This article examines the applicability of international human rights law in situations of military occupation. That human rights obligations exist in some form in these circumstances should, by now, be firmly established and have wide support. Nonetheless, there remains room for further analysis of the precise modalities of application, questioning how far the human rights obligations stretch, and how this notion might be affected by practical and legal challenges to implementation. The article begins with an examination of the tests for determination of applicability of human rights law, and the link between the established authority of an Occupying Power and the notion of territorial control required for human rights law obligations. Recognizing the possible impediments to total fulfilment of all rights, an analysis is provided, suggesting the need for a contextual approach to obligations. Finally, the source of the obligations – those of the occupying power or the occupied state – is also addressed.
The determination of applicability
Before engaging in an examination of the substance of human rights obligations, it is first necessary to establish that this branch of international law does in fact apply to situations of occupation. Two objections have been raised to its applicability: whether international human rights law applies to extraterritorial conduct – in this case, in an occupied territory; and whether the human rights obligations, as a whole, are set aside in favour of international humanitarian law (IHL).Footnote 1 Both these objections have been covered extensively in the literature, and are therefore only mentioned here briefly at the start.Footnote 2 The latter objection can be dismissed with comparative ease. While IHL applies only in the context of armed conflict, international human rights law is not a mirror-opposite that only applies in times of peace. In fact, international human rights law applies at all times, regardless of peace or war. This is supported by numerous arguments, state practice, and jurisprudence of the International Court of Justice (ICJ) as well as of the regional and UN human rights bodies.Footnote 3 Accordingly, if the situation is one to which IHL applies – and military occupation is such a case – then the bodies of law are applicable concurrently. This then raises other questions concerning concurrent applicability and whether it affects the substance of obligations under either of these two frameworks – a matter that will become relevant later in this analysis.Footnote 4
The question might be raised at this early stage as to whether many – if not most – of the human rights obligations that will be found applicable and viable do not in fact already exist in IHL rules such as prohibitions on harming civilians and those relating to treatment of detainees. The simple answer is that it is not always the case that human rights obligations are mirrored in IHL.Footnote 5 Furthermore, the applicability of human rights law brings additional elements that IHL does not provide, chief among them being the possibility to seek recourse from international human rights mechanisms.
The other objection regarding the applicability of international human rights law centres upon the fact that the Occupying Power is not acting within its own sovereign territory. Consequently, the question is raised as to whether human rights obligations extend to actions taken extraterritorially. While there is strong reason to support extraterritorial human rights obligations in a wide range of situations,Footnote 6 it must be acknowledged that there are certain circumstances in which extraterritorial applicability is unclear and subject to debate.Footnote 7 Nonetheless, military occupation is perhaps one of the least controversial circumstances, and there is a solid foundation for the assertion that the Occupying Power must abide by international human rights law. This has been confirmed by numerous international bodies, including the ICJ.Footnote 8 The basis for this can be argued to rest on the premise that the Occupying Power is acting as the administrator of the territory and, as such, must abide by human rights obligations in its dealing with individuals in the territory under its control. In light of the above, this article proceeds from a starting point accepting the potential applicability of international human rights law in situations of military occupation, and places the focus not on the question of whether it can apply but rather on the tests behind such a determination, the ways in which this applicability might be manifested, and the extent of obligations created.
