Unearthing the Problematic Terrain of Prolonged Occupation

Yutaka Arai-Takahashi

doi:10.1017/S0021223719000037

Unearthing the Problematic Terrain of Prolonged Occupation

Published online by Cambridge University Press: 07 June 2019

Yutaka Arai-Takahashi

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Yutaka Arai-Takahashi*: Affiliation:
Professor of International Law and International Human Rights Law, University of Kent, Brussels; [email protected].

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Abstract

This article will explore the travaux préparatoires of the key legal instruments on the laws of war and international humanitarian law (IHL) with a view to obtaining crucial insight into the ‘original’ understandings of their drafters as to the provisional nature and the temporal length of occupation. The findings of the travaux show the general premise of the framers of the ‘classic’ instruments on the laws of war that the legal regime of occupation should be provisional. In the concurrent doctrinal discourses this premise was endorsed by most scholars. Examination of the records of the negotiations on the drafting of the Fourth Geneva Convention of 1949 reveals that even the proponents of ‘transformative occupation’ did not seem to envisage occupation that would endure for decades. Nevertheless, by the time the 1977 Additional Protocol I was drafted, several instances of protracted occupation already existed, which seems to have led to a decisive shift in the argumentative structure. There is no disputing the applicability of IHL to any occupied territory, irrespective of the length of the occupation. Yet the suggestion that nothing under IHL would forestall an occupying power from engaging in protracted occupation departs from the traditional premise that occupation ought to be provisional. This also seems to be paradoxical in historical perspectives.

Keywords

prolonged occupation travaux préparatoires Lieber Code Brussels Declaration Oxford Manual Hague Regulations Geneva Civilian Conventions First Additional Protocol sovereignty ‘one-year’ rule

Type: Articles
Information: Israel Law Review , Volume 52 , Issue 2 , July 2019 , pp. 125 - 167

DOI: https://doi.org/10.1017/S0021223719000037 [Opens in a new window]
Copyright: Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2019

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Footnotes

Special thanks go to the anonymous reviewers and the editorial team (above all, Professor Yaël Ronen) for their elaborate comments, which were very helpful. I also appreciate my colleague, Professor Didi Herman, for reading the final version of this article. All mistakes that may be found here are nonetheless attributable to me.

References

¹ In this article, the term ‘prolonged occupation’ is understood as referring to a protracted form of occupation that stretches over decades.

² Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II); Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV). The decades-long instances of occupation include (but are not limited to) (i) the Palestinian territories occupied by neighbouring states at different temporal phases since 1948 (the Gaza Strip by Egypt 1959–67; the large segments of the West Bank by Jordan 1948–67; the Gaza Strip by Israel 1967–2005, or until now; and the West Bank, East Jerusalem and the Golan Heights by Israel since 1967); (ii) Tibet by China since 1950; (iii) Northern Cyprus by Turkey since 1974; (iv) the Western Sahara under gradual Moroccan occupation since 1975; (v) East Timor occupied by Indonesia 1975–99.

³ For a suggestion of an emerging conceptualisation of ‘occupation as a normative phenomenon’, see Ronen, Yaël, ‘A Century of the Law of Occupation’ (2014) 17 Yearbook of International Humanitarian Law 169, 184–85Google Scholar; and Gross, Aeyal, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge University Press 2017) 2–4CrossRef Google Scholar, 6 and Ch 1.

⁴ Roberts, Adam, ‘Prolonged Military Occupation: The Israeli-Occupied Territories since 1967’ (1990) 84 American Journal of International Law 44CrossRef Google Scholar.

⁵ Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, art 1, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=337371A4C94194E8C12563CD005154B1 (Brussels Declaration).

⁶ Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461.

⁷ Instructions for the Government of Armies of the United States in the Field, General Orders No 100: The Lieber Code, War Department, Washington DC, 24 April 1863 (Lieber Code).

⁸ The Oxford Manual on the Laws of War on Land (Institute of International Law 1880) (Oxford Manual).

⁹ GC IV (n 2); Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (AP I).

¹⁰ Hall, William Edward, Treatise on International Law (3rd edn, Clarendon Press 1890) 463–64Google Scholar, 466, 469 para 154.

¹¹ For instance, the invader was authorised to demand impressment (forcing an oath of allegiance from the occupied populations, and the handing over of the territory even while questions of hostilities remained undecided) as if they had been the invader's subjects and territory: ibid 463–64 para 154, 416–17; Baty, Thomas, ‘The Relations of Invaders to Insurgents’ (1927) 36 Yale Law Journal 966, 966–67CrossRef Google Scholar, 972–73. See also Oppenheim, Lassa, ‘The Legal Relations between an Occupying Power and the Inhabitants’ (1917) 33 Law Quarterly Review 363Google Scholar, 363 (explaining that ‘the occupant is for the time being the sovereign of the occupied territory’, while treating this doctrine as untenable at the time of his writing).

¹² Hall (n 10) 464 para 153. Baty challenged this historical timeline, arguing that any theory of ‘substituted sovereignty’ had become defunct as early as the end of the medieval period in Europe. In his view, since then an invading power, when assuming the full sovereign power of the territories that it overran, was condemned as abusing its power: Baty (n 11) 972.

¹³ Verzijl, Jan Hendrik Willem, International Law in Historical Perspective, Vol IX-A: The Laws of War (Sijthoff & Noordhoff 1978) 151Google Scholar.

¹⁴ ibid (emphasis in original).

¹⁵ Vattel observed that ‘immovable possessions, lands, towns, provinces … become the property of the enemy who makes himself master of them: but it is only by the treaty of peace, or the entire submission and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect. … a third party cannot safely purchase a conquered town or province, till the sovereign from whom it was taken has renounced it by a treaty of peace, or has been irretrievably subdued, and has lost his sovereignty’: de Vattel, Emer, Le droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires et des nations et des souverains [The Law of Nations or Principles of the Law of Nature, as Applied to the Conduct of Affairs of Nations and Sovereigns], Vol II, livre III (Aux Dépens de la Compagnie 1758) 147Google Scholar paras 197–98 (Joseph Chitty tr, 6th edn, T&J Johnson 1844) 386 paras 197–98.

¹⁶ Hall referred to the nature of belligerent occupation under the system of ‘quasi-sovereignty’ as ‘the doctrine of temporary and partial substitution of sovereignty’: Hall (n 10) 464–65. See also Baty (n 11) 973.

¹⁷ Baty (n 11) 979. For the modern proposal for a belligerent occupation as a trustee see Gerson, Allan, ‘Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank’ (1973) 14 Harvard International Law Journal 1Google Scholar; See also Ben-Naftali, Orna, ‘PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and Other Legal Pathologies’ in Ben-Naftali, Orna (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011) 129CrossRef Google Scholar, 140 text at fn 63.

¹⁸ Hall (n 10) 464–65 para 154.

¹⁹ de Martens, GF, Précis du droit des gens moderne de l'Europe, Vol II (Guillaumin et Cie 1858) 254–55Google Scholar para 280 (referring to the restrictions on private property only in the case where this was ‘impérieusement préscript par les nécessités de la lutte’). See also Klüber, Jean-Louis, Droit des gens moderne de l'Europe, Vol II (JP Aillaud 1831) 40–42Google Scholar paras 255–56.

²⁰ Hall (n 10) 466–70 paras 154, 155.

²¹ Baty (n 11) 973.

²² Hall (n 10) 466–68 para 154 (referring to Klüber (n 19) 42 para 256, as indicating an example of the residual influence of the doctrine of substituted sovereignty. Yet, as will be explained at n 28 below, this is a flawed reading of his work).

²³ This was especially the case when examining the nature of the relation between the inhabitants and the occupying power. For instance, even some prominent scholars in the mid-nineteenth century continued to espouse the notion that the duty of obedience could be imposed on the inhabitants under occupation. Further, it should be noted that irrespective of whether it is based on such notion of substituted sovereignty, it is suggested that Lieber's concept of occupation embodied a rejection of the then emerging theories that maintained a quasi-contractual relationship between the occupant and the inhabitants. This exchanged temporary obedience for protection: Giladi, Rotem, ‘A Different Sense of Humanity: Occupation in Francis Lieber's Code’ (2012) 94 International Review of the Red Cross 81, 114CrossRef Google Scholar.

²⁴ De Martens (n 19) 254–55 para 280 (but note his caveat that occupation does not allow taking possession of public and private property of the occupied). See also Twiss, Travers, The Law of Nations Considered as Independent Political Communities, Vol II (Oxford University Press 1861) 122Google Scholar para 64 (arguing that ‘if a belligerent Nation takes possession of an Enemy's territory, it takes possession not merely of the soil and the movable property upon it, but of the Sovereignty over it, and may exercise the latter during such time as it remains in possession of the territory’).

²⁵ Stirk, Peter MR, History of Military Occupation from 1792 to 1914 (Edinburgh University Press 2016) 89–91CrossRef Google Scholar.

²⁶ Conquest is defined as acquiring enemy territory by military means with the intention of enlarging national territory: Giladi, Rotem, ‘The Jus ad Bellum/Jus in Bello Distinction and the Law of Occupation’ (2008) 41 Israel Law Review 246CrossRef Google Scholar, 273. This should be distinguished from military occupation, ‘a yet undecided phase of war’: Ando, Nisuke, Surrender, Occupation and Private Property in International Law: An Evaluation of US Practice in Japan (Clarendon Press 1991) 35Google Scholar.

²⁷ Feilchenfeld, Ernst H, The International Economic Law of Belligerent Occupation (Johnson 1942) 10–11Google Scholar paras 40–42. Jus postliminii refers to the restoration of the legal status quo ante following the end of occupation or of hostilities: Fauchille, Paul, Traité de droit international public, Vol II (Rousseau 1921) 1058–59Google Scholar; and Schwarzenberger, George, International Law as Applied by International Courts and Tribunals, Vol II: The Law of Armed Conflict (Stevens & Sons 1968) 199Google Scholar, 201, 204, 346.

