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Max Planck Encyclopedia of Public International Law [MPEPIL]

Occupation, Belligerent

Eyal Benvenisti

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 February 2023

Subject(s):
Ius ad bellum — Ius in bello — Reprisals — Belligerence — Armed conflict — Occupation — Geneva Conventions 1949 — Weapons

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  The Concept

1.  Definition

The regime known as belligerent occupation refers to a situation where the forces of one or more States exercise effective control over a territory of another State without the latter State’s volition. Because such control has often been the outcome of the exercise of military force, this regime has been titled ‘belligerent’ occupation, whereas occupation that received the consent of the sovereign is termed ‘pacific’ occupation (Occupation, Pacific). However, at least since the adoption of the Geneva Conventions I–IV (1949) the regime of belligerent occupation does not depend on the existence of a state of war, nor on the armed resistance to the occupant (Art. 2 (1) and (2) common to the four Geneva Conventions). The need to recognize this regime, and to develop its legal framework, derived from the emerging prohibition on the unilateral annexation of foreign territory through the use of force. Because occupation does not transfer sovereignty over the territory to the occupying power, international law must regulate the interrelationships between the occupying force, the ousted government, and the local inhabitants for the duration of the occupation. The law authorizes the occupant to safeguard its interests while administering the occupied area, but also imposes obligations on the occupant to protect the life and property of the inhabitants and to respect the sovereign interests of the ousted government.

2.  Evolution

The law of occupation evolved gradually during the second half of the 19th century through deliberations among European governments mainly during the peace conferences in Brussels (1874) and The Hague (Hague Peace Conferences (1899 and 1907)), involving weak and strong governments, as well as scholars. The principle protecting individuals and their property evolved from the earlier distinction between combatants and non-combatants, and the duty to spare the latter from the scourge of war. The obligation to respect the sovereign rights of the ousted government reflects the final stages in the crystallization of the concept of sovereignty as a national claim for exclusive control over the nation’s territory and nationals. This two-pronged concept of occupation became part of general international law by the early 20th century.

During the 20th century the law of occupation was often breached. Many occupants either failed to recognize the applicability of the law of occupation or implemented it in ways that promoted their own interests at the expense of those of the occupied. The occupations by the Axis Powers before and during World War II were bent on establishing new orders in Europe and South East Asia, imposed through cruel ruthlessness. Soviet aims during that war were also far removed from the parameters of the law of occupation. Most ousted governments, from exile or upon their return, also accorded little respect to the law, refusing to acknowledge the validity of acts that the occupant had enacted. Another type of challenge emerged during the post-Cold War era by the United Nations post-conflict administration regimes such as in Kosovo and East Timor (1999), or multilateral regimes endorsed by the United Nations (‘UN’) such as in Somalia (1992), none of which acknowledged the applicability of the law of occupation to their missions except for the Australian unit in Somalia.

3.  Conditions

The legal conditions for the commencement of belligerent occupation are determined by Art. 42 Regulations Respecting the Laws and Customs of War on Land of 1907 (‘Hague Regulations’), considered as reflecting customary international law. This text, which was the subject to long discussions by the drafters, remained unchanged since its initial appearance as Art. 1 of the Brussels Declaration (1874) (Project of an International Declaration concerning the Laws and Customs of War ([signed 27 August 1874] [1907] 1 AJIL 96). Although seemingly straightforward, the conditions for occupation it sets forth are subject to diverging interpretations. The authentic text reads:

Un territoire est considéré comme occupé lorsqu’il se trouve placé de fait sous l’autorité de l’armée ennemie.

