Hostname: page-component-586b7cd67f-t7czq Total loading time: 0 Render date: 2024-11-23T20:33:05.874Z Has data issue: false hasContentIssue false
  • English
  • Français

The Future of the Law of Occupation

Published online by Cambridge University Press:  09 March 2016

Kristen E. Boon
Get access

Summary

The law of occupation has become the subject of great contemporary interest because of two prominent, although sui generis, situations: the long-term Israeli occupation of the Gaza Strip, the West Bank, and the Golan Heights and the “transformative” occupation of Iraq. In both situations, the occupying powers resisted the label of belligerent occupier and selectively applied the 1907 Hague Regulations and the 1949 Geneva Conventions to the territories in question. The unique circumstances of these occupations have sparked vigorous debate over the future of the law of occupation. To wit, is the widely accepted, but largely unenforced, law of occupation capable of regulating transitions between armed conflict and peace in the twenty-first century? This article examines recent developments in the notoriously open-textured law of occupation that have arisen as this law has been variously ignored, invoked, challenged, examined, and ultimately reformed through practice. In particular, it discusses the triggers for beginning and ending an occupation, including recent jurisprudence on the “effective control” test. The article examines who can be an occupier, the question of “multiple occupiers” under unified command, and the obligations of occupiers in the areas of legislation and institutional reform. The author also considers the challenges of UN involvement in transitional situations, including the applicability of the law of occupation to UN forces and the role of the Security Council in adapting the law of occupation. The author concludes with a discussion of the principle of “conservationism” and the relationship between the law of occupation and jus post bellum, in order to provide an assessment of possible “futures” of the law of occupation.

Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 46 , 2009 , pp. 107 - 142
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277, 187 C.T.S. 227 [Hague Regulations]; Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85; Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 [Geneva Convention IV].

2 Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), [2005] I.C.J. Rep. 1 [Armed Activities] (see discussion in text accompanying notes 44 and 45 later in this article).

3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] I.C.J. Rep. 104 [Construction of a Wall] (acknowledging that the International Covenant on Civil and Political Rights (ICCPR), infra note 90, is applicable outside of a state’s territory to acts of an occupying state committed in the exercise of its jurisdiction). See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226 [Nuclear Weapons] (announcing the court’s opinion that the ICCPR’s protections do not cease during wartime).

4 Eritrea-Ethiopia Claims Commission, Partial Award (Central Front), Ethiopia’s Claim 2, [2004] 43 I.L.M 1275 at 128, <http://www.pca-cpa.org/upload/files/ET%20 Partial% 20Award(1).pdf> [Ethiopia’s Partial Award].

5 Commission for Reception, Truth, and Reconciliation in East Timor, Chega! The Report of the Commission for Reception, Truth, and Reconciliation in Timor-Leste (2005), East Timor and Indonesia Action Network, <http://www.etan.org/news/2006/cavr.htm> at pt. 4, paras. 159–72.

6 P. v. Naletilic & Martinovic, IT-98-34-T (2003) at paras. 210-33 and 587) (WL) [Naletilic].

7 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 U.N.T.S. 197. Russian Federation: Legal Aspects of War in Georgia, Law Library of Congress (2008–01474), <http://www.loc.gov/law/help/russian-georgia-war.php> at 14: “Russia’s military deployed in the re-gions may be recognized as an occupational force and Russia may be forced to withdraw its armed forces from the territory of Georgia.” See also Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), International Court of Justice, <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=GR&case=140&k=4d>.

8 Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009) at paras. 18–25 CrossRefGoogle Scholar; Benvenisti, Eyal, The International Law of Occupation (The Hague: T.M.C. Asser Press, 2004) at 32-98.Google Scholar

9 Construction of a Wall, supra note 3 at para. 89; Ethiopia’s Partial Award, supra note 4 at para. 16; Nuclear Weapons, supra note 3 at para. 75.

10 Ferrero, Tristan, “Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities” (2008) 41 Israel L. Rev. 331 at 332,Google Scholar where he states that “[o]ne can only be struck by the gap existing between the high degree of elaboration of IHL norms and the high degree of their formal acceptance by the community of states on the one hand and their actual disrespect in the field on the other.”

