Occupation and Control in International Humanitarian Law

Natia Kalandarishvili-Mueller

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000098471
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book presents a systematic analysis of the notion of control in the law of military occupation. The work demonstrates that in present-day occupations, control as such occurs in different forms and variations. The polymorphic features of occupation can be seen in the way states establish control over territory either directly or indirectly, and in the manner in which they retain, relinquish or regain it. The question as to what level and type of control is needed to determine the existence and ending of military occupation is explored in great detail in light of various international humanitarian law instruments. The book provides an anatomy of the required tests of control in determining the existence of military occupation based on the law. It also discusses control in relation to occupation by proxy and when and how the end of control over territory occurs so that military occupation is considered terminated. The study is informed by relevant international jurisprudence. It draws on numerous pertinent case studies from all over the world, various reports by different UN entities and other international organisations, as well as legal doctrine.

The book will be a valuable resource for academics, researchers and practitioners working in the fields of international humanitarian law, international public law, and security studies

1 Effective control in occupation law

1. Introduction

In 2007, the ICRC initiated a project on occupation law “to analyse whether, how and to which extent occupation law might need to be reinforced, clarified or developed.”¹ It further indicated that “some have challenged occupation law on the basis it was ill-suited for the polymorphic features of contemporary occupations”.² While the project culminated in an extensive report entitled ‘Occupation and Other Forms of Administration of Foreign Territory’,³ questions remain as to what exactly constitutes the test of establishing control over territory for the purposes of military occupation. In other words, what is it that makes a state an occupant? And what “polymorphic features of contemporary occupations” may there be?

1 ICRC, Contemporary Challenges to IHL – Occupation: Overview, available at www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/occupation/overview-occupation.htm (visited 27 April 2014).

2 Ibid.

3 T. Ferraro, Expert Meeting Occupation and Other Forms of Administration of Foreign Territory (Geneva: ICRC, March 2012).

Throughout this book, it will be seen that control over territory can take various forms and play out at different levels, that it can be exercised directly or indirectly, and that it can include one or more actors – a state, its armed forces, several states, an international organisation, or an armed group. This chapter centres on effective control exercised by states directly and consists of two sections.

Section one looks at the level of control needed to determine the start of occupation based on the travaux préparatoires for the Hague Regulations 1907 (HR 1907), Geneva Conventions 1949 (GCs 1949), and Additional Protocol I of 1977 (AP I 1977). This will clarify the different elements of the control test. Such a method is based on and supported by Article 32 VCLT, which indicates the preparatory work of a treaty to be an important source of clarification of key terms.⁴ The first section also deals with the difference between actual and potential control.

4 Ar ticle 32, Vienna Convention on the Law of Treaties, 1969, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (visited 4 April 2019). Note, however, that Article 31 (General Rule of Interpretation) of the same instrument takes precedence.

5 ‘Pr oject of an International Declaration Concerning the Laws and Customs of War’, Brussels, 27 August 1874, available at www.icrc.org/ihl/INTRO/135 (visited 3 December 2017).

6 Ibid.

Section two explores the concept of joint control, which is a form of direct control involving more than one state’s armed forces – for example control exercised by a multinational force (MNF). The section finishes with assessing the possibility of the UN itself being an occupant and analyses the concept of UN SC-endorsed control.

2. Establishing control

2.1 Stepping back in time

For a long time, there was no consensus over the concept and content of occupation in the laws of war. One particular divide can be found between the concepts developed by the Brussels and Hague conferences, on the one hand, and the Oxford Manual (1880), on the other. The different elements around which the pre-1949 understanding of occupation centred were authority and control, uprising and effectivity, exercising authority, and occupation duration.

2.1.1 Authority and control

The analysis begins with the Brussels Conference.⁵ In summer 1874, the delegates of 15 European states met to examine the draft of an international agreement concerning the laws and customs of war, wherein one section was entitled ‘On Military Authority over the Territory of the Hostile State’. The Conference adopted a Russian draft with only minor alterations, yet not all governments were willing to accept the document as binding. Consequently, it was not ratified. The Conference nevertheless marked an important step towards IHL codification.⁶ It notably constitutes the first attempt at providing a definition of military occupation and its integral elements, specifically regarding the level of control.

Accordingly, military occupation is associated with state A’s hostile military forces’ unwelcomed presence on and control over state B’s territory. The underlying element, and the backbone of such control, are a state’s military forces, i.e. its troops, through which it is able to show force and ultimately secure control over the territory. In fact, the International Declaration Concerning the Laws and Customs of War (Brussels Declaration of 1874) put this very requirement at the forefront of its definition of occupation:

A territory belonging to one of the belligerents is considered as occupied when it is actually placed under the authority of the hostile army. The occupation only extends to those territories where this authority is established and lasts only so long as it can be exercised.⁷

7 ‘Correspondence Respecting the Proposed Conference at Brussels on the Rules of Military Warfare’, United Kingdom Parliamentary Papers, Miscellaneous No. 1 (1875) at 202.

It is noteworthy that the word control was neither explicitly mentioned nor discussed in greater detail. However, control’s omnipresence is felt when exploring the Conference records via the notion of authority. These records, as a result, provide a rather flawed and uneven conceptualisation of the level of control required. Nonetheless, if territory “actually placed under the authority of the hostile army” signifies territory under the control, power, and discretion of an adversary state’s military forces, quite simply the word authority has been substituted for control – without defining either. Still, despite the absence of the term control from that formulation, it is found to be firmly instilled in the notion of power.⁸

8 Ibid., at 236.

2.1.2 Uprisings and effectivity

Conference delegates viewed uprisings as a major challenge to the occupant’s control over territory. Only being able to deal away with insurrections suggested that the control possessed by the occupant over territory was effective. Authority had to be exercised⁹ and territories which contrived to free themselves from this authority ceased to be under occupation.¹⁰ Hence, disallowing uprisings by the local population was key, otherwise the occupant was shorn of its authority.¹¹

9 Ibid.

10 Ibid.

11 Ibid., at 236–237.

What is significant here is that the number of troops was not deemed to be important, provided both the local population and the ousted sovereign succumbed to the military strength of the occupant.¹² There were contrary views, too. For instance, the Dutch delegate regarded it necessary that “the occupier must always be in sufficient force to put down an insurrection should one break out.”¹³ Yet, being in sufficient force does not mean the armed forces of the occupant have to be constantly present on the territory in specific numbers. In fact, this can also be understood as a mere potentiality: The population of the occupied territory has to constantly feel that any attempt on their part to eject the occupant would be put down and suppressed by virtue of the occupant’s military force. It was also understood that the occupant had the right to protect its control over the territory and thus suppress an insurrection.¹⁴

12 Ibid., at 237.

13 Ibid.

14 Ibid.

2.1.3 Exercising authority

The Conference records also furnish a glimpse of the occupant actually...