L’occupation ne s’étend qu’aux territoires où cette autorité est établie et en mesure de s’exercer. (Art. 42 Hague Regulations)

The test is a factual one, and consists of two conditions. The first condition is obvious: as a result of the hostilities, the ousted government is incapable of publicly exercising its authority in that area. The meaning of the second condition has been the subject of controversy. It relates to the question whether the requirement is that the foreign army has actually substituted its own authority for that of the ousted government (the authority ‘est établie’ or ‘has been established’), or whether it is sufficient that the foreign army has only potential control, ie that it is actually controlling the area and therefore in a position to substitute its own authority for that of the former government (the authority ‘est … en mesure de s’exercer’, or ‘can be exercised’). If actual substitution of authority is required, an army that controls an area but refrains from actually exercising it vis-à-vis the civilian population will not be considered an occupant. This fine distinction was not debated by the drafters because the concern at the time was not that potential occupants would hesitate to assume authority once in control over enemy territory, but rather the opposite, namely that they would declare an area as occupied prematurely, before having consolidated their power over the area. The question became more acute since the latter half of the 20th century, as occupying forces tended to elude their responsibilities as occupants. The International Court of Justice (‘ICJ’) in its case Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (‘Armed Activities [Congo v Uganda]’; at paras 173 and 177) adopted the first meaning, emphasizing actual control. It read Art. 42 Hague Regulations to require a demonstration that the foreign forces were not only stationed in particular locations but also that they had substituted their own authority for that of the ousted government. Although the ICJ gave no reasoning for its position, this matter is all but self-evident. Military manuals do not provide a consistent position on this question. Scholarly opinion from the days of the 1880 Manuel des lois de la guerre sur terre (‘Oxford Manual’) by the Institut de Droit international onwards mostly supports the second reading, which emphasizes the requirement of potential control. This requirement was endorsed by a trial chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Prosecutor v Naletilic and Martinovic, as well as by Judge Kooijmans in Armed Activities (Congo v Uganda) (Separate Opinion of Judge Kooijmans). This was also the opinion of the Israeli Court of Justice (in the case of Tzemel Adv v Minister of Defence and Commander of the Antzar Camp in 1983) when it required the Israeli Army to comply with the law of occupation in South Lebanon, and again in A and B v State of Israel in 2008, when it ruled that the Gaza Strip was no longer occupied by Israel after Israel’s so-called ‘disengagement’ in 2005. In its 2008 judgment, the Israeli Supreme Court pointed out that ‘the State of Israel has no permanent physical presence in the Gaza Strip’ and ‘no real ability to control what happens in the Gaza Strip in an effective manner’ (A and B v State of Israel para. 11).

It should be noted that even if one adopts the requirement of actual control as the interpretation of Art. 42 Hague Regulations, the fact that a foreign army has not substituted its authority in fact in a territory would not absolve it from some obligations applicable in occupied territories under Geneva Convention IV and the Geneva Conventions Additional Protocol I (1977) (‘Additional Protocol I’). Geneva Convention IV and Additional Protocol I enumerate several obligations—some negative, such as the prohibition on deportations, some positive, such as the obligation to ensure food and medical supplies to the population—applicable toward individuals who ‘find themselves in the hands of a foreign army’ also in occupied territories. Because Geneva Convention IV and Additional Protocol I do not have their own definition of occupation, nor of the circumstances where people ‘find themselves’ in the occupant’s hands, one could have argued that those provisions of Geneva Convention IV and Additional Protocol I related to occupied territory had no independent existence and were complementary to the occupation regime established by the Hague Regulations, and thus became applicable only in situations defined by Art. 42 Hague Regulations. Yet such an interpretation would have meant, for example, that a foreign army that refrained from establishing its own authority over the civilian population was not precluded for example from kidnapping local civilians or transferring them out of the area, or from transferring parts of its own civilian population into the territory. This outcome would clearly run contrary to the object and purpose of Geneva Convention IV and Additional Protocol I to safeguard protected persons when they are subjected to the power of the party to the conflict ‘to the maximum extent possible’—as the Appeals Chamber of the ICTY declared in Prosecutor v Tadić (Judgment) at para. 168 (Tadić Case).

Hence, at least with respect to obligations under Geneva Convention IV and Additional Protocol I, it is generally accepted that the obligations of an army that finds itself during armed conflict in a foreign territory do not depend on whether or not it actually exercises public authority there. Also to be noted is the implied statement of the ICJ in Armed Activities (Congo v Uganda), that a foreign army might be subjected to obligations not only under international humanitarian law but also under international human rights law and ‘which are relevant and applicable in the specific situation’ (at para. 180), when it raised the issue of State responsibility of the invading army and its responsibility ‘at all times … for all actions and omissions of its own military forces’ (ibid) in enemy territory.

