1. Introduction: How Prolonged Occupation Has Been Accounted For
Throughout the historical upheavals of warfare and occupation, legal experts and state practice have had to grapple with the tangled question of how to rationalise a relatively lengthy pattern of occupation.Footnote 1 Since the adoption of the Geneva Conventions of 1949,Footnote 2 the factual phenomenonFootnote 3 of prolonged occupationFootnote 4 can be seen in several places. The primary purpose of this article is to explore how the drafters of the documents of the laws of war and of international humanitarian law (IHL) comprehended the temporal length of occupation and how this question has been addressed in the trajectory of doctrinal discourse. Special focus will be placed on the original intention of the traditional laws of war – such as the Brussels Declaration (1874)Footnote 5 and the Hague Regulations (1899/1907)Footnote 6 – as these have provided the fundamental basis for the legal regime of belligerent occupation.
The article begins by tracing the historical evolution of the legal concept of occupation and evaluating the nature of the legal regime of occupation that has crystallised since the second half of the nineteenth century. After providing brief rationales for having recourse to the travaux préparatoires, in-depth examinations will turn to the relevant legal documents. During the ‘formative period’ of the laws of war (1863–1949), the normative matrix on the law of belligerent occupation was initiated by the Lieber Code (1863),Footnote 7 and nurtured by the Brussels Declaration (1874), the Oxford Manual (1880)Footnote 8 and the Hague Regulations (1899/1907). Investigation into the preparatory works of the relevant legal instruments will help in better grasping the drafters’ understanding of both the legal nature of an occupying power's authority and the basic ideas or principles governing its extraordinary authority under those instruments. This assists in ascertaining whether the drafters of those instruments contemplated a lengthy drawn-out occupation within the normative structure. In the subsequent sections, the findings of the underlying assumptions of those classic documents will be compared with modern practice and doctrines of IHL that have unfolded since the adoption of the Geneva Conventions (1949). Detailed queries will be made of the preparatory work of the Fourth Geneva Convention and Additional Protocol I.Footnote 9 These will be followed by succinct evaluations of modern doctrinal discourse, which seems to depart from the classic emphasis of the law of war regarding the temporary nature of occupation. In the final section, the article will engage briefly in critical examinations of the argumentative structures surrounding the protracted form of occupation in the light of the historical and political context.
2. The Historical Evolution of the Law of Belligerent Occupation
2.1. From the Notion of ‘Substituted Sovereignty’ to a Rudimentary Legal Concept of Occupation
The factual phenomena of invasion, conquest and temporary military occupation have been observable in various parts of the world for centuries throughout human history, whenever rivalling states vied for territorial aggrandisement. Yet, as will be explained below, it was not until after the Napoleonic Wars that the legal regime of belligerent occupation, with its distinct rights and obligations of the occupying power, came to be conceived. In the opinion of Hall, one of the leading late-nineteenth century scholars of international law, what was prevalent in the practice of European warfare until the Seven Years’ War (1763) was the doctrine of ‘substituted sovereignty’.Footnote 10 According to this doctrine, invaders were considered to replace the local sovereignty of the invaded territory and to assume full sovereign power during the invasion phase.Footnote 11 Hall argued that this doctrine fell into disuse only after the middle of the eighteenth century.Footnote 12
As indicated by Verzijl's historical survey, a rudimentary fragment of the law of occupation alongside a qualified understanding of ‘substituted sovereignty’ appeared after the Treaty of Utrecht (1713).Footnote 13 The effective occupation of territory was comprehended as ‘operating a change of sovereignty under the condition suspensive … of a peace treaty with retroactive effect’.Footnote 14 Later, writing during the Seven Years’ War, Vattel was instrumental in recognising the legal effect of occupation as a provisional state of affairs, which was to be distinguished from conquest.Footnote 15 It was understood that the nature of the occupying power was turned into a quasi-sovereignFootnote 16 or a ‘trustee’.Footnote 17 According to Hall, ‘the invader was invested with quasi-sovereignty, which gave him a claim as of right to the obedience of the conquered population, and the exercise of which was limited only by the qualifications, which gradually became established’. Hall added that the invader ‘must not as a general rule modify the permanent institutions of the country, and that he must not levy recruits for his army’.Footnote 18 In terms of special importance attached to the rights of private property of civilians under occupation, the notion of quasi-sovereignty resembled the concept of occupation that has crystallised since the second half of the nineteenth century.Footnote 19 What made the doctrine of substituted sovereignty distinguishable from the modern concept of occupation is that the former granted the invader considerably more extensive powers of the kind reserved to sovereign states.Footnote 20 Nonetheless, even according to this doctrine, it was never envisaged that the occupying power as a quasi-sovereign would be invested with the power to transform the national character of the territory and population.Footnote 21 According to Hall,Footnote 22 the residual and ‘remote influence’ of the earlier doctrine of substituted sovereignty persisted until the mid-nineteenth century, and on the fringe of publicists even until the late nineteenth century.Footnote 23 Writing in 1858, Georg Friedrich de Martens explained that the ‘conqueror’ (‘vainqueur’) can substitute itself for the vanquished government and exercise sovereign power until enactment of the peace treaty.Footnote 24
2.2. The Emergence of Belligerent Occupation as a Distinct Legal Concept
The emergence of belligerent occupation as a distinct legal concept, wholly set apart from the right of conquest (and from the doctrine of substituted sovereignty), was most marked in the wake of the Napoleonic Wars.Footnote 25 The post-war settlement raised various problems, including the need to distinguish between temporary and permanent conquest,Footnote 26 the ability (or lack thereof) of temporary conquerors to acquire title to assets of the occupied or conquered territories, and the question of how to reconcile those economic and financial transactions with the post-war problems of the jus postliminii.Footnote 27 By the mid-nineteenth century, the law of belligerent occupation as a distinct legal category (within the laws of war) had taken its embryonic shape and started to grow in gestation.Footnote 28 As claimed by Korman, the notion of occupatio bellica developed as a legal category separate from the idea of debellatio.Footnote 29 In this context, an occupying power was perceived as a non-sovereign, temporary holder of power, equipped with specific rights and obligations.Footnote 30 According to LoeningFootnote 31 and Lauterpacht,Footnote 32 in academic discourse it was August Wilhelm Heffter who pioneered the development of the legal doctrine of ‘belligerent occupation’ as separate from the notion of conquest.Footnote 33 In his treatise of 1844, Heffter had already set out the basic principles of the law of belligerent occupation. He observed that except in the case of debellatio, the legal concept of occupation was merely the form of temporary control that suspended the exercise of sovereign rights of the occupied state. In his view, this would not result in the transfer of sovereignty.Footnote 34
The foundational ideas of the law of belligerent occupation, as developed later, reflected the legal consciousness of European legal advisers in the mid-nineteenth century. It is suggested that Francis Lieber tried to acquire some insight from the practice of European states during, and in the aftermath of, ‘modern European wars’ (namely, the Napoleonic Wars) when preparing the military manual for the American Civil War (1861–65).Footnote 35 The Lieber Code (1863), which is the earliest text to enunciate the law of belligerent occupation,Footnote 36 proclaims the introduction of ‘martial law’ in the area under occupation. Furthermore, the drafters of the Brussels Declaration, which provided the prototype for the subsequent treaties on the laws of war, drew out many of its normative dividends from the Lieber Code.Footnote 37
While the Lieber Code assumes the state of occupation as a matter of factual control when determining the applicability of martial law, it fails to define what is meant by occupation.Footnote 38 This was achieved in the subsequent Brussels Declaration (1874). The first paragraph of Article 1 of this Declaration stipulates that ‘[t]erritory is considered occupied when it is actually placed under the authority of the hostile army’. The second paragraph of this provision proclaims that ‘[t]he occupation extends only to the territory where such authority has been established and can be exercised’.Footnote 39 This two-tier definition of ‘occupation’ was subsequently incorporated into Article 42 of the Hague Regulations (1899/1907). This positive rule, one of the achievements of codifying the laws of war in the second half of the nineteenth century, has proved to be remarkably resilient over the vicissitudes of war and occupation. It remains relevant to situations of occupation in the present day.
