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Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities

Published online by Cambridge University Press:  19 March 2012

Tristan Ferraro
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Abstract

A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporay forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power.

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Articles
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Israel Law Review , Volume 41 , Issue 1-2: Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context , 2008 , pp. 331 - 357
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter First Geneva Convention, Second Geneva Convention, Third Geneva Convention, and Fourth Geneva Convention respectively].

2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 6 U.S.T. 3114, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 609.

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7 See especially First Geneva Convention, supra note 1, art. 49; Second Geneva Convention, supra note 1, art. 50; Third Geneva Convention, supra note 1, art. 126, and Fourth Geneva Convention, supra note 1, art. 146.

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9 International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed on Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994, Statute, S.C. Res. 955, U.N. Doc. S/RES/995 (Nov. 8, 1994), reprinted in 33 I.L.M. 1602 (1994).

10 Rome Statue of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.

11 The 1907 Hague Convention No. IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 205 Cons. T.S. 277 and its annex: Regulations Concerning the Laws and Customs of war on Land, Oct. 18, 1907, 205 Cons. T.S. 277 (1907) [hereinafter Hague Convention IV and Hague Regulations].

12 2 Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunals 163 and sq. (1968)Google Scholar; Von Glahn, Gerhard, The Occupation of Enemy Territory 350, (1957)Google Scholar; Mcnair, Arnold Duncan, Legal Effects of War 319–82 (1944)Google Scholar.

13 Fourth Geneva Convention, supra note 1, art. 149:

At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.

If agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide upon the procedure to be followed.

Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.

14 In particular, Fourth Geneva Convention, id. art. 9:

The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.

The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers.

The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.

15 See Additional Protocol I, supra note 2, art. 90. Condorelli, Luigi, The Iinternational Humanitarian Fact Findings Commission: an Obsolete Tool or a Useful Measure to Implement IHL?, 842 Int'l Rev. Red Cross 393 (2001)Google Scholar Vité, Sylvain, Les procédures internationales d'établissement des faits dans la mise en œuvre du droit international humanitaire (1999)Google Scholar.

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17 Zegveld, Liesbeth, Remedies for Victims of Violations of International Humanitarian Law, 851 Int'l Rev Red Cross 497 (2003)CrossRefGoogle Scholar. See also U.N. Commission on Human Rights, Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law, U.N. Doc. E/CN.4/2000/62 (Jan. 18, 2000).

18 Fourth Geneva Convention, supra note 1, art. 147 criminalizing the following acts committed by an occupying power: for instance, extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly compelling a protected person to serve in the forces of a hostile Power, unlawful deportation or transfer or unlawful confinement of a protected person.

19 See, e.g., for instance the occupation of Palestinian territories by Israel or the former occupation of Iraq in the aftermath of the military operation launched in March 2003.

20 Fourth Geneva Convention, supra note 1, art. 146, §3: “Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.”

21 In his book, Eyal Benvenisti mentions several examples in this respect, see Benvenisti, Eyal, The International Law of Occupation 241 (2nd 2004)Google Scholar.

22 The developments of which tend to confirm a very broad interpretation of the rights conferred on an occupant by occupation law, in particular those deriving from Article 43 of Hague Regulations (supra note 11) and Article 64 of Fourth Geneva Convention (supra note 1); cf. Sassòli, Marco, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, 16 Eur. J. Int'l L. 661 (2005)CrossRefGoogle Scholar; Dinstein, Yoram, Legislation under Article 43 of The Hague Regulations: Belligerent Occupation and Peacebuilding 14 (Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series, Fall 2004)Google Scholar; Dinstein, Yoram, The Israel Supreme Court and the Law of Belligerent Occupation: Article 43 of The Hague Regulations, 25 Isr. Y.B. Hum. Rts. 1 (1995)Google Scholar; Schwenk, Edmund H., Legislative Power of the Military Occupant under Article 43, Hague Regulations, 54 Yale L. J. 393 (1944–1945)CrossRefGoogle Scholar; McCarthy, Conor, The Paradox of International Law of Military Occupation: Sovereignty and the Reformation of Iraq, 10 J. Conf. & Sec. L. 43 (2005)Google Scholar; Kaikobad, Kaiyan Homi, Problems of Belligerent Occupation: the Scope of Powers Exercised by the Coalition Provisional Authority in Iraq, April/May 2003-June 2004, 54 Int'l Comp. L. Q. 253 (2005)CrossRefGoogle Scholar; Buchan, Russel, International Community and the Occupation of Iraq, 12 J. Conf. & Sec. L. 37 (2007)Google Scholar.