The determination whether the conditions for occupation have been met at the relevant times and in the relevant place will be based on a case-by-case factual analysis. Effective control does not require that occupation forces are present in all places at all times. It is generally accepted that it is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority felt within the occupied area. The number of troops necessary to maintain effective occupation will depend on various factors such as the disposition of the inhabitants, the number and spread of the population, and the nature of the terrain. Battle areas may not be considered as occupied, but sporadic local resistance, even successful at times, will not render the occupation ineffective. Yet obviously, if the sending of troops requires them to engage in battle to recapture an area from the enemy, the area will not be considered occupied until the troops actually manage to establish their control over it. The difficulty of applying these considerations to factual situations is demonstrated by the scholarly debate concerning the status of the Gaza Strip following the Israeli withdrawal in 2005 and the continued Israeli control of the air and maritime borders of the Strip (see also Occupation, Military, Termination of).

Since occupation is a matter of fact, the proclamation of occupation or the establishment of an occupation administration are not formally required under the relevant legal texts, and their absence will not affect the status of the territory as occupied. The Oxford Manual called for such a requirement to be made as soon as possible (Art. 42 Oxford Manual). However, the prevailing expectation during the negotiations of the Hague Regulations was that occupants would make formal declarations as soon as the necessary conditions were met, and hence there was no need felt for requiring such a declaration.

10  Some occupants refrained from recognizing their status as such due to what they considered an implicit assumption of the law that by recognizing their status as occupants they might concede their lack of sovereign claims over the occupied area. To allay such concerns Art. 4 Additional Protocol I reiterates the principle that ‘[n]either the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question’. As aptly stated by the Eritrea-Ethiopia Claims Commission in Central Front: Ethiopia’s Claim 2 between The Federal Republic of Ethiopia and the State of Eritrea (Partial Award), the international law of occupation must not be regarded as applicable only to territory the title to which is clear and uncontested. The protections of the law should not be cast into doubt because the belligerents dispute the status of territory (at paras 28–29).

11  A number of UN interventions to end conflicts in the post-Cold War era assumed authority to provide public order and administer civil life (International Administration of Territories). In some cases this assumption of control was based on an agreement with the local government, and hence could be regarded as pacific occupations. When the assumption of control was based on authority under Chapter VII UN Charter, for example in Kosovo (UN Mission in Kosovo 1999) and East Timor (UN Transitional Administration in East Timor 1999), a question was raised whether the UN administration should have been regarded as subject to, or at least guided by, the law of belligerent occupation, despite the lack of a direct military conflict, due to the lack of sovereign consent to the foreign administration. The relevant UN Security Council resolutions, and the administrations set up according to them, did not invoke the law of occupation nor recognized its constraints, although they did refer to ‘internationally recognized human rights standards’.

B.  Sources

1.  Laws of International Armed Conflict

12  Being an integral part of international armed conflicts, the main source of law that regulates belligerent occupations is the law of international armed conflict, namely the Hague Regulations, Geneva Convention IV, and Additional Protocol I. The Hague Regulations differ from the subsequent treaties in their emphasis. The Hague Regulations reflect the realities in 19th century Europe: war was limited in scope, civilians were left out of the war and kept unharmed as much as possible, both physically and economically. The occupation was to be short-lived, leading to territorial concessions by the defeated side. During that brief period, the occupant was expected to preserve the defeated party’s bases of power but there was no need felt for it to intervene substantially in the daily life of the local population. Geneva Convention IV, and later Additional Protocol I, reflects a fundamentally different effort. The focus of attention shifts to secure the protection of the population in the enemy’s hands, rather than to safeguard the interests of the ousted regime. These two instruments delineate a rudimentary bill of rights for the occupied population, a set of internationally approved guidelines for the lawful administration of occupied territories (see also Civilian Population in Armed Conflict).