As will be seen, the specific reasoning behind the conclusion of applicability in an individual case may affect the assessment of the content of the obligations. The European jurisprudence, in particular, has provided more than one route to the finding of extraterritorial applicability of human rights law, as seen in the differing tests advanced most explicitly in the case law of Al-Skeini v. UK.Footnote 9 The first test has been described as that of ‘state agent authority’, and the European Court of Human Rights, using the term ‘state agent authority and control’,Footnote 10 summarizes it thus:
It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual.Footnote 11
The other test is that of ‘effective control over an area’, referring to situations ‘when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory’.Footnote 12 The Court has created a significant difference between the two tests, in that the ‘state agent authority’ test creates obligations only with regard to the rights ‘that are relevant to the situation of that individual’,Footnote 13 whereas under the ‘effective control over an area’ test
The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights.Footnote 14
At first sight, situations of military occupation appear to be a prime example in which the ‘effective control over an area’ test is satisfied; indeed, it was a previous case dealing with occupation that at least in part formed the basis for the approach in the above case.Footnote 15 After all, the essence of occupation revolves around the Occupying Power's control of the area, as is clear from Article 42 of the Hague Regulations: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised’. Accordingly, one could be forgiven for assuming that a military occupation might automatically be considered a situation in which human rights obligations are applicable as a result of effective control over the area. Not everyone agrees, however. Notably, in the Al-Skeini case the UK argument differentiated between being an Occupying Power and having control as required to trigger human rights obligations. According to Brooke LJ in the UK Court of Appeal:
it is quite impossible to hold that the UK, although an occupying power for the purposes of the Hague Regulations and Geneva IV, was in effective control of Basrah City for the purposes of ECHR jurisprudence at the material time.Footnote 16
The European Court, while taking a different route, did not settle the debate over the ‘effective control over an area’ test. On the one hand, the Court disagreed with the UK submission and ruled that the circumstances in this case did entail a jurisdictional link that created human rights obligations. On the other hand, despite this being a situation of occupation – which by definition is linked to notions of territorial control – the European Court did not fully rely on the ‘effective control over an area’ test, and appears to have included elements of the ‘State agent authority’ test:
It can be seen, therefore, that following the removal from power of the Ba'ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.Footnote 17
This conclusion appears to be a badly mixed cocktail, unsuccessfully attempting to fuse concepts of control over the territory with the question of state agent authority. While noting the UK's territorial authority, the Court proceeds to make its determination based on the authority exercised by state agents over individuals. After appearing to acknowledge the validity of the two tests, it would have been preferable for the Court to apply either one (or both) of the tests from start to finish. The first possibility would have been to reject the UK position and to clarify that the authority and control that had been recognized in order to establish the existence of a military occupation must itself serve as proof of the requisite control over the area necessary to find the applicability of human rights law. Alternatively, each of the individual cases could have been examined as to whether they satisfy the ‘state agent authority’ test – it is submitted here that this test extends beyond the strict confines of formal detention, and can include many situations such as those which arose in this case.Footnote 18
The purported obstacle to the equation of military occupation with the human rights ‘effective control over an area’ test stems from the suggestion that, in situations of control over territory, the state is bound to uphold the entire range of its human rights treaty obligations. This is said to be an ‘utterly unreal’ proposition.Footnote 19 This ‘all or nothing’ approach is raised as an objection to equating military occupation with the human rights notion of control over an area. It is argued, for example, that, despite a situation being recognized as occupation, the Occupying Power may not have the requisite forces on the ground to exercise the control required under the human rights test for applicability.Footnote 20 Moreover, it is claimed that, as a matter of law, the ability of the Occupying Power to abide by human rights obligations is curtailed by the limitations imposed on its authority through occupation law.Footnote 21 There is merit in the criticism from both directions. It would be disconnected from the realities of occupation to assume that full applicability of human rights law under an ‘effective control over an area’ test could equate occupied territory with the state's own territory. Practical impossibilities of life on the ground and legal obstacles may all play a part in limitations on the Occupying Power's ability to implement the obligations in the same manner as it does domestically. At the same time, the existence of certain impediments cannot overshadow the fact that, by definition, the Occupying Power has the control and responsibility for the territory, and with it the human rights obligations that are attached to its authority. Ultimately, the ‘all or nothing’ standpoint is likely to lead either to an unrealistic ‘all’ or to an obligationless vacuum of ‘nothing’. Neither one is completely satisfactory, and, as noted by Sedley LJ in the UK Court of Appeal:
[I]t is not an answer to say that the UK, because it is unable to guarantee everything, is required to guarantee nothing. The question is whether our armed forces' effectiveness on the streets in 2003–4 was so exiguous that despite their assumption of power as an occupying force they lacked any real control of what happened from hour to hour in the Basra region. My own answer would be that the one thing British troops did have control over, even in the labile situation described in the evidence, was their own use of lethal force. Whether they were justified in using it in the situations they encountered, of which at least four of the cases before us are examples, is precisely the subject of the inquiry which the appellants seek. It is in such an inquiry that the low ratio of troops to civilians, the widespread availability of weapons and the prevalence of insurgency would fall to be evaluated.Footnote 22