3. The Nature of Occupation as Understood in the ‘Classic’ Doctrines
It is of particular importance to summarise the distinct features of the legal regime of belligerent occupationFootnote 40 that have come to be recognised in the doctrines of the laws of war since the second half of the nineteenth century. The role and scope of the exceptional powers granted to the occupier are considered to be a simulative exercise of state sovereign authority, which takes place during a temporary intermission in the normal stable order of relations among sovereign states.Footnote 41 Accordingly, the nature of belligerent occupation is most aptly characterised as a ‘sovereign suspension’.Footnote 42 At the Brussels Conference in 1874, such an idea was favoured over the view of occupation as analogous to the state of blockade, suggested by some delegates.Footnote 43
The most axiomatic legal principle of belligerent occupation that came to be widely recognised by the Brussels Conference is that the occupying power does not gain sovereignty over the occupied territory.Footnote 44 Sovereignty in the juridical sense remains vested in the occupied state (or people). Writing in the aftermath of the Franco-Prussian War (1870), Loening rejected the notion of transfer of sovereignty. He stated:Footnote 45
As regards the power of the enemy that occupies the territory, we are today in agreement to recognise that it does not replace the power of the vanquished state. As the occupied territory is not yet separated from the state to which it appertains, and the inhabitants remain citizens of that country, there is no change in the sovereignty.
Most writers since the Hague Regulations have made clear that ‘the sovereignty of the old government remains in legal existence, even though it cannot be exercised’.Footnote 46 Along this line, the United States Military Manual of 1914 stated:Footnote 47
Being an incident of war, military occupation confers upon the invading force the right to exercise control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.
As a corollary of the non-transfer of sovereignty, the doctrines during the formative period of the laws of war (1863–1949) suggest that the public authority exercised by an occupying power over the occupied territory and population should be provisional or transient, and never permanent.Footnote 48 The occupying power's exercise of governmental power was confined temporally to the period until the role of the territorial administration was handed over to the legitimate sovereign.Footnote 49 According to the doctrines of ‘classic’ writers, occupation gave an invading power only a temporary (and non-permanent) status of a factual nature.Footnote 50 Such provisional nature was considered a special hallmark of occupation, which marked a contrast to the notion of conquest.Footnote 51
Writing during the Second World War, Feilchenfeld averred that ‘[t]he application of … regulatory powers [of the occupant] extends over practically all fields of life … if an occupation lasts for any length of time’.Footnote 52 This might be read as implying the possibility of long-running occupation that could hardly be considered temporary. However, what Feilchenfeld contended was that the length of occupation depended on the duration of warfare in which the opposing armies were still fighting.Footnote 53 Hence, this contention was based on the idea that occupation was limited to the period of hostilities.Footnote 54 Feilchenfeld took pains to emphasise repeatedly the precarious nature of belligerent occupation.Footnote 55 He stated:Footnote 56
The special rules applied to belligerent occupation of an enemy state during a war … set up a special system under which the territorial changes of belligerent occupation, even if likely to be permanent, is treated as precarious as long as the war continues.
Further, from the non-transfer of sovereignty to the occupying power can be inferred the unlawfulness of any unilateral and permanent step taken by the occupant, such as the annexation of occupied areas before the conclusion of peace.Footnote 57 Related to this is what some scholars label the ‘principle of precariousness’Footnote 58 or the ‘conservationist principle’.Footnote 59 According to this principle, the legal system of the occupied territory should be conserved,Footnote 60 save in exceptional circumstances.Footnote 61 The exceptional possibility for the occupying power to modify local laws may be explained by the concept of ‘military necessity’.Footnote 62 Fraenkel invoked the doctrine of ‘incidental or implied powers’ to justify the exceptional power accorded to the occupant.Footnote 63 When undertaking sweeping forms of transformation in local administrative or political structures, the occupying power must discharge the onus of adducing rationales for this within the (elastic) notion of military necessity as exceptions to the ‘general principle’.Footnote 64 The principle that the legal systems of the occupied territoryFootnote 65 should be preserved as much as possible had the benefit of maintaining orderliness of social life among the local inhabitants under occupation.Footnote 66 This system of law duly mirrored and fed the then prevalent social and political consciousness of the so-called ‘civilised’ nations in North America and Europe, including the primordial importance of private property based on the idea of a laissez-faire economy.Footnote 67 Overall, this was conveniently attuned to preserve the stability of the European political order in the late nineteenth century.Footnote 68
4. Rationalising Recourse to the Travaux Préparatoires
Exploring how the drafters of the key legal instruments on the laws of war or IHL understood the temporal scope of occupation is the primary objective of this article. For this purpose it is essential to examine at length the travaux préparatoires of the relevant legal instruments. These are the Brussels Declaration (1874); the Hague Regulations (1899/1907); the Fourth Geneva Convention (1949) (GC IV); and Additional Protocol I (1977) (AP I).
Before perusing the minute details of the historical documents, the present writer defends such a methodology. To begin with, Article 31 of the Vienna Convention on the Law of Treaties (VCLT) provides that a treaty shall be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.Footnote 69 Article 32 of the VCLT prescribes that recourse may be had to:
supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.Footnote 70
Hence, where no appropriate meaning emerges by way of interpretation according to Article 31 of the VCLT, the preparatory work constitutes the means to be invoked.Footnote 71 Unlike state practice or the circumstances existing at the time of the conclusion of a treaty, the travaux préparatoires have the advantage of being ‘tangible’ and ‘concrete’.Footnote 72 As noted by the International Law Commission (ILC),Footnote 73 the rationale for relying on the preparatory work can be summarised in a two-fold way. Their use can serve both to confirm the meaning of a treaty text,Footnote 74 and to determine a meaning which remains indefinite or obscure,Footnote 75 or which would yield irrational outcomes in the event of the application of the ‘general rule’ of interpretation in Article 31 of the VCLT.Footnote 76 Under Article 32, the weight of drafting records for the purpose of interpreting a treaty is understood to be ‘supplementary’.Footnote 77 Still, the International Court of Justice (ICJ) has routinely recognised the importance of resorting to the preparatory work of the treaty.Footnote 78
Admittedly, the classification of the travaux as ‘supplementary’ means, which may indicate a crude ‘hierarchical structure’ of Articles 31 and 32 of the VCLT,Footnote 79 suggests that they may be called into play only subsequent to the general means of interpretation enumerated in Article 31 of the VCLT. Yet, in practice, they are taken into account often concurrently with the general means of interpretation under Article 31. As noted by Shabtai Rosenne, in legal proceedings it is hard to know by what processes and how much the travaux préparatoires have actually contributed to judges of international tribunals in arriving at particular opinions on the meaning of a treaty text that they regard as clear.Footnote 80 In his view, claiming that recourse to preparatory works can be justified only after the meaning obtained by the interpretation based on the text of the treaty turns out to be unclear verges on a ‘legal fiction’.Footnote 81
Further, the role and weight of the travaux in confirming the meaning obtained by the means of interpretation in Article 31 of the VCLT is not entirely evident. A salient question in this regard is what an interpreter has to do if there is discordance between the ordinary meaning of the treaty text and the meaning extrapolated from the travaux préparatoires.Footnote 82 On the one hand, it is proposed that the allegedly clear meaning should be followed,Footnote 83 while on the other hand, Schwebel, former judge of the ICJ, has underscored the meaning revealed by the travaux as evidence of the intention of the parties. In his analysis, the travaux may be invoked as a gateway to ‘correcting’ the ordinary meaning.Footnote 84
This article contends that the text of GC IV Article 6(3), while not obscure, leaves much incoherence in terms of Article 32(a) of the VCLT. A greater cause of perplexity is that GC IV Article 6(3), if construed in accordance with the primary methods of interpretation under Article 31 of the VCLT may even lead to an unreasonable result within the meaning of Article 32(b) of the VCLT. Article 6(3) of GC IV provides:
In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
This paragraph mandatorily (‘shall’) ends the legal effect of nearly one-third of the rules of occupation contained in Part III of GC IV, one year after the general end of military operations. Those provisions that will cease to operate after the passage of only one year include basic rules that affect the daily lives of civilians under occupation (GC IV Articles 50 and 55),Footnote 85 and internment or administrative detention (GC IV Article 78).Footnote 86 As will be explored in Section 7 below, such an ‘exclusionary clause’ seems to contradict the humanitarian object and overall purpose of GC IV. The limited temporal applicability of those provisions in the event of protracted occupation also seems to be incongruent in the light of the underlying objective of GC IV Article 8. According to this provision, the protected persons in occupied territory are not intended to renounce in part or in whole the rights guaranteed under GC IV.Footnote 87
The one-year temporal delimitation laid down in Article 6(3) of GC IV is markedly distinguishable from other legal instruments that include no such equivalent clause. As will be examined below, AP I Article 3(b) reverts to the pre-1949 customary rule, prescribing that both GC IV and AP I ‘shall cease … on the termination of the occupation’. The question is how to explain coherently such apparent inconsistency. This furnishes an additional ground to justify reliance on the travaux préparatoires.
