Article 42 of the Hague Laws (HR), annexed to the 1907 Hague Conference IV, offers {that a} territory is taken into account occupied ‘when it’s truly positioned below the authority of the hostile military.’ In such circumstances, the related provisions governing army occupation turn out to be relevant, as codified within the HR (Articles 42-56), the Fourth Geneva Conference (GC IV) (Half II, Part III), and the Addition Protocol I (AP I) (Articles 14-17 and Half IV).
It’s extensively asserted that army occupation, additionally known as ‘belligerent occupation’, have to be of a brief nature (see the 2024 Advisory Opinion of 19 July 2024, Authorized Penalties Arising from the Insurance policies and Practices of Israel within the Occupied Palestinian Territory, together with East Jerusalem, para. 106). Nonetheless, the requirement of temporariness is neither explicitly included within the definition of occupation below Article 42 HR neither is it expressly stipulated in any provision regulating the authorized regime of army occupation. Article 6(3) GC IV and Article 3(b) AP I each present that related provisions on occupied territories proceed to use till the tip of the occupation, even past the conclusion of army operations. These provisions might thus counsel that army occupation, as a authorized regime, might endure for so long as the occupying energy maintains management.
This raises two elementary questions: (I) What’s the authorized foundation for the declare that army occupation have to be non permanent in nature? and (II) What authorized or factual parts point out that such temporariness has ceased? This contribution explores these questions and assesses how the Worldwide Court docket of Justice (ICJ) addressed the problem of temporality within the Advisory Opinion on the Authorized Penalties Arising from the Insurance policies and Practices of Israel within the Occupied Palestinian Territory, together with East Jerusalem.
(I) What’s the authorized foundation for the declare that army occupation have to be non permanent in nature?
Army occupation doesn’t confer sovereignty upon the occupying energy. Consequently, such occupation should essentially be delivered to an finish. The authorized regulation of army occupation by worldwide humanitarian regulation (IHL) is premised on the understanding that such occupation constitutes a factual scenario arising throughout or after armed battle, which have to be regulated with the intention to defend the civilian inhabitants of the occupied territory and to constrain the administration of the occupying energy. The very rationale of this authorized framework lies within the precept that army authority over overseas territory doesn’t translate into sovereign authority, and that unilateral annexation is prohibited. Subsequently, army occupation is envisaged as a transitory regime, pending the conclusion of a peace settlement able to resolving the underlying dispute. The temporariness of army occupation is thus embedded throughout the normative construction of the regime governing it below IHL.
This results in a elementary query: can the extended occupation of overseas territory nonetheless be thought to be a army occupation below IHL and, subsequently, regulated by it? An affirmative reply might relaxation on the competition that army occupation, as a factual scenario, endures for so long as the occupying energy retains efficient management over the territory. The rationale for this continuity would lie within the protecting goal of army occupation regulation, which imposes obligations on the occupier vis-à-vis the civilian inhabitants and limits the authority of the occupier over the occupied territories. Nonetheless, in some circumstances, the IHL regime considers the army and safety wants of the occupying energy, and it gives no larger safety to the native inhabitants than different relevant branches of worldwide regulation. Particularly, worldwide human rights regulation (IHRL) – a few of whose norms are non-derogable below relevant treaties – and the precept of self-determination, acknowledged as a jus cogens norm (see 2024 Advisory Opinion cited above, para. 233), supply a broader and extra sturdy framework of safety. Examples embody the safety of the rights to life and to liberty, restricted by IHL in relation to IHRL, and the proper of the involved individuals to find out its political standing with out constraints.