The solution may be found by suggesting that, while the starting assumption may presuppose the full range of obligations, there is need for a contextual examination of the circumstances in each case. Turning for a moment to the ‘state agent authority’ test, it is clear that a contextual approach is not only possible, but also desirable. The ‘state agent authority’ test, according to the European Court, is already one that recognizes the need to consider the circumstances when determining the extent of the state's obligations.Footnote 23 These obligations arise only with regard to those rights that the state agents have the power to control in the circumstances. The logic behind this is based on the fact that, absent wider control of the circumstances and the necessary ability to perform certain acts, the state cannot be expected to uphold every one of the individual's rights. However, if some of the individual's rights are de facto directly in the control of state agents – lawfully or unlawfully – then the state is obligated to uphold those rights that are in its power to control. For example, freedom from arbitrary detention would be applicable when detaining an individual, and the right to life would be applicable when using force against an individual.Footnote 24
Accordingly, under the ‘state agent authority’ approach, the context can affect the actual applicability of obligations. However, our current concern focuses not on control over individuals outside territorial control but on occupied territory where – by definition – the Occupying Power has an element of authority and control over territory. Returning therefore to the ‘effective control over an area’ test, while there is a presumption of wide-ranging applicability of human rights obligations, it is submitted here that the context can nevertheless affect the substantive content of the obligations. An example of this can be found in the ICJ Advisory Opinion on the Wall, where the following is stated:
[T]he territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights. Furthermore, it is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities.Footnote 25
The ICJ thus recognizes that, while the International Covenant on Economic, Social and Cultural Rights (ICESCR) applies as a whole by virtue of Israel being an Occupying Power, the substantive obligations must be determined in a context that takes into account the existence of the Palestinian Authority and the role that it plays in the territory. Notably, while the context may modify the substance of the obligation, it does not remove it altogether; Israel is required not to actively raise obstacles with regard to the rights that the Palestinian Authority is administering. Other cases have also recognized context in relation to territorial control.Footnote 26
According to such an approach, territorial control – including occupation – does trigger the applicability of the full range of human rights obligations that the state is committed to uphold. Nonetheless, the substantive elements of the obligations and the assessment of whether a violation has occurred, must be determined in the light of the context, including both the situation on the ground and legal restraints. These could include questions of logistical ability to act in a certain way; or, for example, obligations might be affected by the legislative restrictions placed on the Occupying Power under occupation law.Footnote 27 Nonetheless, neither of these types of concern provide a ready-made justification for wholesale discarding of obligations. While aspects of the obligations may be modified in light of the context, the overall applicability of international human rights law is established and an element of obligation will always exist.
The content of human rights obligations
Based on the above examination, international human rights law obligations are applicable to situations of military occupation, but the precise behaviour considered sufficient to satisfy the obligation must be determined in the light of the legal and practical context in which the Occupying Power is operating. Context may be difficult to define in advance, but it is impossible to create precise laws for every possible scenario without ultimately allowing Occupying Powers to evade responsibilities that they should have fulfilled or, alternatively, to place unrealistic obligations that do not stand the chance of being implemented owing to impossible circumstances. The likeliest route to achieving protection of human rights wherever possible is to have a general principle determining the applicability of international human rights law, while allowing for a case-by-case approach that takes the context into account when determining the precise content of the obligation. This section uses examples of certain key areas of concern to demonstrate how such an approach can work in practice. At its foundation is the understanding that, while human rights obligations may remain applicable at all times, their mode of application – as opposed to their applicability – may differ in accordance with the ruling circumstances. This is neither new nor unique to situations of military occupation; the precise actions that a state takes in relation to a specific right can be affected by various circumstances. For example, the right to privacy would prevent a state from having the entire population's private post being read and censored on a regular basis, but it may be implemented differently in the context of mail delivered to inmates at a high-security prison facility.Footnote 28
In many cases, the language of the human rights conventions explicitly allows for certain restrictions that take context into account, by having the description of the right itself accompanied by statements such as those making room for ‘limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.Footnote 29 Derogations are an additional route to possible limitations:Footnote 30 for example, permitting a state experiencing a calamitous natural disaster to restrict movement on the streets so as to allow emergency services to function effectively. Financial circumstances may also be taken into account in certain cases, as is evident from the phrase in the ICESCR referring ‘to the maximum of its available resources’. There are occasions when the context may not even be one that was necessarily originally envisaged, but must nevertheless be taken into account. For example, when the detention of an individual occurs on the high seas, 5,500 kilometres from the state's territory, the obligation to bring him or her ‘promptly’ before a judge can allow for sixteen days to elapse, despite such a period being remarkably longer than that usually permitted.Footnote 31 The above examples demonstrate that context indeed can be – and is – taken into account when determining the content of human rights obligations in specific circumstances.