2.  Human Rights Law

13  The finding that general and regional human rights treaties apply in occupied territories results from two propositions. The first is that the protection offered by human rights conventions does not cease in case of international armed conflict (see the Israeli Wall Advisory Opinion [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory]; and Nuclear Weapons Advisory Opinions with respect to the International Covenant on Civil and Political Rights [1966]; ‘ICCPR’; 999 UNTS 171). The second proposition is that the territorial scope of State Parties’ obligations under most human rights treaties encompass areas under their ‘effective control’, and occupied territories would be included under that definition. Specifically, the ICJ has opined that the ICCPR and the Convention on the Rights of the Child (1577 UNTS 3) apply in respect of acts done by a State in the exercise of its jurisdiction outside its own territory. It further found the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’; 993 UNTS 3;) applicable in the territories occupied by Israel despite the ICESCR’s lack of provision indicating its scope of application, emphasizing Israel’s territorial jurisdiction over these territories for over 37 years (Israeli Wall Advisory Opinion para. 112). A similar position has been taken, among others, by the European Court of Human Rights (ECtHR), with respect to the applicability of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (213 UNTS 221), by the Human Rights Committee, and by the House of Lords. It should be emphasized that a few parties to the above mentioned human rights treaties, specifically the United States and Israel, do not share this interpretation and do not regard human rights treaties as applicable in occupied territories (see also Human Rights and Humanitarian Law).

14  An alternative basis for the applicability of international human rights treaties in occupied territories would be the law of occupation itself. As we shall see below, Art. 43 Hague Regulations requires the occupant to respect the ‘the laws in force in the country’. To the extent that international treaties, including human rights treaties, formed part of the local law, the occupant would be bound to respect them as well.

15  The parallel applicability of the two bodies of law raises the question of the relationship between the two. As the ICJ indicates in its Israeli Wall Advisory Opinion, there are in principle

three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law. (At para. 106)

Inthat judgment the ICJ finds violations of both human rights law and humanitarian law, indicating that humanitarian law as lex specialis does not pre-empt the applicability of human rights law.

16  Obviously, the tension between international human rights law and international humanitarian law in the context of occupation leaves many questions open and requires careful weighing of the competing interests. Realistically, one cannot expect occupants to endanger their authority or the security of their forces for the purpose of allowing local residents to enjoy political rights to the fullest extent practiced in democracies in peacetime. If the political process is lawfully halted for the duration of the occupation, the suspension of political rights would seem to be a sensible consequence. Ultimately, as in other cases, the occupant is required to balance its interests against those of the occupied community. Thus, as hostilities subside, and security interests may permit, the occupant could be expected to restore civil and political rights. Under such circumstances, the human rights documents may well serve as sources or guidance for re-establishing civil and political rights in the occupied territory.

3.  Additional Sources

17  The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 requires a party that occupies another party’s territory to support the competent national authorities of the occupied country in safeguarding and preserving its cultural property, and, where necessary, to take measures to preserve cultural property situated in occupied territory and damaged by military operations (Cultural Property, Protection in Armed Conflict).

18  Given the authority of the UN Security Council to act under Chapter VII UN Charter with respect to international armed conflicts, the Council may issue resolutions that would overcome the generally applicable norms under Art. 103 UN Charter, and would subject the occupant to certain additional obligations or provide it with specific grants of authority. This was the case of the occupation of Iraq which was, between May 2003 and June 2004, the subject of several Security Council resolutions determining the beginning and termination of occupation, the identity of the authorities exercising control there, and the scope of their powers (Iraq, Occupation after 2003).

19  In light of the general attitude of international courts and tribunals, in particular the ICJ, to prefer a systematic and evolutionary interpretation of international instruments (Interpretation in International Law), when interpreting the relevant texts applying to occupations, it is necessary to bear in mind additional sources that may be of relevance to the exercise of authority by the occupant. For example, when interpreting the obligations of the occupant with respect to the management of natural resources in occupied territories, it would be necessary to take into account relevant obligations emanating from international environmental law or the law on international watercourses (see also Environment, Protection in Armed Conflict; International Watercourses, Environmental Protection).

