Article 42 of the 1907 Regulations concerning the Laws and Customs of War on Land (the Hague Regulations) defines occupation as follows: ‘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’.Footnote 1 For its part, the International Criminal Tribunal for the former Yugoslavia (ICTY) has held that: ‘Occupation is defined as a transitional period following invasion and preceding the agreement on the cessation of hostilities’.Footnote 2 The determination of the situations that come under this definition lies beyond the scope of this article.Footnote 3 We will focus instead on the time element of an occupation and, more precisely, on what legal scholarship has called ‘prolonged’ occupations.Footnote 4
None of the definitions listed above indicate any time-frame for belligerent occupation. However, occupation is considered as being a temporary state of affairs,Footnote 5 or, in the words of the Supreme Court of Israel, as ‘inherently temporary’.Footnote 6 Prolonged occupations appear to be fundamentally at odds with precisely this temporary character. It should be noted that the word ‘temporary’ can be somewhat misleading in this context. It can mean both ‘not permanent; provisional’ and ‘lasting only a short time; transitory’. In situations of belligerent occupation, ‘temporary’ means first of all ‘not permanent; provisional’. It reflects the idea that a belligerent occupation does not change the status of the occupied territory but merely suspends the exercise of the ousted sovereign's rights over the said territory.Footnote 7 One major consequence of this provisional character is the rule according to which the Occupying Power should, as far as possible, preserve the status quo in the territory that it occupies, and refrain from introducing permanent changes – a rule referred to by some scholars as the ‘conservationist’ principle.Footnote 8 The notion of prolonged occupation, on the other hand, relates to the duration of a belligerent occupation and therefore refers to the second meaning of the word ‘temporary’. The Supreme Court of Israel has recognized that an occupation's ‘temporariness can be long-lived’.Footnote 9 The issue concerning situations of prolonged occupation is whether their duration affects the rules applicable in belligerent occupations.
What are these rules? Aside from international humanitarian law (IHL) and international human rights law (IHRL), occupation can also be examined from the perspective of the right to self-determination or from the perspective of the rules regulating the use of force in international relations (jus ad bellum or jus contra bellum). In this respect, the duration of a belligerent occupation may affect the exercise of these rights. It has been suggested, for example, that a protracted occupation is illegal per se, as amounting to de facto annexation.Footnote 10 Along the same lines, if an occupation is established in exercise of a state's right to self-defence, the duration of the occupation will be taken into account in the evaluation of the necessary and proportionate character of the self-defence in question. It is evident that the longer the duration of the occupation, the harder it will be for a state to prove that the conditions of self-defence relating to necessity and proportionality are satisfied.Footnote 11 As interesting as these issues may be, they are beyond the scope of this contribution, which will be limited to the influence exercised by the duration of the occupation over IHL and IHRL. However, before making our analysis, it is important to identify what kinds of situations qualify as ‘prolonged occupations’.
Prolonged occupation: in search of a definition
In exploring what is meant by ‘prolonged occupation’, it should be underlined from the outset that neither conventional nor customary IHL distinguishes between ‘short-term’ occupations and ‘prolonged’ ones. In the absence of a formal definition of prolonged occupation in conventional or customary humanitarian law, any attempt to define these terms will essentially be arbitrary or, as Adam Roberts has admitted in his seminal article on the subject of prolonged occupation, ‘a pointless quest’.Footnote 12 This arbitrariness is applicable both to the temporal element and to other particular characteristics that may be attributed to a prolonged occupation. For example, the UN Security Council used the term ‘prolonged occupation’ with reference to the Israeli occupation of Palestinian territories in 1980, that is, thirteen years after the beginning of the occupation in question.Footnote 13 According to Roberts, a prolonged occupation ‘is taken to be an occupation that lasts more than 5 years and extends into a period when hostilities are sharply reduced – i.e., a period at least approximating peacetime’.Footnote 14 Thus, for Roberts, prolonged occupation has two characteristics: a temporal one (five years) and a substantial one relating to the quasi-absence of hostilities. Yoram Dinstein seems to define prolonged occupations only with reference to their duration.Footnote 15 He introduces a further distinction, however, pleading for the existence of ‘semi-prolonged’ occupations, whose duration extends to ‘a number of years (rather than decades)’.Footnote 16 In this regard, he points, among others, to occupations that lasted for a little more than three years.Footnote 17
The reference to ‘semi-prolonged’ occupations and the fact that the ‘prolonged occupation’ argument has been raised in some cases as early as three or four years after the beginning of an occupation call for some comments.Footnote 18 It is submitted that, despite the inherent difficulty in determining a precise time-frame in the issue under consideration, three or four years are in any case too few to allow the broadening of the occupier's powers on the basis of the duration of the occupation. This is confirmed by the International Court of Justice (ICJ) in the Armed Activities on the Territory of the Congo case (Democratic Republic of the Congo v. Uganda), where, among other issues, the Court dealt with the application of IHL to the occupation of part of the DRC's territory by Uganda. Although the temporal limits of the occupation in question are not explicitly determined by the ICJ, a reading of the judgment indicates that the occupation had lasted almost five – or, at the very least, four – years.Footnote 19 Yet at no point does the ICJ suggest that the occupation might be one of a prolonged or semi-prolonged character or that its duration might influence the applicable rules.Footnote 20 Uganda itself did not rely on a broader application of occupation law rules on the basis of the time element.Footnote 21 The same goes for the judges who issued declarations or separate or dissenting opinions: no one invokes time as a factor influencing the application of relevant occupation law rules.Footnote 22 In view of the above, we conclude against the existence of a ‘semi-prolonged’ occupation category.
Leaving this issue aside, the real question is whether there is a need to define ‘prolonged occupations’ at all. In this author's view, no distinct legal category of prolonged occupation exists in IHL. This means that, as will be further demonstrated below,Footnote 23 there is no distinct legal regime regulating prolonged occupations. In other words, the starting point of this analysis is that the same IHL rules apply to all occupations, independently of their duration. The adjective ‘prolonged’ is descriptive. It is therefore submitted that embarking on a protracted quest for the definition of prolonged occupation is misleading, in that it suggests that they constitute a separate category of occupations, which in turn implies precisely that a distinct legal regime governing prolonged occupations exists. Roberts correctly (although somewhat indecisively) warned against the danger of suggesting that prolonged occupations constitute a special category.Footnote 24
Of course, the fact that prolonged occupations do not constitute a distinct category of belligerent occupations in the sense that they are not regulated by different rules does not necessarily mean that the duration of an occupation leaves the applicable IHL and IHRL completely unaffected. Thus, the thread that will guide our analysis is whether and to what extent the duration of an occupation affects the interpretation and application of these rules. It is in this sense that we will be talking of ‘prolonged’ occupations.
The absence of a precise definition of prolonged occupations entails an uncertainty in choosing relevant precedents to examine.Footnote 25 However, the prime example of prolonged occupation is the occupation of Palestinian territories (including Gaza) (hereafter OPT)Footnote 26 by Israel. Indeed, it is with reference to OPT that the notion of prolonged occupation has principally been used in the United Nations (UN) context,Footnote 27 in case law,Footnote 28 and in legal scholarship.Footnote 29 Thus an inextricable link has been established between the notion of prolonged occupation and Israeli occupation of Palestinian territories.