²⁸ See Klüber (n 19) 40–42 paras 255–56 (whose work showed a transition from the earlier doctrine of substituted sovereignty to one akin to the modern legal notion of occupation as we understand it today. Klüber argued that while the conqueror takes the place of the displaced government in exercising ‘sovereign rights’, this would never give the fact of conquest the right of attributing sovereignty of the country concerned). See also Oppenheim, Lassa Francis, International Law: A Treatise, Vol II: Disputes, War and Neutrality (7th edn, Longmans, Green and Co 1952) 437Google Scholar para 169 (arguing that ‘although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, he is not the Sovereign of the territory, and therefore has no right to make changes in the laws or in the administration except those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war’).

²⁹ Korman, Sharon, The Right of Conquest: The Acquisition of Territory by Force in International Law (Clarendon Press 1996) 110Google Scholar. See also Halleck, Henry Wager, International Law (Van Nostards 1861) 776Google Scholar (which discussed that ‘the right of military occupation, (occupatio bellica)’ evolved in the usage of nations and the laws of war to differ from ‘the right of complete conquest (debelatio [sic] ultima victoria)’).

³⁰ Bhuta, Nehal, ‘The Antinomies of Transformative Occupation’ (2005) 16 European Journal of International Law 721CrossRef Google Scholar, 725.

³¹ Loening, Edgar, ‘L'administration du gouvernement général de l'Alsace durant la guerre de 1870–1871’ (1872) 4 Revue de droit international et de législation comparé 622Google Scholar, 626–27 (referring to three basic principles on belligerent occupation that Heffter summarised: (i) the occupation of a country by the enemy during the period of the war constitutes a relation entirely different from the conquest of the country; (ii) during the occupation of a territory by the enemy the previous government is suspended; but (iii) the previous government is only suspended, and its powers do not pass in all their extent to the invading enemy, which is not invested with sovereignty) (English translation by the present author). See also Heffter, D August Wilhelm, Das Europäische Völkerrecht der Gegenwart (EH Schroeder 1844)Google Scholar.

³² Oppenheim (n 28) 432–33 para 166.

³³ See also Benvenisti, Eyal, ‘The Origins of the Concept of Belligerent Occupation’ (2008) 26 Law and History Review 621CrossRef Google Scholar, 630–32. Nevertheless, Heffter did not fully recognise another special principle of belligerent occupation – namely, the requirement of minimum interference with local laws: ibid 631.

³⁴ Heffter stated that ‘[o]nly if complete defeat of a state authority (debellatio) has been reached and rendered this state authority unable to make any further resistance, can the victorious side also take over the state authority, and begin its own, albeit usurpatory, state relationship with the defeated people … Until that time, there can be only a factual confiscation of the rights and property of the previous state authority, which is suspended in the meantime’: Heffter (n 31) 220–21 para 131 (translation by the present author). See also ibid 307–09 para 185; Halleck (n 29) 777, 781 paras 2, 5 (discussing the doctrines among European writers, who highlighted the temporary character of military occupation). As will be discussed later, Halleck stresses ‘a different rule’ followed by the US practice: ibid 784–87 paras 8–9.

³⁵ Mégret, Frédéric, ‘From “Savages” to “Unlawful Combatants”’ in Orford, Anne (ed), International Law and Its Others (Cambridge University Press 2009) 265Google Scholar, 316.

³⁶ Giladi (n 23) 82, 87. While the ideas relating to occupation were derived from European practice and doctrine, the Lieber Code was considered to be novel as presenting the basis of a treaty: Benvenisti (n 33) 640–41.

³⁷ Nabulsi, Karma, Traditions of War: Occupation, Resistance, and the Law (Oxford University Press 1999) 158–66CrossRef Google Scholar.

³⁸ Art 1(1) of the Lieber Code (n 7) proclaims that ‘[a] place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not’.

³⁹ Brussels Declaration (n 5).

⁴⁰ Apart from belligerent occupation (occupatio bellica), it is possible to contemplate two further genres of occupation: (i) occupatio mixta – bellica pacifica (mixed occupation), which refers to the state of occupation that can come into existence between an armistice and the conclusion of a peace treaty among the belligerents; and (ii) occupatio pacifica, which addresses the case of military occupation of foreign territory in time of peace, which is based on the consent, or at least the acquiescence, of the territorial state: F Llewellyn Jones, ‘Military Occupation of Alien Territory in Time of Peace’ (1924) 9 Transactions of the Grotius Society 149, 149–50. These two other forms of occupation are intended to share with belligerent occupation the two-tier assumptions: (i) that there should be no surrender or transfer of sovereignty; and (ii) that occupation should be an ‘essentially provisional’ state of affairs: ibid 159. For pacific occupation, see also Dinstein, Yoram, ‘The International Legal Status of the West Bank and the Gaza Strip – 1998’ (1998) 28 Israel Yearbook on Human Rights 37Google Scholar, 42.

⁴¹ Oppenheim (n 11) 363–64.

⁴² Ben-Naftali, Orna, Gross, Aeyal M and Michaeli, Keren, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23 Berkeley Journal of International Law 551Google Scholar, 562, 592, 608. The term ‘sovereign suspension’ is a good summation of what the classic authors have argued since the second half of the nineteenth century: see, eg, Calvo, M Charles, Le droit international théorique et pratique, Vol IV (4th edn, Guillaumin et Cie 1888) 212Google Scholar para 2166.

⁴³ Brussels Conference on the Rules of Military Warfare, Actes de la Conférence de Bruxelles (F Hayez 1874) 106 (Colonel Fédéral Hammer of Switzerland proposing the application, by analogy, of the law relating to blockade to situations of occupation). See also Calvo, ibid 213 para 2168 (commenting favourably on this proposal).

⁴⁴ Calvo (n 42) 212 para 2166 (‘Regarding the power of the enemy that occupies the territory, it is well understood that it does not replace the power of the vanquished state, which is only suspended and cannot pass in all its extent to the invader, which is never invested with the sovereignty; … there is hence no change in sovereignty’ (English translation by the present author)).

⁴⁵ Loening (n 31) 631–32 (English translation by the present author).

⁴⁶ Graber, Doris Appel, The Development of the Law of Belligerent Occupation 1863–1914: A Historical Survey (Columbia University Press 1949) 52Google Scholar.

⁴⁷ United States War Department, Rules of Land Warfare (1914) 105 para 287 (emphasis added).

⁴⁸ Hall (n 10) 470 para 155; Oppenheim (n 11) 363–64 (‘through military occupation the authority over the territory and the inhabitants only de facto, and not by right, and only temporarily, and not permanently, passes into the hands of the occupant’).

⁴⁹ To support this in the classic text, see Calvo (n 42) 212 para 2166 (‘The occupation subsists in the fact, but this is a fact of a provisional character, which is transformed or disappears at the conclusion of peace … the occupied territory is only transitionally subject to the power of the enemy, which establishes therein the martial law, that is, the temporary administration having as a basis such military authority and laws of war, as the usages have sanctioned or the opinion of the publicists that form the authority on this matter have consecrated’ (English translation by the present author)).

⁵⁰ Writing prior to the Brussels Declaration (in 1872), Loening made clear that ‘[t]he occupation is a simple fact of a provisional character. Until the war finishes, a conquest in the juridical sense of the word cannot take place. That is what the vanquished as well as the invading power must recognise. The occupied territory is only provisionally subjected to the enemy's power’: Loening (n 31) 632 (footnote omitted, emphasis added; English translation by the present author). See also Bordwell, Percy, The Law of War Between Belligerents: A History and Commentary (Callaghan and Co 1908) 299Google Scholar; Graber (n 46) 66.

⁵¹ See Rolin-Jaequemyns, G, ‘Chronique du droit international. La guerre actuelle’ (1870) 2 Revue de droit international et de législation comparée 643, 690–91Google Scholar (stating that ‘assuring a certain order in the countries occupied by force, guaranteeing the regular administration of justice, the police, the communications, the private transactions, in one word, governing provisionally the occupied states, is as much as the duty as the right of the vanquisher’ (English translation by the present author), and explaining how the Prussian policy was generally to conserve the local laws and governmental institutions); see also ibid 660–66, 676–85, 690–93. For the literature supporting the temporary nature of belligerent occupation, see also Calvo (n 42) 212 para 2166; Loening (n 31) 626–34, 650; Oppenheim (n 11) 363–64; Graber (n 46) 41, 56–57.

⁵² Feilchenfeld (n 27) 86 (emphasis added).

⁵³ ibid 7.

⁵⁴ Such ‘occupation during hostilities’ can presumably be understood as being narrower than military operations.

⁵⁵ See, eg, Feilchenfeld (n 27) 11–12 paras 44–46.

⁵⁶ ibid 5 para 11. Feilchenfeld's rejection of any change in the permanent nature of occupation implies that such a drastic change had to be based on some form of post-war settlement.

⁵⁷ Graber (n 46) 68–69 (discussing also measures to extend the temporal scope of its laws beyond the occupation period, irrespective of the intention of the displaced sovereign government). As is known, since 1945 this principle has been subsumed in the prohibition on annexing territory by the use of, or the threat to use force laid down in art 2(4) of the Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI (UN Charter); see also UN Charter, art 1, which sets out that one of the purposes of the United Nations is to prohibit aggression.

⁵⁸ See Feilchenfeld (n 27) 11–12; Ando (n 26) Ch 4, section 1; and Nisuke Ando, ‘Surrender, Occupation, Private Property in International Law (1)’ (1986) 20 Kobe University Law Review 1, 38.

⁵⁹ See Fox, Gregory H, ‘The Occupation of Iraq’ (2005) 36 Georgetown Journal of International Law 195, 199–201Google Scholar, 234–78, 282, 289, 295–97. Benvenisti's study shows that this principle owes to the Italian jurist Pasquale Fiore: Benvenisti (n 33) 632 (referring to Fiore, Pasquale, Nuovo dritto internazionale pubblico (Presso la Casa Editrice e Tipog, degli Autori-Editori 1865) 443–44Google Scholar). Another prominent classic scholar who advocated this ‘principle’ was Calvo (n 42) 220 para 2181 (‘Le droit international ne reconnaît pas à l'occupant la faculté de changer les lois civiles et criminelles des territories sur lesquels se trouvent ses troupes, ni d'y faire administrer la justice en son nom’).

