Current challenges to the law of occupation
Speech delivered by Professor Daniel Thürer, Member, International Committee of the Red Cross, 6th Bruges Colloquium, 20-21 October 2005
The following text is based largely on an article by Daniel Thürer and Malcolm MacLaren entitled Ius Post Bellum: A Challenge to the Applicability and Relevance of International Humanitarian Law, in: Festschrift für Jost Delbrück, Berlin 2005, S. 753-782. For subsequent analysis on the topic, see Knut Dörmann and Laurent Colassis, International Humanitarian Law in the Iraq Conflict, 47 GYIL (2004), p. 293 et seq.; Marten Zwanenburg, Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation, 86(856) IRRC (December 2004), p. 745 et seq. For general context, see Michael Bothe, Occupation after Armistice / Occupation, Belligerent / Occupation, Pacific, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Volume III (1992), p. 761 et seq. At all events, the author wishes to thank the Legal Division of the International Committee of the Red Cross for their valuable contributions to the text.
I am supposed to provide an overview of the subject of our colloquium, which is “Current Challenges to the law of occupation”. This is a timely subject. The International Committee of the Red Cross ( " ICRC " ) has worked in a variety of situations of occupation over the decades. However, recent events have brought the topic to the fore for a much broader audience and highlighted new issues. I believe this is an extremely valuable opportunity for us to share views and experiences. The focus of my intervention will be legal issues, but in recent years the ICRC has had to respond to a variety of other challenges rai sed by situations of occupation from a more operational angle in terms of issues such as:
the role of humanitarian organisations in situations of occupation;
how to interact with the occupying forces in a manner which does not undermine the ICRC’s independence, impartiality and neutrality;
the reality that in some of the situations of occupation where it is active, the security environment has represented a serious challenge, where even humanitarian personnel has become a target.
These are extremely important issues for the institution to address - with important repercussions on the ICRC's activities on the ground, including those to promote respect for humanitarian law and, ultimately, for the persons affected by the armed conflict.
As the programme of the present colloquium shows, the topics raised by occupation are many and go well beyond just international humanitarian law or, indeed, the law. I cannot attempt to address even a small part of them. Instead, I propose to present some " real life " questions that the ICRC has recently had to address in relation to its operations in Iraq.
I would like to start with two preliminary points.
First , while I will only be discussing the rules found in instruments of international humanitarian law, they are by no means the only law which applies in situations of occupation. It should not be forgotten that national law continues to apply - subject to certain exceptions which I will discuss later. More controversial, and possibly something which will be addressed in our discussion later, is the question of whether human rights continue to apply in times of occ upation. This is the position adopted by the Committee against Torture, the UN Human Rights Committee as well as by a number of states.
Secondly , and at risk of stating the obvious, I should recall that the lawfulness of occupation is not regulated by international humanitarian law and does not affect the application of the law of occupation. International humanitarian law is the body of law applicable in times of armed conflict which protects those not or no longer taking a direct part in hostilities and which regulates permissible means and methods of warfare.
International humanitarian law applies in situations which factually amount to an armed conflict. It regulates conduct of hostilities but does not address the lawfulness of resort to force as such. The legality of the use of force is regulated by a different body of rules: the norms of ius ad bellum, which today are codified in the UN Charter. The two are quite distinct bodies of law. Once there is armed conflict, international humanitarian law applies equally to all parties to the conflict regardless of the lawfulness of the resort of force.
The same holds true with regard to occupation. The legality of a particular occupation is regulated by the UN Charter and the rules of ius ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies, regardless of the lawfulness or otherwise of the occupation.[1 ] In this respect it makes no difference whether an occupation has received Security Council approval; which its aim is; or indeed whether it is labelled an “invasion”, “liberation”, “administration” or “occupation”. The application of the law of occupation is not left to the discretion of the occupying power. As is always the case with international humanitarian law, what matters are the facts on the ground.
Let us now look at some real life examples of these facts on the ground. I would like to raise and discuss the following questions:
What factual situations amount to occupation?