11 See, e.g., Harris, Grant T., “The Era of Multilateral Occupation” (2006) 24 Berkeley J. Int’l L. 1 at 9,Google Scholar where he states that “[t]he international law of occupation has become essentially irrelevant as a force that compels action by occupying powers. Occupants rarely comply with the letter or spirit of that body of law. As a result, the law of occupation’s legal authority and status are uncertain.” Stahn, Carsten, “Jus Ad Bellum, Jus In Bello … Jus Post Bellum? — Rethinking the Conception of the Law ofArmed Forces” (2006) 17 E.J.I.L. 921 at 928:Google Scholar “The norms ofinternational humanitarian law are therefore only to a limited extent relevant to the broader process of building peace after conflict.” McGurk, Brett H., “Revisiting the Law of National-Building: Iraq in Transition” (2004-5) 45 Va. J. Int’l L. 451 at 453.Google Scholar

12 Geneva Convention IV, supra note 1 ; Benvenisti, supra note 8 at 4.

13 International Committee of the Red Cross, Respect for the Convention Commentary to Article 1 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War International Humanitarian Law Treaties and Documents, <http://www.icrc.org/ihl.nsf/COM/380-600004?OpenDocument>.

14 The lack of enforcement mechanisms is a general problem in international law, although it is particularly pronounced with regard to the use of force and the law of occupation.

15 Ferrero, supra note 10 at 335.

16 Convention Relative to the Treatment of Prisoners of War, 27 July 1929, 75 U.N.T.S. 135, 6 U.S.T. 3316. This term is defined in Article 2(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391 [Additional Protocol I], as “a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Convention and this Protocol.” For the history of the provision, see Commentary on the Geneva Conventions, International Humanitarian Law – Treaties and Documents, <http://www.icrc.org/ihl.nsf/COM/380-600012?OpenDocument>.

17 Geneva Convention IV, supra note 1, Article 9; see also Ferrero, supra note 10 at 335 (who calls this institution “a dead letter”).

18 Benvenisti, supra note 8 at 149.

19 Note however, that Ferraro considers regional courts to be a growing locus of enforcement. Ferraro, supra note 10.

20 Cavanaugh, K.A., “Rewriting Law: The Case of Israel and the Occupied Territory,” in Wippman, David and Evangelista, Matthew, eds., New Wars, New Laws? Applying the Laws of War in Twenty-First Century Conflicts (Dobb’s Ferry, NY: Transnational Publishers, 2005) at 227 and 239Google Scholar (discussing Israel’s objections to the applicability of the law of occupation in Gaza).

21 The obligations in conflicts that are considered “not of an international character” are significantly less burdensome, as per common Article 3 of the Geneva Con-ventions. See, e.g., Geneva Convention IV, supra note 1, Article 3.

22 As the UK Manual on the Law of Armed Conflict states: “[T]he application of the law of armed conflict to internal hostilities thus depends on a number of factors. In the first place, it does not apply at all unless an armed conflict exists. If an armed conflict exists, the provisions of Common Article 3 apply. Should the dissidents achieve a degree of success and exercise the necessary control over a part of the territory, the provisions of Additional Protocol II come into force. Finally, if the conflict is recognized as conflict falling within Additional Protocol I, Article 1 (4), it becomes subject to the Geneva Conventions and Protocol I.” UK Ministry of Defence, The Manual on the Law of Armed Conflict (Oxford and New York: Oxford University Press, 2004) at para. 3.9.

23 Ratner, Steven R., “Foreign Occupation and International Territorial Administration: The Challenges of Convergence” (2005) 16 E.J.I. L. 695 at 697.Google Scholar

24 Koskenniemi, Martti, “Occupied Zone: A Zone of Reasonableness” (2008) 41 Isr. L. Rev. 13 at 31.Google Scholar

25 Benvenisti, supra note 8 at 105.

26 Roberts, Adam, “Transformative Military Occupation” (2006) 100 A.J.I.L. 580 Google Scholar (arguing that the law of occupation can accommodate modern circumstances of occupation); see generally Stahn, Carsten and Kleffner, Jann K., eds., Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (The Hague: T.M.C. Asser Press, 2008);CrossRefGoogle Scholar Boon, Kristen, “Obligations of the New Occupier: The Contours of a Jus Post Bellum” (2008) 31 Loy. L.A. Int’l & Comp. L. Rev. 101.Google Scholar

27 Hague Regulations, supra note 1 , Article 42.

28 Construction of a Wall, supra note 3 at 78 (“territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.”) See also Dinstein, supra note 8 at para. 96.