⁶⁰ Writing in the wake of the Franco-Prussian War, Rolin-Jaequemyns confidently affirmed that the Prussian policy in the context of the Franco-Prussian War generally met such a principle: Rolin-Jaequemyns (n 51) 690–93.

⁶¹ Bluntschli argued that ‘[n]evertheless, the war authority has possibly to conserve the constitution-changing and legislative acts and may set aside the existing legal order only on imminent grounds’ (English translation by the present author): Bluntschli, Johann Caspar, Das moderne Kriegsrecht der zivilisierten Staaten (CH Beck 1866) 8Google Scholar para 36. He added that ‘[t]he war authority allows all to be done that the military emergency demands, that is, insofar as its measures seem necessary in order to achieve the war aim with war measures and as they are in agreement with the general right and war usage of the civilised nations’: ibid 9 para 40 (English translation by the present author). See also Hall (n 10) 470.

⁶² Hall (n 10) 469–70 para 155. For a considerably elaborate examination of how the concept of military necessity has transformed its understanding among scholars, see Henry, Etienne, Le principe de nécessité militaire: Histoire et actualité d'une norme fondamentale du droit international humanitaire (A Pedone 2016)Google Scholar.

⁶³ Fraenkel, Ernst, Military Occupation and the Rule of Law: Occupation Government in the Rhineland, 1918–1923 (Oxford University Press 1944) 193Google Scholar.

⁶⁴ As the practice evolved through the First World War to the interwar period and to the end of the twentieth century, scholarly opinions came to accommodate an expansive remit of power exercised by an occupying power in reliance on the malleable notion of ‘military necessity’: Feilchenfeld (n 27) 87 para 316. For more recent literature that suggests a wider scope of prescriptive and administrative power of the occupant on the basis of the notion of military necessity see Bhuta (n 30) 728.

⁶⁵ See Calvo (n 42) 213 para 2167 (describing the nature of belligerent occupation as similar to that of prisoners of war who conserved their liberty on parole, and highlighting the need for the occupying power to respect ‘les principes du droit naturel’).

⁶⁶ Giladi (n 23) 86.

⁶⁷ See, eg, Hall (n 10) 470.

⁶⁸ Nabulsi (n 37) 172–74; see also Bhuta (n 30) 740. The ‘conservationist’ principle is incorporated into the Hague Regulations (n 6) art 43 and GC IV (n 2) art 64. For its relevance in recent practice in Iraq see, eg, Kolb, Robert, Ius in bello: Le droit international des conflits armés: précis (2nd edn, Helbing and Lichtenhahn 2009) 313Google Scholar; Fox (n 59).

⁶⁹ Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS 331 (VCLT). The customary law nature of this principal means of interpretation was recognised most recently by the International Court of Justice (ICJ) in Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment [2017] ICJ Rep 3, [63]–[64].

⁷⁰ For reliance on travaux préparatoires to ‘confirm the meaning’ of the interpretation reached by the means of interpretation pursuant to art 31 VCLT, see Maritime Delimitation in the Indian Ocean (Somalia v Kenya) ibid [99]–[105].

⁷¹ Le Bouthillier, Yves, ‘Article 32: Supplementary Means of Interpretation’ in Corten, Olivier and Klein, Pierre (eds), The Vienna Convention on the Law of Treaties: A Commentary, Vol I (Oxford University Press 2011) 841, 846–47Google Scholar.

⁷² ibid 855.

⁷³ ILC, Report of the International Law Commission on the Work of its Eighteenth Session, UN Doc A/CN.4/SER.A/1966/Add l, 1966(II) Yearbook of the International Law Commission 172 para 19.

⁷⁴ ibid paras 27, 99, 101, 181, 218. See also Villiger, Mark E, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 447CrossRef Google Scholar.

⁷⁵ See Commonwealth of Australia and Others v Tasmania and Others [1983] 158 CLR 1, para 77 (Chief Justice Gibbs), http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1983/21.html.

⁷⁶ Villiger (n 74) 447.

⁷⁷ The wording ‘supplementary’ corresponds with the French term ‘complémentaire’, neither of which suggests a subsidiary nature: Villiger (n 74) 446.

⁷⁸ See, inter alia, Territorial Dispute (Libyan Arab Jamahiriya v Chad), Judgment [1994] ICJ Rep 6, [41]; Kasikili/Sedudu Island (Botswana v Namibia), Judgment [1999] ICJ Rep 1045, [20], [46]; and Legality of Use of Force (Serbia and Montenegro v Belgium), Preliminary Objections, Judgment [2004] ICJ Rep 279, [100].

⁷⁹ Schwebel, Stephen M, ‘May Preparatory Work Be Used to Correct Rather than Confirm the “Clear” Meaning of a Treaty Provision?’ in Makarczyk, Jerzy (ed), Theory of International Law at the Threshold of the Twenty-first Century (Kluwer 1996) 541Google Scholar, 543.

⁸⁰ 766th Meeting, UN Doc A/CN.4/SER.A/1964, 1964(I) Yearbook of the International Law Commission, para 17.

⁸¹ ibid (adding that recourse to the preparatory works should be deemed the acceptable means of interpretation).

⁸² Le Bouthillier (n 71) 847–48.

⁸³ Canal-Forgues, Eric, ‘Remarques sur le recours aux travaux préparatoires dans le contentieux international’ (1993) 97 Revue générale de droit international public 901Google Scholar, 913.

⁸⁴ Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Jurisdiction and Admissibility, Judgment [1995] ICJ Rep 6, dissenting opinion of Vice-President Schwebel, [39] (holding that ‘[t]he travaux préparatoires are no less evidence of the intention of the parties when they contradict as when they confirm the allegedly clear meaning of the text or context of treaty provisions’). See also Schwebel (n 79) 545–46 (arguing that otherwise art 32 would risk being consigned to ‘surplusage’).

⁸⁵ GC IV (n 2). Such rules include those concerning education for children (art 50), food and medical supplies for the civilian population (art 55): Ben-Naftali, Gross and Michaeli (n 42) 595–96.

⁸⁶ Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009) 282CrossRef Google Scholar para 677.

⁸⁷ GC IV (n 2). Such an entrenched nature of protection is reinforced by arts 7 and 47.

⁸⁸ Lauterpacht, Hersch, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 26 British Year Book of International Law 48Google Scholar, 75. See also ibid 52 (‘the principal aim of interpretation, namely, the discovery of the intention of the parties’), 55 (‘the main task of interpretation, namely, the discovery of the intention of the parties’), 73 (‘the primary object of interpretation, namely, the revealing of the intention of the parties’), 83 (‘It is the duty of the judge to resort to all available means … to discover the intention of the parties’). See also Lauterpacht, Hersch, ‘Some Observations on Preparatory Work in the Interpretation of Treaties’ (1935) 48 Harvard Law Review 549CrossRef Google Scholar, 571.

⁸⁹ Lauterpacht, Hersch, ‘De l'interpretation des traités: Rapport et projet de Résolutions’ (1950) 43(1) Annuaire de l'Institut de Droit International 366Google Scholar, 397 (English translation by the present author); see also ibid 366–434, 457–60, especially at 390–402. See also Ris, Martin, ‘Treaty Interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties’ (1991) 14 Boston College International and Comparative Law Review 111Google Scholar, 113.

⁹⁰ Lauterpacht, ibid 397. See also Klabbers, Jan, ‘International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?’ (2003) 50 Netherlands International Law Review 267CrossRef Google Scholar, 277; and Venzke, Ingo, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press 2012) 3CrossRef Google Scholar.

⁹¹ Venzke, ibid.

⁹² Allott, Philip, ‘The Concept of International Law’ (1999) 10 European Journal of International Law 31CrossRef Google Scholar, 43.

⁹³ Hence, any disagreements on this question among the drafters are of special pertinence.

⁹⁴ Lauterpacht argued that ‘[t]here is latent in any consistent doctrine of “plain meaning” the danger of the substitution of the will of the judge for that of the parties … The law-creating autonomy and independence of judicial activity may be an unavoidable and beneficent necessity. But they are so only on condition that the judge does not consciously and deliberately usurp the function of legislation’: Lauterpacht (1949) (n 88) 83 (author's translation).

⁹⁵ GFitzmaurice, erald, ‘The Law and Procedure of the International Court of Justice, 1951–54: Treaty Interpretation and Other Treaty Points’ (1957) 33 British Yearbook of International Law 203Google Scholar, 218 (emphasis added).

⁹⁶ Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951 [1951] ICJ Rep 15, 22–23, 25–26.

⁹⁷ Lieber Code (n 7).

⁹⁸ ibid, art 32(2) provides that ‘the commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change’.

⁹⁹ Rules of Land Warfare (n 47) 106 para 289 (emphasis added).

¹⁰⁰ See United States Department of Defense, Law of War Manual (2016) 754 para 11.1 (‘Military occupation is a temporary measure for administering territory under the control of invading forces, and involves a complicated, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied territory’ (emphasis added)); see also ibid 771 para 11.4 (‘The fact of occupation gives the Occupying Power the right to govern enemy territory temporarily, but does not transfer sovereignty over occupied territory to the Occupying Power’); and ibid 772 para.11.4.2 (‘Occupation is essentially provisional’ (emphasis added)).

¹⁰¹ Brussels Declaration (n 5).

¹⁰² This should not be conflated with the text of art 1 of the revised draft text presented by Baron Jomini of Russia at the plenary, which is discussed at subs 6.2 below.

¹⁰³ The authentic text in French read: ‘L'occupation par l'ennemi d'une partie du territoire de l’Ētat en guerre avec lui y suspend, par le fait même, l'autorité du pouvoir légal de ce dernier et y substitute l'autorité du pouvoir militaire de l’Ētat occupant’: Brussels Conference on the Rules of Military Warfare (n 43) 9 (English translation by the present author).

¹⁰⁴ The text of art 1 of this very first draft text presented by Russia was realigned when incorporated into the text of art 2 of the final text, with modifications.

¹⁰⁵ Brussels Conference on the Rules of Military Warfare (n 43) 277 (‘Nouvelle rédaction proposée par M. le Président dans la séance plénière du 5 août’). See also ibid 284 (‘Nouveau texte proposé par M. le Président dans la séance du 11 août’). Jomini inserted a new provision (new art 1), which consisted of two sentences and defined ‘occupied territories’.