In this regard, one last remark should be made. Unlike other situations that can be considered as prolonged occupations (such as Turkey's occupation of the northern part of CyprusFootnote 30 or Morocco's occupation of Western SaharaFootnote 31), that of the OPT has been the only instance of a long-time Occupying Power openly recognizing that status.Footnote 32 This recognition has resulted in a significant number of decisions by the Supreme Court of Israel on the interpretation and application of various IHL and IHRL rules relating to belligerent occupation, some of which also deal with the influence exercised by the prolonged nature of the Israeli occupation on these rules. In the absence of any other significant case law, the decisions handed down by the Supreme Court of Israel constitute the primary material for evaluating the application of the aforementioned sets of legal rules to prolonged occupations. Thus, the already close ties linking the precedent of the OPT and prolonged occupation become almost incestuous. Valuable as this material may be, the fact that it is linked to a single precedent and that it comes from the domestic courts of one state imposes prudence in its analysis.Footnote 33
With these considerations in mind, we will now turn to the impact exercised by time on the application of IHL rules to situations of belligerent occupation.
Prolonged occupations and international humanitarian law
It will first be shown that the protracted duration of an occupation cannot be invoked as a legal basis for excluding altogether the application of any IHL rule. It can, however, influence the way in which some IHL rules apply to such occupations.
International humanitarian law applies in its entirety to prolonged occupations
As was indicated in the previous part, our position is that all IHL rules pertaining to situations of belligerent occupation remain applicable until the end of the occupation.Footnote 34 The rules pertaining to occupation laid down in the Hague Regulations do not contain any article determining their end of application.Footnote 35 The travaux préparatoires of the Hague Regulations confirm that the scope of application ratione temporis of these rules is aligned to their scope of application ratione materiae. In other words, the rules continue to apply as long as a belligerent occupation in the sense of Article 42 of the Hague Regulations exists.Footnote 36 This has been confirmed by the ICJ in its DRC v. Uganda judgment.Footnote 37 Things are more complex with the application of the Fourth Geneva Convention, whose Article 6, paragraph 3 reads as follows:
In 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.Footnote 38
The ‘one year’ time limit laid down by this provision has been widely viewed by legal scholars as having fallen into desuetude.Footnote 39 It has, however, been given the ‘kiss of life’ by the ICJ advisory opinion relating to the Wall advisory opinion.Footnote 40 We have extensively addressed this provision elsewhere.Footnote 41 For the purposes of this article, it will briefly be shown, first, that Article 6, paragraph 3 of the Fourth Geneva Convention has been replaced by Article 3(b) of the First Additional Protocol of 1977, which abolishes the ‘one-year’ time limit and calls for the application of all IHL rules until the end of occupation; and, second, that, even if one clings to Article 6, paragraph 3 of the Convention, this provision does not impose a purely temporal criterion for the end of application of IHL rules relating to occupation.
Article 3(b) of the First Additional Protocol as the only relevant provision for the end of application of IHL rules regulating belligerent occupations
Article 3(b) of the First Additional Protocol reads as follows:
‘The application of the Conventions and of this Protocol shall cease …, in case of occupied territories, on the termination of occupation, except … for those persons whose final release, repatriation or re-establishment takes place thereafter’.Footnote 42
For the 172 statesFootnote 43 that have ratified the Protocol, the temporal limit of ‘one year after the general close of military operations’ stipulated by Article 6, paragraph 3 of the Fourth Geneva Convention has been abolished, and IHL rules pertaining to occupation remain applicable until the ‘termination of occupation’. Twenty-four states have not ratified the Protocol and therefore are not conventionally bound by Article 3(b).Footnote 44 However, there is more than sufficient proof of these states’ support for the rule of Article 3(b).
First of all, this support is confirmed by the travaux préparatoires of Article 3(b), which reveal the will of the negotiators to abolish Article 6, paragraph 3 of the Fourth Geneva Convention.Footnote 45 It is also significant that Article 3 was adopted by consensus successively before the relevant Working Group and the First Committee as well as at the Plenary session.Footnote 46 This consensus includes States non-parties to Additional Protocol I that participated in the 1974–1977 Diplomatic Conference, namely India, Indonesia, Iran, Israel, Pakistan, Somalia, Sri Lanka, Thailand, Turkey, and the US.Footnote 47 The fact that these states have not ratified the Protocol because they disagreed with other contentious provisions within the document does not mean that their adherence to the rule laid down in Article 3(b) can be put to question. All the more so since this adherence has been confirmed by later practice.Footnote 48 Finally, a series of UN General Assembly Resolutions adopted after the ICJ Wall Advisory Opinion, while recalling the advisory opinion in its preamble, demand, in the relevant operative paragraph, that Israel ‘comply fully with the provisions of the Fourth Geneva Convention’.Footnote 49 Nineteen out of the twenty-four states that have not yet ratified Additional Protocol I voted in favour of these resolutions.Footnote 50 The aforementioned elements illustrate that, with the exception of states such as Niue or Kiribati, the overwhelming majority of the States non-parties to the Protocol have expressed their intention of seeing all IHL rules applied until the end of an occupation. In this respect, the limitation laid down by Article 6, paragraph 3 of the Fourth Geneva Convention has been rejected.
The exercise of governmental functions as a fundamental criterion for the application of article 6 para. 3 of the Fourth Geneva Convention
Aside from the relationship between Article 6, paragraph 3 of the Fourth Geneva Convention and Article 3(b) of Additional Protocol I, it is also submitted that Article 6, paragraph 3 does not impose a purely temporal criterion for the termination of the application of the law of occupation. Indeed, the travaux préparatoires of this provision indicate that Article 6, paragraph 3 refers in substance to occupations in which there has been a transfer of governmental functions by the Occupying Power to authorities of the occupied territory.Footnote 51 The ‘one-year’ period was suggested as a time limit because it was optimistically considered, that, after this time, the Occupying Power would have already transferred some responsibilities to local authorities of the occupied territory. Even during negotiations, this time limit was viewed as arbitrary by some delegations.Footnote 52 The inclusion of the second line of Article 6, paragraph 3 formalizes this link between the transfer of responsibilities and the application of the Convention.Footnote 53 Italy expressed this point clearly: ‘An occupation which lasted beyond the date of cessation of hostilities only entailed obligations which were to be lifted progressively, as and when the local authority took over administrative powers’.Footnote 54 Therefore, what seems at a first glance to be a simple temporal criterion for the non-application of some of the articles of the Fourth Geneva Convention is in fact a condition of substance, relating to the transfer of governmental authority.Footnote 55 This is nothing more than an expression of the fundamental link between the application of IHL and the facts on the ground.Footnote 56 Thus Article 6, paragraph 3 was clearly not designed for protracted occupations where no transfer of powers has taken place. In other words, if one defines ‘prolonged occupations’ solely by a temporal criterion, Article 6, paragraph 3 of the Fourth Geneva Convention is of little use as a legal basis for rejecting the full application of IHL. This is all the more so since the provision of that paragraph would certainly not prevent all relevant IHL customary rules from applying beyond the ‘one-year’ limit.Footnote 57
Having established that all IHL rules remain applicable to situations of prolonged occupation, we will now turn to the possibility of adapting the application of these rules to the specific circumstances of such occupations.Footnote 58
Adapting international humanitarian law to prolonged occupations
The influence exercised by the duration of the occupation on the application of IHL is not entirely clear. The central question seems to be whether the Occupying Power should be accorded more leeway or not. In this regard, the ‘inherent dilemma’Footnote 59 in long-term occupations is that their prolonged character can be invoked in support of both options.Footnote 60 Scholars have expressed opinions both in favour of according more leewayFootnote 61 and against it.Footnote 62
However, the realities in long-lasting occupations are too complex to be limited to a binary approach, according to which either the occupant's powers are more extensive in prolonged occupations or they are curtailed. For example, recognizing that the Occupying Power enjoys greater liberty in its law-making power in situations of prolonged occupation does not automatically imply that the same liberty should be accorded in relation to the application of all IHL rules relating to occupation. Starting from this premise, we will first focus on IHL rules whose application appears prone to become more liberal due to the long duration of an occupation. We will then identify IHL rules whose application seems to be influenced in the opposite direction: the more an occupation lasts, the stricter their application becomes. The existence of these two categories of rules indicates that IHL application in prolonged occupations admits no straitjacket solutions and that whether a specific IHL rule will be applied in a more or less strict manner owing to the particularities of a prolonged occupation will depend mainly on the nature of the rule itself.