29 Thurer, Daniel, Current Challenges to the Law of Occupation (Official Statement, November 2005, at 2)Google Scholar, International Committee of the Red Cross (ICRC), <http://www.icrc.org/web/eng/siteeng0.nsf/html/occupation-statement-211105>.

30 Dinstein, supra note 8 at para. 78.

31 Security Counsel Resolution 1546, U.N.S.C. 4987 Mtg, UN Doc. S/RES/1546 ( 2004). See also Thurer, supra note 29 at 8–9.

32 Dinstein, supra note 8 at para. 70.

33 Ibid. at paras. 70–71.

34 Geneva Convention IV, supra note 1 , Article 2(2).

35 See Geneva Convention IV, supra note 1, Article 2(2).

36 UK Ministry of Defence, supra note 22 at para. 3.2.3.

37 Benvenisti, Eyal, The Law on the Unilateral Termination of Occupation, in Zimmermann, Andreas and Giegerich, Thomas, eds., Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel (2009) at 2 [forthcoming].Google Scholar

38 Institut de droit international, Moynier, M. Gustave, rapporteur, Manuel des lois de la guerre sur terre (Oxford Manual on Land Warfare) (1880), <http://www.idi-iil.org/idiF/resolutionsF/1880_oxf_02_fr.pdf>, Article 41 [emphasis added].,+Article+41+[emphasis+added].>Google Scholar

39 Compare von Glahn, Gerhard, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis: University of Minnesota Press, 1957) at 28.Google Scholar See also Roberts, Adam, What Is a Military Occupation? (1984) 55 Br. Y.B. Int’l L. 249 at 256.Google Scholar

40 See generally Benvenisti, supra note 37; Zwanenburg, Marten, “The Law of Occupation Revisited: The Beginning of an Occupation” (2007) 10 YB. Int’l Human. L. 99 at 110Google Scholar (arguing that it is only necessary that the occupying power be in a position to substitute its own authority for that of the former government).

41 Naletilic, supra note 6 at para. 217 [emphasis added] (the tribunal set out four additional guidelines in applying the effective control test, which also point to-wards the importance of prospective ability to control: “(ii) the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation. (iii) the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt. (iv) a temporary administration has been established over the territory. (v) The occupying power has issued and enforced directions to the civilian population”).

42 UK Ministry of Defence, supra note 22 at para. 11.3 (“the occupying power is in a position to substitute its own authority for that of the former government.” Note however, that paragraph 11.3.2 states that “occupation does not take effect merely because the main forces of the country have been defeated but depends on whether authority is actually being exercised over the civilian population”). See also National Defense Canada, Law of Armed Conflict at the Operational and Tactical Levels Canada, 2001 (Ottawa: Office of the Judge Advocate General, 2001) at para. 1203 (4) (“the invader should be in a position to substitute his own authority for that of the legitimate government”). However, see German military manual entitled Humanitarian Law in Armed Conflicts — Manual (Bonn: Federal Ministry of Defence of the Federal Republic of Germany, 1992) at VR II 3, stating that “the occupying power must be able to actually exercise its authority” and the United States, The Law of Land Warfare, Field Manual 27–10 (Washington, DC: Department of the Army, 1940) para. 356, requiring that “the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.”

43 Armed Activities, supra note 2 at paras. 45-50 (concluding that “[a]s long as Uganda maintained its hold on these locations, it remained the effective authority and thus the Occupying Power, until a new state of affairs developed”).

44 Ibid. at para. 173.

45 Ibid. at para. 174.

46 Ibid.

47 Ibid. at para. 44.

48 Dinstein, supra note 8 at para. 98; see also Benvenisti, supra note 37 at 4.

49 Dinstein, supra note 8 at para. 98.

50 Ibid. at para. 100.

51 Shany, Yuval, “Binary Law Meets Complex Reality” (2008) 41 Isr. L. Rev. 68 at 71.CrossRefGoogle Scholar

52 Ibid. at 72.

53 Ibid.

54 See discussion later in this article on the protections of individuals after the cessation of an occupation.

55 Zwanenburg, supra note 40 at 121 (discussing the implications in Armed Activities, supra note 2).

56 See Loizidou v. Turkey, (1995) 310 E.C.H.R. (Ser. A) 453.

57 Dinstein, supra note 8 at paras. 135–37.

58 Shraga, Daphna, “Military Occupation and UN Transitional Administrations: The Analogy and Its Limitations,” in Kohen, Marcelo G., ed., Promoting Justice, Human Rights and Conflict Resolution through International Law (Leiden: Brill, 2007) 479 at 481.Google Scholar