The inquiries into the intention and understanding of the drafters were forcefully defended by one of the prominent scholars of international law in the twentieth century. Writing decades before the emergence of the ILC's draft texts of the VCLT, Hersch Lauterpacht made plain that ‘the intention of the parties must be the paramount factor in the interpretation of treaties’, warning against recourse to technical rules of interpretation or presumptions that ‘may play havoc with the intentions of the parties’.Footnote 88 He highlighted that the travaux préparatoires constituted even ‘a fundamental element, maybe the most important, in the matter of interpretation of treaties’.Footnote 89 As if to evoke semiotics, he saw the text of a treaty as a sign which can acquire substantive meanings when read together with the drafting history.Footnote 90 Admittedly, the ‘intentionalist’ thesis defended by Lauterpacht was premised on ‘the fragile assumption that the drafting process was neatly documented and readily available’.Footnote 91 Further, Philip Allott goes as far as affirming that a treaty is ‘a disagreement reduced to writing’.Footnote 92 Notwithstanding these general caveats this article argues that the travaux préparatoires of the legal instruments on occupation remain significant. This is because the aim is not to find any ‘common or uniform’ understanding among the framers (the attainment of which, to this author's mind, seems illusory). Instead, the article seeks to examine how (differently) the question of long-running occupation was perceived among the drafters.Footnote 93 It should also be ascertained if the drafters envisaged protracted occupation lasting for decades.
It might be countered that those questions are not related directly to the text of the treaties in question. Yet, this article considers that these are points of a substantive nature that affect the interpretation of the treaty-based rules on the legal regime of occupation. Even Gerald Fitzmaurice, whose opinion was at odds with the intentionalist theory represented by Hersch Lauterpacht,Footnote 94 recognised a supplementary function of the travaux préparatoires. It is well known that as one of the rapporteurs of the ILC, Fitzmaurice contributed, together with Waldock, to shaping the current texts of the VCLT (including Articles 31 and 32). In addition to the situations covered by Article 32 of the VCLT, Fitzmaurice rationalised a ‘legitimate’ recourse to preparatory works also where ‘the object is not the interpretation of the text as such, but the ascertainment or establishment of a point of substance in relation to the Treaty’.Footnote 95 In this light, in the case of Reservations to the Genocide Convention, the ICJ had recourse to the preparatory works of the Genocide Convention not to elucidate any particular provision of that Convention, but to ascertain if the parties had any right to formulate unilateral reservations to it. The travaux were consulted to evaluate any implied understanding to support such a right.Footnote 96 Accordingly, for the purpose of verifying the nature and temporal length of occupation, it is legitimate to explore the preparatory works of the laws of war.
In view of the special importance of the Brussels Declaration as the model for the subsequent Hague Regulations, much of the in-depth examinations will be expended on this aborted legal instrument. The ambit of those examinations will encompass the Lieber Code (1863) and the Oxford Manual (1880). The former, which constituted the first effort to codify the laws of war, was prepared during the American Civil War by Francis Lieber, then legal adviser to the United States (or Union) forces. The latter was adopted by the Institute of International Law (1880) as a crystallisation of the leading academic opinions on the laws of war at that time. Neither document purported to have the status of a treaty, but they have been referenced as authoritative sources in the doctrines and practice. Hence, it is reasonable to include those documents together with the relevant legal instruments on the laws of war.
5. The Temporary Nature of Occupation Ascertainable from the Legal Text of the Laws of War and Their Travaux Préparatoires
5.1. The Lieber Code (1863)
Article 3(1) of the Lieber Code provides:Footnote 97
Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation.
By referring to the suspension of the local laws of the occupied land, Article 3(1) of the Lieber Code implicitly certifies the temporary nature of occupation. Further, the last clause of Article 32 of the Lieber Code makes plain that any permanent change must await the conclusion of peace. This corroborates the basic understanding that any suspension of, change in, or abolition of legal relationships made during the period of occupation is precarious.Footnote 98 The transient and provisional nature of occupation was made express in subsequent United States military manuals. For instance, the manual of 1914 stated that ‘[m]ilitary occupation is based upon the fact of possession and is essentially provisional until the conclusion of peace or the annihilation of the adversary, when … military occupation technically ceases’.Footnote 99 The temporary nature of occupation as a general principle is reaffirmed in the most recent United States Law of War Manual (2016).Footnote 100
5.2. The Travaux Préparatoires of the Brussels Declaration
Article 2 of the Brussels Declaration provides:Footnote 101
The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety.
The word ‘suspended’ in Article 2 suggests the provisional nature of belligerent occupation.
A closer look at the records of the Brussels Conference shows that a clear change in the tenor of the relevant texts occurred during the drafting process. The emphasis shifted to the temporal scope of occupation and to the notion that belligerent occupation would bring about no handing down of sovereignty (at least during the period of occupation and until the conclusion of a peace treaty). Article 1 of the very first draft text, which had been prepared by the Russian delegate for the purpose of a commission's discussions,Footnote 102 provided:Footnote 103
The occupation by the enemy of a part of the territory of a state in war with the former suspends, by the fact itself, the authority of the legitimate power of that [occupied] state therein and substitutes the authority of the military power of the occupying state [with that of the occupied state].
On the one hand, this provision contained the verb ‘suspends’, which – as in the case of Article 2 of the Brussels Declaration as ultimately adoptedFootnote 104 – indicated the temporary character of the occupying power's authority. On the other hand, the verb ‘substitutes’ included in that provision might be considered redolent of the doctrine of ‘substituted sovereignty’ examined above. Still, this should not be viewed as conceding the transfer of sovereignty, an option that the Lieber Code suggested as a possibility of post-war settlement.
In the following plenary session convened on 5 August 1874, Baron Jomini of the Russian delegation, who acted as President of the Conference, presented his own amended text.Footnote 105 When putting forward a further draft text on 11 August 1874, he changed the wording of Article 1 of the Russian draft text (which was renumbered Article 2) to read:Footnote 106
The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety.
There were two main changes that had special bearing on the question of sovereignty. First, following the amendment, the text confirmed that the effect of belligerent occupation was that of suspended sovereignty.Footnote 107 The introductory phrase of this provision (‘the authority of the legitimate Power being suspended, and having in fact passed into the hands of the occupants’)Footnote 108 was bereft of the word ‘substitute’. Second, the phrase ‘was suspended by the fact of occupation, the occupying power takes’ is replaced by the phrase ‘being suspended and having passed in fact into the hands of the occupant, the latter shall take’.Footnote 109 This clarified that only factual control was assumed by an occupying power, and not any legal title to the occupied territory.Footnote 110 Accordingly, the text that was finally adopted as Article 2 highlighted that there was no transfer of sovereignty over the occupied territory.Footnote 111
5.3. Indications for the Possibility of Protracted Occupation in the Travaux Préparatoires of the Brussels Declaration
Notwithstanding the foregoing examinations that indicate the provisional nature of occupation understood by the drafters of the Brussels Declaration, at the Brussels Conference there were some indicia that might be read as recognising the possibility of long-running occupation. At one point in the complex process of amendment, the text of Article 1(2) of the Brussels Declaration was formulated in such a manner as to come close to allowing for such a possible reading. At the plenary session of the Conference, Baron Jomini of Russia introduced an amendment to the earlier draft text of Article 1(2) of the Brussels Declaration.Footnote 112 The revised draft text provided that ‘[t]he occupation extends only to the territory where such authority has been established and lasts only so long as it (‘aussi longtemps qu'elle’) is able to be exercised’. This paragraph highlighted that occupation depended on both the spatial and temporal scope of ‘authority’ to be exercised.Footnote 113 It may have been construed as authorising an occupying power to prolong the occupation in so far as it had the capacity to exert territorial control (and this, even when there was no actual control). As will be examined below, a similar text that addressed both the spatial and temporal ambit of occupation was introduced as the last sentence of Article 41 of the Oxford Manual.