The notion of positive and negative obligations is another useful tool for discussing the substantive elements of a human rights obligation. This identification of positive and negative obligations is not a means to differentiate between groups of different rights. Rather, it is that within most rights there are both positive and negative elements. These distinctions can be understood through referring to the three-tiered approach of ‘respect, protect, and fulfil’. This structuring of rights has received much attention in the sphere of economic, social, and cultural rights, but it is also pertinent to civil and political rights.Footnote 32 The respect/negative element of a right obliges the state to refrain from taking action that would directly contravene the right. In most cases, this primarily requires the state to refrain from certain actions, ‘not to deprive people of what they have rights to’, and as such does not normally create a significant burden.Footnote 33 It should be noted, however, that the contextual approach advanced in this article does not rely on a differentiation between negative and positive obligations as such. Rather, this distinction is only relevant insofar as in most contexts negative obligations are unlikely to present a challenge for implementation. Ultimately, the test for all types of obligation is one of assessing each one in the light of the context, rather than categorizing an obligation as negative or positive.
Notwithstanding the above observation, positive duties of protecting and fulfilling a right are, however, likely to raise further concerns that must be examined, especially in situations such as military occupation. With regard to civil and political rights, the positive obligation to protect can manifest itself in a number of ways, for example by ensuring the protection of life in certain circumstances in the form of ‘a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’.Footnote 34 This entails the existence of a law enforcement system capable of protecting the rights in the required manner. The Al-Skeini case provides a useful example as to whether such protection can be demanded from an Occupying Power. The UK Government asserted that it was unable to maintain law and order in south-east Iraq owing to a combination of too few troops and the breakdown of local law enforcement systems, which gave rise to widespread crime.Footnote 35 The UK argument was presented as a basis for denying the applicability of the European Convention on Human Rights (ECHR) since the described situation was said to contradict the existence of effective control. In contrast to the UK argument, and based on the earlier analysis in this article, the UK position can be described as being back to front: the correct approach begins with an agreed determination that the UK was an Occupying Power; as such the requisite control for the applicability of human rights obligations is inherently established. Arguing that an Occupying Power's inability to enforce law and order proves the inapplicability of human rights obligations goes against not only the correct approach to human rights applicability but also the obligations under the laws of occupation. Article 43 of the Hague Regulations states the following:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.Footnote 36
The duties of an Occupying Power under this provision, and the entailment of human rights obligations in this regard, were addressed by the ICJ in its examination of Uganda's actions:
The Court thus concludes that Uganda was the occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.
The Court, having concluded that Uganda was an occupying Power in Ituri at the relevant time, finds that Uganda's responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.Footnote 37
Accordingly, by virtue of being an Occupying Power a state can be expected to attempt to ensure that law and order prevails in the occupied territory;Footnote 38 if it is already required to do so under the law of occupation, it cannot proclaim a failure to abide by its IHL obligation as a justification for denying the applicability of human rights obligations. IHL requires the Occupying Power to take positive action. As for the substance of the human rights obligations, clearly the negative tier of respecting the rights can be demanded, while the positive elements will, at the very least, be the same ones as required by the already existing IHL obligations. An inability to fulfil positive duties in particular situations does not negate the applicability of human rights obligations; however, it may lead to a determination that in the circumstances the state did what it could so as not to contravene its obligations. In such situations, although the applicability of human rights obligations can be asserted, there is still room to debate whether the circumstances affect the ability to fulfil the obligations.Footnote 39
Accordingly, one could argue that the negative tier of the human rights obligations must be adhered to, and therefore the state is prohibited from acting in a way that does not respect the rights of the population. The positive elements of protect and fulfil would, however, be dependent on context. For example, while perhaps not being able to carry out the equivalent of total police protection against criminal activity throughout the whole territory, troops must not themselves engage in arbitrary acts of killing or detention. Moreover, in circumstances where troops have the requisite ability, they must also be responsible for the positive elements – for instance, they cannot stand aside and witness a violent crime when they have the ability to step in and prevent it. How far beyond this they will be expected to go, may be affected by issues such as sufficient capabilities in the light of the prevailing level of violence on the streets. Likewise, in a detention facility the occupying forces would be required not only to refrain from directly causing harm to the detainee but also to comply with all positive duties arising from the right (such as feeding the detainee or protecting him/her from other detainees). Any assessment must therefore consider the circumstances at hand. An example of recognizing the need to utilize a realistic understanding of the situation can be found in the European Court's treatment of the Al-Skeini case:
