Law of occupation still occupying legal experts
After an extended process of expert consultation, the ICRC recently published a report on occupation and other forms of administration of foreign territory. Tristan Ferraro, an ICRC legal adviser, explains the report's main findings.
What part of international humanitarian law covers occupation?
Military occupation is mainly covered by the Fourth Geneva Convention. This has important consequences for people living in occupied territory, in particular because the occupying power must meet a number of obligations set out in the Convention. These include ensuring public order and safety, providing the population with food and medical supplies, maintaining medical services and attending to many other matters that are of the utmost importance to people's everyday lives.
For people living under occupation, the difference between the law of occupation being fully and properly applied and not being applied is neither abstract nor academic: it has immediate practical consequences.
Can you explain what prompted the ICRC to work on occupation law and to launch expert consultations on this subject?
Extraterritorial military interventions, of which there have been more and more in recent years, have given rise to new forms of foreign military presence within the territory of a State, sometimes with the State's consent but very often imposed. These new forms of extraterritorial military presence – such as the multinational operation in Iraq, or the UN administration of territory in East Timor and Kosovo – alongside the more classical forms of occupation that continue to exist, have posed important humanitarian and legal challenges that have rekindled interest in the law of occupation.
The law of occupation has been increasingly criticized as ill-suited to address contemporary situations of occupation. In addition, States exercising effective control over a foreign territory have often refused to be considered occupying powers. For these and other reasons, occupation law has been placed under considerable strain over the last decade. The ICRC therefore felt it was necessary to determine whether this body of law is adequate as it now stands, or whether it needs to be reaffirmed, clarified or reinforced.
In its role as the guardian of international humanitarian law, the ICRC has a responsibility to address questions such as these.
Can you give us examples of some issues that have been debated in connection with the law of occupation?
Important questions about the applicability and application of occupation law have been raised in almost all recent situations of occupation.
The questions have been remarkably diverse. They concern such matters as how to determine when an occupation begins and ends, how the law of occupation should be understood to apply in situations where occupation endures for very long periods of time, how far the rights and duties of occupying forces should be considered to extend, especially when it comes to overhauling the institutions of the occupied territory, and what legal framework governs the use of force in occupied territory – to give just a few examples.
The expert consultations addressed issues such as these, which could have a tangible impact on the protection provided by international humanitarian law for people living under occupation.
Can you explain why the ICRC has been examining this topic?
The main objective is to assess whether the law of occupation can still meet the needs it was created for. The idea is that a clear assessment of the state of the law could ultimately enhance the protection provided by international humanitarian law for people under military occupation.
How did the ICRC go about assessing the state of the law?
As a first step, the ICRC carried out internal research to list the most important practical issues it was facing in the field of the law of occupation.
Subsequently, three meetings were held under the Chatham House Rule (which, among other things, prohibits participants from later revealing who said what). Thirty experts – people working for international organizations or NGOs, government experts and academics – participated in a personal capacity.
The report summarizes the discussions held at the meetings and reflects the main positions taken by participants. It follows that the report does not necessarily represent the ICRC's legal views on the issues covered.
What are the topics covered in the report?
The experts looked into four topics: the beginning and end of occupation, the rights and duties of an occupying power, the relevance of occupation law for UN administration of foreign territory and the use of force in occupied territory.
What are the key findings that are presented in the report? Is international humanitarian law up to the task of dealing with the humanitarian consequences of occupation?
Overall, the report reaffirms the relevance of the law of occupation as it now stands and the ability of the law to meet the challenges it is currently facing. The ICRC believes that occupation law can handle most of the humanitarian and legal challenges arising from contemporary occupations.
The meetings that were held helped clarify important questions, such as when a classical occupation begins and ends, and provided guidance on such issues as the rules under which force may be used in occupied territory.
Do you think that the law of occupation needs to be updated or developed?
For the ICRC, the law of occupation does not require any further development. Some clarification of existing rules may be desirable, however.
The report that we have just published represents an important contribution to the process of clarification. It provides support for certain legal positions adopted by the ICRC in recent situations of occupation – those for example where an occupation was undertaken by a coalition of States or multinational forces – and will help the ICRC to develop its positions on other issues.
What countries are currently affected by a military occupation? Does the report reach conclusions about the legal status of specific territories or countries?
The report does not focus or even comment on any specific context. It approaches the law of occupation on the basis of issues, not of countries or territories.
When the ICRC needs to determine the status of a specific situation under international humanitarian law, it carries out its own research based on available information, and shares its positions first and foremost with the authorities and other parties concerned.
We do not always make our views on such matters public. In particular, we may refrain from doing so in circumstances where there could be negative consequences for the people we are seeking to protect and assist.
What are the next steps? What does the ICRC intend to do in future to clarify the provisions of the law of occupation?
The report is an important step forward in itself. We hope it will contribute meaningfully to the task of clarifying some of the most significant issues and provisions of occupation law. It will also enable us to update and develop some of our own positions relating to the law.
We will also discuss the contents of the report with various interested parties and ask them for comments. For the ICRC, as the guardian of international humanitarian law, the promotion of the law of occupation – a branch of international humanitarian law – will always be on the agenda.