good governance and sustainable development. Conditions of public safety and order have to be reconstituted by international agents acting in partnership with local authorities, with the goal of progressively transferring to them authority and responsibility to rebuild.2
This commitment to humanitarian occupation may prove too onerous for governments contemplating possible intervention. This might produce too little intervention, when such is necessary. But states might try to get around this obligation to occupy and administer, and to limit their intervention only to the initial phase of the armed intervention, committing themselves not to occupy the foreign territory. Such a policy could often be not only flawed in terms of the intervener’s self-interest but also irresponsible toward the population in the invaded region and a dereliction of a duty.
Another challenge to the law of occupation relates to the consequences of illegal measures. The traditional sovereign-to-sovereign vision of international law which informed the law of occupation provided simple answers in response to questions such as the legal consequences of illegal expropriations by occupants, of annexations, or other violations of the law. To quote again from Oppenheim, “[i]f the occupant has performed acts which are not legitimate acts of warfare, postliminum makes their invalidity apparent.”3 This policy can be right only if one ignores the rights of the people living under occupation. A human rights-based approach must take into account their need to rely on the existing public institutions in pursuing their life’s opportunities. The human rights dimension therefore imposes significant limitations on the use of blunt legal tools such as non-recognition of public acts for enforcing the law. This is true for postliminum situations but also for ongoing ones: third parties must hesitate before refusing to adhere to a free (p. 351) trade agreement they had signed with the ousted sovereign, because the first to suffer from such sanctions would be the occupied population whose livelihoods may depend on trade.
As mentioned in Chapter 11, there is no doubt that the recognition of the effects of invalid and even illegal occupation measures diminishes the effectiveness of the law. It gives the occupant perverse incentives: if you hold on long enough you will be able to have your policies stick. But there are normative, institutional, and political considerations weighed in the other direction, and these have convinced governments and courts to adopt a balancing approach to regulate the post-occupation phase, taking into account the gravity of the harm, the good faith expectations of the inhabitants of the occupied territory, the length of time the latter benefited from the occupant’s measures, the protection of group and minority rights, and the prospects of a peaceful transition to a sustainable peace. Such a balancing approach is appropriate, especially in light of the diversification of the available responses to unlawful occupation measures developed during the last two decades. Although obviously far from perfect in many respects, the various monitoring bodies and the remedies available to individuals affected by occupation measures can compensate for a regime that respects the acquired rights and established expectations of individuals living under occupation.
The contemporary law of occupation is therefore not only a reflection of the law on state sovereignty, but even more directly, it is influenced by the human rights dimension that permeates international law in general. This dimension renders the law of occupation less mechanical, more nuanced and complex, and no less crucial to protect individual rights.(p. 352)