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IRRC, No 885 – Occupation

The International Review of the Red Cross is a quarterly published by the International Committee of the Red Cross (ICRC) and Cambridge University Press.

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Texts published by the Review reflect the views of the author alone and not necessarily those of the ICRC or of the Review. Only texts bearing an ICRC signature may be ascribed to the institution.

Issue No. 885 – 2012

Theme - Occupation

Download PDF 9 MB The Review has decided to contribute to the discussion on whether the rules of occupation should be strengthened, clarified, or developed, by devoting the present edition to the subject of the grey areas and contentious issues arising from occupation law. The Review asked experts on matters related to occupation to offer their perspective, whether historical, military, or legal, in order to explore six key questions. How and along what lines has occupation law developed? When does the invasion phase end and the duties of occupiers and the rights of people living under occupation begin? Is the law always suited to prolonged occupation? Is there any justification for changing the institutions and/or the laws of an occupied territory? What is the role of the military in the occupation of a territory? What is the role of human rights?
By article: Occupation - issue No. 885

Editorial

Editorial: occupation – IRRC March No 885
Vincent Bernard
Interview with Raja Shehadeh
In this interview, Raja Shehadeh gives his views on the relevance of occupation law today, as well as his personal reflections on Israel, the Palestinian Authority, and the work of international organizations such as the ICRC.

Debate

Is the law of occupation applicable to the invasion phase?
Marten Zwanenburg, Michael Bothe and Marco Sassòli
Three experts in the field of occupation law – Marten Zwanenburg, Michael Bothe, and Marco Sassòli – have agreed to participate in a debate on whether or not the law of occupation could already be applied during the invasion phase, and to defend three approaches.

Articles

Preoccupied with occupation: critical examinations of the historical development of the law of occupation
Yutaka Arai-Takahashi
This article examines the historical evolution of the law of occupation from two angles. First, it analyses scholarly discourse and practice with respect to the general prohibition on the Occupying Power making changes to the laws and administrative structure of the occupied country; second it focuses on how the law of occupation that evolved as a European project has rationalized excluding the system of colonialism from the framework of that law.
A different sense of humanity: occupation in Francis Lieber’s Code
Rotem Giladi
A broad reading of the Code against Lieber’s published works, teaching, and correspondence reveals a unique – and disconcerting – sense of humanity, not directed at individuals, throwing light on the history of the law governing occupied territories today and paves the way for critical reflections on its conceptual bases.
The dilemmas of protecting civilians in occupied territory: the precursory example of World War I
Annette Becker
Advances in the law of Geneva and the law of The Hague did not remain a dead letter during the World War I, but this was essentially with regard to the wounded and prisoners of war. Those categories of persons were better protected than civilians by treaty-based humanitarian law, which was still in its infancy.
Determining the beginning and end of an occupation under international humanitarian law
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.
The application of international humanitarian law and international human rights law in situations of prolonged occupation: only a matter of time?
Vaios Koutroulis
The article deals with the effect of the time factor in the application of international humanitarian law and international human rights law in ‘prolonged belligerent occupations’.
The law of belligerent occupation in the Supreme Court of Israel
David Kretzmer
Since the 1967 War, the Supreme Court of Israel has considered thousands of petitions relating to acts of the military and other authorities in those territories (OT). This article reviews the contribution to the law of belligerent occupation of the Court’s jurisprudence in these cases.
Transformative occupation and the unilateralist impulse
Gregory H. Fox
This article argues that the practice of Occupying Powers does not support the view that liberal democratic transformations are widespread. The conservationist principle serves the critical function of limiting occupiers’ unilateral appropriation of the subordinate state’s legislative powers.
Use of force during occupation: law enforcement and conduct of hostilities
Kenneth Watkin
This article explores the law governing the maintenance of public order and safety during belligerent occupation. Given the potential for widespread violence associated with international armed conflict it is inevitable that military and police forces will be engaged in activities that interface and overlap.
Human rights obligations in military occupation
Noam Lubell
Proceeding from the position that human rights obligations can exist in these circumstances, the article provides an analysis of the precise modalities of application.

Comments and opinions

The occupation of Iraq: a military perspective on lessons learned
Matthew R. Hover
This opinion note briefly describes the US military perspective preceding the Iraqi occupation and highlights some of the primary lessons learned from it. Those lessons fall into three main categories: planning, training, and inter-agency execution.

Reports and documents

The ICRC Project on Occupation and Other Forms of Administration of Foreign Territory
Tristan Ferraro
Interview about the 31st International Conference of the Red Cross and Red Crescent
In the following section Philip Spoerri, Director for International Law and Cooperation at the ICRC, introduces the resolutions adopted at the 31st Conference and reflects on its outcome from the ICRC’s perspective. This section also includes the full texts of the resolutions adopted.
Resolutions of the 2011 Council of Delegates and of the 31st International Conference of the Red Cross and Red Crescent, Geneva, 26 November – 1 December 2011.
What's new in law and case law across the world
Biannual update on national legislation and case law, July – December 2011

Books and articles

Books and articles
Recent acquisitions of the Library and Public Archives, ICRC