¹⁰⁶ The authentic French text provided: ‘L'autorité du pouvoir légal étant suspendue et ayant passé de fait entre les mains de l'occupant, celui-ci prendra toutes les mesures qui dépendent de lui en vue de rétablir et d'assurer, autant qu'il est possible, l'ordre et la vie publics’: Brussels Conference on the Rules of Military Warfare (n 43) 288 (English translation by the International Committee of the Red Cross (ICRC); emphasis added to indicate the change introduced by the Commission). In its earlier draft text amended by the Commission on 12–14 August 1874, two factual elements of being suspended and having in fact passed into the hands of the occupant had been put in an alternative manner. The text read: ‘L'autorité du pouvoir légal étant suspendue ou ayant passé de fait entre les mains de l'occupant, celui-ci prendra toutes les mesures qui dépendent de lui en vue de rétablir et d'assurer, autant qu'il est possible, l'ordre et la vie publics’ (‘The authority of the legal power being suspended or having passed in fact between the hands of the occupant, the latter shall take all the measures that depend on him in order to establish and ensure, as much as possible, public order and safety’ (English translation by the present author; emphasis added)): ibid 285–86. Later at the Conference, two further editorial changes were made to the wording. Apart from these, art 2 of the final text was identical to the Commission's text: ibid 297. The text reverted to the phrase ‘l'ordre et la vie publique’.

¹⁰⁷ This had already been mentioned in art 1 of the first original draft text: Brussels Conference on the Rules of Military Warfare (n 43) 277 (Jomini's draft text of 5 August 1874).

¹⁰⁸ English translation by the ICRC.

¹⁰⁹ See Brussels Conference on the Rules of Military Warfare (n 43) 110 and 284 (recording the interim amendment; English translation by the present author). For the final version of art 2, the latter wording appearing at p 110 was only cosmetically changed to: ‘étant suspendue et ayant passé de fait entre les mains de l'occupant, celui-ci prendra’: ibid 288 and 297.

¹¹⁰ Another change that intervened with respect to art 2 was that the reference to ‘the duty’ of an occupant to take all measures to restore and ensure order and public life was added to art 2 of the draft text. This provision read: ‘L'autorité du pouvoir légal étant suspendue de fait par l'occupation, il est du devoir de l’Ētat occupant de prendre toutes les mesures qui dépendent de lui en vue de rétablir et d'assurer, autant qu'il est possible, l'ordre et la vie publique’: Brussels Conference on the Rules of Military Warfare (n 43) 277 (‘The authority of the legitimate power having been suspended in fact by the occupation, it is the duty of the occupying power to take all the measures in his power to restore and ensure, as far as possible, the public order and safety’ (English translation by the present author)). Yet, in his draft of 11 August 1874 Baron Jomoni deleted any reference to the ‘duty’ of the occupant, presumably to fend off any repercussions of introducing such a positive duty: ibid 284. After the reading before the Commission, this text was modified slightly to the wording that corresponds with the text of art 43 Hague Regulations (1899/1907): ibid 285, 288.

¹¹¹ As an aside, the word ‘actually’ in the unofficial English translation corresponds with the French ‘de fait’. A closer equivalent would be the Latin ‘de facto’: Graber (n 46) 46–47.

¹¹² Baron Jomini modified the earlier Russian draft text twice prior to the Commission's session on 12 August 1874. In his draft presented in the plenary on 5 August 1874, a new provision (art 1) that defined ‘occupied territory’ was introduced. Part of what had been arts 1 and 2 of the original Russian draft text was amalgamated into art 2 of the modified draft text: Brussels Conference on the Rules of Military Warfare (n 43) 277.

¹¹³ ibid 277 (English translation by the present author). As discussed above, the Swedish and Norwegian joint delegation supported the retention of this text.

¹¹⁴ Subsequent to Baron Jomini's further amendment to art 1(2), which was introduced on 11 August 1874, this paragraph read: ‘L'occupation ne s’étend qu'aux territoires où cette autorité est établie et tant qu'elle est en mesure de s'exercer’ (‘[t]he occupation extends only to the territory where such authority has been established and to the extent that/so long as it (‘tant qu'elle’) can be exercised’): Brussels Conference on the Rules of Military Warfare (n 43) 284 (emphasis added, English translation by the present author).

¹¹⁵ The original French text reads: ‘L'occupation ne s’étend qu'aux territoires où cette autorité est établie et en mesure de s'exercer’: ibid 288. Compared with the interim version of art 1(2) shown in the footnote above, this final version, which was only cosmetically different, seems nonetheless to have discarded emphasis on temporal or geographical limitation implied by ‘tant qu'elle est en mesure de s'exercer’.

¹¹⁶ It should be noted that the deletion of any reference to the temporal factor was motivated not for the reason related to any considerations of temporal length of occupation. Instead, this expurgation was done lest such a clause might imply that the physical presence of troops in the occupied region was indispensable for belligerent occupation: Graber (n 46) 53; cf Brussels Conference on the Rules of Military Warfare (n 43) 105 (General de Leer of Russia stressing the need for part of the occupying army to secure its position and line of communication with other corps), and 106 (Federal Colonel Hammer of Switzerland arguing that ‘[f]or the purpose of maintaining the occupation, it is not necessary to have at disposal grand troops; it is sufficient to have a man, provided that he is respected, or a post office, or a telegram office, or any other commission established in the locality and functioning without opposition’ (English translation by the present author)).

¹¹⁷ ibid 106 (Lieutenant-Colonel Staaff, co-representative of Sweden and Norway, 12 August 1874).

¹¹⁸ The original French statement read that ‘l’occupation dure tant qu'elle s'exerce de fait’: ibid 107 (emphasis added, English translation by the present author); see also ibid 277 and 284. This phrase might be taken as endorsing the view that as long as the factual situation of a foreign military control lasts, occupation continues concordantly, so that prolonged occupation would be justified. Yet, from the discussions of the Commission, it was clear that his statement was purported merely to accentuate the purely factual nature of occupation.

¹¹⁹ Oxford Manual (n 8) art 6 (English translation by ICRC; emphasis added).

¹²⁰ ibid art 41 (English translation by the ICRC; emphasis added). Apart from arts 6 and 41 discussed here, see also a note preceding section C(a) (public property) which contains arts 50–53. This suggests that the occupant's power over property may be constrained. It reads: ‘If the occupant is substituted for the enemy State for the government of the invaded territories, he still does not exercise any absolute power. So long as the fate of these [occupied] territories is in suspension, that is until peace, the occupant is not free to dispose of what still belongs to the enemy and cannot be of use for the war operation’: Institut de Droit International, ‘Réglementation des lois et coutumes de la guerre : Manuel des lois de la guerre’ (1881–82) 5 Annuaire de l'Institut de Droit International 168 (English translation by the present author).

¹²¹ Hague Regulations (n 6).

¹²² The Brussels Declaration (n 5) art 3 reads: ‘With this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary’ (English translation by the ICRC). The authentic French text provides: ‘À cet effet, il maintiendra les lois qui étaient en vigueur dans le pays en temps de paix, et ne les modifiera, ne les suspendra ou ne les remplacera que s'il y a nécessité’.

¹²³ As an aside, another key difference introduced by the Hague Regulations is the paraphrasing of the term ‘nécessité’ (‘necessity’) by the wording ‘empêchement absolu’ (‘unless absolutely prevented’), which had no exact and elegant English equivalent.

¹²⁴ English translation by the ICRC. The original text in French read: ‘L'autorité du pouvoir légal étant suspendue et ayant passé de fait entre les mains de l'occupant …’.

¹²⁵ English translation by the ICRC. The original text in French referred to ‘étant suspendue et’.

¹²⁶ This was proposed by Beernaert (Belgium): Scott, James Brown, The Proceedings of the Hague Peace Conference: Translation of the Official Texts – The Conference of 1899 (Oxford University Press 1920) 512Google Scholar.

¹²⁷ Conférence International de la Paix; La Haye, 18 May–29 July 1899, Pt I, 119; Scott, ibid 512.

¹²⁸ Giladi (n 23) 114 (arguing that, for Francis Lieber, the transient character of occupation did not suggest any limitation on the authority of the occupying power).

¹²⁹ Along this line, Loening asserted that ‘[w]hen the occupation prolongs, the occupant will also have to accommodate the pressing needs of the population’: Loening (n 31) 634. In the present-day context, see ICRC, ‘Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory’, March 2012, 72 (ICRC Expert Meeting) (‘In fact, the duration of the occupation was a factor that could lead to transformations and changes in the occupied territory that would normally not be necessary during short-term occupation’).

¹³⁰ The very first draft text was proposed by Russia and was initially numbered art 2: Brussels Conference on the Rules of Military Warfare (n 43) 9 (emphasis added; English translation by the present author).

¹³¹ As a first step towards change, the President of the Conference, Baron Jomini (Russia), revised a draft text in the plenary session, introducing a provision (new art 1) which defined an ‘occupied territory’: Brussels Conference on the Rules of Military Warfare (n 43) 277 (new draft text proposed by the President in the plenary session on 5 August 1874).

¹³² Art 3 of the draft text proposed by the President on 11 August 1874 provided: ‘À cet effet, il maintient les lois qui étaient en viguer dans le pays en temps de paix, et ne les modifie, ne les suspend ou ne les remplace que s'il y est obligé’ (‘To this effect, [the enemy occupant] maintains the laws that were in force in the country in time of peace, and modifies, suspends or replaces them only where it is obliged to do so’): Brussels Conference on the Rules of Military Warfare (n 43) 284 (English translation by the present author). The text was changed slightly by the Commission, with the last phrase ‘que s'il y est obligé’ replaced by the words ‘que si il y a nécessité’, while changing the tense from the present to the future: ibid 286, 288, 297.

¹³³ ibid 239 (Baron Blanc of Italy, expressing this view in a personal capacity).

¹³⁴ This process was to be reversed at the subsequent Hague Conference (1899) to form one united provision (Hague Regulations, art 43), as discussed above at subs 5.5.

