Discusión de resultados:

One expert described the functional approach – also referred to as the “variable-geometry theory” – as permitting the continued application of occupation law in certain territories as long as the foreign forces still retained competences vis-à-vis the local population and government, within the territorial and functional limits of these competences. In other words, the applicability of occu- pation law would be limited to the functions still exercised by the foreign forces and would not apply to those handed over to the local government. The expert asserted that the legal basis for this “variable-geometry theory” could be found in Article 6§3 of the Fourth Geneva Convention, which implied, one year after the general close of military operations, a division of responsibilities between the occupying power and the local government. Some experts were then tempted to apply the theory to the end-of-occupation process. This would enable the continued application of occu- pation law – and consequently the state of occupation – as long as the foreign forces retained some authority or competences over a specific area.

A few experts challenged this position, noting that the “variable-geometry theory” had been devel- oped upon the premise that effective control would still be enforced and consequently assumed that the criteria set out in Article 42 of the Hague Regulations would still be met. These experts then

asserted that one should not confuse a theory aimed at delimiting the scope of the occupying pow- er’s obligations within an already well-established occupation with the functional approach used as a test to determine the legal framework applicable to a situation in which foreign forces still exerted some form of authority over a territory they had previously occupied. According to some partici- pants, the latter test would not find any legal basis under IHL, but the “variable-geometry theory” would derive expressly from Article 6§3 of the Fourth Geneva Convention.

Other experts expressed some concerns vis-à-vis the functional approach/”variable-geometry theory.” In fact, they interpreted occupation law as a package deal and, consequently, rejected the idea that the occupying forces could “pick and choose” from the applicable provisions of IHL. These experts saw potential for abuse in the application of occupation law based on the functional approach as well as risks for the protection given by this body of law, which was premised on a fragile balance between military exigencies and the interests of the local population. These experts favoured a binary approach to the application of occupation law: either the foreign forces exercise effective control and respect all the related responsibilities or they are not occupying forces and therefore not bound by occupation law.

One expert, nonetheless, tried to reconcile the two approaches. While stating that the functional approach/”variable-geometry theory” would be applicable only in a situation of well-established occupation, he stressed the point that the occupying forces would in any case be bearing the overall or ultimate responsibility for the occupied territory as required by occupation law. This would mean that the occupying power would continue to be responsible for the competences it had previously transferred to the local government when the latter was unable to implement them. This interpret- ation would ultimately be in line with occupation law, which allows room for a vertical sharing of authority in the occupied territory; it would also respect one of the rationale underlying the corpus juris, i.e. the division of responsibilities between governments, with a view to preventing a vacuum of authority.

These discussions highlighted the necessity of identifying with more precision the legal framework of reference applicable when foreign forces were exercising competences while withdrawing from the status of occupant for the purposes of IHL. As the prevailing facts might show, the foreign forces’ show of authority does not necessarily end with their withdrawal from a territory previously occu- pied and the local population might still need legal protection. Although a consensus emerged as to the existence of residual responsibilities incumbent upon a former occupying power, the discus- sions revealed a fault line among the experts on the legal basis of such responsibilities.

Indeed, some participants argued that the remaining aspects of occupation (i.e. the competences retained by the former occupying power) would continue to be governed by occupation law even if effective control had been concretely relinquished. One expert drew a parallel between the legal framework applicable to the invasion phase and the one pertinent to the occupation’s phasing out. The local population needed legal protection in both situations and occupation law remained the most suitable body of law for the purpose. Consequently, one could easily find the legal basis for dealing with the issue of residual responsibilities under occupation law in the so-called “Pictet theory” for the invasion phase. In this approach, the continued application of certain parts of occu- pation law would not be based on the territorial dimension of the concept of occupation, but on the nature of the responsibilities retained, in order to identify the relevant occupation law obligations irrespective of the effective control enforced by the foreign forces. In other words, it was argued that, in such cases, occupation law would still be applicable within the functional limits of the control or competences retained by the withdrawing armed forces. It was also considered that that flexibility, the need for which had been expressed in connection with assessing the beginning of occupation, would also be very relevant for assessing the end of occupation and would justify the continued application of some provisions of occupation law as long as the foreign forces continued to exercise responsibilities over the area in question.

Two experts nonetheless contested the view that occupation law could provide an adequate legal basis for those residual responsibilities. They drew attention to the fact that occupation law norms were calibrated to take effect only when a certain amount of control had been established over a given foreign territory; this point would be reached only when the criteria identified in the previous working sessions had been met. Therefore, these experts argued, it would not be wise to detach

the application of occupation law from the concept of effective control for the purposes of IHL. The residual responsibilities exercised by the former occupying power should be governed by other bodies of law, such as human rights law or even residual IHL, since occupation law would no longer be applicable. In this regard, one expert warned against the danger of cramming everything into occupation law and underlined the necessity of not stretching this corpus juris beyond its breaking point, as that would ultimately challenge the principle of effectivity on which occupation law was premised. This would particularly be the case if one were to attempt to impose obligations under occupation law on foreign forces that were not in a position to respect them, insofar as this body of law’s positive obligations, to be implemented effectively, usually required the presence of ‘boots on the ground.’