23 See particularly Benvenisti, Eyal, The Security Council and the Law of Occupation: Resolution 1483 on Iraq in Historical Perspective, 1 I.D.F. L. Rev. 7 sq. (2003)Google Scholar.

24 See the ICRC position expressed in a working document presented within the framework of the International Conference of the Red Cross and Red Crescent of November 2007, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 65 (Oct. 2007), available at www.icrc.org, ref. 30IC/07/8.4.

25 Gasser, H.P., Belligerent Occupation, in The Handbook of Humanitarian Law in Armed Conflicts n.527 (Fleck, D. ed., 1999)Google Scholar; Shamgar, Meir, The Observance of International Law in the Administered Territories, 1 Isr. Y.B. Hum. Rts. 262 (1971)Google Scholar; Dinstein, Yoram, The International Law of Belligerent Occupation and Human Rights, 8 Isr. Y.B. Hum. Rts. 104, 106–09 (1978)Google Scholar; Roberts, Adam, Prolonged Military Occupation: the Israeli Occupied Territories Since 1967, 84 Am. J. Int'l L. 44, 62–66 (1990)CrossRefGoogle Scholar; Kolb, R., Etude sur l'occupation et l'article 47 de la IVième Convention de Genève du 12 août 1949 relative à la protection des personnes civiles en temps de guerre: le degree d'intangibilité des droits en territoire occupé, 10 Afr. Y.B. Int'l L. 292–96 (2002)Google Scholar. See also Benvenisti, supra note 21, at 108.

26 Doermann, K.& Colassis, L., International Humanitarian Law in the Iraq Conflict, 47 Ger. Y.B. Int'l L. 299 n.25 (2004)Google Scholar.

27 See particularly, Shany, Yuval, Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement, 8 Y.B. Int'l Human. L. (forthcoming 2008)Google Scholar; Scobbie, Iain, Is Gaza Still Occupied Territory?, 26 Forced Migration Review—Palestinian Displacement; a Case Apart? 18 (2006)Google Scholar; Gisha, , Disengaged Occupiers: The Legal Status of Gaza (2007)Google Scholar, available at www.gisha.org.

28 See, e.g., ICTY jurisprudence: Naletilić & Martinović, Case No. IT-98-34, Trial Chamber I, ¶ 210 sq. (Mar. 31, 2003).

29 The test of effective control has been expounded notably by the doctrine, some army manuals as well as by the international jurisprudence. See particularly U.S. v. List (Hostages case), VIII Law Reports of Trials of Major War Criminals 38, 55-56 (1949); Von Glahn, supra note 12, at 27-29; Benvenisti, supra note 21, at 4; Gasser, supra note 25, at, n.524; U.K. Ministry of Defence, The Manual of the Law of Armed Conflict pt. 11.3, 275 (2004).

30 Thürer, D., Current Challenges to the Law of Occupation, 34 Collegium 12–13 (Autumn 2006)Google Scholar.

31 Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War 60 (Pictet, Jean S. ed., 1958)Google Scholar.

32 Thürer, D. & MacLaren, M., Ius Post Bellum in Iraq: A Challenge to the Applicability and Relevance of lnternational Humanitarian Law?, in Weltinnenrecht—Liber Amicorum Jost Delbrück 758 (Duncker, & Humblot, eds., 2005)Google Scholar.

33 See particularly Roberts, supra note 25, at 106-07. See also International Military Tribunal of Nuremberg, Trial of German Major War Criminals (1946)Google Scholar see particularly CMD. 6964, Misc. n.12, at 65.

34 Meron, supra note 4, at 348-70; Dinstein, Yoram, The Israel Supreme Court and the Law of Belligerent Occupation Deportations, 20 Isr. Y.B. Hum. Rts. (1995) 1, 13–14Google Scholar; see also ICTY Prosecutor v. Tadic, Case No. IT-94-I-T, Trial Chamber, ¶ 577 (May 7, 1997):

Article 2 of the Statute provides that the “International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949”, and there follows a list of the specific crimes proscribed. Implicit in the Appeals Chamber Decision is the conclusion that the Geneva Conventions are a part of customary international law, and as such their application in the present case does not violate the principle of nullum crimen sine lege.

