Military Occupation

by

Teresa Fajardo

• LAST REVIEWED: 26 August 2013
• LAST MODIFIED: 26 August 2013
• DOI: 10.1093/obo/9780199796953-0077

Introduction

Military occupation was defined by Oppenheim as “invasion plus taking possession of enemy country for the purpose of holding it, at any rate temporarily.” It is thus a by-product of war in a postwar situation, but it is more than an action or a situation, it is a legal corpus. Military occupation law as codified in the Hague Regulations 1907 and complemented by the Fourth Geneva Convention 1949 and Additional Protocol I 1977 constitute the legal corollary of two periods in which military occupation law was first conceived to protect sovereignty and the interests of the ousted government, later to protect population. The United Nations Charter reinforced the functions of occupation law by preventing the acquisition of territorial rights by the use of force and recognized the increasing role of human rights, permeating the Fourth Geneva Convention in the shaping of a “standard of civilization.” After World War II, a new breed of occupations strained the main elements of the legal regime of occupation: prolonged occupations exceeded the limits of the powers of the occupants, superseding the conservationist principle that protected sovereignty. Voices were raised to ask for a model that adjusted to the new circumstances, a new transformative or humanitarian occupation that suited a practice in which the unilateral use of force and the Security Council Resolutions went way beyond occupation law after the occupation of Iraq. What is the future of occupation law? Divergent approaches point in different directions: to a change beyond the traditional structure of occupation law in order to avoid its petrification and ensure its humanization. Alternatively, others urge the enforcement of occupation law as it now is in the 21st century but with an interpretation that meets 21st-century standards of civilization. This improved enforcement would prevent occupying states from violating or ignoring the law or from promoting changes in order to conceal violations. The debate has been ignited with proposals that support either a future convention or an updated model of occupation law involving the international institutions with the Security Council more committed to enforcement. On the other hand, a case-by-case approach has been put forward that would promote transformation and state-building because it is now argued that the sovereignty of the occupied state could be suspended in order to achieve democratic changes. “More honour’d in the breach than the observance” (from Hamlet, Shakespeare), occupation law needs to be respected and enforced, both by international institutions and above all by occupant states. This seems obvious, but the disagreements as to the interpretation of this law by the occupant authorities, often upheld by domestic courts, have resulted in a denial of justice in most occupations.

General Overviews

The number of studies has grown in tandem with the increasing relevance of the concept of military occupation. Among them are general works on military occupation that comprehend most of the issues that the concept raises: the book of Benvenisti 2012 is indispensable reading for an overall view of the historical roots, legal instruments, and case law as well as the assessment of the enforcement of occupation through the study of all occupations cases. Ferraro 2012 compiles the contributions of the experts’ meetings organized by the International Committee of the Red Cross to study military occupation. The 2005 Colloquium of Bruges mentioned in Vuijlsteke 2006 is also the result of an experts’ seminar offering brief visions of the challenges ahead. Dinstein 2009 puts forward controversial issues in a thought-provoking book focusing mostly on the Israeli occupation of Palestine territories. Arai-Takahashi 2009 elegantly traces the history and legal development of occupation law. Kolb and Silvain 2009 voices the European approach, giving special relevance to human rights as contrasted with the Anglo-American school. Roberts 1984 is a groundbreaking study setting out the concept, typology, as well as presenting the challenges of the matter. Playfair 1992 presents the diverging controversial opinions that can arise when examining the most studied occupation: the Israeli occupation of the Palestine territories.

• Arai-Takahashi, Yutaka. The Law of Occupation: Continuity and Change of International Humanitarian Law and Its Interaction with International Human Rights Law. Leiden, The Netherlands: Martinus Nijhoff, 2009.

  DOI: 10.1163/ej.9789004162464.i-760

  Comprehensive, beautifully written study combining the historical evolution of occupation laws and their present interaction with human rights law, searching for a framework on the rights of individual persons affected by occupation. A must read for international scholars and students wanting to go deeper into the study of occupation laws.

• Benvenisti, Eyal. The International Law of Occupation. 2d ed. Oxford: Oxford University Press, 2012.

  This groundbreaking work has grown from its first edition, incorporating the latest developments and cases of occupations occurring since 1992. Probably the best introduction to the subject and the most complete review of literature, practice, and judicial findings. Examines all occupations, and assesses “the shortcomings and challenges of such a system” (p. 19).

• Dinstein, Yoram. The International Law of Belligerent Occupation. Cambridge, UK: Cambridge University Press, 2009.

  DOI: 10.1017/CBO9780511818257

  Groundbreaking work summarizing the life experience of one of the major experts on the subject. Combines deep knowledge of the international and domestic legal frameworks, case law, and the academic debate, focusing on the Israeli occupation of Palestine territories as the primary case of analysis. Accessible to all levels of interest.

• Ferraro, Tristan, ed. Occupation and Other Forms of Administration of Foreign Territory. Geneva, Switzerland: International Committee of the Red Cross, 2012.

  This is the outcome of debates led by eminent experts from the academy, army, and ICRC, summarizing several meetings on occupation law discussing the most contentious issues. Seeks consensus and lacks citations and bibliography, as it mainly focuses on opinions and debates but contributes with concise reports on every subject examined.

• Kolb, Robert, and Silvain Vité. Le Droit de l’Occupation militaire: Perspectives historiques et enjeux juridiques actuels. Brussels: Bruylant, 2009.

  This major work offers an overall analysis of the subject, gravitating toward human rights to explain the present developments and the changes demanded both by practice and experts. Exposes the main debates in academia and expert scholarship. Focuses on regional practice, especially the European Human Rights Convention and its case law.

• Playfair, Emma, ed. International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank Gaza Strip. Oxford: Oxford University Press, 1992.

  Proceedings of the conference organized by the Al-Haq-West Bank affiliate of the International Commission of Jurists in 1988. Gathers the diverging studies of the world’s experts and practitioners in the field seeking to clarify international laws governing Israel’s administration of occupied Palestinian territories, raising and discussing the most controversial aspects of prolonged occupation.

• Roberts, Adam. “What Is a Military Occupation?” British Yearbook of International Law 55.1 (1984): 249–305.

  DOI: 10.1093/bybil/55.1.249

  Indispensable and popular study that classifies seventeen possible types of military occupations, making it possible to analyze thoroughly all occupations and neighboring situations. It has the capacity to tackle the main problems and challenges that the law of occupation has raised ever since it was written.

• Vuijlsteke, Marc, ed. Special Issue: Proceedings of the Bruges Colloquium; Current Challenges to the Law of Occupation; 20–21 October 2005. Collegium 34 (Autumn 2006).

  Proceedings of the Bruges Colloquium, assembling brief presentations from scholars, ICRC experts, and practitioners on occupation law and its new challenges.