59 Roberts, supra note 26 at 585; although as Roberts notes in an earlier work, there have been examples of occupation by non-state entities. Roberts, supra note 39 at 292.

60 Dinstein, supra note 8 at para. 111 (discussing the joint occupation of Poland during the Second World War).

61 The application of this test would exclude Japan, however, who only sent nongovernmental organizations. See discussion later in this article on the effect of the Security Council resolution that only referred to the United Kingdom and United States as occupying powers.

62 Thurer, supra note 29 at 5 (in total, the ICRC sent interventions to nine states in addition to the United States and the United Kingdom, which included states that the ICRC considered were exercising control over protected persons).

63 Chinkin, Christine, “The Continuing Occupation? Issues of Joint and Several Liability and Effective Control,” in Shiner, Phil and Williams, Andrew, eds., The Iraq War and International Law (Portland: Hart Publishing, 2008) 161 at 176.Google Scholar

64 Scheffer, Davd, “Beyond Occupation Law” (2003) 97 A.J.I.L. 842 at 855 (listing actions that would be internationally wrongful if proven).Google Scholar

65 Ibid. at 172.

66 The UK Manual on the Law of Armed Conflict, supra note 22 at para. 11.3.3, simply encourages occupying powers to address such a situation by separate agreement: “in cases where two or more states jointly occupy territory (following a coalition military campaign, for example), it is desirable that there be an agreement between them setting out the relationship between the occupying powers.”

67 Stewart, Richard, Accountability, Participation, and the Problem of Disregard in Global Regulatory Governance (2008) at 17 Google Scholar [draft on file with author] (describing legal accountability generally as “involve[ing] a legal proceeding initiated by a plaintiff account holder for the tribunal to determine whether a defendant accountee violated legal standards applicable to his conduct and thereby violated the account holder’s rights. The tribunal may impose liability or other sanctions for unlawful or wrongful conduct by the accountee. Such actions may be brought against private actors, including trustees and other fiduciaries, or against public authorities and officials. There are specified procedures for rendering account, and the court uses established standards and gives reasons for its evaluation”).

68 Chesterman, Simon, You the People: The United Nations, Transitional Administrations, and State Building (Oxford: Oxford University Press, 2004) at 143.CrossRefGoogle Scholar

69 Benvenisti, supra note 8 at 189.

70 Ferrero, supra note 10 at 355 (advocating the use of third state courts to enforce the law of occupation).

71 The ILC’s draft Articles on State Responsibility and the Responsibility of International Organizations demonstrate the developing legal bases for holding power holders to account in transitional situations where a breach of an international obligation has occured. See, e.g., Report of the United Nations Secretary General, UN Doc. A/51/389 (1996) 4, para. 6: “[T]he principle of State responsibily — widely accepted to be applicable to international organizations — that damage caused in breach of an international obligation and which is attributable to the State (or to the Organization) entails the international responsibility of the State (or of the Organization).”

72 Dinstein, supra note 8 at para. 113; Shraga, supra note 58 at 481 . See also UK Ministry of Defence, supra note 22 at 11.9 (“during the occupation, the sovereignty of the occupied state does not pass to the occupying power. It is suspended”).

73 von Glahn, supra note 39 at 31.

74 See also National Defense Canada, supra note 42 at para. 1205 (“[g]enerally speaking, the occupant is not entitled to alter the existing form of government, to upset the constitution and domestic laws of the occupied territory, or to set aside the rights of the inhabitants”).

75 von Glahn, supra note 39 at 94 (“the occupant cannot apply his own domestic laws to the occupied territory until proper title has been secured to the area in question”).