Who were the occupying powers in Iraq?
Which are the rights and duties of the occupying powers?
Was 28 June 2004 the end of occupation?
Are transfer of effective control to another authority and consent for the continued presence the condition for the end of occupation?
What about the application of international humanitarian law in Iraq post 28 June 2004?
And I finally try to draw some conclusions.
Let me now raise question No 1:
1. What factual situations amount to occupation?
The Fourth Geneva Convention of 1949 on the Protection of Civilian Persons in Time of War lays down several rules applicable in situations of occupation. However, it does not include a definition of occupation. For this we must go back to the 1907 Hague Regulations Respecting the Laws and Customs of War on Land which were the first international codification of rules regulating occupation. Article 42 of the Regulations provides that:
territory is considered to be occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
Common Article 2(2) of the Geneva Conventions adds that the Conventions apply to
all cases of partial or total occupation of the territory of a High Contracting Party, even if the occupation meets with no armed resistance.
From this we see that there are three relevant criteria:
an exercise of authority or effective control;
control over the whole or part of the territory of another state;
it does not matter whether this occupation was met by armed opposition.
The element - exercise of authority - permits at least two different interpretations.
It could, first , be read to mean that a situation of occupation exists whenever a party to a conflict is exercising some level of authority or control over territory belonging to the enemy. So, for example, advancing troops could be considered an occupation, and thus bound by the law of occupation during the invasion phase of hostilities. This is the approach suggested by Jean Pictet in the 1958 “Commentary to the Fourth Geneva Convention”.
so far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of the Article 42 referred to above. The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the [fourth Geneva] Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets. When it withdraws, for example, it cannot take civilians with it, for that would be contrary to Article 49 which prohibits the deportation or forcible transfer of persons from occupied territory. The same thing is true of raids made into enemy territory or on his coasts. The Convention is quite definite on this point: all persons who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals are protected persons. No loophole is left. (Emphasis added) ]
An alternative, and more restrictive approach , would be to say that a situation of occupation only exists once a party to a conflict is in a position to exercise the level of authority over enemy territory necessary to enable it to discharge all the obligations imposed by the law of occupation, i.e. that the invading power must be in a position to substitute its own authority for that of the government of the territory. This approach is suggested by a number of military manuals. For example the new British Military Manual proposes a two-part test for establishing the existence of occupation:
first, that the former government has been rendered incapable of publicly exercising its authority in that area; and, secondly, that the occupying power is in a position to substitute its own authority for that of the former government. [2 ]
On the basis of this approach the rules on occupation would not apply during the invasion phase and in battle areas. What is clear, however, is that it is not necessary for a state to control the entirety of another State's territory, for occupation to exist. It is sufficient for authority to be established over any portion of another state’s territory.
Identifying the moment when the law of occupation starts to apply is crucial as it determines which rules of international humanitarian law regulate a situation. Once an occupation begins, [in addition to some general provisions of international humanitarian law - for example, those contained in the chapter on " Provisions common to the territories of the parties to the conflict and to occupied territories " in Articles 27 to 34 of the Fourth Geneva Convention - ] some special provisions contained in the Fourth Geneva Convention must be respected. These rules regulate matters not covered in other parts of international humanitarian law such as the internment of persons posing a security risk or the transfer or displacement of protected persons out of occupied territory.
The ICRC must determine when a situation amounts to an occupation for very practical reasons: to decide at what stage it should make an intervention to a party to a conflict to remind it of its obligations in situations of occupation. How did the ICRC resolve this issue in relation to Iraq? In a pragmatic manner. The aim of the ICRC’s interventions is to ensure the protection of persons affected by an armed conflict, including occupation, in accordance with the law. In view of this, we adopted the possibly maximalist position that whenever – even in the so called-invasion phase – persons come within the power or control of a hostile army they should be ensured the protection of the Fourth Geneva Convention as a minimum. This may be considered a premature qualification of a situation as occupation but the aim of this approach is to maximise protection of affected persons.