35 Meron, supra note 4, at 348.

36 Harris, Grant T., The Era of Multilateral Occupation, 24 Berkeley J. Int'l L. 1, n.1 (2006)Google Scholar; Scheffer, David. J., Beyond Occupation Law, 97 Am. J. Int'l L. 842 (2003)CrossRefGoogle Scholar; Goodman, Davis P., The Need for Fundamental Changes in the Law of Belligerent Occupation, 37 Stanford L. Rev. 1573–608 (1984–1985)CrossRefGoogle Scholar; Tadlock, Robert D., Occupation Law and Foreign Investment in Iraq: How an Outdated Doctrine has become an Obstacle to Occupied Populations, 39 Univ. S.F. L. Rev. 227 (2004)Google Scholar; Ottolenghi, Michael, The Stars and Stripes in Al-Fardos Square: The Implication for the International Law of Belligerent Occupation, 72 Fordham L. Rev. 2177 (2003–2004)Google Scholar; McGurk, Brett H., Revisiting the Law of Nation-building: Iraq in Transition, 45 Va. J. Int'l L. 451 (2005)Google Scholar.

37 Dinstein, The Israel Supreme Court and the Law of Belligerent Occupation: Deportations, supra note 34; Dinstein, Yoram, The Israel Supreme Court and the Law of Belligerent Occupation: Reunification of Families, 18 Isr. Y.B. Hum. Rts. 173 (1988)Google Scholar; Dinstein, The Israel Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations, supra note 22, at 1-20.

38 Gasser, supra note 25, at n.549: “The administration and judicial organization of the occupied territory may not be replaced by institutions of the occupying power.” See also n.575:

Breaches of penal laws of the occupied territories shall continue to be prosecuted by local courts …. This principle is of a great importance for the inhabitants of occupied territories. It states that the ordinary courts, which are familiar to them, are still competent to judge all criminal cases not having an immediate effect on the security of the occupying power.

39 See Yoram Dinstein, Legislation under Article 43 of The Hague Regulations: Belligerent Occupation and Peacebuilding, supra note 22. However, other experts on the subject matter did not definitively discard the possibility that effect could be given to the new legislation of the ousted government, cf. Stein, E., Application of the Law of the Absent Sovereign in Territory under Belligerent Occupation: The Schio Massacre, 46 Mich. L. Rev. 341, 361–63 (1948)CrossRefGoogle Scholar. See also McNair, Arnold D., Municipal Effects of Belligerent Occupation, 33 L. Q. Rev. 73 (1941)Google Scholar. On the same vein see Feilchenfeld:

[N]evertheless, one would go too far in assuming, as has been done by various authorities, that an absent sovereign is absolutely precluded from legislating for occupied areas. The sovereignty of the absent sovereign over the region remains in existence and, from a more practical point of view, the occupant may and should have no objection to timely alterations of existing laws by the old sovereign in those field which the occupant has not seen fit to subject to his own legislative power:

Feilchenfeld, Ernest, The International Economic Law of Belligerent Occupation 161 (1942)Google Scholar.

40 Even in case of contracts concluded between such inhabitants and the occupation authorities, Von Glahn, supra note 12, at 108.

41 Morgenstern, F., Validity of the Acts of the Belligerent Occupant, 28 Brit. Y.B. Int'l L. 301 (1951)Google Scholar.

42 See Norwegian Supreme Court, Halvorsen case, Feb. 10, 1941 in which the court expressed the view that it might be able to invalidate a legislative measure taken by the occupying power which clearly transgressed the limits defined by Article 43 of the Hague Regulations, in 11 Zeitschrift Für ausländdisches öffentliches recht und Völkerrecht 599, 604 (1942–43).

43 Judgement no. 255, 1944, Ann. Digest (1943–45) case no.150 (1835).

44 These cases were referred to in Morgenstern, supra note 41, at 302–05.

45 Fourth Geneva Convention, supra note 1, art. 64:

The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws.