¹³⁵ Brussels Conference on the Rules of Military Warfare (n 43) 9, 110, 239, 277, 284, 288, 297. As explained in the previous sub-sections, after some further changes were introduced into the text of art 2, the final version reads: ‘The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety’: ibid 297 (English translation by the ICRC).

¹³⁶ ibid.

¹³⁷ ibid 9.

¹³⁸ ibid 110. This proposal was supported by Mr de Lansberge (the Netherlands) and Colonel Count Lanza (Italy): ibid 110–11.

¹³⁹ On this, see Loening (n 31) 634 (stating that in the case of a ‘short occupation’, the occupying power is required to take measures relating to the safety of the occupying army, while in the case of a ‘long occupation’, its power could turn to general legislation). The relevant part of his original text is worthy of citation here: ‘When the occupation is only temporary, of short duration, the enemy is satisfied to make the arrangements necessitated by the exigencies of the war and by its own security. When the occupation prolongs, the occupant will also have to accommodate the pressing needs of the population. … The power of the State vanquished was suspended and all the attempt to exercise it was threatened with punishment, the enemy occupant must compensate for that state of affairs, as long as the war and its necessity allows it. The occupant can exercise, though only provisionally, the eminent rights of the state, collects the taxes, and s/he is by contrast obliged to fill the duties inherent in those rights’ (English translation by the present author).

¹⁴⁰ Rolin-Jaequemyns (n 51) 660–66, 675–85, 690–93; see also Calvo (n 42) 212 para 2166; and Loening (n 31) 626–34, 650. For the argument that while occupation was a temporary state of affairs, the occupier had the extensive right to change local laws, see Halleck (n 29) 775–76, 781 (‘The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. Important changes of this kind are seldom made, as the conqueror has no interest in interfering with the municipal laws of the country which he holds by the temporary rights of military occupation. He nevertheless has all the powers of a de facto government, and can, at his pleasure, either change the existing laws, or make new ones. Such changes, however, are, in general, only of a temporary character, and end with the government which made them. … Neither the civil nor the criminal jurisdiction of the conquering state is considered, in international law, as extending over the conquered territory during military occupation’: ibid 781 para 5 (emphasis added).

¹⁴¹ Hall (n 10) 470 (emphasis added). For a similar understanding, see Oppenheim (n 11) 364.

¹⁴² Graber (n 46) 37 (emphasis added).

¹⁴³ Henry Wheaton, Elements of International Law (8th edn, Richard Henry Dana Jr ed; Little, Brown, and Company 1866) 436–39 para 347, text at fn. According to Wheaton, ‘[b]elligerent occupation implies a firm possession, so that the occupying power can execute its will either by force or by acquiescence of the people, and for an indefinite future, subject only to the chances of war. On the other hand, it implies that the status of war continues between the countries, whether fighting has ceased or not’: ibid 436, text at fn (emphasis added).

¹⁴⁴ ibid 436, text at fn (emphasis added).

¹⁴⁵ ibid 437–38, text at fn.

¹⁴⁶ The Lieber Code (n 7) art 33 proclaims that ‘[i]t is no longer considered lawful – on the contrary, it is held to be a serious breach of the law of war – to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place permanently as its own and make it a portion of its own country’: see Graber (n 46) 40 (explaining that art 33 was drafted by Lieber ‘with the Civil War in mind’).

¹⁴⁷ This can be inferred from arts 1 and 2 of the Lieber Code; see also Bluntschli (n 61) 8 para 36, and 9 para 40.

¹⁴⁸ Hall observed that the rights which the occupier possessed over the inhabitants of the occupied territory included the ‘general right to do whatever acts are necessary for the prosecution of his war’, and that with the scope of such rights delimited only by the ambiguous notion of military necessity, ‘the rights acquired by an invader in effect amount to the momentary possession of all ultimate legislative and executive power’. He adds that ‘[o]n occupying a country an invader at once invests himself with absolute authority; and the fact of occupation draws with it as of course the substitution of his will for previously existing law whenever such substitution is reasonably needed’: Hall (n 10) 469–70 para 155 (emphasis added).

¹⁴⁹ Bluntschli explained that ‘[t]he war authority can proclaim general directives, set up institutions, exercise police authority and tax sovereignty, in so far as this is demanded by the need for continuation of war, or by the need for occupied area or for the population’ (English translation by the present author): Bluntschli (n 61) 8 para 36.

¹⁵⁰ See United States v Rice 17 US (4 Wheat) 246 (1819) (relating to the city of Castine occupied by the British during the war of 1812). Justice Story held: ‘By the conquest and military occupation of Castine the enemy acquired that firm possession which enabled him to exercise the fullest right of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. By the surrender the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose’ (emphasis added). See also The Foltina [1814] 165 ER 1374, 1375 (‘No point is more clearly settled in the Courts of Common Law than that a conquered country forms immediately part of the King's dominions’).

¹⁵¹ See the statement of President Polk addressed to the House of Representatives on 24 July 1848 (‘In prosecuting a foreign war thus duly declared by Congress, we have the right, by “conquest and military occupation”, to acquire possession of the territories of the enemy, and, during the war, to “exercise the fullest rights of sovereignty over it”. The sovereignty of the enemy is in such case “suspended”, and his laws can “no longer be rightfully enforced” over the conquered territory “or be obligatory upon the inhabitants who remain and submit to the conqueror. By the surrender the inhabitants pass under a temporary allegiance” to the conqueror, and are “bound by such laws, and such only, as” he may choose to recognize and impose. “From the nature of the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty there can be no claim to obedience”. These are well-established principles of the laws of war, as recognized and practiced by civilized nations, and they have been sanctioned by the highest judicial tribunal of our own country’: Richardson, James D (ed), A Compilation of Messages and Papers of the Presidents, Vol IV, Pt 3 (The Government Printing Office 1897) 595Google Scholar. See also Fleming v Page 50 US 603 (1850) 615 (‘By the laws and usages of nations, conquest is a valid title, while the victor maintains the exclusive possession of the conquered country’).

¹⁵² According to Benvenisti, the Americans, when expanding the Western frontier territories, closely followed British practice, ‘which did not distinguish between occupation and conquest’ in the non-Western world, ‘whereby mere occupation was an effective way of expanding its dominion to occupied territories and their inhabitants’: Benvenisti (n 33) 635–36; see also ibid 639.

¹⁵³ See the Executive Order of President McKinley to the Secretary of War, 19 May 1898, http://presidency.proxied.lsit.ucsb.edu/ws/index.php?pid=69291 (in which President McKinley made a declaration in relation to the US occupation of the Philippines: ‘Though the powers of the military occupant are absolute and supreme and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals substantially, as they were before the occupation’ (emphasis added)). See also Benvenisti (n 33) 638 (discussing how US doctrine allowed the occupation and the use of force to acquire sovereign title over the territory through a sovereign act, such as annexation or incorporation, even though this, failing an act of the Congress, still had yet to make the territory in question subject to US law); see also ibid 641.

¹⁵⁴ The Stockholm draft text at art 4, which was approved by the XVIIth International Red Cross Conference at Stockholm, was entitled ‘Beginning and End of Application’. It did not contain the ‘one-year’ rule, as this was introduced at the subsequent Geneva Conference. Art 4 read: ‘The present Convention shall apply from the outset of any conflict covered by Article 2. The application thereof shall cease on the close of hostilities or of occupation, except as regards protected persons whose release, repatriation or re-establishment may take place subsequently and who, until such operations are terminated, shall continue to benefit by the present Convention’: Final Record of the Diplomatic Conference of Geneva of 1949, Vol I (Federal Political Department 1949) (Final Record Vol I) 114.

¹⁵⁵ See, eg, ICRC, ‘Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims’, Geneva, 14–26 April 1947; and Final Record Vol I ibid.

¹⁵⁶ Dinstein (n 40) 42–43 (explaining that ‘[w]hen war has taken place and is terminated by a peace treaty – or by any other arrangement embedded in consent – an occupation prolonged beyond the end of the war cannot erase its origins which were non-pacific. The best term, in the opinion of the present writer, is “post-belligerent occupation”’).

¹⁵⁷ Dinstein (n 86) 280–83 paras 674–80.

¹⁵⁸ Dinstein, Yoram, ‘Autonomy and Legal Status: A Rejoinder’ (1995) 26 Security Dialogue 185CrossRef Google Scholar, 188; and Gasser, Hans-Peter and Dörmann, Knut, ‘Protection of the Civilian Population’ in Fleck, Dieter (ed), The Handbook of International Humanitarian Law (3rd edn, Oxford University Press 2013) 231Google Scholar, 281 para 537.

¹⁵⁹ After a one-year time span, occupation draws to a close in various forms or patterns. For the purpose of the non-application of those 43 fundamental provisions, it does not matter if a handover of governmental authority may take place in one single day by an official and solemn proclamation, or by the progressive phasing out of foreign forces.

¹⁶⁰ Clearly, the term ‘active hostilities’ is much narrower than the concept of ‘hostilities’. As stated in ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) (ICRC Commentary on the Additional Protocols) 68 para 153, ‘[t]he general close of military operations may occur after the “cessation of active hostilities” referred to in Article 118 of the Third Convention: although a ceasefire, even a tacit ceasefire, may be sufficient for that Convention, military operations can often continue after such a ceasefire, even without confrontations. Whatever the moment of the general close of military operations, repercussions of the conflict may continue to affect some persons who will be dealt with below’.

¹⁶¹ Ben-Naftali, Gross and Michaeli (n 42) 595; Grignon, Julia, L'applicabilité temporelle du droit international humanitaire (Schulthess 2014) 315Google Scholar. Elsewhere, Grignon ponders the question whether a manoeuvre deployed by a foreign army to effectuate the instance of occupation without armed resistance in a manner described in art 2(2) common to the Geneva Conventions may constitute military operations: ibid 322–23.