This leads me to the next point which I wish to raise with you, namely
2. Who were the occupying powers in Iraq?
A number of states had troops on the ground in Iraq. Does this mean that they were all occupying powers, with onerous obligations under the Hague Regulations and the Fourth Geneva Convention? This too was a question the ICRC had to address to determine to which states it should send a reminder of their obligations under the law of occupation.
The position of the US and UK was clear. According to this point of view these two states had established the Coalition Provisional Authority (“CPA”) which, in the words of Section 1(1) of CPA Regulation Number 1 of 16 May 2003
shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration. ...
The reality on the ground was that the US and the UK have established and are actually exercising authority over the territory of Iraq – in fact even before the CPA had been established. In addition to this reality on the ground, in the preamble to resolution 1483, the Security Council expressly recognised
the specific authorities, responsibilities and obligations under applicable international law of these States [the UK and the US ] as occupying powers under unified command (“The Authority”).
The position of other members of the Coalition that had provided troops was more complicated. The preamble of the same Security Council resolution also noted that:
other States that are not occupying powers now or in the future may work under the Authority.
This being said, it should be noted that operative paragraph 5 of the resolution, which is the first provision in resolution 1483 to specifically refer to the law of occupation
calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; (emphasis added)
This reference to “all concerned” is wider than the language of other provisions in the resolution, which are addressed only to the “Authority”. This could indicate that in the Security Council’s view it was not just the US and the UK that were occupying powers.
The reference in the preamble to “other States that are not occupying powers” could just have been referring to states which provided support to the Coalition Provisional Authority but whose engagement did not amount to exercising authority over any part of the territory of Iraq.
As I mentioned, the ICRC had to decide which states should be considered occupying powers in order to send them a reminder of their obligations. While the language of Security Council Resolution 1483 was an indicator, it was not considered conclusive nor the only one. As always when “qualifying” a situation, the ICRC looked at the reality on the ground. What were the different contingents actually doing? What did we consider in particular? The focus of the ICRC was on states that had actually provided combat personnel, to the exclusion of those that had provided experts such as engineers or medical staff – even if military.
The ICRC then considered whether the national contingents in question had been assigned responsibility for and were exercising effective control over – and thus occupying – a portion of Iraqi territory . All such states were considered occupying powers.
The fact that certain states had only been assigned very small sections of territory and had very few troops on the ground did not, in the ICRC’s view, make a difference. Within this territory, troops may be carrying out functions for which respect for the law of occupation could be relevant. Examples would include troops carrying out patrols, mobile checkpoints, or arrests and detention of persons protected by the law of occupation. The title given to these troops by their own states - “peacekeeping” or “stabilising” forces - did not affect its determination, which focused instead on the actual functions they were carrying out.
The ICRC took the same pragmatic position as for determining whether a situation amounted to occupation. While, strictly speaking, the armed forces of some of these states were probably not “exercising authority” over territory within the meaning of Article 42 of the Hague Regulations, they could find themselves be in a situation where they could be exercising control over protected persons, and in interacting with these persons, would have to respect the laws of occupation. Therefore, in order to maximise the protection of individuals, the ICRC also issued a memorandum to these states recalling their obligations under the law of occupation.
On the basis of this approach, the ICRC sent interventions to the US and the UK and to nine more states. No state objected to the intervention. For the avoidance of doubt, it should be pointed out and repeated that if the armed forces of any state became involved in hostilities, they would have to respect international humanitarian law, regardless of whether they have been considered an occupying power.
3. Which are the rights and duties of occupying powers?
Time prevents me from going into the details of the rights and duties of occupying powers. The subject will be dealt with in detail by speakers to come. This rules are clearl y laid out in the 1907 Hague Regulations and in the Fourth Geneva Convention of 1949, as supplemented by the first Additional Protocol thereto of 1977. In their essence they stress that the occupying power must not exercise its authority in order to further its own interests, or to meet the interests of its own population. In no case can it exploit the inhabitants, the resources or other assets of the territory under its control for the benefit of its own territory or population.