The Court takes as its starting point the practical problems caused to the investigatory authorities by the fact that the United Kingdom was an Occupying Power in a foreign and hostile region in the immediate aftermath of invasion and war. These practical problems included the breakdown in the civil infrastructure, leading inter alia to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time. As stated above, the Court considers that in circumstances such as these the procedural duty under Article 2 must be applied realistically, to take account of specific problems faced by investigators.Footnote 40
A separate issue is the denial of human rights obligations in situations of occupation, based on perceived legal obstacles. The law of occupation places certain restrictions on the Occupying Power, and these have been raised as an impediment to fulfilling human rights obligations.Footnote 41 Article 43 of the Hague Regulations appears to present a problem in this regard, requiring the Occupying Power to respect, ‘unless absolutely prevented, the laws in force in the country’. Similarly, Article 64 of the Fourth Geneva Convention states that:
The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.Footnote 42
The expectation that occupation should be a temporary affair, and that sovereignty – as opposed to authority – is not transferred to the Occupying Power, requires rules designed to minimize the possibility of the occupier creating changes that would endanger these assumptions. Nonetheless, the limitations are not absolute, and certain changes might not only be allowed but – if required for complying with the obligation to ensure or restore public life – they might even be mandatory. Article 43 must not become ‘an extremely convenient tool’ allowing the Occupying Power to intervene when it suits, and to hide behind claims of limitations when it does not.Footnote 43 Combined interpretations of the above provisions can allow for changes that are in line with the objectives of the law of occupation. These include the responsibility for public order, which, recalling the original French text, has the wider notion of public life, rather than just matters of law and order.Footnote 44 While there are risks and potential for abuse in the form of changes motivated by self-interest,Footnote 45 there is reason to prefer the arguments for allowing – and even requiring – changes that are based on adherence to international human rights law and are designed to benefit the rights of the inhabitants in the occupied territory.Footnote 46 In particular, prolonged occupation may require active intervention in numerous areas, if only to prevent economic, social, and legal stagnation. The duration of the occupation is therefore also part of the context in which human rights obligations must be assessed.Footnote 47
Economic, social, and cultural rights
The applicability and level of human rights obligations is equally a matter for concern in relation to economic, social, and cultural (ESC) rights. There is no well-grounded basis for disregarding this set of rights in situations of occupation, and all the arguments for applicability arise with similar force with respect to these rights as they do for civil and political rights. Indeed, the UN human rights bodies and the ICJ have confirmed that the ICESCR applies to the actions of an Occupying Power.Footnote 48 Moreover, for the populations of an occupied territory, it is often precisely these rights that are of the greatest concern. While there can be no true expectation that a military occupation will guarantee the same civil and political freedoms as a self-governing democracy, the inhabitants of the territory require their health, education, and employment situation to continue in as uninterrupted a manner as possible. Indeed, a significant amount of the work on the ground in situations of occupation revolves around these concerns.Footnote 49 Notwithstanding, here too there is a need for a contextual approach when determining the level of obligations and the precise duties that must be implemented by the Occupying Power. Objections might be raised to the notion of obligations in this area, since ESC rights are said to involve significant financial and logistical commitment, which one cannot expect from a temporary Occupying Power. This type of argument is often at the heart of the more general discussions differentiating between civil and political rights and ESC rights. The claim is not entirely accurate, however, either in the context of occupation or outside it. Most rights can ultimately entail financial commitments, and civil and political rights can also be a costly affair. Consider, for example, rights related to detention and trial: a functioning police force, a judicial system, trained judges and lawyers, courthouses, and prisons – all these are far from being cost-free. It is perhaps more useful to return to the earlier mentioned three-tiered approach of respect/protect/fulfil, and to note that all rights entail some obligations that are relatively cost-free (for example, not to torture a detainee, not to prevent an individual from accessing a hospital) and other obligations that require investment (e.g. a judicial system that is capable of preserving justice, a health system that provides basic health care). However, and notwithstanding this observation that all rights include the different tiers of obligation, there is some credence to the view that the individual claims associated with civil and political rights tend to centre upon the negative/respect obligations (such as the individual's desire to remain free from arbitrary intrusions), while ESC rights are more likely to revolve around the positive/fulfil elements of the right (e.g. demanding health care). The possibility that the context of military occupation requires a differentiation between the different elements of obligations therefore takes extra significance when dealing with ESC rights. In other words, can the Occupying Power be expected to carry out the ‘fulfil’ aspects of ESC rights?