C.  Regime

1.  Legality

20  The drafters of the Hague Regulations took pains to emphasize that the regime of occupation is a de facto regime that conveys to the occupant only circumscribed rights and obligations for the limited duration of the occupation, namely until a peaceful settlement is reached. As part of the ius in bello, the lawfulness of the occupation regime or its authorities do not depend on the ius ad bellum issues that led to the invasion and the occupation. Similarly, the law is silent on the question of the lawfulness of local armed resistance to the occupant after the establishment of the occupation regime, as opposed to a situation of levée en masse against advancing troops. This silence reflects a fundamental disagreement in the 19th century between the would-be occupied States, who sought to recognize a right to resist, and the potential occupants who demanded a duty to obey the occupant since the regime conformed with the law. The Martens’ Clause was originally designed to bridge this gap that during the Brussels Declaration had prevented the conclusion of a treaty.

21  During the 1970s, in the context of the wave of decolonization and assertions on the right of self-determination of peoples, foreign occupation has been likened by several UN General Assembly documents (Definition of Aggression, UNGA Res 3314 [XXIX] [14 December 1974] GAOR 29th Session Supp 31 vol 1, 142; or the Charter of Economic Rights and Duties of States [1974], UNGA Res 3281 [XXIX] [12 December 1974] GAOR 29th Session Supp 31 vol 1, 50) to colonialism and other forms of foreign subjugation preventing the exercise of this right. Similar reference to occupations as tantamount to colonialism and apartheid is found in Art. 1 (4) Additional Protocol I. The continued reference to the law of occupation suggests, however, that occupation as such is not illegal, nor is it in and of itself a violation of the right to self-determination. In so-called ‘humanitarian’ or ‘transformative’ occupation, this regime in fact facilitated the exercise of this right. At the same time, and given the occupation’s temporary character, it is clear that the occupant may not regard its authority as an indefinite grant of power, and it may not refuse to negotiate for the termination of the regime.

2.  Authority of Occupant

22  Art. 43 Hague Regulations provides the gist of the occupant’s authority and responsibility: ‘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 safety.’ A more accurate rendition of the authoritative French text, which refers to l’ordre et la vie publics, posts ‘public order and civil life’ as the spheres of the occupant’s authority. During the short term occupations envisioned by the drafters of the Hague Regulations, these obligations would mean the obligation to restore the order that existed prior to the occupation and to keep it that way, as far as possible, for the brief period anticipated. Upon occupation, the occupant becomes responsible for maintaining public order, and therefore will be held responsible for its omissions in that respect. In Armed Activities [Congo v Uganda], the ICJ held that the occupant was responsible for the failure to prevent, in the occupied area, ethnic conflicts and the recruitment of child soldiers, as well as for not taking appropriate measures to prevent the looting, plundering, and exploitation of natural resources.

23  The duties of the occupant under the Geneva Convention IV are far more numerous. It is no longer the disinterested watch guard, but instead a very involved regulator and provider. It is required to ensure the humane treatment of protected persons, without discriminating among them, and to respect, among other things, the protected persons’ honour, family rights, religious convictions and practices, manners and customs (Art. 27 Geneva Convention IV), to facilitate the proper working of all institutions devoted to the care and education of children (Art. 50 Geneva Convention IV), provide specific labour conditions (Art. 51 Geneva Convention IV), ensure food and medical supplies for the population (Art. 55 Geneva Convention IV), maintain medical services (Art. 56 Geneva Convention IV), and agree to relief schemes and to facilitate them by all means at its disposal (Art. 59 Geneva Convention IV). Such an expansive view seems to be consonant with the prevalent view, discussed above (see paras 13–16), that the occupant is bound also by human rights obligations, and that in general it must ‘take measures to ensure respect for human rights and international humanitarian law in the occupied territories’ (Armed Activities [Congo v Uganda] para. 211).

24  The occupation administration must attend to three sets of interests: its own security interests, the interests of the ousted government, and those of the local population. How to balance these often conflicting interests is one of the major challenges of the law. It is possible to argue that the Hague Regulations betray a preference for the interests of the ousted government when those are in conflict with the interests of the local population. The occupant was expected to fill the vacuum created by the ousting of the local government, and maintain its bases of power until the conditions for the latter’s return were mutually agreed upon. In contrast, the underlying thrust of Geneva Convention IV is to focus predominantly on the effort to ensure the interests of the inhabitants. This emphasis is underscored by the complementary application of human rights law that focuses entirely on individuals.