Following further amendments,Footnote 114 the text of Article 1(2) of the Brussels Declaration that was finally agreed stipulates that ‘[t]he occupation extends only to the territory where such authority has been established and can be exercised’.Footnote 115 This text stopped short of expressly characterising occupation as an interim or precarious arrangement.Footnote 116 Nor did the text indicate any temporal parameters of occupation. The drafters of the Brussels Declaration understood the legal regime of occupation to be cognisable on the basis of the factual situation of control. This was the case even though, during the Commission's session, Baron Jomini explained that in his new text of Article 1(2), the temporal aspect was still implicit in his revised text.Footnote 117 He pointed out that ‘the occupation lasts so long as it (‘tant qu'elle’) is exercised by fact’.Footnote 118 One might be tempted to contend that both the drafting records and the final text of Article 1(2) of the Brussels Declaration did not entirely exclude the possibility of the legal regime of occupation lasting for as long as the factual state (or capacity) of control persisted. However, even if this reading may be accepted, it seems far-fetched to maintain that the drafters of the Brussels Declaration envisaged a protracted form of occupation that would endure for decades. Further, the intention of the drafters of the Brussels Declaration may be evaluated alongside the text of the Oxford Manual, which was formulated only six years later.
5.4. The Oxford Manual (1880): The Approach of Setting the Temporary Nature of Occupation as a ‘General Principle’ while Exceptionally Recognising the Possibility of Prolonged Occupation
The Oxford Manual is distinguishable in making it explicit and unambiguously clear that belligerent occupation is an interim temporary arrangement. Article 6 of the Manual reads that ‘[n]o invaded territory is regarded as conquered until the end of the war; until that time the occupant exercises, in such territory, only a “de facto” power, essentially provisional in character’.Footnote 119 Until now, this provision constitutes the only major legal document that expressly recognises the temporary nature of occupation as a general rule.
Nevertheless, two qualifications should be made. First, the qualifying word ‘essentially’ in Article 6 suggests that a non-interim occupation is exceptionally permissible. Second, Article 41 of the Oxford Manual, which corresponds with Article 1 of the Brussels Declaration, seems to recognise a potentially longer occupation in tune with the duration of a foreign power's control. Article 41 of the Oxford Manual stipulates:Footnote 120
A territory is regarded as occupied when, following its invasion by enemy forces, the State to which it belongs has ceased, in fact, to exercise ordinary authority therein, and the invading State is alone in a position to maintain order there. The limits within which this state of affairs exists determine the extent and duration of the occupation.
The last sentence of Article 41 makes it clear that the temporal sweep (alongside the geographical reach) of occupation rests upon the factual nature of occupation, which is defined in the first sentence. Article 41 of the Oxford Manual may therefore be read as admitting a lengthier period of occupation as an exception.
5.5. The Travaux Préparatoires of the Hague Regulations and the Provisional Nature of Occupation
Article 43 of the Hague Regulations (1899–1907) reads:Footnote 121
The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
This provision is the consolidation of Articles 2 and 3 of the Brussels Declaration.Footnote 122 There are two salient differences between the two instruments, which are of special relevance to ascertaining the temporal length of occupation. They are (i) the omission in Article 43 of the Hague Regulations of an express mention of the suspended nature of the authority of the legitimate power; and (ii) the obliteration of references to the exceptional power of the occupant to ‘modify, suspend and replace’ the local laws, which was, under the Brussels Declaration, exercisable in the case of necessity.Footnote 123
With regard to the latter point, the deletion of the extensive power granted to the occupant to change the laws in force in the occupied territory may be considered to reflect the drafters’ due recognition of the precarious character of the legal regime of occupation. This issue will be addressed in Section 6 below. Turning to the first point, when adopting Article 43 of the 1899 Hague Regulations, the delegates to the 1899 Hague Conference trimmed the text of Article 2 of the Brussels Declaration (‘the authority of the legitimate power being suspended and having in fact passed into the hands of the occupant …’).Footnote 124 In so doing, they expunged the phrase that was indicative of the provisional effect of occupation – namely, the phrase ‘being suspended and’.Footnote 125 It was the Belgian delegate who proposed this deletion at a sub-commission meeting on 8 June 1899Footnote 126 but, unfortunately, the minutes of the meeting show no indication of his rationale.Footnote 127
In retrospect, the deletion of the key word ‘suspended’ in the drafting stage might suggest a change in the drafters’ opinion as to the temporal span, allowing room for protracted occupation. Nevertheless, since (as noted above) Article 43 of the Hague Regulations was based on the amalgamation of the texts of Articles 2 and 3 of the Brussels Declaration, the drafters of Article 43 may simply have assumed the temporariness of occupation.
6. The Traditional Laws of War and the Correlation between the Provisional Nature of Occupation and the Limited Degree of Power Exercisable by the Occupying Power: The Travaux Préparatoires and the Doctrines
6.1. Overview
Admittedly, there is no necessary correlation between the provisional nature of occupation and the limited degree of power with which an occupier is endowed.Footnote 128 Hence it may be contended that measuring the power of the occupant is not decisive in ascertaining the length of occupation. Still, if the pivotal logic of occupation demands abstention from undermining the sovereignty of the displaced government of the occupied state, it seems reasonable that the power exercisable by the occupant in transforming local laws and the administrative structure should generally be restrained. The lengthier the temporal span of the occupation, the greater the need for the occupier to take appropriate administrative and legislative measures to secure the well-being of the inhabitants.Footnote 129 Accordingly, the conferral only of a limited degree of power upon the occupier may be read as an indicator for the presumably interim nature of occupation.
6.2. The Travaux Préparatoires of the Brussels Declaration and the Limited Power to be Exercised by the Occupying Power
The original text of Article 3 of the Brussels Declaration expressly recognised that, as a general rule, the occupying power was invested with broad, or even almost unencumbered latitude to alter the local laws. According to this first draft text:Footnote 130
The enemy that occupies a territory may, according to the exigencies of the war and in view of the public interest, either maintain the binding force of the laws that were in effect in time of peace, or modify them in part, or suspend them entirely.
However, following drastic changes introduced by both the President and the Commission,Footnote 131 the power of the occupier to modify local laws became an exception that could be exercised only in the event of necessity.Footnote 132 Instead Article 3 came to highlight the principle of preserving local laws and the prohibition on modifying them.Footnote 133
To obtain more insight into such drastic changes, it is crucial to investigate how this came about in the drafting process. At Brussels, following the proposal of Baron Jomini (Russia), Article 2 of the first draft text was splitFootnote 134 into two provisions: Article 2, which allowed an occupying power to suspend the local authority and to take all measures to restore and ensure ‘l'ordre et la vie publique’; and Article 3, which – while proclaiming the idea of preserving the local laws – made the possibility of modifying, suspending or replacing local laws the exception that could be allowed only in the case of necessity.Footnote 135 Article 3 stipulated that ‘[w]ith this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary’.Footnote 136 This provision gravitated towards emphasising the limited and exceptional nature of the legislative power of the occupant. It was the German delegate who motioned an amendment of the original text, which had recognised a wide power to modify local laws, by changing the phrase (‘either modify them in part, or suspend them entirely’).Footnote 137 He proposed that this wording be substituted by the phrase that would confine the occupier's legislative power only to the case of necessity (‘neither modify them, nor suspend them, nor replace them except in case of necessity’).Footnote 138 The result of this amendment was to turn around the whole interpretive dynamic of this provision. As a result of such alterations, in the final draft the ability of the occupying power to assume a wide range of legislative and administrative powers was posited only as an exception.