First, it is important to note that, as with the earlier discussion of law and order, here too IHL already imposes certain obligations upon the Occupying Power with regard to matters such as food,Footnote 50 health,Footnote 51 and education.Footnote 52 The question before us now is whether the applicability of human rights obligations adds any substantive duties to those in the law of occupation.Footnote 53 Although the Fourth Geneva Convention imposes certain positive obligations such as provision of medical supplies, this is not the case with all ESC rights. For example, on matters of work and employment, the Convention focuses on questions of forced labour, requisitioning services, and more generally the issue of protected persons working at the behest of the Occupying Power.Footnote 54 The law of occupation thus provides little protection with regard to the right to work outside these circumstances. Looking at the example of the Israeli–Palestinian conflict, it is clear that concerns over work can be a major problem for the population in an occupied territory, and that actions of the Occupying Power can have a serious detrimental effect on the occupied population in this regard. The ICJ Advisory Opinion on the Wall highlighted some of these issues, and it has been well documented that the physical barriers created by this construction, as well as numerous other restrictions on movement, have had a negative impact on the ability of the Palestinian population to go about earning their livelihood.Footnote 55 In the Advisory Opinion, after noting the applicability of the ICESCR, the ICJ proceeded to determine the violation of the right to work as one of the transgressions of international law.Footnote 56 International human rights law can therefore add protection with regard to certain rights that may not be fully protected in the law of occupation. Notably, in the above example, the focus is not upon the positive duties of this right (such as vocational training programmes to raise employment opportunities)Footnote 57 but on the respect/negative duties of not acting in such a way as to harm the employment and ability to work of the individuals in the occupied territory. Human rights obligations of this type must be respected by occupying powers.
The greater challenge arises from the fulfil/positive aspect of rights, including those that do receive mention in the law of occupation. Taking the example of the right to health, it is clear from the Fourth Geneva Convention that the Occupying Power has duties with regard to ensuring medical supplies and the maintenance of hospitals and certain public health services.Footnote 58 Moreover, while there is reference in the Convention to co-operation with local authorities, the ultimate responsibility is on the Occupying Power to ensure the ‘adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics’.Footnote 59 It is therefore clear that in the area of ESC rights also, the duties of the Occupying Power go beyond non-interference and negative/respect obligations to include positive obligations. But how far do the positive obligations stretch? Those that can be drawn from the Fourth Geneva Convention are not many, since beyond the above example the Convention does not elaborate on the meaning of ensuring the work of medical services. This might be the point at which human rights law can assist because it does contain greater detail on ESC rights and the obligations that they entail. While there is some description of specific obligations in the ICESCR itself, there is abundant and detailed further explanation of the related duties in the General Comments produced by the Committee on Economic, Social and Cultural Rights, such as can be found in their General Comment on the right to health.Footnote 60 Many of the core obligations found by the Committee are not too dissimilar from the requirements for basic health services and medical supplies that exist in the law of occupation. However, there are also demands placed upon the state to invest in long-term strategies for advancing health care in the country.Footnote 61
The ICESCR itself allows for the possibility that states may not be able to put all arising duties into effect immediately, and includes the notion of progressive realization, taking into account the state's ‘maximum of its available resources’.Footnote 62 This, together with the fact that the healthcare duties in the Fourth Geneva Convention are prefaced by the phrase ‘[t]o the fullest extent of the means available to it’,Footnote 63 might lead one to the conclusion that the obligations are to be determined on the basis of available resources, the Occupying Power being required to do whatever its resources allow. At first sight, this might provide a solution for situations of occupation where it might not be feasible to expect the Occupying Power to engage in all the positive and long-term duties required in order to fulfil the right. However, under human rights law, it is not simply a question of budgetary capabilities. Even without huge resources, progressive realization does not remove an obligation to action: while it recognizes that immediate change might not be possible, it nonetheless requires steps in the direction of change.Footnote 64 Conversely, would this mean that a relatively wealthy Occupying Power, who cannot easily plead a lack of resources, would suddenly have to pour huge sums into building new national healthcare systems in the occupied territory? At this juncture, it is necessary to return to the earlier discussion of context.