Time as an element allowing for a permissive application of the law of occupation
A prolonged occupation is considered as granting the Occupying Power the possibility to introduce changes of a more permanent nature to the occupied territory. For example, Yoram Dinstein ‘takes it as almost axiomatic that the military government must be given more leeway in the application of its lawmaking power if the occupation endures for many years’.Footnote 63 The main IHL rules whose application is affected in such a way are those related to the ‘conservationist principle’: Article 43 of the Hague RegulationsFootnote 64 and Article 64 of the Fourth Geneva Convention.Footnote 65
The obligation to respect the status quo of the occupied territory stipulated by these articles is not overly cumbersome. On the contrary, it has been interpreted rather flexibly.Footnote 66 The main obligation imposed by Article 43 of the Hague Regulations is the one to restore and ensure ‘public order and safety’ or – more accurately in light of the formulation of the authentic French version (‘l'ordre et la vie publics’) – ‘public order and (civil) life’.Footnote 67 ‘Public order and civil life’ have been interpreted as referring to ‘the whole social, commercial and economic life of the community’.Footnote 68 In doing so, the Occupying Power must respect the laws of the occupied territory ‘unless absolutely prevented’. These terms have been further specified by Article 64, paragraph 2 of the Fourth Geneva Convention.Footnote 69 The Occupying Power is not absolutely prevented from introducing legislative changes in order to, first, fulfil its obligations under the Fourth Geneva Convention; second, maintain the orderly government of the occupied territory; and third, ensure the security of the Occupying Power and of the members and property of the occupying forces or the administration.Footnote 70 In reality the limitations imposed by the ‘unless absolutely prevented’ exception are far less rigid than its negative formulation suggests.Footnote 71 This is confirmed by the interplay between Article 43 of the Hague Regulations and Article 64, paragraph 2 of the Fourth Geneva Convention. As we just explained, according to the first of these two articles, the Occupying Power should preserve public order and civil life while respecting the legislation of the occupied territory. Only in exceptional cases can this respect be circumvented. Among these exceptional cases, Article 64, paragraph 2 of the Convention includes the need to maintain the orderly government of the occupied territory. However, the preservation of public order and civil life itself forms an essential part of the occupier's obligation to maintain the orderly government of the occupied territory. Thus, the two parts of the rule laid down in Article 43 of the Hague Regulations become tautological to a large extent: the occupier should preserve public order and civil life without interfering with local legislation unless such interference is necessary for the orderly government of the territory, orderly government that certainly includes the preservation of public order and civil life. In view of the above, there is no reason not to allow for the long duration of an occupation to influence the meaning and scope of what is needed to ‘maintain the orderly government’ of the occupied territory.
The obligation to ensure ‘public order and civil life’ set out in Article 43 of the Hague Regulations has been applied by national courts permissively, several changes in the status quo of the occupied territory having been considered as valid by case law.Footnote 72 This notwithstanding, the duration of the occupation has been invoked as an element allowing for an even more permissive application of Article 43, as well as other IHL rules linked to the preservation of the status quo of the occupied territory. Thus, the Supreme Court of Israel has invoked the long-lasting character of the Israeli occupation over Palestinian territories in order to justify the adoption of new tax legislation,Footnote 73 or the implementation of infrastructure projects with permanent effect on the occupied territories, such as the construction of high-speed motorwaysFootnote 74 or high-voltage lines.Footnote 75 The essence of the argument here is to avoid freezing life and to allow for the normal development of the occupied territory.Footnote 76 The judgment handed down in the Askan case on the construction of high-speed motorways provides a résumé of the Court's case law until 1983 and deserves a more detailed presentation here.
The central issue before the Court was whether the Occupying Power can go through with a project ‘that has permanent implications’, reaching ‘beyond the time limits of the military government itself’.Footnote 77 The Supreme Court of Israel turned first to Article 43 of the Hague Regulations and asserted that the distinction between a short-term and a long-term occupation affects the content given to ‘the public order and life’.Footnote 78 And the Court went on to explain that
military and security needs predominate in a short-term military occupation. Conversely, the needs of the local population gain weight in a long-term military occupation. … Therefore legislative measures (such as new taxation or a new rate of taxation for an existing tax) that might be improper for a short-term military government could be proper for a long-term military government.Footnote 79
Despite insisting on the fact that the Hague Regulations had not foreseen such distinction, the Supreme Court of Israel did not reject the Regulations as irrelevant. It accepted that it was bound to apply them but asserted that ‘the time dimension can be taken into account when considering proper policy in cases in which there is room for policymaking within the Regulations themselves’.Footnote 80 Article 43 is considered as sufficiently flexible to accommodate such interpretations by incorporating the time element in the analysis of both the term ‘public order and life’ and the term ‘unless absolutely prevented’.Footnote 81 The Court stated unequivocally:
The life of a population, like the life of an individual, is not static but is in a perpetual movement that contains development, growth and change. A military government cannot ignore this. It may not freeze life. …
The Military Government's authority therefore extends to taking measures necessary for growth, change and progress. The conclusion is that a military government may develop industry, trade, agriculture, education, health and welfare services and similar matters of proper administration that are necessary for securing the changing needs of a population in an area subject to belligerent occupation.Footnote 82
These actions are subject to the limits imposed by the temporary character of the military government, by the fact that the occupier is not the sovereign ruler of the occupied territory.Footnote 83 The Court affirmed that investments favouring growth and development of the occupied territory but leading at the same time to permanent changes in the occupied territory ‘are permitted if they are reasonably required for the needs of the local population’.Footnote 84 As for prohibited measures for the Occupying Power, the Court cited ‘institutional changes’ or measures that ‘bring about a substantial change in the fundamental institutions’ of the occupied territory.Footnote 85 The military government was under no obligation to adopt far-reaching measures for the development of the occupied territory. According to the Court, this margin of appreciation was reflected in the wording of Article 43 (the occupier must take ‘all measures in its power’ in order to ensure ‘as far as possible’ public order and life).Footnote 86 There exists for the Occupying Power
a minimal standard with regard to securing the public order and life of the local population below which the military government functioning as a proper government may not descend, and that there certainly exists a maximal standard with regard to securing the public order and life of the population above which the military government functioning as a temporary government may not ascend, and that between these two there exists a field of authority within which there is permission and not duty to choose between various options …Footnote 87
Thus, the occupier may or may not choose to act in order to make fundamental investments and this choice will depend on factors such as the occupier's ‘physical capacity, the manpower (military and civilian) at its disposal and its monetary resources’.Footnote 88 In the end, the Supreme Court of Israel established a link between Article 46 of the Hague Regulations, concerning expropriation of private property, and Article 43, and found that both the high-speed motorway construction plan and the expropriations necessary for its realization were in conformity with the Hague Regulations.Footnote 89