25  With the advent of the 20th century and the ever-increasing regulation of markets and other social activities by contemporary governments, and especially as occupations became protracted, the authority of the occupant was increasingly regarded as broader in scope, emphasizing not only the obligation to ‘restore’ but also the duty to ‘ensure’ effective functioning of civil life in the more general sense. The role of the modern State was so vast that preserving the pre-conflict status quo was often detrimental for the local population. To be able to comply with its human rights obligations, the occupant may at times have the authority and even the obligation to depart from the status quo.

26  Art. 6 (3) Geneva Convention IV provides that the application of the convention in occupied territory shall cease one year after the general close of military operations, except that to the extent that the occupant continues to exercise the functions of government in that territory, it would continue to be bound by several of the provisions of the Convention (Arts 1–12, 27, 29–34, 47, 49, 51–53, 59, 61–77, and 143). With the post-World War II occupations in mind, the expectation was that with time, the need to regulate the relationships between the local population and the occupant would diminish. This expectation was far from realistic, and was belied by subsequent events. This provision was not invoked in the years since, and the Additional Protocol I reversed it. However, in a highly controversial statement, the Israeli Wall Advisory Opinion refers to this time limit, finding that only those articles of Geneva Convention IV referred to in Art. 6 (3) Geneva Convention IV remain applicable in the West Bank (at para. 125).

3.  Scope of Law-Making

27  Art. 43 Hague Regulations ends with a restraint on the occupant’s authority. In taking measures to restore and ensure public order and civil life, the occupant must proceed ‘while respecting, unless absolutely prevented, the laws in force in the country’. The term ‘unless absolutely prevented’ was inserted to replace the term ‘unless necessary’ at the insistence of the potentially occupied States, to emphasize the occupant’s obligation to preserve the status quo also in the legal sphere. This restraint on the occupant’s authority creates a tension with its authority and obligation to ensure public order and civil life as elaborated in the previous sections. To reconcile the two requirements of Art. 43 Hague Regulations it is necessary to suggest that whenever the implementation of the obligation to ensure requires legal changes, these changes will be considered legal. This conclusion is further bolstered by Art. 64 Geneva Convention IV, which replaced the negative test of ‘unless absolutely prevented’, with a positive authorization for the occupant who

may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power.

Furthermore, Art. 47 Geneva Convention IV envisions, without condoning, changes ‘introduced, as the result of the occupation of a territory, into the institutions or government’ of the occupied territory, insisting that those changes would not deprive the protected persons from the benefits of the Convention.

28  Scholars in the post-World War II period readily conceded legitimate subjects for the occupant’s law-making other than military necessity. The welfare of the population was deemed a worthy goal for the occupant to pursue (von Glahn 97; Greenspan 224; Debbasch 172; McNair and Watts 369; McDougal and Feliciano 767, 770–71; for a more conservative view see Wolfrum 9). In addition, especially in light of the oppressive laws that the occupants found in Nazi Germany and other occupied States, some scholars have argued that at times moral arguments, and not only technical difficulties, could be considered as preventing an occupant from respecting local laws and, in fact, requiring change (eg, McDougal and Feliciano 770). With the enlargement of the legitimate authority of the occupant came a more lenient view of legislation, leading to suggestions to interpret ‘absolutely prevented’ as meaning ‘necessity’, or simply asking for a ‘sufficient justification’ for changing the law (Feilchenfeld 89; Dinstein [1978] 112). It would seem that such an expansive scope of authority would be particularly fit in so-called ‘humanitarian’ or ‘transformative’ occupations. This question became the focus of scholarly attention in light of the occupation of Iraq in 2003, and the transformation of the Iraqi State institutions and its economy that it introduced.