76 Letter dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States ofAmerica to the United Nations addressed to the President of the Security Council, 2003, UN Doc. S/2003/538 at paras. 90–93 [Letter to Security Council]. See also Boon, Kristen, “Legislative Reform in Post-Conflict Zones” (2005) 50 McGill L.J. 285 at 314–15Google Scholar (discussing the implications of the letter, and legislative reform in Iraq under the Coalition Provisional Authority (CPA)).

77 See generally Fox, Greg, The Occupation of Iraq (2005) 36 Geo. J. Int’l L. 195.Google Scholar

78 Boon, Kristen E., “Open for Business: International Financial Institutions, Post-Conflict Economic Reform, and the Rule of Law” (2007) 39 N.Y.U. J. Int’l & Pol. 513. Google Scholar

79 Ibid.

80 Hague Regulations, supra note 1 , Article 43.

81 Dinstein, supra note 8 at para. 203

82 Sassoli, Marco, “Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century” (2004) at 1 [paper on file with author].Google Scholar

83 As Dinstein notes, Article 64 is considered to clarify and amplify Article 43. Dinstein, supra note 8 at para. 258(b).

84 Geneva Convention IV, supra note 1, Article 64.

85 As the ICRC commentary states, “the idea of the continuity of the legal system applies to the whole of the law (civil law and penal law) in the occupied territory. The reason for the Diplomatic Conference making express reference only to respect for penal law was that it had not been sufficiently observed during past conflicts; there is no reason to infer a contrario that the occupation authorities are not also bound to respect the civil law of the country, or even its constitution.” International Humanitarian Law – Treaties and Documents, <http://www.icrc.org/ihl.nsf/COM/380-600071?OpenDocument> [ICRC commentary]. See also Dinstein, supra note 8 at para. 258(c).

86 ICRC commentary, supra note 85.

87 Dinstein, supra note 8 at para. 260; von Glahn, supra note 39 at 98.

88 Sassoli, supra note 82 at 3.

89 UK Ministry of Defence, supra note 22 at para. 11. 11.

90 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171 [ICCPR]; Additional Protocol 1 , supra note 16.

91 See Nuclear Weapons, supra note 3 at para. 25 (announcing the court’s opinion that the ICCPR’s protections do not cease during wartime); Construction of a Wall, supra note 2 at paras. 104–13 (acknowledging that the ICCPR is applicable outside of a state’s territory to acts of an occupying state committed in the exercise of its jurisdiction); Armed Activities, supra note 2 (holding the ICCPR and other human rights treaties applicable to Uganda’s armed occupation of the Democratic Republic of Congo).

92 See, e.g., Coard v. U.S. (1999), Inter-Am Comm. H.R., No. 109/99, Doc. OEA/ ser.L./V/II.85,doc.9rev. (holding that human rights laws were violated by US armed forces operating in Grenada).

93 See Loizidou v. Turkey (1995), 310 E.C.H.R. (Ser. A) (holding that the application of the European Convention on Human Rights is not limited to the national territory of the high contracting parties); Bankovic v. Belgium (2001 ) E.C.H.R. 335 at para. 71 (holding that European Convention applies where the occupier, “though use of effective control of the relevant territory … as a consequence of military occupation … exercise[s] all or some of the public powers normally to be exercised by th[e occupied territory’s] government”).

94 General Comment no. 31, UN Doc. CCPR/C/21/Rev.1/Add. 13 (29 March 2004).

95 ICCPR, supra note 90, Articles 6–8; see also Roberts, supra note 39 at 250.

96 Benvenisti, supra note 8 at 11.

97 von Glahn, supra note 39 at 258 (von Glahn makes the point, however, that if the occupant takes an act in violation of international law, subsequent acts stem-ming from the initial violation would not bind the returned sovereign because of their illegal foundation); Boon, supra note 78 at 548 (discussing the pressure on Iraq to maintain laws enacted during the occupation).

98 Benvenisti, supra note 8 at 210.

99 Geneva Convention IV, supra note 1, Article 6(2) and (3). In theory, occupations can also end under the doctrine of deballatio, but this is now largely considered to be defunct. See Benvenisti, supra note 8 at 94–96.