¹⁶² This was the case, despite the difference in the two concepts of ‘hostilities’ and ‘military operations’. The Italian delegate considered the term ‘end of hostilities’ as indicating the ‘termination of military operations’, adding that ‘[a]n occupation which lasted beyond the date of cessation of hostilities only entailed obligations which were to be lifted progressively, as and when the local authority took over administrative powers’: Final Record of the Diplomatic Conference of Geneva of 1949, Vol IIA (Federal Political Department 1949) 625 (Final Record Vol IIA). Later, the Report of the Rapporteur of Committee III to the Plenary Assembly explained that the text of art 4 of the Stockholm Draft was amended with the phrase ‘general conclusion of military operations’ replacing the words ‘conclusion of hostilities’, with a view to avoiding any confusion in countries such as France where, under national legislation, ‘the conclusion of hostilities’ was determined by decree, which would repeal all internal war legislation and restore peacetime legislation: ibid 815. The Rapporteur understood the notion ‘military operations’ in a manner that was very narrow and synonymous with the notion of ‘active hostilities’. He stated that ‘the general conclusion of military operations means when the last shot has been fired’. See also the views expressed by the Monaco delegation and the Chairperson (the French delegate) at the Third Meeting: ibid 624.

¹⁶³ The ICJ held: ‘A distinction is also made in the Fourth Geneva Convention between provisions applying during military operations leading to occupation and those that remain applicable throughout the entire period of occupation. … Since the military operations leading to the occupation of the West Bank in 1967 ended a long time ago, only those Articles of the Fourth Geneva Convention referred to in Article 6, paragraph 3, remain applicable in that occupied territory’: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136 (Wall Advisory Opinion), [125]. See also Dinstein (n 40) 41–44 (arguing that only the Israeli occupation of Golan Heights constituted ‘belligerent’ occupation in the strict sense, while the nature of the occupation of the both West Bank and the Gaza Strip has been transformed by various agreements).

¹⁶⁴ Imseis, Ardi, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’ (2005) 99 American Journal of International Law 102CrossRef Google Scholar, 106; Ben-Naftali, Gross and Michaeli (n 42) 595–96. However, the present writer disagrees over their wider interpretation, according to which the term ‘military operation’ is understood as encompassing all ‘the circumstances surrounding the construction of the wall’. See also Final Record Vol IIA (n 162) 623–25.

¹⁶⁵ Wall Advisory Opinion (n 163) [125]; see also ibid [135] (‘the general close of military operations that led to their occupation’). See Ben-Naftali, Gross and Michaeli (n 42) 595–96.

¹⁶⁶ See Gross (n 3) 43.

¹⁶⁷ This is true even though GC IV (n 2) art 154 underscores the ‘supplementary’ nature of GC IV in relation to Section III of the Hague Regulations, which governs the occupied territory. At the Diplomatic Conference (1949), some influential delegates insisted on the meaning of occupation laid down by the Hague Regulations: Final Record Vol IIA (n 162) 624–25 (United Kingdom and Italy). The UK delegate even stressed that any new rule under GC IV that would be inconsistent with the rules of occupation under the Hague Regulations was unacceptable to his delegation: ibid 775–76.

¹⁶⁸ Pictet, Jean S (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol IV (International Committee of the Red Cross 1958) 63Google Scholar (Pictet's Commentary).

¹⁶⁹ ibid. The Commentary adds that in the absence of a political act, ‘such as the annexation of the territory or its incorporation in a federation’, recognised by the international community, ‘the provisions of the Convention must continue to be applied’. Still, it may be argued that what Pictet's Commentary is purported to suggest is to highlight the protection of the civilian population under occupation (the meaning of which is understood to be in tune with common art 2 of the Geneva Conventions as encompassing the situation where there is no armed resistance, rather than to address the specific question of the temporal span of occupation).

¹⁷⁰ ibid.

¹⁷¹ ibid (adding that the exception to this may arise in the case of any political act recognised by the international community, ‘such as the annexation of the territory or its incorporation in a federation’).

¹⁷² Grignon (n 161) 322.

¹⁷³ For this view, see Kolb, Robert and Vit, Sylvain, Le droit de l'occupation militaire: Perspectives historiques et enjeux juridiques actuels (Bruylant 2009) 161Google Scholar.

¹⁷⁴ Grignon (n 161) 323. See also the United States Military Tribunal at Nuremberg, United States v Wilhelm List and Others (The Hostages Trial), Judgment, Case No 47, 8 July 1947 to 19 February 1948, in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol VIII (1949) 34, 55–56 (‘The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant's control is maintained and that of the civil government eliminated, the area will be said to be occupied’).

¹⁷⁵ Final Record Vol IIA (n 162) 623. With respect to the temporal length of applicability of the proposed Civilians Convention, the US representative emphasised that ‘[t]he Occupying Power should be bound by the obligations of the Convention only during such time as the institutions of the occupied territory were unable to provide for the needs of the inhabitants’. Implicitly underlying this was the idea of the occupying power as the trustee for the territory and population under occupation: ibid. He then referred to the inadequacy of the rules governing the occupying power's responsibility for the welfare of the local population: ibid.

¹⁷⁶ See the views expressed by the Bulgarian, UK and Norwegian delegations: Final Record Vol IIA (n 162) 624.

¹⁷⁷ ibid (a Norwegian suggestion).

¹⁷⁸ ibid 625 (an Italian proposal).

¹⁷⁹ This committee was responsible for drafting the Civilians Convention.

¹⁸⁰ Final Record Vol IIA (n 162) 623.

¹⁸¹ ibid. According to the ICRC delegate, the Conference of Experts, which had been responsible for drawing up part of the pre-Stockholm draft text, drew on the provisions of the Prisoners of War Convention, which considered the end of captivity of prisoners of war upon the ‘cessation of hostilities’ as the basis for ascertaining the termination of interning civilians: ibid 624. Yet, this obviously did not contemplate the possibility of administratively detaining civilians during the period of occupation following the end of (active) hostilities.

¹⁸² ibid 623.

¹⁸³ See the delegates of Bulgaria, the United Kingdom and Norway. The Bulgarian representative stated that ‘[a] considerable time might elapse before an occupation ended’, while referring to six months or two years at the cut-off period for the applicability of GC IV: ibid 624.

¹⁸⁴ See the delegates of the United States, Norway and Italy: ibid 623–25.

¹⁸⁵ ibid 624 (the suggestion by Norway).

¹⁸⁶ ibid 625.

¹⁸⁷ ibid 775.

¹⁸⁸ The one-year time limit was inserted also in relation to the text of the second paragraph (governing the end of the application of GC IV for the territory of the parties to the conflict), which had been prepared initially by the Drafting Committee. Yet, this was amended by the United Kingdom proposal: see Final Record of the Diplomatic Conference of Geneva of 1949, Vol IIB (Federal Political Department 1949) (Final Record Vol IIB) 189 (Drafting Committee) and 386–88 (plenary).

¹⁸⁹ Final Record Vol IIA (n 162) 775–76; see also the same point made earlier at the Third Meeting of Committee III: ibid 624.

¹⁹⁰ ibid 776.

¹⁹¹ See the opinion of the Monaco delegate (‘The present occupation of Germany was an entirely different case’: ibid 624).

¹⁹² ibid 776 (by 19 votes, while the Soviet amendment was rejected by 16 votes to 8).

¹⁹³ Final Record Vol IIB (n 188) 388 (24th Plenary Session).

¹⁹⁴ Final Record Vol IIA (n 162) 815–16; see also ibid 776 (the view expressed by the Rapporteur, the Swiss delegate); and Final Record Vol IIB (n 188) 386–88 (exchange of views between the USSR delegation and the UK representative at the 24th plenary meeting).

¹⁹⁵ Final Record Vol IIA (n 162) 775–76.

¹⁹⁶ The Allied occupation of Germany can be explained by the doctrine of debellatio: Benvenisti, Eyal, The International Law of Occupation (2nd edn, Oxford University Press 2012) 161–62CrossRef Google Scholar.

¹⁹⁷ Pictet (n 168) 62; Bothe, Michael, Partsch, Karl Josef and Solf, Waldemar A, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (Martinus Nijhoff 1982) 5CrossRef Google Scholar9 para 2.8; and Roberts (n 4) 56. As an aside, the special circumstances of the Allied occupation of Germany, Austria and Japan also explained the introduction of the phrase ‘within its territory and subject to its jurisdiction’ under art 2(1) of the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR); UN Economic and Social Council, Commission on Human Rights, 6th Session – Summary Record of the 193rd Meeting (26 May 1950), UN Doc E/CN.4/SR.193, 13 para 53 (reference to those three countries by Eleanor Roosevelt).

¹⁹⁸ For explorations of this concept, see Bhuta (n 30); Roberts, Adam, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 American Journal of International Law 580CrossRef Google Scholar; and ICRC Expert Meeting (n 129) 67–72.

¹⁹⁹ See the Anglo-American occupation of Italy in 1943–48; the Soviet Union's occupation of Northern Korea (1945–48); and the US occupation of Southern Korea (1945–48): Edelstein, David M, Occupational Hazards: Success and Failure in Military Occupation (Cornell University Press 2008) 27Google Scholar, 57–86, 183, 186–87.

²⁰⁰ In the same year as the Diplomatic Conference at Geneva (1949), the Allied occupation of Italy and the US occupation of Korea (which, like Taiwan, was liberated from Japanese colonialism) had just come to an end.

²⁰¹ Grignon (n 161) 310–11.

²⁰² cf Ben-Naftali, Orna, ‘“A La Recherche du Temps Perdu”: Rethinking Article 6 of the Fourth Geneva Convention in the Light of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion’ (2005) 38 Israel Law Review 211CrossRef Google Scholar, and Ben-Naftali, Gross and Michaeli (n 42) 595 (claiming that such an arrangement of transfer seems ‘absurd’). Even so, the mandatory term ‘shall’ in art 6(3) GC IV, used to indicate the termination of key provisions of the applicability of the GC IV, seems to go too far.

²⁰³ Grignon (n 161) 310–11.

²⁰⁴ Dinstein compares the reactivation of GC IV and the re-operation of art 6(3) of GC IV with an accordion which ‘may be compressed (one year after the general close of military operations), stretched out in full (if and when hostilities resume), recompressed, restretched, and so on’: Dinstein (n 86) 283 para 680; see also Dinstein (n 158) 187–88; and Dinstein (n 40) 42–44.