The theatre of operations of occupied territory is far removed from the circumstances of a state operating domestically, in a myriad of ways. Above all, a military occupation is meant to be a temporary affair, and the Occupying Power is not encouraged to envisage itself administering the state into the distant future. An argument could therefore be made that the human rights obligations of the Occupying Power, in addition to the negative/respect duties, are limited to those positive actions required to fulfil the core obligations such as ensuring basic sanitation, safe water, and essential drugs,Footnote 65 while not including engagement in long-term matters such as investing in the creation of new medical schools. Context, however, works in both directions. While it may limit the positive obligations of an Occupying Power in the light of the nature of military occupation, if the circumstances are that of an occupation that does not adhere to the expectation of temporariness – for example, Israel remaining an Occupying Power for more than four decades – the context may then require a more expansive approach to positive duties. Although there are limitations, the Occupying Power is allowed to engage in certain activities that change the status quo for the benefit of the local population.Footnote 66 In a prolonged occupation, it may be incumbent upon the Occupying Power not only to engage in the core minimum of obligations but also to ensure the long-term strategic aspects of fulfilling the population's rights.
Attention must also be given to the principle of non-discrimination. This is a paramount principle cutting across all areas of human rights law. Continuing with the example of the right to health, the issue of discrimination raises an interesting question in the context of military occupation. States are required to implement the right to health in a non-discriminatory fashion;Footnote 67 how does this translate to occupation? There may be a vast difference between the health services that a state provides in its own territory and those of the occupied territory, and it is probably not feasible to expect the health situation in the two areas to be the same – the UK was clearly not going to extend its famous National Health Service to southern Iraq. Indeed, while requiring equal medical treatment for aliens in the territory of a party to the conflict,Footnote 68 the Fourth Geneva Convention does not do the same for protected persons in an occupied territory, and complete equality cannot be expected between the residents of the Occupying Power back in its own territory and the population of the occupied territory. The human rights principle of non-discrimination will, however, remain pertinent to the manner in which health services are provided within the occupied territory. The principle may therefore be relevant to situations such as those in which a civilian population from the Occupying Power is living in the occupied territory (e.g. the Israeli settlers) and has access to a higher level of health care than their local neighbours.Footnote 69
The source of human rights obligations
While there is considerable support for asserting the duty of occupying powers to abide by international human rights law, a question may still be asked as to the source of the precise obligations. Namely, which human rights obligations are we speaking of: those which the occupier is bound to uphold based on its own treaty ratifications, or those of the state that it is occupying? Applying those accepted by the occupier might be seen as enforcing a set of international principles upon the population of a state that did not agree to them. Conversely, basing the obligations on those of the occupied state might place the occupier in a position of being bound by obligations to which it had not itself agreed. In fact, there are arguments to the effect that the suggested solution is not a straightforward reliance on either of these alone, but a combination of both.
First, however, it should be noted that, although the source of the treaty obligations must be further identified, there is not the same obstacle for customary international law. Fundamental rights such as the right to life, freedom from arbitrary detention, and the prohibition of torture will bind all states under customary international law.Footnote 70 Accordingly, regardless of the treaties to which the Occupying Power and occupied state are party, the occupier will be bound by all human rights obligations that are part of customary international law.
As for the treaty obligations, where both the occupier and the occupied are party to the same treaties, there is less of a difficulty. In examining alleged human rights violations by Uganda in the Democratic Republic of the Congo (DRC), the ICJ determined the applicability of a number of instruments, including the International Covenant on Civil and Political Rights (ICCPR), and noted that both states were party.Footnote 71 However, not all instances of occupation involve two states equally bound by the same human rights treaties. In such a situation, a number of cases support the principle of holding the occupier to the standards to which it is bound by its own treaty obligations. The Al-Skeini case centres upon the obligations of the UK under the ECHR – clearly not a convention to which Iraq was party. The UK, recognized as being in occupation of parts of Iraqi territory, was held to standards appearing in its own human rights treaty obligations.Footnote 72 Likewise, in numerous cases before international bodies dealing with the Israeli occupation of Palestinian territory, Israel was required to abide by the human rights obligations created by the treaties to which it was party. The ICJ held that Israel's obligations under the ICCPR, the ICESCR, and the Convention on the Rights of the Child were all applicable to its actions as an Occupying Power in the West Bank.Footnote 73 UN human rights treaty bodies – such as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights – have likewise determined Israel's treaty obligations to be applicable within the Occupied Palestinian Territories.Footnote 74 This approach demonstrates the notion underlying extraterritorial applicability: that the basic premise of human rights as a safeguard for human dignity and a tool for protecting all individuals from abuse of power remains applicable to the actions of a state, whether acting on its sovereign territory or elsewhere.