Any military occupation is considered temporary in nature; the sovereign title does not pass to the occupant and therefore the occupying powers have to maintain the status quo . They should thus respect the existing laws and institutions and make changes only where necessary to meet their obligations under the law of occupation, to maintain public order and safety, to ensure an orderly government and to maintain their own security.
In the case of Iraq, however, one of the aims of the coalition states was to engage in a transformational process leading to a regime change, creating democratic institutions. In its present form the law of occupation precludes to a large extent such transformations. The law does, however, leave a margin for change in the following areas:
Similar provisions are to be found in Article 43 of the 1907 Hague Regulations, dealing with legislating powers of the occupier, states that:
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, while respecting, unless absolutely prevented , the laws in force in the country. (emphasis added)
Article 64 GC IV similarly provides that:
the penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention . ...
The Occupying Power may ... 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, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them. (emphasis added).
These are instances in which the law of occupation grants an occupying power the possibility to legislate or to effect specific changes. Other exceptions are found in Articles 54 and 66 of the Fourth Geneva Convention and, to some extent, in Article 47.
It is worth asking whether occupation law should be changed and be more permissive. Some commentators are inclined to say yes, when the law of occupation is perceived as being in conflict with certain applicable provisions of human rights and with certain policy considerations - e.g. overthrowing an oppressive regime -, which may be claimed to be in the interest of the international community more generally. However, a change of the law of occupation should not be suggested too lightly. One should not neglect the risks that such change may entail. Opening the door too easily could lead to abuse by aggressive armies. The aim of the law of occupation was to prevent the occupying power from modelling the governmental structure of that territory according to its own needs disregarding the cultural, religious or ethnic background of the society of the occupied territory. An occupying power cannot, by its very nature, be considered a neutral entity acting only in the interest of the occupied territory and its society. [3 ] This should be borne in mind when suggesting changes to the law.
The most acceptable scenario for effecting changes not foreseen by the law of occupation would be for the UN Security Council to determine expressly in a resolution based on Chapter VII of the UN Charter what kind of transformation should be possible. This would provide the necessary legitimacy to the subsequent steps and could override the rules of international humanitarian law on the basis of Article 103 of the UN Charter. However, rules of international humanitarian law of a ius cogens nature could not be overridden.
Let me now, ladies and gentlemen, approach question four which is
4. Was 28 June 2004 the end of occupation?
Once occupation had commenced in late spring of 2003, for the purposes of international humanitarian law, no significant change occurred until 28 June 2004. Despite the declaration by President George W. Bush of the end of major combat operations on 1 May 2003, the law of international armed conflict continued to apply, including the law of occupation in its entirety.
In view of the intensity of the fighting after 1 May 2003, it was impossible to conclude that the " general close of military operations " referred to in Article 6 (2) and (3) of the Fourth Geneva Convention had taken place. Such a general close of military operations would have lead to the end of application of the Fourth Geneva Convention, with the exception of a n umber of provisions if occupation continued. [4 ]
In accordance with a timetable agreed upon between the CPA and the Iraqi Governing Council in November 2003, later accompanied by a UN Security Council Resolution 1546 of 8 June 2004 on the political transition of Iraq, steps were taken for the establishment of a sovereign Iraqi government. On 28 June 2004 - two days earlier than foreseen in the UN Security Council Resolution - authority was formally transferred from the Coalition Provisional Authority to the newly established Iraqi Interim Government. The question thus arose as to the legal qualification of the situation after 28 June. Once again, this was very important for practical purposes as the answer determined the applicable law, for example with regard to persons deprived of their liberty.
Ordinarily an occupation ends with the withdrawal of the occupying power. Occasional successes of resistance groups within occupied territories are not sufficient to end an occupation. The law of occupation also continues to apply after the general close of military operations to the extent that an occupying power continues to exercise the functions of government in a territory. [5 ]
In the case of Iraq, foreign troops remained in the territory. Did this mean that the law of occupation was still applicable? What was the impact of UN Security Council resolution 1546 adopted on 8 June 2004?