²⁰⁵ Roberts (n 4) 55; Dinstein (n 86) 282 para 678.

²⁰⁶ Edelstein refers to the cases of post-First World War occupation of Rhineland by France, the UK and the US (1918–30), and the French occupation of Saar (1920–35): Edelstein (n 199) 27.

²⁰⁷ ibid 105–122. For criticism of the inconsistency in the British prolonged occupation of Egypt and Cyprus, see Baty (n 11) 976. Edelstein also refers, as other instances of ‘occupation’, to the French occupation of Mexico (1861–67), the British ‘occupation’ of Iraq (1918–32) and Palestine (1919–48) under the League of Nations’ Mandate, and the US occupation of Cuba (1898–1902 and 1906–09), Haiti (1915–34), the Dominican Republic (1916–24), and the Philippines (1898–1945): Edelstein (n 199) 27, 39–47, 176–82. It can be argued that the legal nature of the British occupation of Egypt should have been characterised as that of belligerent occupation. After the third year of occupation, there was an attempt to agree on the Anglo-Turkish agreement (the 1887 Drummond Wolff Convention), but this was aborted. Egypt was formally incorporated into the system of the British protectorate in 1914: ibid 112, 117. In so doing, Britain declared sovereignty over Egypt (as it did over Cyprus) in as late as 1914: Benvenisti (n 33) 636. See also Hornik, MP, ‘The Mission of Sir Henry Drummond-Wolff to Constantinople, 1885–1887’ (1940) 55 The English History Review 598CrossRef Google Scholar.

²⁰⁸ It can be argued that the US occupation of Japan was based on the Instrument of Surrender accepted by the then Imperial Japanese government: see Ando (n 26) 87; Kelly, Michael J, ‘Iraq and the Law of Occupation: New Tests for an Old Law’ (2003) 6 Yearbook of International Humanitarian Law 127CrossRef Google Scholar, 157–58; Benvenisti (n 196) 162. See also Cryer, Robert, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study’ (2006) 11 Journal of Conflict and Security Law 239CrossRef Google Scholar, 241 fn 14.

²⁰⁹ Edelstein (n 199) 134 (noting that ‘[b]y May 1949, leaders in Washington had further begun to recognize that the continuation of the occupation, with little end in sight, might endanger the very purpose of the occupation’, referring to the warning by US Secretary of State Dean Acheson that ‘an indefinite occupation would make Japan “easy prey to Commie ideologies”’, and to the statement of General MacArthur that ‘[a]fter about the third year [of occupation], any military occupation begins to collapse of its own weight’, referring to Secretary of State Dean Acheson to Certain Diplomatic Officers in Foreign Relations of the United States, 1949, Vol 7, The Far East and Australasia, Pt 2, 736–37; and Textor, Robert B, Failure in Japan (John Day 1951) 340)Google Scholar.

²¹⁰ Note that the local authorities in Germany, Austria and Japan had already been given a substantive portion of governmental responsibility by 1949, with the end of occupation in respective territories (save for Berlin which was then under the Soviet blockade) foreseeable in some years ahead (1952 or 1955 for the two former states, and 1951 for Japan).

²¹¹ See Benvenisti (n 196) 164–66.

²¹² The refusal may occur not least for the reason of its lack of commitment to withdrawal from the occupied territory. Alternatively, it may be that there is yet to emerge any effective local authority to which responsibility should be handed over for addressing the social and economic needs of the occupied population.

²¹³ Ben-Naftali, Gross and Michaeli (n 42) 595–96.

²¹⁴ See also Roberts (n 4) 55 (referring to the possibility of military occupation or administration that endures ‘indefinitely’).

²¹⁵ See Section 9 below.

²¹⁶ ICRC Expert Meeting (n 129) 30 (emphasis added).

²¹⁷ The exceptions are recognised for those persons whose final release, repatriation or re-establishment takes place thereafter. Such persons ‘shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release, repatriation or re-establishment’.

²¹⁸ Kolb, Robert, ‘Étude sur l'occupation et sur l'article 47 de la IV^ème Convention de Genève du 12 août 1949 relative à la protection des personnes civiles en temps de guerre: le degré d'intangibilité des droits en territoire occupé’ (2002) 10 African Yearbook of International Law 267CrossRef Google Scholar, 291, 295.

²¹⁹ ICRC Commentary on the Additional Protocols (n 160) 67 para 151.

²²⁰ See Ben-Naftali, Gross and Michaeli (n 42) 596 (arguing that AP I art 3(b) reflects customary law, on the ground that this is recognised by the Israeli High Court and other states in cases of prolonged occupation). See also HCJ 7015/02 Ajuri v IDF Commander in West Bank and Gaza Strip 2002 PD 56(6) 352 (suggesting the application of art 78 GC IV, notwithstanding art 6). For commentaries on this judgment, see Barak-Erez, Daphne, ‘Assigned Residence in Israel's Administered Territories: The Judicial Review of Security Measures (Review of HCJ 7016/02, Ajuri v IDF Commander)’ (2003) 33 Israel Yearbook on Human Rights 303Google Scholar; and Benvenisti, Eyal, ‘Ajuri et al. – Israel High Court of Justice, 3 September 2002’ (2003) 9(4) European Public Law 481Google Scholar.

²²¹ ICRC, ‘Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts’, Second Session, 3 May–3 June 1972, Vol I, 178 (ICRC Report on the Work of the CGE 1972). Note that in its earlier Report of the CGE (the first session in 1971), there had been no remark on the rule governing the end of the applicability of AP I: ICRC, ‘Report on the Work of the Conference of the Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts’, 24 May–12 June 1971 (ICRC Report on the Work of the CGE 1971) (focusing on such issues as requisition, the protection of medical and relief activities, civil defence organisations).

²²² ICRC Report on the Work of the CGE 1972, ibid Vol I, 178.

²²³ ibid.

²²⁴ ibid.

²²⁵ It provided that ‘[i]n the case of occupied territory, the application of the present Protocol shall cease on the termination of the occupation’: ICRC, ‘Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Commentary’, October 1973, 9. The commentary to this paragraph states that ‘[f]ollowing the wish of a majority of the experts, the text of this paragraph as regards the time limit differs from that of Article 6(3) of the Fourth Convention, relating to the end of the application of the Convention in occupied territory’: ibid 10; see also ibid 84 (commentary to art 65(5) of the draft AP I, which corresponds with art 75(6) AP I).

²²⁶ See ECtHR, Von Maltzan and Others v Germany, App nos 71916/01, 71917/01 and 10260/02, 2 March 2005, para 80 (with the Grand Chamber holding that the USSR occupation of Germany between 1945 and 1949 was ‘not an “ordinary” wartime occupation, but an occupation sui generis, following a war and an unconditional capitulation, which conferred powers of “sovereignty” on the occupying forces’). See also Benvenisti (n 196) 162.

²²⁷ Such instances are already included in the list of the examples described in n 2 above. By 1972 the representatives must have been aware at least of the cases of occupation of the Palestinian territories by Egypt, Israel and Jordan (1948–67), and the Israeli occupation of the West Bank, the Gaza Strip, the Golan Heights, and East Jerusalem after the Six-Day War in 1967. Indeed, the Israeli occupation cases provided a political momentum behind the adoption of art 1(4) AP I (n 9).

²²⁸ For the examination, see ‘Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts’, Geneva (1974–77) (Federal Political Department 1978) (1974–77 Diplomatic Conference). See also Bothe, Partsch and Solf (n 197) 42, 51–52, 56, 59, 112–23, 125–26, 129, 136, 173–74, 177, 251–58, 390, 405, 408, 424, 509.

²²⁹ See the amendment proposed jointly by Algeria, the Arab Republic of Egypt, Iraq, Jordan, Kuwait, Lebanon, the Libyan Arab Republic, Mauritania, Mongolia, Morocco, Sultanate of Oman, Pakistan, Qatar, Saudi Arabia, Sudan, the Syrian Arab Republic, Tunisia, United Arab Emirates, Democratic Yemen, Yugoslavia (CDDH/I/48 and Corr.1 and CDDH/I/48/add.1 and Add.1/Corr.1, 18 March 1974, in 1974–77 Diplomatic Conference, ibid Vol III, 16); United States of America (CDDH/I/49, 18 March 1974, in ibid 16–17); and Australia (CDDH/I/213, 13 February 1975, in ibid 17–18). See also the explanation of the vote by Cyprus concerning art 3 AP I: ibid Vol VI, 60; Compare the statement of the Israeli delegation (Shabtai Rosenne) that ‘all the provisions concerning the application ratione temporis of the provisions of draft Protocol I should be aligned on the corresponding provisions of the [Geneva] Conventions’: ibid Vol VIII, 194 para 24.

²³⁰ The entire text of art 3 AP I was adopted by Committee I by consensus at the 26th meeting: ibid Vol VIII, 247–48. It was then endorsed by the Conference again by consensus at the 36th plenary meeting: ibid Vol III, 15; and ibid Vol VI, 57.

²³¹ See Grignon (n 161) 317.

²³² See Abi-Saab, Georges, ‘Wars of National Liberation in the Geneva Conventions and Protocols’ (1979) 165 Recueil des Cours 353Google Scholar, 394–96 (emphasising the colonial context with reference to ‘colonies of settlement’); Bothe, Partsch and Solf (n 197) 51–52 para 2.22 (explaining that the term ‘alien’ is synonymous with ‘colonial’, and that the phrase ‘colonial or alien domination’ was suggested in lieu of the words ‘alien occupation’); Rosas, Allan, The Legal Status of Prisoners of War (Institute for Human Rights, Abo Akademi University 1976) 272–73Google Scholar (claiming that the term ‘alien occupation’ excludes the case of belligerent occupation because this is already covered by common art 2(2) of the Geneva Conventions, and that the former refers to the territories title to which is disputed, such as the South African occupation of Namibia and the Israeli occupation of the Palestinian territories); Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (Oxford University Press 2012) 217Google Scholar. Note that the ICRC Report of the Conference of the Government Experts (the first session in 1971) refers to the remark made by one expert regarding colonialism: ‘During the Second World War, it was agreed that conflicts involving the expulsion of an occupant were of an international nature. Should a distinction be made between occupation that had lasted since the end of the XIXth century and that which had lasted only 4 or 5 years? Would the criteria for defining the conflict really be so different if the occupation had lasted a long time? The expert considered that it sufficed for the people to take up arms against an occupying State regardless of the length of the occupation’: ICRC Report on the Work of the CGE 1971 (n 221) 54 para 323.