Nonetheless, the human rights obligations of the occupied state also remain of relevance to situations of occupation. In fact, the law of occupation may necessitate the observance, by the Occupying Power, of certain human rights obligations to which the occupied state is party. The first reason for this stems from the requirement to uphold domestic law: if the law of the land includes the incorporation of international human rights standards taken upon itself by the occupied state, the Occupying Power must not act in contravention to them.Footnote 75 That being said, as seen in the earlier discussion there may be reason to distinguish between not taking direct action that impedes rights and finding an obligation actively to fulfil certain rights. Principles of continuity of obligations and non-regression could provide a further argument for preserving those rights guaranteed to the population through the original obligations of the occupied state. The UN Human Rights Committee, in General Comment 26, held the following:
The rights enshrined in the Covenant belong to the people living in the territory of the State party. The Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.Footnote 76
One may question whether an Occupying Power is an exception to this notion, since it is a temporary authority rather than a change of government. But, so long as it provides the de facto government of the territory, the idea that the rights are vested with the people in the territory may place the obligation to protect these rights on the shoulders of the Occupying Power. Additional support for this approach, this time in the context of economic, social, and cultural rights, can be found in the presumption against deliberate retrogressive measures.Footnote 77
This notion will clearly be a debatable proposition, as it appears to imply the imposition of international obligations on a third party without its consent.Footnote 78 It is not argued here, however, that the Occupying Power becomes bound directly by the international treaties ratified by the state whose territory it is occupying. Rather, it is a question of whether these obligations arise by osmosis through the domestic legislation in force in the occupied territory, and via the IHL obligations in relation to this domestic law. Moreover, as noted above, while this might require the Occupying Power to refrain from acting in contravention of domestic law and the international human rights elements contained therein, it would not necessarily entail an obligation to take extensive measures of actively fulfilling these laws.
Ultimately, this question of the treaty source of human rights obligations will, for a number of reasons, often remain a question of theory with relatively little impact in practice: many of the fundamental rights will apply through customary international law; the widespread ratification of treaties makes it likely that the Occupying Power and the occupied state will be party to the same instruments; when they are not the same, certain recent cases before international bodies have relied upon the international human rights law treaty obligations of the Occupying Power, in circumstances when these in fact placed obligations from instruments to which the occupied state/territory was not party.Footnote 79 In other words, determining the source of obligation would not present a serious obstacle if the less controversial source of treaty obligations resulted in an ostensibly higher level of human rights protection. Finally, the earlier discussion of context must be recalled here. Whether applying the human rights obligations of the Occupying Power itself or those that were in place in the occupied state, the legal and practical context of occupation may affect the substantive content of these rights and their implementation.
Conclusion
That international human rights law may be applicable during military occupation should not, by now, be a surprising conclusion. Although controversies remain over the full extent of circumstances in which human rights obligations apply extraterritorially, and the modalities of concurrent applicability of IHL and human rights law continue to be debated, there is now a weight of opinion and cases to support applicability of human rights law in military occupation. Moreover, the prevailing approach points to the full spectrum of human rights obligations being applicable when a state exercises territorial control, a criterion argued here to be inherent in the definition of occupation. However, such a conclusion risks placing impractical – perhaps even impossible – demands upon the Occupying Power. Clearly, situations of occupation may involve volatile circumstances far removed from the possible tranquillity within a state's own territory. While the Occupying Power will always be required to act to the best of its ability, the circumstances – legal and factual – of each case will affect its capabilities in dispatching its duties. This article has argued that, although the full applicability of international human rights law can be presumed in military occupation, the precise requirements necessary to fulfil the obligations, and any assessment of whether they have been adhered to, must proceed based on a contextual approach.