This judgment raises several interesting issues. First, the Court affirmed that the Hague Regulations rules remain applicable to situations of prolonged occupation. Second, it admitted that the duration of the occupation would be taken into account ‘in cases in which there is room for policymaking within the Regulations themselves’,Footnote 90 not with respect to every rule of the Hague Regulations. This is also confirmed by the fact that the Court did not invoke the duration of the occupation in order to modify the scope of Article 46 of the Hague Regulations directly. Indeed, Article 46 is a straightforward provision with no caveats.Footnote 91 The Court could have viewed the duration as an element ‘external’ to the Hague Regulations, capable of directly modifying the application of the rules of those Regulations, independently of their wording. It chose not to do so. Instead, it linked Article 46 to Article 43, whose wording offers room for integrating considerations relating to the time element of the occupation. Third, turning to Article 43 itself, the Supreme Court of Israel asserted that the duration of the occupation affects the scope of the terms ‘public order and life’ and ‘unless absolutely prevented’. In a prolonged occupation, the needs of the local population gain in importance. This allows the occupier to take measures that would be excluded in a short-term occupation, in view of securing these needs. The Court did not offer detailed explanation concerning the influence of time on the ‘unless absolutely prevented’ part of Article 43. It seemed to consider self-evident that, in prolonged occupations, an Occupying Power would be absolutely prevented from respecting local laws. As we have already explained, this view finds a sounder legal basis in the interplay between Article 43 of the Hague Regulations and Article 64, paragraph 2 of the Fourth Geneva Convention. Fourth, the Court identified the limits to the extension of the authority of the Occupying Power. These limits rest upon the temporary (read: ‘non-sovereign’) character of the occupier's administration. The Court affirmed in rather general terms that measures adopted by the Occupying Power should not ‘blur the distinction between a military and ordinary government’, and referred mainly to the occupier's obligation to act as usufructuary of immovable public property and not to introduce substantial institutional changes in the occupied territory.Footnote 92 Unfortunately, the Court did not envisage the influence of the prolonged character of an occupation over these limits. However, the longer an occupation lasts and the wider the authority exercised by the Occupying Power over the local population, the more the distinction between a military and an ordinary government becomes strained and difficult to perceive. According too much authority to the Occupying Power may result in what some refer to as ‘creeping annexation’.Footnote 93 Consequently, the duration of an occupation can be seen as imposing on the Occupying Power the need to offer further assurances about the non-permanent or the reversible character of the measures it adopts. Fifth, and finally, the Supreme Court of Israel insisted that the Occupying Power is under no obligation to adopt measures in order to promote growth or development of the occupied territory. Here again, the Court stopped short of analysing the impact of the prolonged character of the occupation on the ‘minimal standard with regard to securing the public order and life of the local population below which the military government functioning as a proper government may not descend’.Footnote 94 Since the time element broadens the scope of ‘public order and life’, this broadened scope also influences the obligations imposed on the Occupying Power by Article 43 of the Hague Regulations. Thus, since the occupier has to ‘take all the measures in his power to restore, and ensure, as far as possible, public order and [life]’, it is submitted that the interpretation of the terms ‘as far as possible’ and ‘all the measures in his power’ are equally influenced by the long duration of the occupation. The longer the occupation, the more difficult it will be for the Occupying Power to suggest that it has absolutely no measure in its power to ensure the development and growth of the occupied territory or that it has been impossible to do so. Therefore, in situations of prolonged occupation, the minimal standard identified by the Court should be interpreted as imposing on the Occupying Power at least some positive obligations to take action in favour of growth and development in the occupied territory. This may prove particularly useful in situations where the Occupying Power rejects the application of human rights instruments in the occupied territory.
The question of the prolonged character of the occupation has been raised before the Supreme Court of Israel in a recent judgment concerning activities in relation to the exploitation of quarries in the occupied Palestinian territory (the Yesh Din case).Footnote 95 On the basis of Articles 43 and 55 of the Hague Regulations the petitioner, a voluntary human rights association, requested an order to cease quarrying activities inside the occupied territories of Judea and Samaria and to stop the establishment of new quarries or the expansion of already existing quarries in these territories.Footnote 96 Usufruct is defined by the Court as the ‘right to use and enjoy the fruits of another's property for a period without damaging or diminishing it, although the property might naturally deteriorate over time’.Footnote 97 The Court explained that this meant that the Occupying State ‘shall not be entitled to sell the asset or to use it in a way that shall result in its depletion or exhaustion’.Footnote 98 Without invoking the prolonged character of the occupation, the Court affirmed that the mere mining of minerals was not considered as damaging to the capital and therefore is not excluded by Article 55.Footnote 99 The Court then turned to the question whether the mining was allowed only with regard to mines and quarries that already existed before the occupation, as the petitioners suggested, or whether the Occupying Power could establish new ones, as the respondents proposed, invoking ‘the unique circumstances of a prolonged belligerent occupation’.Footnote 100 The Court acceded to this line of reasoning. It admitted that
the duration of the occupation period … requires the adjustment of the law to the reality on the ground, which imposes a duty upon Israel to ensure normal life for a period, which even if deemed temporary from a legal perspective, is certainly long-term. Therefore, the traditional occupation laws require adjustment to the prolonged duration of the occupation, to the continuity of normal life in the Area and to the sustainability of economic relations between the two authorities – the occupier and the occupied.Footnote 101
On the basis of this finding, the Court held that the current, limited and reasonable, usage of minerals of the occupied territory did not contradict Article 55, as adjusted to the particularities of prolonged occupation. The Court appeared to exclude the establishment of new quarries.Footnote 102 As for mining activities in quarries established during the occupation, referring to ‘the unique aspects’ of the occupation in question, the Court stated that
adopting the Petitioner's strict view might result in the failure of the military commander to perform his duties pursuant to international law. For instance, adopting the stance, according to which under the current circumstances the military commander must cease the operations of the Quarries, might cause harm to existing infrastructures and a shut-down of the industry, which might consequently harm, of all things, the wellbeing of the local population.Footnote 103
The Court went on to cite aspects of the quarrying activities that are beneficial to the local population (such as employment in the quarries and training of Palestinian residents, marketing of quarrying products to Palestinians and Israeli settlers in the occupied territories, payment of royalties by the quarries’ operators) and concluded that
it is therefore difficult to accept the Petitioner's decisive assertion, according to which the quarrying operations are in no way promoting the best interests of the Area, especially in light of the common economic interests of both the Israeli and Palestinian parties and the prolonged period of occupation.Footnote 104
The following remarks deal solely with the use of the occupation's prolonged character in the Court's legal reasoning.Footnote 105 First, contrary to the approach adopted in the Askan case, it seems that, in this case, the Court considered the duration of the occupation as imposing the adjustment of all the rules of occupation law, regardless of whether the wording of a particular rule allows for such an adjustment or not. The Court's stance on this matter was not unambiguous: it is not clear whether the Court did indeed consider that the time element directly alters the scope of application of Article 55 or whether this adjustment is due to the link established between this Article and Article 43. In any case, to the extent that the judgment could be interpreted in favour of a direct influence of the time element on the application of Article 55, such an interpretation is flawed. The wording of Article 55 itself does not allow for a change in its scope depending on the duration of the occupationFootnote 106 and the Court offered no alternative legal basis for such a change.Footnote 107 It should be noted that Israel advanced a similar position in 1978, in respect of the exploitation of new oil fields in Sinai and the Gulf of Suez. In that case, Israel invoked, among other arguments, the duration of its occupation of these two territories, arguing that preventing exploitation of oil fields would amount to a delay in the development of these territories and economic paralysis.Footnote 108 However, Israel's memorandum contradicted one issued by the United States on the same theme, which rejected Israel's right to exploit new oil fields under occupation law, without mentioning any relaxation of this prohibition owing to the duration of the occupation.Footnote 109 The US memorandum pointed out that allowing for such a right might be an incentive against withdrawal and in favour of prolonging the occupation.Footnote 110
Second, turning back to the Yesh Din judgment, it is important to underline that the Israeli governmental authorities admit that the duration of the occupation creates positive obligations for the occupier.Footnote 111 The Court agreed with this view.Footnote 112 This would imply that the operation of the quarries is not a decision that the Occupying Power is free to take or not, but rather an obligation stemming from the general duty of the occupier to ensure public order and life. This confirms the view expressed above that the duration of the occupation enhances the obligations imposed on the Occupying Power by Article 43 of the Hague Regulations.