Figuring out whether or not a protracted occupation might be thought of army occupation below IHL and controlled by it’s, subsequently, of central authorized significance. In our view, exactly as a result of the IHL regime of army occupation is based upon the non permanent nature of the phenomenon, a army occupation that has misplaced its non permanent character can not be thought to be a ‘army occupation’ throughout the which means of IHL. Consequently, the authorized regime related to it ceases to use, and the occupying energy can not depend on the prerogatives and authority accorded by the HR and GC IV. The safety afforded to the civilian inhabitants, the territory, and its sources is then ruled – extra comprehensively – by different our bodies of worldwide regulation, notably IHRL, the proper to self-determination, and the proper to humanitarian help, none of which allow derogation within the title of army necessity or the safety pursuits of the occupying energy. The actions of the ICRC and the Crimson Cross motion acknowledged in GC IV will also be carried out by making use of the overall worldwide regulation guidelines on humanitarian help, embodied in a number of SC and GA resolutions, multilateral treaties (such because the UN Conference on the Rights of the Baby), and customary regulation. In sensible phrases, this authorized place entails that the occupying energy can not invoke its army must justify the restriction of the rights of the civilian inhabitants, the administration or exploitation of the territory’s pure sources, the disposition of public lands, the requisitioning of personal property, or the enactment of laws primarily based on army necessity.
(II) What authorized or factual parts point out that such temporariness has ceased?
A vital aspect is figuring out the purpose at which a army occupation ceases to be non permanent. Indicators of the lack of temporariness embody, amongst others, the modification of the established order ante, the formal or de facto annexation of all or a part of the occupied territory; the occupying energy’s refusal to barter an finish to the occupation; the switch of the occupier’s civilian inhabitants into the occupied territory and the expulsion of the occupied inhabitants; the systematic denial of the rights of the protected individuals; and continuous violation of the proper to self-determination of the individuals of the occupied territory. Persistent violations of IHL obligations display that the occupying energy views itself not as quickly occupying, however quite as circumventing the prohibition of annexation by oblique means.
On account of the cessation of the non permanent character of the occupation, we contemplate that IHL ceases to be utilized, and different worldwide guidelines govern the scenario. Opposite to a prevailing view in literature (see Tristan Ferraro (ed), Occupation and Different Types of Administration of Overseas Territory, Professional Assembly Report, ICRC, 2012 at 72), we argue {that a} right interpretation of the foundations at play helps this proposition.
First, the Worldwide Court docket of Justice (ICJ) has persistently affirmed that IHRL obligations apply extraterritorially to acts carried out by States below their jurisdiction or management, together with in occupied territories (see extra lately the 2024 Advisory Opinion, cited above, para. 99). Moreover, the duty of all States to ‘guarantee respect’ for IHL always (Article 1 of the 1949 Geneva Conventions) derives not solely from treaty regulation but in addition from the secondary guidelines of State duty. Article 41 of the ILC’s Articles on Accountability of States for Internationally Wrongful Acts stipulates that every one States should cooperate to deliver to an finish severe breaches of peremptory norms of worldwide regulation, and should neither acknowledge nor help such illegal conditions.
Second, elementary human rights and the proper to self-determination possess jus cogens standing, whereas the powers conferred on the occupying energy by IHL are contingent in nature. As such, they can’t override peremptory norms. No derogation or justification can excuse a breach of jus cogens obligations. The prerogatives of the occupier can’t be invoked to negate rights protected by IHRL and the proper to self-determination – particularly within the context of a protracted occupation that’s unlawful below the precept of self-determination and different rules of worldwide regulation.
Third, a army occupation that might be extended sine die would subvert the very rationale of the related authorized regime. Guidelines in regards to the competence of former authorities, the position of defending powers, and army necessity lose relevance in contexts the place such authorities not exist, defending powers are defunct, and the scenario of belligerency that gave rise to the occupation has ceased – usually via the conclusion of peace treaties. Permitting the occupier to proceed invoking army occupation powers below such circumstances would run counter to the item and goal of the authorized regime of army occupation below IHL.
Fourth, even when one had been to simply accept the continued validity of the army occupying energy’s IHL-based prerogatives, their train within the context of a protracted occupation might quantity to an abuse of rights, as they serve to entrench the occupation and violate the elemental rules of worldwide regulation (see 2024 Advisory Opinion, cited above, para. 261).