The continued presence of foreign troops per se does not necessarily mean that occupation continues. There have been numerous instances in history where an occupation is declared or widely presumed to have ended, despite the continued presence of the occupier’s forces. This can happen, for example, if a treaty ending an occupation is accompanied by another one permitting the presence of foreign forces as was the case for example in Japan in 1952, West Germany in 1955 and East Germany in 1954.
5. Are transfer of effective control to another authority and consent for the continued presence the condition for the end of occupation?
As of 30 June 2004 – in the words of Security Council Resolution 1546 – the assumption of full responsibility and authority for Iraq lay in the hands of the Interim Government of Iraq. The Coalition Provisional Authority ceased to exist. Thus a transfer of authority from the Coalition Provisional Authority to the Interim Government took place.
Not every transfer of authority to a local government and subsequent expression of consent to the presence of foreign troops necessarily amounts to the end of occupation. The devolution of governmental authority to a national government must be sufficiently effective. As pointed out in the new British Military Manual, if occupying powers operate indirectly through an existing or newly appointed indigenous government, the law of occupation is likely to continue to apply. The reason for this is evident. Situations must be avoided where the protections to be granted to persons and property under the law of occupation are circumvented. The occupying power cannot discard its obligations by installing a puppet government or by pressuring an existing one to act on its behalf. In all these cases, the occupying power maintains de facto – albeit indirectly – full control over the territory. A similar rationale underlies Article 47 of the Fourth Geneva Convention, which states that:
protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territory and the Occupying Power ...
The provision is intended to prevent local authorities, under pressure from the occupying power, from making concessions to the detriment of the inhabitants of the territory, impairing their protections and rights.
The validity of an agreement by a new national government allowing the continued presence of foreign troops with the effect of ending occupation depends on the government’s legitimacy. As is well known, in practice the legitimacy of new governments is often controversial. One way for government to have such legitimacy is for it to be elected by the local population in an exercise of their right to self-determination. Express international recognition of such legitimacy could also offer important support.
In the case of Iraq, the Security Council endorsed the formation of the Interim Government - albeit limited in its competence. [6 ] This is a recognition by the members of the UN Security Council of the Interim Government's legitimacy to act for Iraq and of its independence. This recognition has not been challenged by other states and thus is at least tacitly accepted. As such the Interim Government is in a position to consent to the continued presence of the Multinational Forces and to thereby bring occupation to an end – as stated in the Security Council Resolution and in the letter annexed to it, in which the Prime Minister of the Interim Government requested the Coalition Forces'continued presence. On the basis of this request the Multinational Forces turned from a hostile force in the sense of the Hague Regulations - ie one present without the consent of the local authority - into a friendly force, and occupation thus ended.
The arrangements on allocation of decision-making powers between the Interim Government and the Multinational Force as described in the reso lution seem to support this conclusion. These include not just the abolition of the Coalition Provisional Authority but, more importantly, the fact that in operative paragraph 12, the Security Council decided that it would terminate the mandate for the multinational force if requested by the Government of Iraq.
From a political point of view, it is difficult to conclude otherwise in the face of a Security Council resolution that clearly states that occupation has ended. However, it is the reality and not the label that matters. As a matter of law, though, a formal proclamation of the end of occupation would be of limited importance if the facts on the ground indicate otherwise. [7 ] The test remains whether, despite any labelling in the Security Council resolution, a territory or part of it is " actually placed under the authority of the hostile army " as required by Article 42 Hague Regulations.
In this regard a decisive factor are the powers of the Iraqi Interim Government, such as whether it has political control over the military operations of the Multinational Forces and whether it has the authority to overrule prior regulations of the Coalition Provisional Authority. It is obvious that the former occupying powers maintain a powerful military, economic and political presence in Iraq. However, if the Iraqi authorities have the power to demand the Multinational Forces to leave and also have the power to overrule the legislation set up by the Coalition Provisional Authority, regardless of whether they exercise these powers, the foreign army should not be considered hostile and can be seen as remaining in Iraq at the invitation of a fully sovereign government. In such circumstances it would be difficult to continue to speak of an occupation.