Third, as seven Israeli legal experts have outlined in a legal opinion on the Yesh Din judgment,
the protraction of the occupation does indeed broadly impact the appropriate interpretation of Article 43 and consequently the powers of the Military Commander … but this broad impact is subject to two strict and basic limitations: the first is that such expansion does not allow the Military Commander to factor in considerations that are prohibited under Article 43 or to act outside of the other provisions that apply to his powers, and the second is that the expansion must be exercised for the benefit of the local population and not against it.Footnote 113
The present writer agrees with the experts that the Yesh Din judgment uses the time element to promote an expanding interpretation of Articles 43 and 55 that circumvents these two limitations articulated by its own case law.Footnote 114 Taking this last remark one step further, and along the same lines as our comments on the Askan judgment, the long duration of the occupation can be interpreted as establishing new limits to the freedom of the action of the Occupying Power. These limits will be explored below.
Time as an element allowing for a restrictive application of the law of occupation
Aside from being a tool for the expansion of the powers of the occupier, the prolonged character of the occupation may also constitute an argument in favour of limiting the freedom of these powers. We have already referred to one example in this regard in relation to the application of Article 43 of the Hague Regulations. The starting point in defining the limits of the occupier's freedom is the recognition that the prolonged character of an occupation implies certain positive obligations for the Occupying Power. As it has just been shown, both the Israeli authorities and the Supreme Court of Israel have recognized the existence of such obligations in the Yesh Din case.Footnote 115 In this respect, two things should be kept in mind. The first is the fact that the expansion of the occupier's powers should be exercised for the benefit of the local population.Footnote 116 The second is that this expansion should not blur the distinction between a military government and a national one.Footnote 117 As we have already stated, prolonged occupations put this last consideration to the test. In short-term occupations, in order to maintain the aforementioned distinction, it may suffice to abstain from introducing fundamental institutional changes in the occupied territory.Footnote 118 However, in long-term occupations, where the degree of dependence of the occupied territory upon the Occupying Power is enhanced over the years, this simple abstention may not be enough, and supplementary action may be needed in order to ensure the potential (depending on the final decision of the sovereign) reversibility of the occupier's measures. In such a context, the simple affirmation that the measures are temporary may not be deemed sufficient. This is demonstrated by the ICJ Wall advisory opinion. Despite Israel's repeated statements that the wall was a temporary measure and that Israel was ‘ready and able … to adjust or dismantle’,Footnote 119 the ICJ remained reluctant and considered that
the construction of the wall and its associated régime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.Footnote 120
Although the ICJ did not explicitly mention the long duration of the occupation, the finding in itself suggests that the spectre of annexation on the occupied territory by the Occupying Power may not be chased away merely by reaffirming the temporary character of the measures adopted or the occupier's will to reverse them. The difficulty in reversing the ‘temporary’ measures adopted by the Occupying Power is shown by the situation in the Gaza strip following the 2005 disengagement of the Israeli forces. The Supreme Court of Israel has determined that, following the 2005 disengagement, Gaza is no longer a territory under belligerent occupation.Footnote 121 It has, however, conceded that the State of Israel continues to have obligations towards the residents of the Gaza strip that derive, among others,
from the relationship that was created between Israel and the territory of the Gaza Strip after the years of Israeli military rule in the territory, as a result of which the Gaza Strip is currently almost completely dependent upon the supply of electricity from Israel.Footnote 122
This finding reveals the extent of interdependence between the occupier and the occupied territory that develops during long-term occupations.Footnote 123 First, it should be noted that the Supreme Court did not explain the legal basis of this statement. If one follows the Court's underlying reasoning, the finding cited above could be read to mean that the prolonged character of a belligerent occupation leads to the extension of obligations of the Occupying Power even after the end of the occupation as such. However, this does not seem to be the position of the Supreme Court of Israel, since no IHL rule pertaining specifically to occupation law is mentioned in its judgment.Footnote 124 More simply, one could view this statement as confirming that Israel still exercises over Gaza the degree of control necessary for the occupation to continue.Footnote 125 In this respect, Dapo Akande suggests that
the criteria for the establishment of occupation may not be the same as the criteria for the maintenance of occupation. … [E]ven in cases where a former occupying power no longer exercises the level of control that would justify the establishment of occupation, if it exercises such control as to prevent another power from exercising full control, the occupying power remains in occupation.Footnote 126
There is no indication that states qualify Gaza as occupied territory based on such a differentiated conception between the control necessary for the establishment of the occupation and the one required for its maintenance. The fact that a very large majority of states consider that Gaza is still occupiedFootnote 127 indicates that, in reality, the degree of control necessary for a state to be an Occupying Power does not require full and exclusive control over the occupying territory. However, Akande's argument may become relevant if one adheres to a restrictive conception of the criterion of control for the purpose of establishing a belligerent occupation.Footnote 128 In this case, the positions adopted by states in relation to the status of Gaza as occupied territory suggest that, in situations of prolonged occupation, the interdependence between the occupier and the occupied territory may lower the degree of control necessary for the continuation of the occupation.
Furthermore, a long-term Occupying Power has the obligation to take positive measures for the welfare and development of the local population. We subscribe to the position that the benefit to the local population should be significant. Thus, ‘any beneficial outcome at all, as small, indirect and speculative as it may be’ will not absolve the Occupying Power of its obligations under IHL.Footnote 129 The importance of the ‘welfare of the local population’ element was also expressed during the expert meetings on occupation and other forms of administration of foreign territory organized by the ICRC.Footnote 130 The experts participating in these meetings discussed ways to ensure that the measures adopted by the Occupying Power do indeed preserve the welfare of the local population and, inter alia, ‘took the view that long-term occupation required the occupying power to take into consideration the will of the local population by including it in its decision making process’, although they were unable to agree on the most suitable means for such an involvement.Footnote 131
The long duration of a belligerent occupation may also influence the application of military necessity, which is, along with humanitarian considerations, one of the two pillars on which the entire edifice of IHL is built. IHL rules are the fruit of the balance struck between these two elements.Footnote 132 Military necessity is not defined in IHL conventions. However, several military manuals propose definitions of the concept.Footnote 133 According to the UK military manual,
Military necessity permits a state engaged in an armed conflict to use only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.Footnote 134
The fundamental rule concerning military necessity is that, since it has already been taken into consideration during the elaboration of all IHL rules, it can be invoked only where the specific IHL rules provide for a relevant exception; it cannot be invoked to justify actions contrary to IHL.Footnote 135 Exceptions founded on military necessity can be found in various IHL rules and can have different scopes.Footnote 136
It is particularly interesting for the issue under discussion that the definition cited above establishes a link between the appreciation of military necessity and time. Indeed, the ‘legitimate purpose of the conflict’ is defined as the submission of the enemy ‘at the earliest possible moment’.Footnote 137 This could be interpreted to mean that the longer a conflict (including a belligerent occupation) lasts, the more pressing the necessity to submit the enemy at the earliest possible moment becomes. Such an interpretation would lead to a broader application of the principle of military necessity in long-lasting conflict situations. However, to our knowledge, no such broad application of military necessity has been invoked by states, international jurisprudence, or legal doctrine.Footnote 138 Indeed, time appears to be left out from the scope of the ‘legitimate purpose of the conflict’ – the ‘ends of war’, in the 1863 Lieber Code terminology.Footnote 139 This is confirmed by the fact that the Lieber Code itself, as well as some military manuals, does not include a reference to time in its definition of military necessity.Footnote 140 In any case, the duration of a conflict or occupation may not overturn the fundamental rule according to which military necessity may not be invoked as a general justification of actions contrary to IHL.Footnote 141 In the same vein, the prolonged character of an occupation may not be invoked in order to integrate political, demographic, or economic considerations of the Occupying Power into the notion of military necessity.Footnote 142
Having established that the long duration of an occupation does not lead to a broader application of military necessity, we will now consider whether it leads to a stricter one. As was underlined above, the scope of the exceptions relating to military necessity differs from one rule to the other. For example, Article 52 of the Hague Regulations allows for requisitions in kind and services from municipalities or inhabitants of the occupied territory ‘for the needs of the army of occupation’.Footnote 143 Article 53 of the Fourth Geneva Convention prohibits the destruction of public or private property inside the occupied territory by the Occupying Power, ‘except where such destruction is rendered absolutely necessary by military operations’.Footnote 144 Finally, Article 48 of the Convention provides for the possibility of protected persons who are not nationals of the power whose territory is occupied to leave the occupied territory, unless their departure is contrary to the national interests of the Occupying Power.Footnote 145 It is obvious that the exception provided for by Article 52 of the Hague Regulations is more limited in scope than military necessity, since it relates only to the needs of the occupying army.Footnote 146 At the other end of the spectrum, the exception relating to national interests of the Occupying Power is sufficiently broad to include interests going beyond the concept of military necessity as such.Footnote 147
There are few indications in state practice, military manuals, and international or national case law that the duration of the occupation alone may influence the interpretation of these exceptions. For example, with the exception of Switzerland noted below, none of the states that intervened before the ICJ in the Wall advisory proceedings suggested that exceptions relating to military necessity were either excluded or should be interpreted narrowly because of the duration of the occupation. Interpretations as to the scope of the military necessity exceptions cited by the states may differ. However, none of them used the prolonged character of the occupation as a factor influencing the interpretation advanced.Footnote 148 The Jamayat Askan judgment of the Supreme Court of Israel points towards conceiving the military necessity requirement of Article 43 of the Hague Regulations narrowly, in cases of prolonged occupation: ‘military and security needs predominate in a short-term military occupation. Conversely, the needs of the local population gain weight in a long-term military occupation …’.Footnote 149 If Article 43 is conceived as establishing a balance of interests and, in prolonged occupations, the needs of the local population do indeed gain weight in this balance, then more compelling military and security considerations will be needed in order to outweigh them. In that sense, time does affect the influence of the military element in the application of Article 43. This reasoning may be applied to all IHL rules containing military necessity exceptions. However, the Court's subsequent case law has not fleshed out this suggested limitation. We conclude therefore that the time factor does not in and of itself impose a narrow interpretation of military necessity in the application of IHL rules relating to occupation.