Fifth, since a protracted army occupation is a factual scenario, when it’s unlawful below elementary rules of worldwide regulation, such because the precept of self-determination, the applicability of its regime can not relaxation below the unilateral resolution of the occupier.
III. The ICJ didn’t push its evaluation of the extended occupation to its pure end result
It’s price noting a change within the case regulation of the ICJ, despite the fact that it has not clearly acknowledged the last word consequence of the evolution of the applying of worldwide regulation within the matter. Within the Nuclear Weapons (para. 25) and the Wall (para. 106) advisory opinions, the Court docket, though recognizing that IHRL is relevant in conditions of armed battle and army occupation, referred to the lex specialis nature of IHL with respect to IHRL. This in truth implies a limitation within the scope of the enjoyment of human rights in occasions of armed battle and occupation. Most lately, within the 2024 Advisory Opinion the Court docket acknowledged that ‘[t]he undeniable fact that an occupation is extended doesn’t in itself change its authorized standing below worldwide humanitarian regulation. Though premised on the non permanent character of the occupation, the regulation of occupation doesn’t set temporal limits that might, as such, alter the authorized standing of the occupation. As an alternative, the legality of the occupying Energy’s presence within the occupied territory have to be assessed in gentle of different guidelines. Particularly, occupation consists of the train by a State of efficient management in overseas territory (see paragraphs 91-92 above). To be able to be permissible, subsequently, such train of efficient management should always be per the foundations in regards to the prohibition of the menace or use of drive, together with the prohibition of territorial acquisition ensuing from the menace or use of drive, in addition to with the proper to self-determination. Subsequently, the truth that an occupation is extended might have a bearing on the justification below worldwide regulation of the occupying Energy’s continued presence within the occupied territory.’ (para. 109) It’s exactly that bearing that the Court docket fell quick to establish.
The Court docket acknowledged that the elemental rules of IHL don’t exclude the applicability of the proper of peoples to self-determination and IHRL, however didn’t push the consequence to its pure end result.
The Court docket declared that worldwide regulation doesn’t present a separation level between belligerent occupation and overseas occupation veering into annexation. However does this imply that within the second speculation the relevant regulation stays completely the regulation of belligerent occupation advert aeternum till hell’s water freezes whereas annexation goes on? That may imply complicity of worldwide regulation and its tolerance of annexation in violation of one in every of its main peremptory norms prohibiting conquest by means of particular person army drive. In such conditions the place no direct reply is supplied to a serious downside, worldwide regulation normally offers us with sure indices that enable us, via authorized reasoning and logic, to achieve an answer which is appropriate with its main rules, significantly these of peremptory character. Certainly, all authorized techniques have a rule towards perpetuity. The truth that worldwide regulation, within the absence of a legislature, can not repair arbitrarily a deadline for the applying of this rule doesn’t imply that we are able to attain it via different oblique means. In such scenario the place there isn’t any direct reply to such an important query, worldwide regulation permits us to achieve an answer.
A chronic army occupation contradicts the very foundations of IHL. Being in essence opposite to ius in bello, it constitutes an extra floor to think about it, along with ius contra bellum and the proper to self-determination, as unlawful after which impermissible. Decide Yusuf, in his Separate Opinion to the 2024 Advisory Opinion, reached the identical conclusion following a unique path.
Conclusion
The authorized framework governing army occupation is grounded in a fragile steadiness: it acknowledges non permanent authority to an occupying energy whereas safeguarding the rights and pursuits of the occupied inhabitants. Nonetheless, this regime loses its authorized coherence when occupation turns into extended and entrenched. The erosion of the temporariness precept not solely undermines the normative foundations of the regulation of army occupation however dangers enabling the very types of domination and annexation the regulation was designed to forestall. When occupation ceases to be a provisional factual scenario and turns into an open-ended political challenge, the foundations of army occupation not apply. At that time, the authorized order should shift towards different branches of worldwide regulation – primarily human rights regulation and the precept of self-determination – that are higher geared up to handle and constrain the enduring realities of energy and management.