100 Dinstein, supra note 8 at para. 102.

101 Benvenisti, supra note 8 at 9.

102 Benvenisti, supra note 35 at n. 3.

103 Security Council Resolution 1546, supra note 31 at para. 2. For a critical assessment of this theory, see SirRoberts, Adam, The End of Occupation in Iraq, Policy Brief, 28 June 2004, <http://www.ihresearch.org/iraq/feature>..>Google Scholar

104 Thurer, supra note 29 at 8–9.

105 See Int’l Comm. of the Red Cross, Iraq Post Transfer, 2004, <http://www.icrc.org/web/eng/siteeng0.nsf/html/63KKj8>.

106 Geneva Convention IV, supra note 1, Article 4. The International Criminal Tribunal for the Former Yugoslavia has also taken this position, noting that “the application of the law of occupation as it affects ’individuals’ as civilians protected under Geneva Convention IV does not require that the occupying power have actual authority.” For the purposes of individuals rights, therefore, a state of occupation exists upon their falling into “the hands of the occupying power,” otherwise civilians would be left, during an intermediate period, with less protection than that attached to them once occupation is established. Naletilic, supra note 5 at paras. 219–22.

107 The ICRC commentaries state that “the expression ’in the hands of’ need not necessarily be understood in the physical sense; it simply means that the person is in territory which is under the control of the Power in question.” International Humanitarian Law – Treaties and Documents, <http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument>. See also UK Ministry of Defence, supra note 22 at para. 3.10 (providing that the application of the law of armed conflict continues until the termination of the occupation, even if military operations ceased at a later date, and noting that persons in the power of the adversary continue to benefit from the relevant provisions of the conventions and protocol until their final release, and repatriation or re-establishment).

108 Roberts, supra note 39 at 256.

109 Geneva Convention IV, supra note 1 , Article 6.

110 Thurer, supra note 29 at 9.

111 Lieutenant General Jones, Anthony R., AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th MI Brigade <http://www.wshein.com/media/Catalog/3/331980.pdf> (2004) at 14–15 and 27.+(2004)+at+14–15+and+27.>Google Scholar

112 See Lisa Ashenaz Croke, Washington Refuses to Relinquish Legal Authority to ’Sovereign’ Iraq, 6 July 2004, <http://www.newstandardnews.net>; see generally Deeks, Ashley S., Administrative Detention in Armed Conflicts 40 Case Western Reserve J. Int’l L. (2009) 403 at 420.Google Scholar

113 Wilde, Ralphe, International Territorial Administration: How the Civilizing Mission Never Went Away (Oxford: Oxford University Press, 2008) at 312 (discussing the parallels, and the fact that the administration is not composed of representatives of the territory itself, but instead has the identity of the “other”).CrossRefGoogle Scholar

114 Benvenisti, supra note 8 at XVI (“the law of occupation should apply to any case of ’effective control’ of a power (be it one or more states or an international organization, such as the United Nations”); Blank, Laurie, The Role of International Financial Institutions in International Humanitarian Law Working Group (January 2002) 42 Peaceworks, <http://www.usip.org/pubs/peaceworks/pwks42.pdf>..>Google Scholar

115 Boon, supra note 76 at 314–15.

116 Ratner, supra note 23 at 696.

117 Ibid. at 699–700.

118 Shraga, supra note 58 at 481.

119 Ibid.

120 See Scheffer, supra note 64 at 852; Fox, supra note 77 at 222–30.

121 In 1999, the United Nations accepted the application of some humanitarian principles for forces under UN command. UN Secretariat, UN Secretary General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13 (1999).

122 Porreto, Garbriele and Vite, Sylvain, The Application of International Humanitarian Law and Human Rights Law to International Organizations, Research Paper Series no. 1/2006, (Geneva: University Center for International Humanitarian Law, 2006) at 25–26.Google Scholar

123 Ibid. at 28.

124 Wolfrum, Rudiger, The Adequacy of International Humanitarian Law Rules on Belligerent Occupation: To What Extent May Security Council Resolution 1483 Be Considered a Model for Adjustment?, in Schmitt, Michael N., ed., International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Leiden, The Netherlands: Martinus Nijhoff Publishers, 2007) 497 at 498.Google Scholar Compare Fox, Gregory, Humanitarian Occupation (Cambridge: Cambridge University Press, 2008) at 29–33 CrossRefGoogle Scholar (arguing that the mandate system did not require the promotion of political rights or self-government and that there was very little international oversight).