Is the suggestion in favour of limiting the long-term occupier's powers wrong?Footnote 150 Not necessarily. In reality, if we look closely at the examples referred to in relation to these suggestions, we realize that the decisive element lies not with time but with the (quasi) absence of hostilities. As was noted earlier, the absence of hostilities is one of the two components of the definition employed by Adam Roberts.Footnote 151 Relevant situations in this respect are the occupation of the northern part of Cyprus by TurkeyFootnote 152 and Western Sahara, to the extent that the territory is considered as being occupied by Morocco.Footnote 153 In cases such as these, ‘[w]hen military operations have ceased, military necessities must inevitably be less demanding’.Footnote 154 The absence of military operations will have different impacts on military necessity exceptions depending on relevant IHL rules. For example, given the absence of military operations, the absolute necessity of military operations in order to justify destruction of private or public property under Article 53 of the Fourth Geneva Convention will be extremely difficult to invoke. It may be excluded altogether, if one interprets the terms military operations strictly, as covering only ‘movements and activities carried out by armed forces related to hostilities’.Footnote 155 On the other hand, according to Article 51, paragraph 2 of the same ConventionFootnote 156 the needs of the army of occupation may justify forced labour of local people over eighteen. These needs have been interpreted as being limited to maintenance needs of the army.Footnote 157 It is obvious that, even though the absence of military operations may result in fewer maintenance needs, the mere presence of the occupying army inside the occupied territory will generate at least some needs covered by Article 51, paragraph 2.
Despite variations resulting from the formulation of the military necessity exceptions, it can be suggested that, in prolonged occupation combined with absence of hostilities, these exceptions will indeed be construed narrowly. Along the same lines, in the Wall advisory proceedings, Switzerland underlined that the prolonged character of an occupation implies a more rigorous examination of necessity and proportionality:
The law of armed conflict strikes a balance between humanitarian demands and military needs. … Hence, every step taken in the context of hostilities, of a military, security or administrative character, must respect the principle of necessity, proportionality and humanity …. Any examination of necessity and proportionality in circumstances of prolonged occupation when hostilities have ceased must be more rigorous, since stricter conditions govern the imposition of restrictions in such circumstances on the fundamental rights of protected persons.Footnote 158
It is not entirely clear whether Switzerland was referring here to both IHL and IHRL or only to one of these two sets of rules. The formulation of the statement indicates that it covers both.
Two remarks should be made concerning the Swiss statement. The first confirms that, in order for a restrictive interpretation of military necessity to be applied, the prolonged character of the occupation should be combined with the absence of hostilities. Thus, the time element is not the only criterion to be taken into consideration in this respect. The second concerns the reference by Switzerland to human rights. Such reference is not surprising, given that, in cases of (relatively) peaceful prolonged belligerent occupation, the administration of the occupied populations by the Occupying Power will bear some resemblance to that of an ordinary government. This brings us to the fundamental role that the application of human rights law acquires in situations of prolonged occupation.
Prolonged occupation and international human rights law
The starting point of this analysis is that IHRL remains applicable in a situation of belligerent occupation.Footnote 159 It is therefore important to determine whether the prolonged character of an occupation has an impact on the application of IHRL. The importance of human rights in situations of prolonged occupation has been repeatedly affirmed in the context of the Israeli occupation of Palestinian territories.Footnote 160 This has also been stressed by legal scholarship.Footnote 161 It is interesting to note here that several fields have been identified where IHL rules are usefully complemented by IHRL. For example, economic, social, and cultural rights of the occupied population, such as the right to adequate food,Footnote 162 the right to health,Footnote 163 or the right to education,Footnote 164 appear to be of particular relevance in situations of prolonged occupation.Footnote 165 The limits of this article do not allow an in-depth examination of the application of each relevant human right in long-term occupations. We will rather focus on two general questions: first, the question of the interaction between IHL and IHRL in situations of prolonged occupation, and second, the impact of the duration of the occupation on the possibility of invoking a state of emergency under IHRL.
Prolonged occupation and the relations between international humanitarian law and human rights law
Before going into the possible influence of the prolonged character of an occupation on the relations between IHL and IHRL, some brief comments should be made on these relations as such. This issue has been dominated by debate over the lex specialis character of IHL in relation to IHRL,Footnote 166 a debate that has been fuelled by the well-known pronouncements of the ICJ in the Nuclear Weapons and Wall advisory opinions.Footnote 167 Critics of the lex specialis approach raise, among others, three points about the lex specialis rule: first, it applies to relations between two concrete rules rather that between two normative orders in abstracto, especially since these two orders are different in their purposes, areas of applicability, principles, and so forth;Footnote 168 second, it has been applied, even by the ICJ itself, not as a rule for the resolution of conflict norms (dictating which of these norms should prevail over the others)Footnote 169 but rather as an interpretative aid in order to avoid norm conflicts;Footnote 170 and, third, even if it can be applied in relation to some rules, it is overly simplistic to do justice to the complexity of the relations between the two sets of legal rules.Footnote 171
It can be concluded from the above that the view that IHL entirely supersedes IHRL as lex specialis must be rejected. The starting point of the analysis of the relations between these two sets of legal rules is that they are ‘complementary, not mutually exclusive’.Footnote 172 This complementarity has been endorsed by the ICJ in the 2004 Wall advisory opinion, the 2005 DRC v. Uganda judgment, and the order on provisional measures issued by the ICJ on the case concerning the Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) in 2008.Footnote 173 A complementary application of IHL and IHRL, which suggests, in principle, a parallel application of the two sets of legal rules in situations of armed conflict and occupation, can imply a great deal of interaction between them – interaction that has led some scholars to develop what has been called a ‘theory of harmonization’.Footnote 174 Thus, for example, IHRL rules may inform the scope of IHL rules, as is the case with the definition of torture for the purpose of applying the relevant IHL prohibition. The opposite is also true: IHL norms may be used to define the scope of IHRL norms. Determining when a deprivation of life is arbitrary under Article 6, paragraph 1 of the International Covenant of Civil and Political Rights (ICCPR) is a case in point.