6.3. The Doctrines on the Correlation between the Limited Degree of Power Conferred upon the Occupying Power and the Temporary Nature of Occupation
Writing in 1872, two years before the Brussels Declaration, Loening suggested that the scope and nature of the powers to be wielded by an occupying power should depend on the length of occupation.Footnote 139 Many scholars in the area of the laws of war between the late nineteenth century and early twentieth century seemed to emphasise the correlation between the relatively limited degree of power bestowed upon the occupier and the provisional nature of occupation.Footnote 140 They seemed to read the generally circumscribed nature of the occupier's power as an indicator for the transient nature of its control. Writing in 1890, Hall contended:Footnote 141
The invader, having only a right to such control as is necessary for his safety and the success of his operations, must use his power within the limits defined by the fundamental notion of occupation, and with due reference to its transient character.
Similarly, according to Graber (1949), ‘[t]he modern law of belligerent occupation is anchored in the concept that occupation differs in its nature and legal consequences from conquest’. She added:Footnote 142
The early definitions of the modern concept of belligerent occupation are chiefly concerned with the main aspects of this difference, namely the temporary nature of belligerent occupation as contrasted with the permanency of conquest, and the limited rather than full powers which belligerent occupation entails for the occupant.
6.4. A Minority of ‘Classic’ Scholarly Opinions: The Extensive Power of the Occupant and the Possibility of Prolonged Occupation
Some American ‘classic’ writings in the late nineteenth and early twentieth centuries suggested the extensive power of the occupant and the possibility of occupation of relatively lengthy duration. Wheaton's treatise, published during the American Civil War, admitted the ‘indefinite’ nature of belligerent occupation even after fighting ceased. One caveat is that this was contemplated for only as long as the legal state of war continued.Footnote 143 Accordingly, Wheaton envisaged post-hostilities occupation which may have been protracted until the final status of the occupied territory was settled by an agreement (such as a peace treaty). Needless to say, the adjective ‘indefinite’ was not synonymous with the qualifier ‘permanent’. Wheaton made plain that the occupying power would ‘not become the permanent civil sovereign of the country’.Footnote 144 In his view, the occupying power would not acquire any abiding title to immovable property.Footnote 145 Overall, it is unclear if Wheaton, even when conceding the possibility of a longer occupation of the territory of a sovereign state, envisaged the protracted kind that would endure for decades after ceasefire.
Wheaton's inclination towards relatively long-running occupation may have been coterminous with the influential American doctrine that endorsed an occupier's wide range of powers. Lieber implicitly recognised the exceptional possibility of annexing an occupied land even before the conclusion of peace.Footnote 146 The occupant, in his view, was granted ‘full power’ in the event of military necessity.Footnote 147 Akin to Lieber, Hall tinkered with the thesis that a wide scope of powers might be reserved to the occupying power.Footnote 148 Their views went further than those contemplated by contemporary scholars in Europe. For instance, Bluntschli was disposed to qualify the ambit of the war authority of the occupier by ‘the need of continuation of war, or by the need of occupied area or of the population’.Footnote 149 It is plausible that many American writers were influenced by (or purported to give legitimacy to) the previous practice of the United States during the Anglo-American War (wars of 1812, 1812–15)Footnote 150 and the Mexican-American War (1846–48).Footnote 151 Even after the Brussels Conference, the practice of the United States, markedly different from European views, conferred an avowedly wide range of powers upon an occupying power.Footnote 152 This can be discerned in relation to the annexationist practice of the United States during the Spanish-American War (1898).Footnote 153
7. The Temporariness of Occupation and Prolonged Occupation in the Travaux Préparatoires of GC IV
7.1. Overview: The Relevance of Article 6(3) GC IV to the Question of Prolonged Occupation
Having obtained insights into how the drafters of the ‘classic’ texts of the laws of war and the doctrinal discourses during the corresponding period (1863–1949) conceived the temporal aspect of the legal regime of occupation, the examination now turns to the question of prolonged occupation in the minds of the framers of modern IHL: GC IV and AP I. This section will focus on the draft records of GC IV (1949), especially with regard to Article 4 of the Stockholm draft text of GC IVFootnote 154 (which corresponded with GC IV Article 6). A closer perusal of the draft records reveals that the evidence for recognising the possibility of protracted occupation lasting for decades is minimal and, at best, inconclusive.Footnote 155
7.2. Interpretation of Article 6(3) GC IV in Accordance with the General Rule of Interpretation
As succinctly discussed in Section 4 above, GC IV Article 6(3) contains the so-called ‘one-year’ rule, which delimits the temporal span of applicability of GC IV (save for the core 43 provisions expressly spelt out). Evidently, GC IV Article 6(3) contains an important exception that applies to the post-belligerent phase, namely what Dinstein refers to as ‘post-belligerent occupation’Footnote 156 or ‘post-hostilities belligerent occupation’.Footnote 157 This exception relates to the 43 provisions that are considered to be ‘hard core’ and of fundamental importance for the occupied population.Footnote 158 These provisions retain validity throughout the duration of the occupation.Footnote 159 Still, with regard to Part III of GC IV, which specifically addresses occupation, only 23 out of its 32 provisions will outlast the passage of one year after the general close of military operations and continue to apply in the entire phase of post-belligerent occupation.
The term ‘the general close of military operations’ raises some interpretative issues. One immediate question may be the meaning of the concept of ‘military operations’. It seems widely recognised that this concept is broader than that of ‘active hostilities’ used in the Third Geneva Convention, Article 118.Footnote 160 Along this line, some authors consider the former concept to be sufficiently broad to include even the construction of a wall in an occupied territory.Footnote 161 Nevertheless, such understanding was not necessarily shared in the past. The draft records of the 1949 Geneva Conference reveal that some delegates conflated the two concepts of ‘military operations’ and ‘active hostilities’. When evaluating the temporal juncture from which the one year period should run under Article 6(3) GC IV, several delegates equated the close of hostilities with the conclusion of military operations.Footnote 162
Another question that has raised much doctrinal controversy is whether the term ‘military operations’ points to those that temporarily and causally precede the occupation in question. This narrow reading is precisely that adopted by the ICJ in its Advisory Opinion in Wall. In that case, the ICJ held that Article 6(3) of GC IV set the one-year rule running from ‘the general close of military operations leading to the occupation’.Footnote 163 Yet, as critics claim,Footnote 164 the qualifying words ‘leading to the occupation’, which shows a causal connection, were absent under Article 6(3) of GC IV but were appended by the court.Footnote 165
One may ask if GC IV Article 6(3) is tailored only to the historical circumstances of the Allied post-hostilities belligerent occupation of Germany and Austria, and of the American occupation of Japan.Footnote 166 If an answer to this question is in the affirmative, the relevance of that paragraph to other instances of occupation in general might be discounted. Yet, the ordinary meaning of GC IV Article 6(3) makes it unmistakably clear that its scope of application ratione materiae and ratione loci is purported to be general. Accordingly, by delimiting the temporal parameters of many provisions, GC IV Article 6(3) is marked off from the Hague Regulations. As discussed above, the latter do not set any temporal limit on the applicability of their rules on occupation.Footnote 167
7.3. The Continued Applicability of the Law of Occupation to Occupied Territory where There Is No Armed Resistance
According to Pictet's Commentary (1958), when regulating the temporal ambit of GC IV, Article 6(3) ‘deliberately’ omits reference to one situation of occupied territory covered by Article 2(2) common to the Geneva Conventions – namely, territory that has fallen into occupation where an occupant does not encounter any armed resistance, state of war or armed conflict (hence the absence of any hostilities).Footnote 168 In such situations, Pictet's Commentary considers that the basis for the ‘one-year’ rule is moot. Hence, contrary to the temporal scope of application of most provisions of GC IV, ‘the Convention will be fully applicable … so long as the occupation lasts’.Footnote 169 On this reading, it may be suggested that GC IV implicitly recognises long-running occupation in cases ‘where there has been no military resistance, no state of war and no armed conflict’, as covered by common Article 2(2) of the Geneva Conventions.Footnote 170
In those situations, according to Pictet, there is no doubt about the applicability of GC IV.Footnote 171 The continued validity of GC IV in such types of occupied territory may be aptly depicted as ‘the exception to the exception’ of the one-year rule laid down in Article 6(3) GC IV.Footnote 172
As an alternative, in such instances of occupation where an occupying power has not met with any armed resistance, it may be suggested that the act of forcible incorporation and occupation itself should be considered a ‘military operation’ in the sense of IHL.Footnote 173 On this reading, in line with Article 6(3) of GC IV, the ‘one-year’ rule will duly apply after the termination of the ‘military operation’ (that is, taking control of a foreign territory).Footnote 174
7.4. The Travaux Préparatoires of GC IV Article 6(3) and Their Implications for Prolonged Occupation
At the Diplomatic Conference in Geneva (1949), Article 4 of the Stockholm Draft provided the basis for hammering out the text of Article 6 of GC IV. The second sentence of this draft provision read:
The application thereof shall cease on the close of hostilities or of occupation, except as regards protected persons whose release, repatriation or re-establishment may take place subsequently and who, until such operations are terminated, shall continue to benefit by the present Convention.