The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

46 Morgenstern, supra note 41, at 302 sq. See particularly 307:

[Article 67 of the Fourth Geneva Convention] is significant in that it clearly demonstrates the intention of the parties that the municipal courts in an occupied territory—and moreover, the occupant's own courts—shall protect certain rights of the inhabitants which are guaranteed to them by that Convention, and shall treat as unenforceable laws of the occupant which violate these rights.

47 Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, supra note 31, at 306. However, this interpretation seems to find its roots in a misinterpretation of a U.K. ruling (Porter v. Freudenberg, [1915] 1 K.B. 857), which stated that Article 23 of the Hague Regulations “is to be read, in our judgement, as forbidding any declaration by the military commander of a belligerent force in the occupation of the enemy's territory which will prevent the inhabitants of that territory from using their courts of law to assert or to protect their civil rights …” As it has been explained by G. Von Glahn, such jurisprudence cannot be interpreted as authorizing the occupied population to use local courts to sue the occupant, see Von Glahn, supra note 12, at 108.

48 This was clearly stated in a famous decision of the Court of Appeal of Liège, Feb. 13, 1917, Clunet, 44, 1917.

49 This question of the necessity of the measure is, to a certain extent, to be distinguished from the question of the conformity of the measure to conventional law.

50 See Meurer, D., Die Voelkerrechtliche Stellung Der Von Feind Besetten Gebiete 22 (1915)Google Scholar: “Of course, as stated by V. Martens at The Hague Convention, the occupant himself is entitled to determine whether a case of necessity exists, and his determination is not subject to review.” (translation T.F.).

51 Halvorsen case, supra note 42, at 604.

52 Cf. The Dutch Special Court of Cassation which decided in Re Contractors Knols case that the Hague Regulations of 1907 could “involve, for the Courts, the task of deciding the validity of rules laid down by the occupant by reference to their compatibility with the annexed Regulations,” quoted in Von Glahn, supra note 12, at 110. See also Morgenstern, supra note 41, at 304-05.

53 See Bothe, Michael, Occupation, Belligerent, in 3 Encyclopedia of Public International Law 764 (1997)Google Scholar: “The authority exercised by an occupying power is, as far as international law is concerned, a de facto, not a de jure authority. International law does not grant rights to the occupying power, but limits the occupant's exercise of its de facto powers.” See also Afsah, E., Limits and Limitations of Power: The Continued Relevance of Occupation Law, 7 German L. J. 579 (2006)Google Scholar; McCarthy. supra note 22, at 46.

54 Stein, supra note 39, at 531 sq.; Stone, Julius, Legal Controls of International Conflict 724 (1954)Google Scholar; Pellet, A., The Destruction of Troy Will not Take Place, in International Law and the Administration of Occupied Territories 187 (Playfair, Emma ed., 1992)Google Scholar.

55 Fourth Geneva Convention, supra note 1, art. 64:

The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws.

The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

56 For a contrary opinion, see Von Glahn, supra note 12, at 111:

A few writers maintained that the powers of such occupation courts would have to be limited to offences of a “military” nature, but such an interpretation appears to be too narrow in the opinion of the writer and ignores an extensive assortment of offences which could not possibly be encompassed within a reasonable definition of “military” nature.

57 Benvenisti, supra note 21, at 197-99.

58 S.C. Res. 1483, U.N. Doc. S/Res/1483 (May 22, 2003). See Zwanenburg, M., Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation, 856 Int'l Rev. Red Cross 745–69 (Dec. 2004)CrossRefGoogle Scholar.

59 This issue has been particularly well described by Benvenisti, Eyal, Water Conflicts during the Occupation in Iraq, 97 Am. J. Int'l. L. 860 (2003)CrossRefGoogle Scholar.

60 This should be particularly the case if international private companies are designated by an occupying power to operate in occupied territory in compliance and accordance with a measure taken under Article 43 of the Hague Regulations, supra note 11 and Fourth Geneva Convention, supra note 1, art. 64. For instance if the development of an existing oil concession is left to such foreign private company in replacement of the collapsed local company, be it private or state-owned.

61 According to Roberts, Adam, Human Rights Mechanisms could also Potentially Play a Substantial Role in this Respect, in Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 Am. J. Int'l 594–95 (2006)Google Scholar.