Contemporary challenges to IHL – Occupation: overview
Under IHL, there is occupation when a State exercises an unconsented-to effective control over a territory on which it has no sovereign title. Article 42 of The Hague Regulations of 1907 defines occupation as follows: “Territory is considered 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.”
Occupation law - as a branch of IHL - regulates the partial or total occupation of a territory by a hostile army. Provisions regulating occupation can be found in The Hague Regulations of 1907, the Fourth Geneva Convention of 1949 and Additional Protocol I of 1977.
Under occupation law, the occupying power does not acquire sovereignty over the occupied territory and is required to respect the existing laws and institutions of the occupied territory as far as possible. It is presumed that occupation will be temporary and that the occupying power shall preserve the status quo ante in the occupied territory.
In general terms, occupation law endeavours to strike a balance between the security needs of the occupying power on the one hand, and the interests of the ousted power and the local population on the other. It aims to ensure the protection and welfare of the civilians living in occupied territories. The occupying power's responsibilities include inter alia the obligation to ensure humane treatment of the local population and to meet their needs, the respect of private properties, management of public properties, the functioning of educational establishments, ensuring the existence and functioning of medical services, allowing relief operations to take place as well as allowing impartial humanitarian organizations such as the ICRC to carry out their activities. In return, and in order to fulfil those important responsibilities while ensuring its own security, the occupying power is granted important rights and powers, which may also take the form of measures of constraint over the local population when necessity so requires.
The ICRC project on occupation and other forms of administration of foreign territory
Recent years have been characterized by an increase in extraterritorial military interventions. Along with the continuation of more classical forms of occupation, some of these interventions have given rise to new forms of foreign military presence in the territory of a State, on occasion consensual, but more often not. These new forms of military presence have to a certain extent refocused attention on occupation law.
Part of the legal discussion about recent occupations has triggered reflection about the alleged inadequacy of occupation law to deal with situations of this kind. In particular, some authors have argued that the emphasis on maintaining the status quo ante, which precludes wholesale changes to the legal, political, institutional and economic structure of an occupied territory, was too rigid. In this regard, it has been contended that the transformation of oppressive governments or the redress of society in complete collapse by means of occupation were in the interest of the international community and should be authorized by occupation law. Moreover, it has been affirmed that existing occupation law does not sufficiently take into account the development of human rights law and the advent of the principle of self-determination. Recent occupations have also highlighted how difficult it can be to determine when an occupation begins and ends as well as to identify with certainty the legal framework governing the use of force in occupied territory. Eventually, the UN administrations of territory have raised the question as to whether occupation law could be relevant in such situations.
The legal challenges raised by contemporary forms of occupation have been at the core of the project undertaken by the ICRC on “Occupation and Other Forms of Administration of Foreign Territory”. The purpose of this initiative, which began in 2007, was to analyse whether and to what extent the rules of occupation law are adequate to deal with the humanitarian and legal challenges arising in contemporary occupations, and whether they might need to be reaffirmed, clarified or developed. Three informal meetings involving experts from States, international organizations, academic circles and the NGO community were organized with a view to addressing the legal issues in more detail.
As a result of this expert process, in June 2012 the ICRC published a Report on Occupation and Other Forms of Administration of Foreign Territory. The report aims to give a substantive account of the main points discussed during the three experts meetings. It does not reflect the ICRC’s own opinions but provides an overview of the range of current legal positions on the issues raised. The ICRC believes that the report - which is the final outcome of its project - will usefully feed into further legal debates on the need for clarification of some of the most significant provisions of occupation law.