If the Iraqi authorities were to request the foreign troops to leave – a possibility foreseen in Security Council resolution 1546 – and these did not comply with that request or if the Iraqi government were not able to enact new legislation or overturn laws imposed during the occupation, then it could be considered as not exercising effective authority and could not be considered as fully sovereign. The facts on the ground would indicate that the Multinational Forces were exercising actual authority over Iraq. This would be a clear sign that a situation of occupation had resumed or had never ended. [8 ]
6. What about the application of international humanitarian law in Iraq post 28 June 2004?
In the face of continuing hostilities after 28 June 2004, the additional question arose as to which rules would apply to the new situation. The " commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including international humanitarian law " , referred to in the Security Council resolution, was an indicator that the Security Council envisaged and accepted its continued application. Moreover, in his letter annexed to the resolution, Colin Powell stressed the commitment of the Multinational Forces " at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions " .
Proceeding on the assumption that the occupation ended because the foreign troops remained in Iraq with the consent of the Interim Government, does this mean that the conflict remains an international armed conflict or should it be re-qualified as non-international? Given that the Multinational Forces are fighting alongside and in cooperation with Iraqi armed and security forces, that report to the Interim Government, against armed opposition groups or armed actors, the ICRC believed that the hostilities could not be considered as international – i.e. as opposing two or more states.
The plain wording of common Article 2 to the four Geneva Conventions, as confirmed by the case law of the International Tribunal for the Former Yugoslavia, the ICRC Commentary and legal literature support this conclusion. All these sources require an armed conflict opposing at least two States. Given that the members of the Security Council – without objection from other States since – identified the Interim Government as representing Iraq, it can hardly be argued that an international armed conflict continues between the Multinational Forces and the armed forces of the State of Iraq.
In view of this, the ICRC re-qualified the conflict as an “internationalised internal armed conflict” regulated by common Article 3 of the Geneva Convention and the customary rules applicable in non-international armed conflicts. In fact it is possible that there are several such conflicts taking place in Iraq as it is likely that not all armed opposition groups are fighting " together " .
This being said, taking into account the specific situation in Iraq, a more functional approach towards the law of occupation could also be defended. Such an approach could mean that whenever and in so far as the Multinational Forces exercise authority over persons or property in Iraq and carry out certain functions in lieu of the Iraqi Interim Government in specific fields, such as ensuring public order, they should apply the rules on occupation relevant to these activities.
Under the present circumstances in Iraq, the rules on occupation, such as the right of the local population to continue life as normally as possible, the right of the Multinational Force to protect its security, the obligation to restore and maintain public order and civil life and the standards and procedures allowing i nternment for security reasons to the extent compatible with applicable human rights law, seem to be well suited to serve at least as a guidance or as minimum standards.
To conclude, in view of all of this and of the realities on the ground, do we believe that the law of occupation is insufficient or outdated?
My answer once again is based on the ICRC’s experience on the ground. Until Iraq the principal example of occupation was that of the Middle East. In that context the law could have been considered inadequate because it was not geared to deal with the long-term nature of the occupation. How to reconcile the assumption underlying the law, that occupation is temporary, with the reality of long-term occupation is an issue that needs to be considered.
Turning to Iraq, the practical legal questions which have arisen related to the practical application of the existing rules in a situation where there had been a significant breakdown of law and order. On no occasion were we faced with situations that did not already have a clear answer in the law, or where the application of this law gave paradoxical results. On the basis of our on-going dialogue with the occupying powers, I believe they share this conclusion.
As I mentioned at the outset, the greatest challenges faced in Iraq are more operational in character:
the blurring of the distinction between military forces and humanitarians in view of the number of humanitarian activities carried out by armed forces, and the risks this poses for humanitarians – and not just the ICRC – who may no longer be perceived as independent, impartial and neutral; and
the – possibly consequent – targeting of humanitarians.