This does not mean that there are not situations where IHL rules displace IHRL ones. The detention of prisoners of war is a good example. Such detention will be regulated by the detailed provisions of the Third Geneva Convention and detained prisoners of war will not benefit from the rights provided for under Article 9 of the ICCPR or Article 5 of the European Convention on Human Rights.Footnote 175
How is the duration of a belligerent occupation incorporated into this highly complex picture and does it really affect the relationship between IHL and IHRL? As was mentioned before, legal scholarship suggests that:
Situations involving lengthy periods of occupation … further complicate attempts to resolve the interface between human rights law and international humanitarian law. Long-term governance might inevitably create the expectation that international human rights norms associated with peaceful governance will apply.Footnote 176
Indeed, the need to apply human rights ‘can be even more acute when dealing with prolonged occupation spanning decades’.Footnote 177
If one follows the complementarity approach, once it is established that situations of occupation trigger the application of human rights instruments,Footnote 178 the Occupying Power will be bound by the obligations laid down by the relevant treaties. The ICJ Wall advisory opinion has confirmed that an Occupying Power has obligations stemming from the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the UN Convention on the Rights of the Child.Footnote 179 However, the Court's analysis shows no influence of the prolonged nature of the occupation on the interpretation of IHRL norms or on their interplay with IHL. The same goes for the ECHR case law relating to the occupied territory of northern Cyprus.Footnote 180 The ECHR has up to now systematically avoided confronting the question of the interplay between IHL and the European Convention on Human Rights.Footnote 181 Therefore, this case law does not offer any guidance on the influence exercised by the duration of an occupation on this interplay.
The Inter-American Commission for Human Rights offers some indication that the prolonged character of an occupation strengthens the role of IHRL. In a report on terrorism and human rights, the Commission held that
the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum human rights standards of detainees. … in the Commission's view the paramount consideration must at all times remain the effective protection pursuant to the rule of law of the fundamental rights of detainees, including the right to liberty and the right to humane treatment. Accordingly, where detainees find themselves in uncertain or protracted situations of armed conflict or occupation, the Commission considers that the supervisory mechanisms as well as judicial guarantees under international human rights law and domestic law … may necessarily supersede international humanitarian law where it is necessary to safeguard the fundamental rights of those detainees.Footnote 182
This passage suggests that, in situations of prolonged occupation, IHRL may become the special norm prevailing over IHL. Even if one does not subscribe to this inversion of the lex specialis approach, the position of the Inter-American Commission confirms the importance attributed to IHRL in situations of prolonged occupation.
Outside the context of detention, this importance can be illustrated if we turn to the example of forced labour. As was previously mentioned, Article 51, paragraph 2 of the Fourth Geneva Convention allows the Occupying Power to compel protected persons who are over eighteen to work ‘on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country’.Footnote 183 Article 8, paragraph 3 of the ICCPR prohibits forced or compulsory labour, with a series of exceptions.Footnote 184 Using the complementary approach and the parallel application of IHL and IHRL as a starting point, one concludes that both sets of legal rules are applicable to a belligerent occupation from the outset of that occupation. Therefore, if the Occupying Power compels protected persons to work for the needs of the occupying army or for the feeding and sheltering of the local population, these actions should be in conformity with both sets of rules. Article 51, paragraph 2 of the Fourth Geneva Convention is clearly not violated. However, given that the situation under consideration does not seem to fall under any of the exceptions provided for by Article 8, paragraph 3 of the ICCPR, the actions in question violate the Covenant.Footnote 185 This is a case where the application of the principle of lex specialis could be of use. Indeed, unless we consider that Article 51, paragraph 2 of the Fourth Geneva Convention has been abolished by the IHRL prohibition of forced labour,Footnote 186 the content of the two rules is contradictory. Therefore, Article 51, paragraph 2 of the Convention will supersede Article 8, paragraph 3 of the ICCPR as lex specialis.
Consider now that the occupation has lasted for many years or decades and the Occupying Power continues to compel protected persons to work for the needs of the occupying army or the local population. As was explained above, the formulation of the reasons for compelling protected persons to work is such that it can remain valid throughout a long-term occupation.Footnote 187 In other words, even if an occupation lasts for forty years, the occupying army will still have maintenance needs and the local population will still need feeding and sheltering. Does this mean that the Occupying Power will be able to continue this practice without violating either Article 51 of the Fourth Geneva Convention or Article 8, paragraph 3 of the ICCPR, thanks to the lex specialis rule? Such an interpretation would lead to the absurd result of allowing an Occupying Power to support its army, at least in part, by exploiting the local population for long periods of time. It is submitted that, in this case, the prolonged character of the occupation breaks the lex specialis bond between the two relevant provisions, restoring their parallel application. Thus, the Occupying Power's actions may still be in conformity with IHL, but they will constitute a violation of the ICCPR. This example illustrates the reinforcing influence that the duration of an occupation has on the weight attributed to IHRL rules.
That being said, one final remark is in order. One cannot generally affirm the reinforcement of IHRL in prolonged occupation without taking into account the peaceful character or not of the occupation in question. The long duration of the occupation will raise the impact of human rights rules only in situations not related to the existence of hostilities inside the occupied territory. For example, in the case of inhabitants of the occupied territory taking part in a protest against austerity measures adopted by the Occupying Power in the context of its exercise of administrative functions of the territory, the Occupying Power may not invoke imperative reasons of security for taking safety measures or requiring those inhabitants to live in assigned residence.Footnote 188 It can, however, adopt such measures with regard to protected persons participating in resistance actions against the occupying army. In short, in cases where hostilities between the Occupying Power and resistance forces continue during the occupation,Footnote 189 and in relation to these hostilities, the role of IHL cannot be downplayed, whatever the duration of the occupation. Therefore, as was the case with the interpretation of military necessity, much will depend on the conflictual character – or absence thereof – of the prolonged occupation.
Having explored the impact of the prolonged character of the occupation on the general application of IHRL in situations of occupation, we will now turn to its impact in the case of the Occupying Power derogating from the application of human rights by invoking a state of emergency.
Prolonged occupation and the invocation of a state of emergency
Several human rights instruments provide for the possibility to derogate from most human rights norms in case of emergency. Among these norms, we find rights that are of particular importance in situations of prolonged occupation, such as the freedom of movement or the right to privacy.Footnote 190 According to Article 4 of the ICCPR:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.Footnote 191
Article 15 of the European Convention on Human Rights is drafted in a similar way.Footnote 192 The question on which we will focus is whether the Occupying Power may rely on the prolonged character of the occupation as a factor substantiating such a state of emergency.