When examining Article 4 of the Stockholm Civilians Draft, some delegates contemplated a relatively protracted case of occupation. Still, while referring expressly to ‘a prolonged military occupation’, the US delegate was swift in proclaiming that a long-term pattern of occupation had to be attended by ‘a progressive return of governmental responsibility to local authorities’.Footnote 175 Other delegates were reluctant to endorse prolonged occupation. They proposed setting a time limit on the applicability of the draft text of GC IV, fearing that otherwise occupation might elapse for a ‘considerable time’, or even ‘indefinitely’ in a post-belligerent situation.Footnote 176 They highlighted the need to enumerate which obligations should cease after the time limit.Footnote 177 This was because of the widely shared conviction that administrative power should be handed over progressively to the local authority, with the gradual diminution of the occupying power's obligations.Footnote 178
At the Third Meeting of Committee III,Footnote 179 the US delegate submitted the amendment to Article 4 of the Stockholm Draft text.Footnote 180 He distinguished between the obligations of the occupying power that were applicable during the period of hostilities and those applicable during ‘the period of disorganization following on the hostilities’. He pointed out that the nature and duration of the latter period of occupation (‘post-hostilities belligerent occupation’ to adopt Dinstein's term) would vary.Footnote 181 By referring to the Allied occupation of Germany and the American occupation of Japan, he expressly suggested the possibility of a ‘prolonged military occupation’.Footnote 182 He nonetheless contended that even in such a case, government responsibility should be returned progressively to local authorities. The draft records indicate that other delegates at the Geneva Conference also contemplated the possibility of a protracted occupation.Footnote 183 The United States proposal that the obligations under GC IV should be gradually handed over to local administrations was accepted by several delegates.Footnote 184 Still, it was felt by some representatives that the essence was not the time limit of one year, but ‘which obligations should cease (for example, those concerning food supplies) and which should be maintained (for example, those concerning justice)’.Footnote 185
At the same Third Meeting of Committee III, the ICRC delegate proposed distinguishing two cases: (i) the national territory where GC IV would cease to apply ‘at the end of hostilities’; and (ii) the occupied territory where its applicability would terminate ‘at the end of occupation’.Footnote 186 For the purpose of examining this distinction and other proposals (above all, the scope of the obligations that would cease to apply), the revision of Article 4 of the Stockholm Draft was entrusted to the Drafting Committee. At the 44th meeting of Committee III, the revised text of Article 4 of the Working Draft was presented together with a separate clause (the third paragraph), which addressed specifically the question of the end of application of GC IV in occupied territory.Footnote 187 This clause incorporated the US proposal on the time limit of one year after the termination of military operations.Footnote 188 Nevertheless, two influential delegates objected to this paragraph. The United Kingdom, wary of any departure of GC IV provisions from the notion of occupation defined in the Hague Regulations, suggested that the Stockholm Draft text be restored.Footnote 189 Similarly, the USSR delegate proposed that ‘all reference to a prolongation of the application of the Convention should be omitted from Article 4’.Footnote 190 What was plausible was that the USSR delegate excluded any notion of prolonged occupation as a matter of law. He may have been concerned that the text of Article 6(3) would legitimise protracted occupation. Together with other delegates, in the mind of the USSR delegation the instances of post-Second World War Allied occupation may have been understood as of the sui generis kind,Footnote 191 which should not be repeated. Hence, the USSR may have thought that no specific rule tailored to such exceptional cases should be formulated. In the end, the text of Article 4(3) of the Working Draft was adopted by Committee III.Footnote 192 Subsequently, the final text of this paragraph, which became identical to the current text of Article 6(3) GC IV, was endorsed by the Plenary Assembly.Footnote 193
A remaining question was which provisions were to be maintained in force throughout the period of occupation as the exception to the ‘one-year’ rule. On this question, the Report of Committee III to the Plenary Assembly explained that the key to determining this question was to focus on those provisions relating to ‘the right [of the occupied population] to be protected against arbitrary acts’. At the suggestion of the Report, those rights should be distinguished from the provisions that had bearing more on the exercise of powers by the occupier.Footnote 194
7.5. Evaluating the Implications of the ‘One-Year’ Rule under Article 6(3) of GC IV
When inserting the ‘one-year’ rule into the text of GC IV Article 6(3),Footnote 195 there is every reason to believe that the drafters of GC IV had largely in mind the then ongoing, post-Second World War Allied occupation of Germany and Austria,Footnote 196 and the US occupation of Japan.Footnote 197 The Allies’ avowed policy of ‘transformative occupation’Footnote 198 in those countries and in other post-Second World War occupied territoriesFootnote 199 was perceived to justify longer occupation than the previous instances of occupation of which they were aware. By specifically pinning down the extent of the applicability of GC IV within a defined temporal limit and envisaging the gradual transfer of administrative responsibility to local authorities, the drafters must have contemplated that those instances of the Allied occupation would (or should) come progressively to an end.Footnote 200 Confronted with those cases of occupation that might potentially endure, the delegates may have deemed it advisable to contemplate a phased transfer to the local authorities of the responsibility for meeting the needs of the local population.Footnote 201 The analyses of the draft records show that GC IV Article 6(3) is never meant to throttle the protection of the occupied population. Viewed in that specific historical context, it does not seem unreasonableFootnote 202 to stipulate that in the event of an occupation that is likely to be protracted exceptionally, the responsibility for the well-being of civilians is to be progressively handed over to the local authorities.Footnote 203
As an aside, it is not unsound to suggest that in the case of a volatile occupation riven by short but intense fighting, each time a military operation is undertaken to address a surge in fighting until it peters out, the calculation of the temporal period under Article 6(3) of GC IV should resume from the outset.Footnote 204 In other words, according to Dinstein's ‘metaphor of an accordion’, whenever a short-term military operation is undertaken, this, in tune with Article 6(3) of GC IV, triggers the renewed praxis of the GC IV in toto.Footnote 205
Returning to the draft records, on closer inspection the view that prolonged occupation was unfamiliar in 1949 was only partially tenable. At first sight, the delegates seemed to exclude the case of decade-long occupation among sovereign states, other than the case of pacific occupation (occupatio pacifica) that was predicated on an armistice or other post-war agreement.Footnote 206 However, several non-Western states did undergo occupation of a protracted nature, as in the case of the United Kingdom occupation of Egypt (1882–1954).Footnote 207 It may well be that precisely because those non-Western episodes of occupation were excluded from the application of the law of occupation, the delegates to the 1949 Geneva Conference (where few non-Western states were represented) discounted their implications as precedent. With regard to the United States occupation of Japan,Footnote 208 Edelstein shows that in the very year of 1949 when the Geneva Conference was convened, the United States authority ruled out any prospect of protracted occupation.Footnote 209 In view of these considerations, it seems far-fetched to argue that when adopting the text of Article 6(3) of GC IV, the framers of GC IV envisaged the length of belligerent occupation to be stretched for decades rather than for years.Footnote 210 It is likely that, even though clearly cognisant of the cases of Allied post-Second World War occupation, they may not have intended to deviate essentially from the traditional presumption that occupation should remain a temporary state of affairs. It is suggested that most scholars in the aftermath of two World Wars endorsed the basic tenet that belligerent occupation ought to be an interim state of affairs.Footnote 211
These assessments bring to the fore the working assumption of the drafters that the legal regime of occupation should be of relatively short duration. Unless built on that premise, it is hard to explain why the responsibility for the general well-being of the occupied population is supposed to be transferred gradually to the local authority. That assumption can be bolstered by the interpretation of Article 6(3) of GC IV. Otherwise, confronted with the case of prolonged occupation where the occupying power refuses to hand over responsibility to the local authority,Footnote 212 the textual interpretation may lead to an unreasonable outcome: by virtue of the exclusionary clause contained in that paragraph, the local population would be denied basic needs relating to care and education for children, and food and medical supplies.Footnote 213 Hence, any proposal to accommodate a decades-long form of occupation within the normative structure of GC IV seems to risk running counter to the object and purpose of GC IV.