One last issue I would like to highlight is that today we have been looking at the “easy” case: the straightforward occupation by one state of the territory of another. However, in the past decade we have seen that there are many other different ways in which states - and international organisations – can exercise control over the territory of a state. This can take form of
peacekeeping forces exercising day to day control over territory
UN transitional administrations
to name but a few.
Determining the applicable law in these circumstances is more complex. And something in relation to which affected states have turned to the ICRC for guidance. As an aside, it should not be assumed that states do not want to be told what the applicable law is. It is very important for them to know what the properly legal framework in which they are operating in is, so that they and individual members of the armed forces cannot face liability for their lawful acts.
In assessing the adequacy of the law and determining applicable rules all relevant bodies of law must be considered. In clear cases of occupation this includes the law of occupation – but also human rights norms. In other circumstances where a foreign power is exercising effective control over territory, the law of occupation might not be applicable de iure, for example if the troops are there with the consent of the local authority, but may be a very useful bottom line to apply by analogy, to be supplemented with relevant rules of human rights law.
In December 2003, the ICRC, in cooperation with Geneva’s University Centre for International Humanitarian Law, organised an expert workshop on the Application of International Humanitarian Law and International Human Rights Law to UN Mandated Forces. The debates also addressed the application of the law of occupation to UN-mandated forces exercising control over or administering territory.
One of the issues which came out from these debates was a request from troop-contributing states and from UN personnel with experience in transitional administrations for the elaboration of guidelines based on international humanitarian law, and in particular the laws of occupation, human rights norms and general principles of criminal procedure to be used as minimum standards to guide multilateral peacekeeping forces – be they military or police – in the initial phase of their activities. The aim would be to provide guidance in their efforts to restore and maintain public order and security, in particular with regard to searches, seizures, arrests and detentions in situation where the local judicial system is not functioning.
Examples of issues which could be addressed include:
the time within which a person who has been held must be brought before a judge or judicial body
whether a decision to continue to hold someone must be made by a judge or judicial body or whether it could be a military lawyer
the question of whether a hearing would be necessary
the minimum standards to be applied in these cases.
Let me say to conclude that these guidelines would serve as a yardstick pending the amendment of existing local rules or drawing up of more detailed rules of criminal procedure appropriate to each particular context.
The ICRC and others were responsive to this very interesting suggestion. Work on this project has not commenced yet but it may be something on which we could report at a future colloquium.
Ladies and gentlemen, dear friends, I have exhausted your patience with a long legal analysis. My observations were technical and dry. Coming to the very end of my observations, I realise that I have not followed the advice that a colleague from Finland gave me recently, namely that in every speech one should make at least two jokes. An exception should be made, however, he said, for funeral speeches: there, one joke is enough. I tried to tell you a little joke in the beginning. With the funeral you have the second one.
I thank you for your attention.
1. This was expressly recognised by the US Military Tribunal in the war crimes trials after the Second World War. In the case of List , the US Military Tribunal held that:
International Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory ... Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.
US v List , 15 Ann Digest 632 at 647.
2. UK Ministry of Defence , (note 21), para.11.3, 275.
3. Rüdiger Wolfrum , (note 43), 65.
4. See, however, Article 3(b) Additional Protocol I, which developed the temporal application of the law for situations of occupation.
5. Article 6(3) Fourth Geneva Convention; Art. 3 (b) Additional Protocol I.
6. " Endorses the formation of a sovereign Interim Government of Iraq (...) which will assume full responsibility and authority (...) for governing Iraq while refraining from taking any actions affecting Iraq's destiny beyond the limited interim period until as elected Transitional Government of Iraq assumes office (...). "
7. Adam Roberts , The Day of Reckoning, The Guardian, 25 May 2004; Adam Roberts , (note 20).
8. See also Adam Roberts , (note 20).