It is submitted that it cannot. First of all, we need to determine whether the existence of an armed conflict (and of an occupationFootnote 193) is ipso facto considered to constitute a state of emergency permitting the invocation of Article 4 of the ICCPR and Article 15 of the European Convention on Human Rights. As far as Article 4 of the ICCPR is concerned, this seems not to be the case. According to the Human Rights Committee: ‘The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation.’Footnote 194 The Committee has insisted that ‘measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature and be limited to the extent strictly required’.Footnote 195 In this respect, the need for derogations must be justified, the provisions of the Covenant that are subject to derogations must be specified, and sufficient limits must be placed on derogations.Footnote 196 In relation to the state of emergency proclaimed by Syria in 1963, the Committee noted that derogations from several articles are provided for by the relevant decree ‘without any convincing explanations being given as to the relevance of these derogations to the conflict with Israel and the necessity for these derogations to meet the exigencies of the situation claimed to have been created by the conflict’.Footnote 197
Aside from these considerations, the Human Rights Committee – while allowing a wide margin of appreciation to the states for determining an ‘emergency which threatens the life of the nation’Footnote 198 – does express an opinion on this determination. On the one hand, confronted with a Russian counter-terrorist legislation introducing derogations from the Covenants rights, the Committee held that the measures adopted by the Russian Federation could be justifiable only under the state of emergency regime, and invited the Russian government to adapt the legislation in conformity to Article 4 of the ICCPR.Footnote 199 On the other hand, the Committee has been critical of situations where the state of emergency has been maintained for a long period. We will come back to this element below.
The interpretation of Article 15 of the European Convention on Human Rights is more difficult in the sense that the state of war is explicitly mentioned in the text of the article itself.Footnote 200 To our knowledge, the ECHR has so far treated cases only under the ‘public emergency’ part of Article 15.Footnote 201 The Court has constantly recognized that states enjoy a wide margin of appreciation in determining what constitutes an emergency situation justifying the invocation of Article 15.Footnote 202 However, while the Court emphasizes its control over whether states have gone beyond what ‘is strictly required by the exigencies’ of the emergency, it does in fact also pronounce on the question of the existence of such a state of emergency in the first place.Footnote 203 Thus, it evaluates whether the factual situation inside a state corresponds to a crisis threatening the life of the nation. Up to the time of writing it has accepted the qualifications offered by the respondent state. However, it is possible that the Court may overturn the state's qualification if need be.
That being said, it seems difficult to argue that every armed conflict will automatically be sufficient to justify derogating from human rights rules.Footnote 204 This is particularly the case for situations of international armed conflict, where the threshold of intensity required in order for IHL norms to be applicable is considered to be a low one.Footnote 205 The same reasoning can also be applied to situations of belligerent occupation. There, too, the state wishing to derogate from relevant IHRL provisions will be required to justify the need for the specific derogations established in view of the exigencies of the situation. Such justification will prove more demanding in situations of prolonged occupation where hostilities have ceased or radically diminished. It would, for example, be difficult for Turkey or Morocco (had they recognized themselves as Occupying Powers) to invoke the existence of a state of emergency based on the situation in relation to northern Cyprus or Western Sahara respectively.
The practice of states and the Human Rights Committee indicates that the duration of an occupation cannot be invoked to justify a state of necessity in and of itself. Syria is a case in point. The Syrian state of necessity dates back to 1963. Syria contends that the state of emergency consists ‘in a real threat of war, the continued occupation of part of the territory of the Syrian Arab Republic and the existence of a real threat of seizure and ongoing occupation of further land’ by Israel.Footnote 206 Furthermore, it has also invoked the general situation in the Middle East – namely the occupation by Israel of part of southern Lebanon – as well as hostile acts committed by Israel in the region against Syria, Lebanon, and the Palestinians. According to the Syrian argument, these actions ‘create an atmosphere conducive to maintenance of the existing state of war’.Footnote 207 Thus, while the continuing occupation of Syrian territory is mentioned among the elements on which the existence of a state of emergency is founded, it is hardly the crucial one. The accent is placed rather on the existence of a real threat of attack by Israel. The Human Rights Committee has been unreceptive to this broad construction of the state of emergency:
The Committee is concerned at the fact that Legislative Decree No. 51 of 9 March 1963 declaring a state of emergency has remained in force ever since that date, placing the territory of the Syrian Arab Republic under a quasi-permanent state of emergency, thereby jeopardizing the guarantees of article 4 of the Covenant. It also regrets that the delegation did not provide details of the application of the state of emergency in actual situations and cases.
While noting the information given by the State party's delegation that the state of emergency is rarely put into effect, the Committee recommends that it be formally lifted as soon as possible.Footnote 208
In general, the Committee has adopted a critical stance in regard to long-lasting states of emergency.Footnote 209 This has been equally valid for Israel, which has been in a proclaimed state of emergency since 1948Footnote 210 and which also made a declaration upon ratification of the ICCPR derogating from Article 9 of the Covenant on the basis of Article 4.Footnote 211 The state of emergency was founded on threats of war, armed attacks, and campaigns of terrorismFootnote 212 – in other words, not at all in the prolonged character of the occupation.Footnote 213 The Committee has indicated its preference for a review of the need to maintain the declared state of emergency.Footnote 214
In view of the above, it can be affirmed that the prolonged character of the occupation cannot be invoked as a factor justifying the existence of a state of emergency. The idea of such a state lasting several decades runs counter to the text of both Article 4 of the ICCPR and Article 15 of the European Convention on Human Rights, according to which the derogative measures adopted should be temporary and ‘strictly required by the exigencies of the situation’.Footnote 215 The Human Rights Committee has consistently expressed concern over the existence of ‘a semi-permanent state of emergency’ and has urged states to review the need to maintain it.
Inserting considerations relating to the duration of an occupation among the ‘exigencies of the situation’ actually distorts the application of Article 4 of the ICCPR and Article 15 of the European Convention on Human Rights. As we have seen, derogations are justified by the exigencies of the situation. If the duration of an occupation is incorporated into these exigencies, then the longer an occupation lasts, the easier it will be to invoke these articles and to justify broader derogations. We would therefore end up constantly undermining the human rights protection of the occupied population. Furthermore, experience has shown that the longer an occupation lasts, the more consolidated it becomes. This leads to the following paradox: the longer the occupation is, the easier it will be to invoke a state of emergency, justifying more derogations on behalf of the Occupying Power. The application of these derogations will consolidate the position of the Occupying Power and its control over the occupied territory. This will probably lead to an extension of the duration of the occupation, which can be integrated once again into the ‘exigencies of the situation’, triggering the adoption of more derogations on the basis of the state of emergency. It is obvious that this vicious circle completely distorts application of Article 4 of the ICCPR and Article 15 of the European Convention on Human Rights. Taking the duration of an occupation into consideration for the evaluation of a state of emergency runs counter to the exceptional character of the articles in question and is fundamentally inconsistent with the notion of emergency itself.
Conclusion
This article has shown that the influence of the prolonged character of an occupation over the application of IHL and IHRL should not, as such, be overestimated. More than the time factor, it is other characteristics of prolonged occupations that have an impact on the rules of IHL and IHRL, namely the existence or not of hostilities in the occupied territory.
However, hostilities or not, a prolonged belligerent occupation does raise the challenge of how to co-ordinate the application of IHL and IHRL. The main danger in such occupations is that IHL rules applicable to occupations may be applied in an overly rigid manner, resulting in the ‘freezing’ of the life of the occupied population and impeding evolution. On the other hand, according too much leeway to the Occupying Power entails the risk of consolidating the occupation and resulting in ‘creeping annexation’. Adding human rights norms into the equation is intended to help the occupied population move towards regaining a normal way of life while simultaneously subjecting the Occupying Power to the restraints of an actual government, and thereby limiting the danger of abusive application of IHL.
Despite the possibility of abuse of the various rules applicable in situations of prolonged occupation, it should be kept in mind that it is difficult to draw definite conclusions as to the eventual adjustments of applicable law in prolonged occupations, owing to the fact that the overwhelming majority of state practice and case law relates to a single case: the Israeli occupation of Palestinian territories. The application of IHL in other situations that could be qualified as prolonged occupations has not been recognized by the respective Occupying Powers. One should therefore be prudent when generalizing legal conclusions drawn from a situation as particular as the occupied Palestinian territories. This consideration, combined with the impossibility of defining – and thereby determining the scope of – prolonged occupations, imposes further restraint in identifying and suggesting adaptations of IHL and IHRL for general use.