On the other hand, prima facie, nothing in the text of IHL overall seems to exclude prolonged occupation, much less the application of the law of belligerent occupation to such a protracted pattern.Footnote 214 The implications of the latter aspect will be explored briefly below.Footnote 215 This author agrees that the question of the end of occupation should not be confused with that of the temporal scope of application of GC IV. Indeed, it is suggested that Article 6(3) of GC IV is ‘not intended to provide a criterion for assessing the … end of occupation, but only to regulate the end or the extent of the Convention's applicability on the basis that occupation would still continue’.Footnote 216
8. Article 3(B) of Additional Protocol I and Issues of Temporariness of Occupation and Prolonged Occupation
8.1. Overview
Article 3(b) of Additional Protocol I (AP I) stipulates that ‘the application of the Conventions and of this Protocol shall cease … in the case of occupied territories, on the termination of the occupation’.Footnote 217 As is clear from the text, AP I does not replicate the one-year limitation rule contained in Article 6(3) of GC IV. Article 3(b) jettisons any notion that the applicability of both AP I and GC IV hinges on a definite temporal limit. It sets out the principle that the law of occupation enunciated in both GC IV and AP I will remain in force for as long as the occupation endures (and until the disappearance of either effective control on the ground or of the capacity to exert this by a foreign power).Footnote 218 Unmistakably, under this provision, the temporal scope of the law of occupation is extended ‘beyond what is laid down in the Fourth Convention’.Footnote 219 Accordingly, it is possible to contend that AP I is equipped to address scenarios of prolonged occupation,Footnote 220 however indefinite the length of occupation may be.
8.2. The Travaux Préparatoires of Article 3(B) of Additional Protocol I
The travaux préparatoires of AP I reveal that its drafters were generally dissatisfied with the one-year rule contained in GC IV Article 6(3). In 1972, when the Conference of Government Experts (CGE) was convened, Commission IV – which was responsible for Part I (‘General Provisions’) of the draft AP I – assigned a working group to prepare the text of Article 5 (entitled ‘Beginning and End of Application’) in the absence of any concrete proposals by the ICRC.Footnote 221 The working group, failing to muster consensus, proposed two solutions: the first option made references to the relevant provisions of the Geneva Conventions; the second option elaborated new rules that would even modify certain provisions of the Conventions, in particular the one-year limit in GC IV Article 6(3).Footnote 222 The fourth paragraph of the second proposed text provided, akin to the current text of Article 3(b) of AP I, that ‘[i]n the case of occupied territories, the application of the present Protocol and the Conventions shall cease on the termination of the occupation’.Footnote 223 The majority of the governmental experts in 1972 favoured the second option, including the proposal to scrap any time limit for the applicability of the Geneva Conventions and AP I.Footnote 224 Thereafter, the second proposal was incorporated into the text of Article 3(3) of the draft text of AP I prepared by the ICRC.Footnote 225 However, unlike the subsequent text that was adopted as AP I Article 3(b), the ICRC text notably omitted any reference to the Geneva Conventions. This reflected the ICRC's desire then that the effect of GC IV Article 6(3) should be undisturbed by the new provision of AP I. It is reasonable to hypothesise that many experts represented at the CGE in 1972, like the drafters of GC IV, thought that GC IV Article 6(3) was sui generis and tailor-made only for the specific cases of post-Second World War Allied occupation of a relatively protracted nature.Footnote 226 The cogency of such a hypothesis can be bolstered by the fact that by the time of the CGE, there were already several cases of prolonged occupation that had lasted for decades.Footnote 227 Those phenomena must have challenged outright the presumption that occupation should be of a provisional nature, and that this would come to an end progressively (regardless of the fact that most occupying powers failed to recognise the juridical status of occupation).
Subsequently, at the Diplomatic Conference in Geneva (1974–77),Footnote 228 a number of delegatesFootnote 229 requested that the reference to the Geneva Conventions should be reinstated in the text of Article 3(3) of draft AP I. This led to the textual formulation now seen in Article 3(b) of the Protocol.Footnote 230 As is known, this harmonises the temporal understanding of the termination of occupation in relation to both GC IV and AP I.Footnote 231
At the Diplomatic Conference of 1974–77, the delegates assumed that GC IV would operate in parallel with AP I and continue to govern occupied territory. Accordingly, the debates overall tended not to turn to issues of occupation. If they did, they focused on two questions: (i) the meaning of a quasi-neology ‘alien occupation’, which indicates one of the scenarios contemplated by Article 1(4) of AP I, and which was understood to be different from the traditional notion of belligerent occupation;Footnote 232 and (ii) the vexed question of the entitlement of guerrilla fighters to prisoner of war status in occupied territories under AP I Article 44(3).
8.3. Doctrinal Discourse: The Legal Nature of Article 3(B) AP I and Its Relationship with Article 6(3) of GC IV
One thorny question relating to AP I Article 3(b) is its relationship with, and its effect on, the one-year rule laid down in GC IV Article 6(3). Some authors argue that AP I Article 3(b) is designed to ‘abrogate’ this rule in so far as it concerns the states parties to AP I. This contention is supported by the draft records, and it is the case even though AP I assumes its relation to GC IV to be supplementary.Footnote 233
The view that AP I Article 3(b) should supersede GC IV Article 6(3) can be sustained by assuming that the latter provision is conceived only as ‘a special ad hoc provision’,Footnote 234 which is designed (as discussed above) to deal chiefly with cases of post-Second World War Allied occupation.Footnote 235 As a corollary, it is contended that GC IV Article 6(3) has become ‘outdated’ (désuet).Footnote 236 To bolster this contention, some authors argue that AP I Article 3(b) has come to express a customary rule,Footnote 237 or to reinstate its pre-1949 customary rule.Footnote 238 According to such a putative rule of general international law, the temporal scope of application of the law of occupation should hinge on the duration of occupation.Footnote 239 This reading has the advantage of overcoming the question of the non-applicability of the rule embodied in AP I Article 3(b) to states not parties to AP I. The only caveat is that in both the doctrines and practice, the very customary law status of Article 3(b) of AP I has yet to be conclusively settled.Footnote 240 In the Wall case, the ICJ relied on this paragraph as a decisive text rather than on any customary rule that might mirror Article 3(b) of AP I. This may suggest that in the opinion of the ICJ, Article 6(3) of GC IV is yet to become obsolete.Footnote 241
9. A Brief Overview of Practice and Doctrines in relation to the Provisional Nature of Occupation since 1949
With respect to the ‘classic’ documents on the laws of war, this article has already explained that the Brussels Declaration and the Hague Regulations neither expressly mention the provisional nature of occupation nor delineate any temporal scope for belligerent occupation. Nevertheless, the foregoing examinations reveal that the drafters of those classic instruments seemed to be more or less united in understanding the legal regime of occupation to be an interim state of affairs. This understanding was widely shared by most scholars.Footnote 242 As discussed earlier, according to Article 6 of the Oxford Manual (1880) and the United States Law of War Manual (2016),Footnote 243 the temporary nature of occupation is expressly stated as a general rule. Further, the foregoing analyses of the preparatory works for Article 6(3) of GC IV also indicated that the thoughts of the drafters were based generally on the transitional nature of occupation.