²³³ AP I (n 9) art 1(3).

²³⁴ Bothe, Partsch and Solf (n 197) 57 para 2.2, 59 para 2.8; Roberts, Adam, ‘Occupation, Military, Termination Of’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 2009)Google Scholar para 13.

²³⁵ See also Gross (n 3) 43.

²³⁶ Kolb (n 68) 226.

²³⁷ Ben-Naftali, Gross and Michaeli (n 42) 596.

²³⁸ Kolb (n 68) 225–26.

²³⁹ ibid.

²⁴⁰ The customary IHL study by the ICRC does not address the question of the customary law status of the rule contained in art 3(b) AP I: Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law (Cambridge University Press 2005, revised 2009)CrossRef Google Scholar. See also UK Ministry of Defence, JSP 383: The Joint Service Manual of the Law of Armed Conflict (Defence Storage & Distribution Centre 2004) 277–78 para 11.8 (referring to the two parallel rules without stating the customary law status or otherwise of art 3(b) AP I: the ‘one-year’ rule for states parties only to GC IV; and the continued applicability of GC IV and AP I for states parties to AP I); and Grignon (n 161) 322 (noting the difficulty of identifying unambiguous state practice and opinio juris on this matter).

²⁴¹ See also ibid 321.

²⁴² As discussed above, it is doubtful that most writers in the ‘early formative period’ of the laws of war (the second half of the nineteenth century) recognised such a prolonged form of occupation as that lasting for decades: Loening (n 31) 626–34, 650.

²⁴³ US Department of Defense, Law of War Manual (n 100) 754, 771–73, paras 11.1, 11.4, 11.4.2.

²⁴⁴ See Wall Advisory Opinion (n 163) separate opinion of Judge Koroma, [2]; separate opinion of Judge Elaraby, [3.1]; separate opinion of Judge Kooijmans, [30] (implicitly recognising the temporary nature of belligerent occupation when expressing concern over fait accompli of the separation/security fences).

²⁴⁵ ICTY, Prosecutor v Mladen Naletilić and Vinko Martinović, Judgment, IT-98-34-T, Trial Chamber, 31 March 2003, [214].

²⁴⁶ Such an agreement undoubtedly includes an armistice. Further, this article proposes that ‘the cessation of the hostilities’ be determined by a unilateral declaration by a belligerent that has assumed the duty as an occupying power. The timing of such an agreement or declaration should be verified on factual grounds.

²⁴⁷ On this reading, post-armistice occupation seems to be excluded (at least unless and until another hostility erupts in and around the occupied territory to resume a scenario as portrayed by Dinstein's metaphor of an accordion (n 86) 283 para 680.

²⁴⁸ Feilchenfeld (n 27) 86.

²⁴⁹ See US Department of Defense, Law of War Manual (n 100) 754, 771–73, paras 11.1, 11.4, 11.4.2.

²⁵⁰ See HCJ 351/80 Jerusalem District Electricity Company Ltd v Minister of Energy and Infrastructure 1981 PD 35(2) 673, 690 (Israel); excerpted in English in 11 Israel Yearbook on Human Rights (1981) 354. See Dinstein (n 86) 119–20; in contrast see Meir Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government: The Initial Stage’ in Meir Shamgar (ed), Military Government in the Territories Administered by Israel 1967–1980: The Legal Aspects, Vol I (Hebrew University of Jerusalem, Faculty of Law 1982) 13, 43 (contending that ‘the exercise of the right of military administration over the territory and its inhabitants had no time-limit’, and ‘because it reflected a factual situation and pending an alternative political or military solution this system of government could, from the legal point of view, continue indefinitely’ (emphasis added)). For criticisms of Shamgar's view, see Ben-Naftali, Gross and Michaeli (n 42) 597–98.

²⁵¹ Thompson, Della (ed), The Concise Oxford Dictionary of Current English (9th edn, Clarendon Press 1995) 1103Google Scholar, 1435.

²⁵² ICRC Expert Meeting (n 129) 72.

²⁵³ General Treaty for Renunciation of War as an Instrument of National Policy (entered into force 24 July 2019) 94 LNTS 57 (No 2137).

²⁵⁴ UN Charter (n 57).

²⁵⁵ For instance, Loening argued that the peace treaty confers on the occupant sovereignty over the occupied territory; this acquisition of sovereign power becomes effective retroactively on the acts carried out and the law promulgated by the occupant during the occupation (English translation by the present author): Loening (n 31) 633. In this respect, he referred to Halleck (n 29) 815 para 4. See also Loening (n 31) 635–36 (noting that Bluntschli rejected any acquisition of the territory under belligerent occupation, and summarising three of Bluntchli's principles on belligerent occupation as follows: (i) after the occupation, the occupying power does not have to tolerate the continuing exercise of the political authority in the occupied territory; (ii) the occupying power has the right to exercise on its part sovereign power as much as is necessary for the security of the army and for the purpose of maintaining public order; and (iii) the occupying power does not have the right to treat the occupied territory as definitively acquired for its state and consider its inhabitants as its subjects: Loening, ibid 628).

²⁵⁶ In the aftermath of the two World Wars, Julius Stone questioned the continued viability of sovereignty as the foundational idea of the law of belligerent occupation. This was because the sovereign-occupant distinction with regard to the transfer or non-transfer of sovereignty was considered to reflect political, economic and social conditions, and ideologies of the nineteenth century. Nevertheless, in his view, the sense of (political) expedience and the dictates of realism accounted for the resilience of the law of belligerent occupation, which was conceptually tethered to the doctrine of sovereignty: Stone, Julius, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes and War-Law (Stevens & Sons Ltd 1954) 727Google Scholar. See also Feilchenfeld (n 27) 24 para 100 (explaining that even the most egregious kind of occupying power (such as the Nazis) and total warfare ‘do not obviate the analytical distinction between sovereigns and mere occupants’ because of the pragmatic importance of differentiating between the ‘provisional’ nature of occupation and ‘final annexation’ based on the transfer of sovereignty).

²⁵⁷ Giladi (n 23) 113.

²⁵⁸ ibid.

²⁵⁹ In Jones’ view, this marked a contrast to the former situation, which ‘is generally precarious, and, as a rule, of comparatively short duration … [which] comes to an end with the end of hostilities’: Jones (n 40) 159. In respect of pacific occupation, he referred to the occupation of Germany for 15 years prescribed by the Treaty of Versailles: ibid.

²⁶⁰ ibid. cf also the British ‘occupation’ of Iraq (1918–32) and Palestine (1919–48) under the League of Nations’ Mandate, and the treaty-based US occupation of Haiti (1915–34) and the Philippines (1898–1945): Edelstein (n 199) 27, 39–47.

²⁶¹ As noted by Jones (n 40) 159, ‘as a matter of fact this [the Austrian occupation of Bosnia] is a veiled case of annexation, and in 1908, after thirty years’ occupation, Austria claimed full sovereign rights over Bosnia’.

²⁶² See Giladi (n 23) 85–86 (discussing in detail the basic understandings of Vattel and other classic writers as to the importance of the notion of occupation in securing order and stability. It was conceived as an aversion to disorder and chaos of the kind seen in the Napoleonic Wars. This understanding was shared, notwithstanding a plethora of colonial and imperialist wars that were often fought with harshness, or at times even brutally with scant regard for the laws of war).

²⁶³ During the period of occupation, the exercise of such a right by the occupying power was suspended. The gradual acceptance of such thinking by the second half of the nineteenth century can be explained by sovereign states’ aversion to disorder. On this matter, cf Duncanson, Ian, ‘Law as Conversation’ in Orford, Anne (ed), International Law and Its Others (Cambridge University Press 2006) 57, 79Google Scholar (commenting on Hume's underlying thought that ‘[d]isorder arises from the intolerable impossibility of certainty in questions of knowledge and justice, an impossibility whose intolerability seems soluble by the imposition of authority’).

²⁶⁴ East Timor (1975–2000); Western Sahara; Palestine by Israel and surrounding Arab states (1948–67); the West Bank, the Gaza Strip, East Jerusalem and the Golan Heights by Israel since 1967; Northern Cyprus by Turkey; Nagorno-Karabakh by Armenia, and arguably Tibet by China.

²⁶⁵ Dinstein (n 86) 120 para 279. It does not matter that in almost all such instances (save for the notable exception of Israel), there has been an outright refusal to acknowledge such control as occupation.

²⁶⁶ At present, the paradigm of ‘colonial’ domination through the system of occupation now takes another paradoxically ‘universal’ mantle: control by a de-colonised state or formerly semi-colonised state over territories of another ‘new’ or ‘stillborn’ state. See, eg, the Gaza Strip by Egypt (1959–67); the large segments of the West Bank by Jordan (1948–67); Tibet by China since 1950; the Western Sahara under gradual Moroccan occupation since 1975; East Timor occupied by Indonesia (1975–99).

²⁶⁷ As discussed, within the pre-1949 framework of the traditional laws of war, the dominant understanding was that belligerent occupation essentially had to be provisional.

²⁶⁸ cf Ben-Naftali, Gross and Michaeli (n 42) 596 (discussing how the reality has challenged the underlying assumption behind the text of GC IV art 6(3)).

²⁶⁹ This may be seen to reveal the latent permutation in the conceptual premise: the prescriptive force of the law (in demanding an interim or temporary nature of occupation) has been redefined at the quest for an apologetic endorsement of factual reality (several instances of prolonged occupation). See Koskenniemi's analysis of how the argumentative structure of international law oscillates between apology and utopia: Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument (2nd edn, Cambridge University Press 2006)CrossRef Google Scholar; Koskenniemi, Martti, ‘Politics of International Law’ (1990) 1 European Journal of International Law 4CrossRef Google Scholar.

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Unearthing the Problematic Terrain of Prolonged Occupation

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