4.  Management of Property

29  The provisions in the Hague Regulations provide two types of restrictions on the occupant’s use of local resources. One type of restriction relates to the type of the resource, the other relates to the purpose of the contemplated use. The Hague Regulations distinguish primarily between private and public property. Arts 53 and 55 Hague Regulations allow certain uses of public property by occupants, but immunizes private property from confiscation (Art. 46 Hague Regulations). Pillage is prohibited (Art. 47 Hague Regulations, Art. 33 Geneva Convention IV). The same Art. 33 Geneva Convention IV also protects private property of protected persons against reprisals. According to the ICJ in Armed Activities (Congo v Uganda) the prohibition on pillage extends also to the exploitation of the foreign country’s natural resources (at para. 245). Specific private property that can be used for military purposes, like means of communications and of transportations, may be taken ‘but must be restored and compensation fixed when peace is made’ (Art. 53 (2) Hague Regulations). Private property may, however, be affected by the occupant under certain circumstances. The occupant is authorized to requisition goods and services in proportion to the resources of the occupied region to accommodate the needs of the army of occupation, but the occupant is obligated to pay for such in cash, as far as it is possible (Art. 52 Hague Regulations). The occupant is also authorized to collect contributions (Art. 51 Hague Regulations). It is also authorized to collect taxes ‘as far as is possible, in accordance with the rules of assessment and incidence in force … to defray the expenses of the administration of the occupied territory’ (Art. 48 Hague Regulations). A question has arisen during the Israeli occupation of the West Bank and Gaza as to whether an occupant was entitled to introduce new types of taxes, ie a value-added tax, to which the Israeli Court of Justice gave a positive answer (case of Abu Aita et al v Commander of the Judea and Samaria Region and Officer-in-charge of Customs and Excise).

30  Public property—certain movable public property and most immovable public property—can be used by the occupant. However, the utilization of public property is qualified by two conditions. The first condition relates to the purpose of the use. The occupant may use the different types of property to meet its security needs, to defray the occupation administration’s costs, and to promote the needs of the local population. It is generally accepted that the occupant may not use them for its own domestic purposes, but rather use them ‘to the extent necessary for the current administration of the territory and to meet the essential needs of the population’ (Institut de Droit International’s Bruges Declaration on the Use of Force of 2003). This restriction was acknowledged by the occupants of Iraq in 2003, who informed the President of the UN Security Council that they would ‘act to ensure that Iraq’s oil is protected and used for the benefit of the Iraqi people’. The second condition applies to public immovable property only. Art. 55 Hague Regulations stipulates that the occupant, being ‘only [the] administrator and usufructuary … must safeguard the capital of [such] properties, and administer them in accordance with the rules of usufruct’. The usufructuary principle was interpreted as forbidding wasteful or negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation.

31  The authority and right to use public immovable property for the benefit of the local population extends also to the utilization of natural resources situated in the occupied territory. Therefore, the utilization of these resources according to the above-mentioned guidelines would not constitute a violation of the principle of permanent sovereignty over its natural resources, as stated by the ICJ in Armed Activities (Congo v Uganda) (at para. 244). This judgment also states that the occupant must ‘take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory’ (at para. 248). The same guidelines apply to the management of the environment in the occupied territory and its water resources. The occupant is authorized, and in fact would be obliged to, assume control over natural resources, protect them against over-use and pollution, and allocate them equitably and reasonably among the various domestic users.

D.  Assessment

32  Despite the myriad exculpatory assertions made by occupants, and the evolution of new normative frameworks such as the law on self-determination or human rights law, the law of occupation retained its relevance and significance. Preserving this body of laws was necessary for a legal system that insisted on safeguarding the distinction between occupation and annexation, and the protection of individuals who are in the hands of foreign powers. The law of occupation maintained its viability because its basic principles proved flexible enough to adapt to the changing circumstances and the evolving norms of general international law.

33  As this survey suggested, several questions are not fully settled, such as the conditions for assuming control by the foreign army, the scope of legislative authority of the occupant, or the applicability of the law to UN post-conflict administrations. But these questions do not undermine the effectiveness of the regime as a tool for marking out the constraints imposed on foreign regimes during the transition from armed conflict to peace. These questions however underline the need to explore modalities for the monitoring of occupants for compliance with the law. An example in this respect has been set by UN Security Council Resolution 1483 of 22 May 2003 regarding the occupation of Iraq, which provided for several monitoring processes to oversee the occupant’s measures and to try to ensure its respect for the law.

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