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Determining the beginning and end of an occupation under international humanitarian law

31-03-2012 Article, International Review of the Red Cross, No. 885, by Tristan Ferraro

This article analyses in detail the notion of occupation under IHL and its constitutive elements, and sets out a legal test for identifying when a situation qualifies as an occupation for the purposes of IHL. It concludes by suggesting an adjustment of the legal test to the specific characteristics of occupation by proxy and occupation by multinational forces.

Abstract

International humanitarian law (IHL) does not provide a precise definition of the notion of occupation, nor does it propose clear-cut standards for determining when an occupation starts and when its ends. This article analyses in detail the notion of occupation under IHL and its constitutive elements, and sets out a legal test for identifying when a situation qualifies as an occupation for the purposes of IHL. It concludes by suggesting an adjustment of the legal test to the specific characteristics of occupation by proxy and occupation by multinational forces. 

Keywords: occupation, effective control, authority, consent, legal test, occupation by proxy, occupation by multinational forces.

Biography

Dr. Tristan Ferraro is legal adviser in the Legal Division of the International Committee of the Red Cross (ICRC), based in Geneva.


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