125 Bhuta, Nehal, The Antinomies of Transformative Occupation (2005) 16 Eur. J. Int’l L. 721 at 726 (describing occupation as a temporary state of fact)Google Scholar; Greenwood, Christopher, The Administration of Occupied Territory in International Law, in Playfair, Emma, ed., International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip (Oxford: Clarendon Press, 1992) 241 at 265–66 (describing the temporary authority of occupiers)Google Scholar; Fox, supra note 124 at 235.

126 Roberts, supra note 26 at 619.

127 It should be noted, however, that rapid and wholesale transformation has not been the objective of all occupations. Some occupations have had limited purposes. Benvenisti, supra note 8 at 181–82, discussing the coalition’s occupation of southern and northern Iraq, and the Israeli occupation of southern Lebanon). For a discussion of the principle of conservationism in prolonged occupation, see Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories since 1967 (1990) 84 A.J.I.L. 44 at 44–105Google Scholar (stating that even in a prolonged occupation, occupying powers must avoid making drastic changes).

128 The occupations of Germany and Japan took place before the Geneva Conventions were codified. Article 43 of the Hague Regulations of 1907, supra note 1, provided the principal source of regulation. See Fox, supra note 124 at 259 (illustrating why some argued the Hague Regulations did not apply to these occupations).

129 Benvenisti, supra note 8 at 91.

130 See the discussion later in this article.

131 See generally Boon, supra note 26.

132 See Paul Collier, Post-Conflict Economic Recovery (April 2006) [unpublished], <http://users.ox.ac.uk/~econpco/research/pdfs/IPA-PostConflictEconomicRecovery.pdf> (noting that typically there is a 39 percent risk that peace will collapse within the first five years, and a 32 percent risk that it will collapse in the next five years); Collier, Paul, Policy for Post-Conflict Societies: Reducing the Risks of Renewed Conflict, Working Paper no. 28135 (New York: World Bank, 2000) at 3–4Google Scholar (stating that the three highest risks for post-conflict societies are a high dependency on natural resource rents, a downturn in economic opportunities, and ethnic dominance).

133 “The Kimberley Process Certification Scheme (KPCS) imposes extensive requirements on its members to enable them to certify shipments of rough diamonds as ‘conflict-free.’ As of November 2008, the KP has 49 members, representing 75 countries, with the European Community and its member states counting as an individual participant.” See <http://www.kimberleyprocess.com>.

134 See discussion in Boon, Kristen, “Coining a New Jurisdiction: The Security Council as Economic Peacekeeper” (2008) 41 Vand. J. Transnat’l L. 991 at 1032–33.Google Scholar

135 See Boon, supra note 78. See also De Chazournes, Laurence Boisson, Collective Security and Economic Interventionism of the UN: The Need for a Coherent and Integrated Approach (2007) 10 J. Int’l Econ. L. 51 at 52 (discussing emerging practice of integrating economic elements into collective security arrangements).Google Scholar

136 Security Council Resolution 1483, UN Doc. S/RES/1483 (22 May 2003) at para. 4.

137 Coalition Provisional Authority, Dissolution of Entities with Annex A, Order no. 2 ( 23 August 2003) at para. 2, <http://www.cpa-iraq.org/regulations/index.html#Regulations>.

138 Scheffer, supra note 64 at 847–51.

139 Security Council Resolution 1483, supra note 135 at para. 8 (appointing a special representative to undertake these tasks in coordination with the CPA). See also Fox, supra note 76 at 273 (noting that the CPA in Iraq relied on Security Council Resolution 1483, as well as other substantive international standards, as a basis for its regulations).

140 Boon, supra note 77 at 539.

141 Ibid. at 542–43.

142 Ibid. at 560.

143 See International Commission on Intervention and State Sovereignty, Report: The Responsibility to Protect (December 2001) at XI, <http://www.iciss.ca/pdf/Commission-Report.pdf>. See also Stahn, supra note 11 at 931.

144 UN Secretary-General, Report of the Secretary-General on Implementing the Responsibility to Protect, UN Doc. A/ 63/677 (12 January 2009).

145 Peacebuilding Commission, Working Group on Lessons Learned, Meeting on Peacebuilding Strategic Frameworks, Indicators, and Monitoring Mechanisms (19 September 2007), <http://www.un.org/peace/peacebuilding/pbc-lessons.shtml> at “Summary Notes of the Chair.”