Boosting

It is widely recognized that Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention constitute the most essential rules defining and delimiting an occupying power’s authority in occupied territory. These provisions address the obligation of an occupier to restore and ensure public order and safety in occupied territory and the extent to which the occupier may change local laws and initiate new legislation.1

Despite the fact that these provisions were drafted some decades ago and have been subject to various analyses and court decisions, their precise meaning remains unclear. Various conflicting interpreta- tions have arisen, hindering the quest for a coherent approach to occupation law. Citing these cen- tral provisions, occupying powers have often justified a very large scope of authority over occupied territories. In other cases, foreign administrators have invoked the obligation to respect local laws in order to minimize their authority and evade their responsibilities under occupation law. This situation is unsatisfactory and work has to be done in this regard to avoid discrepancies in the interpretation and implementation of the law in contemporary contexts of occupation.

Human rights law has also progressively gained importance in situations of occupation and has often been mentioned as a relevant – albeit not exclusive – legal framework. This body of law may impose obligations on parties to an armed conflict or be used as a source of reference for assessing the actions of both external powers and local actors. Arguably, it might also serve as a basis for changing existing local laws or even be used to justify transformative objectives. Addressing the issue of the applicability of human rights law in occupied territories is therefore of the utmost importance at present.

Even if the extraterritorial application of human rights law has been generally accepted (despite some controversy), questions remain over the extent to which an occupying power must implement human rights law during occupation. In addition, the legal interplay between this body of law and occupation law needs to be carefully examined. This is particularly important for subjects on which IHL is silent or vague, such as the right to education and the right to form trade unions. The ICJ has already provided some guidance on the issue;2 _{nevertheless, the exact nature of the relationship between occupation law} and human rights law deserves more elaboration.

Another issue is that of “transformative occupation.” It has been widely suggested, in the light of the basic principles regulating occupation, that the occupying power would not be entitled to bring about changes in the occupied territory or undertake reforms that could not be reversed by the legitimate government once the occupation had ended. Similarly, the transitory character of the rights and duties of the occupying power seems to preclude definitive and large-scale changes to the social, economic or institutional structures of the occupied territory.

1 _{See infra note 3, and accompanying text.}

2 _{In particular, ICJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian}

However, there is often a discrepancy between the requirements of the law and the reality of occupation. For example, while preserving the status quoante was at the core of the legal debates surrounding the occupation of Iraq (2003-2004), this key principle of occupation law appears to be clearly at variance with the ultimate goal of some multilateral operations to overturn a government and alter the institu- tional basis of its power. To defuse the tension between the occupation law requirement to respect the laws and institutions in place and the perceived necessity, in some instances, of altering the character- istics of the occupied territory in some cases, it has been contended that IHL, and occupation law in particular, should permit such transformative processes. Thus, it might be argued that remodeling the core institutional structures of certain States – be they weak, in collapse or posing a threat to peace and international security – is a legitimate task ascribed to the occupying power. Nevertheless, the question arises whether “transformative occupation” has any basis in law.

Prolonged occupation also raises an entire set of legal questions. Even though IHL contemplates the possibility that an occupation may be protracted, neither the Hague Regulations nor the Fourth Geneva Convention has placed limits on the duration of effective control over a foreign territory. It seems therefore that, under IHL, the occupying power may exercise its authority over an occu- pied territory for as long as it deems necessary to secure its military interests and impose its terms of peace upon the enemy. However, prolonged occupations place IHL under considerable strain insofar as they call into question some of the underlying principles of occupation law, in particular the pro- visional character of the occupation and the necessity of preserving the status quo ante. Since neither the Hague Regulations nor the Fourth Geneva Convention specifies any lawful deviation from existing law in such circumstances, many have argued that prolonged occupation necessitates spe- cific regulations for guiding responses to the practical problems arising from long-term occupation. In addition to questions concerning occupations by States, a number of legal issues, of potential conse- quence for occupation law, have been raised by the recent international military operations in Kosovo and East Timor. Given the similarities between occupation and the international administration of for- eign territory, the relevance and adequacy of occupation law for the latter situation has come to the fore of the legal agenda.

This subject has assumed great importance not only as scholarly issue but also as an operational one. In fact, the UN has taken on new roles in the administration of foreign territory despite the absence of specific international legal norms for dealing with such situations. Though there are comparatively few operations of this kind at present, the possibility that there may be more in the future should not be discounted, making it essential to define the norms that should apply thereto.

The basic question of the de jure applicability of occupation law to UN administrations is probably the first one that should be dealt with. Given our understanding of when an occupation begins and ends, some argue that a UN operation could never amount to an occupation for the purposes of IHL. Others, however, have claimed that, considering the evolving nature of international operations, the possibility of applying, de jure, occupation law to international administration should not be automat- ically excluded.

Should occupation law be held to apply de jure to UN administrations, the question that will have to be resolved is the relationship between this body of law and the Security Council resolution defining the mandate of the international administration. A range of opinions is available on this question. On the one hand, it has been argued that Security Council resolution would simply displace all of occupation law and become a special legal regime unto itself. On the other hand, there is a view that the Security Council can supersede occupation law only to a certain extent and that even then this must be stated very explicitly in the resolution. The merits of these competing arguments will have to be evaluated to determine more precisely the influence of occupation law on UN administration.

Given the difficulties posed by their de jure applicability to UN or other territorial administrations, the question arises whether these specific norms of occupation law could be applied de facto. In fact, both the UN and some national contingents involved in international territorial administration have already looked to occupation law either for rules to apply de facto, or for inspiration for policy-making.