This section will ascertain briefly how the case law and academic doctrines that have evolved since 1949 can be compared diachronically with the ‘original’ assumption that occupation is intended to be temporary. The preceding examinations have already explained that the plethora of instances of protracted occupation that came to be observable by the time of the enactment of AP I seem to have had a special bearing on the minds of the drafters of AP I. This accounts for their decision to remove any temporal limit in recognising the ambit of occupation for as long as the occupation lasts. With the primary focus of this article on the historical prisms (the ‘original’ intention of the traditional laws of war and the concurrent scholarly discourses), this section will be confined to evaluating concisely if and how contemporary doctrines and practice have departed from the intention of the drafters of the ‘classic’ documents on the laws of war.
Starting with the case law, as is well known, as recently as 2004 some judges of the ICJ in the Wall Advisory Opinion reaffirmed the interim nature of occupation as one of the basic tenets of IHL.Footnote 244 In Naletilić and Martinović, referring to GC IV Article 6, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) defined occupation as ‘a transitional period following invasion and preceding the agreement on the cessation of the hostilities’.Footnote 245 Accordingly, the Trial Chamber fixed the end point of occupation at the conclusion of such agreement.Footnote 246 Admittedly, by making the duration of occupation dependent on the termination of hostilities and agreement to that effect, the approach of the ICTY Trial Chamber in that case could be read as recognising more lengthy occupation that may last for years.Footnote 247 Nevertheless, the dictum in the case seems to exclude the genre of post-hostilities occupation. This approach is akin to Feilchenfeld's view discussed above.Footnote 248 It is even more doubtful that Naletilić and Martinović can be taken to endorse post-hostilities occupation of the kind that may be protracted for decades. Hence, this dictum should be understood as confirming the general principle of the provisional nature of occupation.
With regard to state practice, as discussed above, the most recent edition of the United States military manual (2016)Footnote 249 follows in the steps of its predecessor and the Oxford Manual in declaring occupation to be a provisional regime. Fine-tuning this stance, one may still maintain that the tenor of the United States manual does not entirely exclude the possibility of long-term occupation as an exception. Further, a more far-fetched ‘interpretive strategy’ may be marshalled to justify long-running occupation within a legal framework on occupation. There has been a proposal to finesse the meaning of ‘provisional’ or ‘temporary’ by arguing that such a term (in the sense of ‘non-permanent’) is ‘relative’ and not synonymous with ‘short’. On this reading, it is said that long-term occupation does not contradict the requirement that occupation be transient.Footnote 250 However, a serious problem with this approach is that the dictionary understanding of the adjective ‘provisional’ is equivalent to the word ‘temporary’, which is in turn defined as ‘lasting or meant to last only for a limited time’.Footnote 251
Turning to the doctrines, many contemporary writers lean towards the view that while the legal regime of occupation is intended to be of an interim nature, the law of occupation will continue to apply for as long as the factual state of occupation lasts. Confronted with the post-1949 political reality of the plenitude of prolonged occupations, what seems to have acquired an air of normality in the scholarly arguments is the exception to the general principle that occupation should be provisional. According to the ICRC Report of 2012,Footnote 252
[t]he participants agreed that IHL did not set any limits to the time span of an occupation … [so] that nothing under IHL would prevent occupying powers from embarking on a long-term occupation and that occupation law would continue to provide the legal framework applicable in such circumstances.
This extract suggests two different points: (i) the legality of the occupying power in engaging in an instance of protracted occupation; and (ii) the continued applicability of the law of occupation to such an instance. This article does not challenge point (ii). In contrast, what may be considered objectionable is point (i). This would entail the risk that IHL would be devoid of its prescriptive force in disincentivising a state from initiating a long-term (if not entirely irreversible) occupation. This would fundamentally change the axiomatic assumption that occupation ought to be (that is, essentially or generally) provisional in principle, even though allowances may be made for exceptional circumstances.
10. Conclusion
On reflection, it was not until the 1929 Kellogg-Briand PactFootnote 253 (or at the latest by the time of the UN Charter in 1945Footnote 254) that conquest (with the unavoidable effect of transferring sovereignty over the occupied land) was outlawed. Hence, it was not unusual for scholars even in the second half of the nineteenth centuryFootnote 255 to propose that occupation was transformed into conquest by a post-armistice political decision (typically by a peace treaty). The same can be said of the suggestion that in such cases sovereignty over occupied territory would have to be ceded to the occupying authority.Footnote 256
It is against this backdrop that one can grasp why the Lieber Code (1863) seems to blur the line between occupation and conquest. Article 33 of the Lieber Code alludes to the possibility of annexing territory ‘after a fair and complete conquest of the hostile country or district’. The porous nature of the boundaries between occupation and conquest is also reflected in the second sentence of Article 1 of the Lieber Code, which states that ‘[m]artial law is the immediate and direct effect and consequence of occupation or conquest’. According to Giladi, by employing the terms ‘occupation’ and ‘conquest’ almost interchangeably in substance, Lieber considered the provisional nature of occupation as ‘not preparatory to the possible reversion of the territory to the original sovereign [but] [r]ather … to making conquest complete’, if the victor preferred that option.Footnote 257 It is even suggested that Lieber endorsed the ‘unlimited’ nature of the right of conquest.Footnote 258
It has been argued that belligerent occupation was deemed to be ‘essentially provisional’. Nevertheless, there seemed to be greater tolerance for prolonging the temporal span of pacific occupation, which ‘may last for a very long time’.Footnote 259 Generally, the scope of pacific occupation was determined for a definite period by the relevant treaty, although in some cases treaties failed to fix a term and the occupation lasted for decades. Cases in point include the United States occupation of Cuba pursuant to the Spanish-American Treaty of 1898 and the Austrian occupation of Bosnia-Herzegovina (which had been administered formerly by the Ottoman Empire) in tune with the Treaty of Berlin of 1878.Footnote 260 In those instances, pacific occupation took on an indefinite and more protracted nature. There was even a barely concealed intention to transfer sovereignty over the territory,Footnote 261 which came to bear much epistemic similarity to colonialism.
This article has delved into the drafting records of the documents of both classic laws of war and of modern IHL with a view to discerning the ‘original’ intention or understanding of the temporal length of belligerent occupation. These examinations have unveiled how the conceptualisation of the law of belligerent occupation was contingent upon particular social and historical contexts and the minds of nineteenth-century Europe. The legal regime of occupation was contemplated as an interim regulatory framework purported to maintain order and the stability of the occupied territory until a political decision on the disposal of that territory was reached.Footnote 262 The law of occupation placed a ‘procedural’ and temporal restriction on the ability of the occupier to exercise the power of the displaced sovereign (albeit without title), including the power to dispose of the territory at its will.Footnote 263
It can be submitted that the modern law of belligerent occupation proves to be paradoxical in so far as the temporal length of occupation is concerned. The paradox is that modern academic discourse on IHL, having duly achieved its ‘conceptual decolonisation’ by ditching the colonial/non-colonial division, has come to grapple with the ‘legal stasis’ of a considerably spun-out pattern of administering foreign territoriesFootnote 264 within the explanatory framework of the law of occupation.Footnote 265 Confronted with the post-1949 political reality of several instances of prolonged occupation,Footnote 266 both the practice and scholarly discourse tolerate and even ‘normalise’ a phenomenon of considerably protracted occupation (which has come to resemble colonialism) instead of advocating a unified standard that condemns it as contrary to the general assumption of the law of occupation.Footnote 267 Such ‘normalisation’ or ‘mainstreaming’ of the regime of belligerent occupation – which was previously understood as analogous to an emergency state of affairs (and hence more a matter of an exceptional nature) in the traditional laws of war – may be a familiar feature of the argumentative structure of international law. It remains to be seen whether this should be seen as a necessary adjustment as a result of the defiance of the reality against the hitherto valid assumption of the law (namely, the provisional nature of occupation),Footnote 268 or as an apologetic slide into the geopolitical reality (the inclination towards protracted occupation).Footnote 269
