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Published online by Cambridge University Press: 24 October 2018
It has long been recognised that ‘non-consent’ is a fundamental element of the law of occupation. Under modern international humanitarian law (IHL), the consensual presence of foreign military forces is generally not seen as belligerent occupation.
However, if we accept the principle that the application of IHL should rely on the objective situation on the ground and not on the subjective judgment of the situation of parties to the conflict, it may be natural to diminish the significance of consent by the territorial states in relation to the application of the law of occupation. It may be somewhat harmful to deny such protection based solely on the existence of the territorial states’ consent without considering the relationship, in reality, between the occupier and the population in the occupied area. According to a teleological interpretation of IHL, especially when it is obvious that the latter has no allegiance to the former, the tense relationship between them should be regulated by the law of occupation.
This article discusses whether and how state consent could be a humanitarian ground to negate the legal protection for its own people, and highlights situations where the local population needs protection by the law of occupation (or comparable rules) in consensual military occupations.
The author is grateful to Professor Yutaka Arai, Brussels School of International Studies, University of Kent, and Mr Kosuke Onishi, PhD Candidate, Doshisha University, for their helpful comments and suggestions. All views expressed in this article and all errors remain those of the author. This work was supported by JSPS KAKENHI Grant Numbers 15K03147 and 18K01287, and Doshisha University Overseas Research Travel Allowance.
1 Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Proceedings of the 1874 Brussels Conference on the Draft International Convention on War: Protocols of the Plenary Sessions: Protocols of the Committee Delegated by the Conference: Annexes, 61.
2 Hague Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 4 September 1900), Martens Nouveau Recueil (ser 2) 949 (Hague II); Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910), Martens Nouveau Recueil (ser 3) 461 (Hague IV).
3 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV).
4 Eyal Benvenisti, ‘Occupation, Belligerent’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2009) para 1.
5 Meron, Theodor, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239CrossRefGoogle Scholar.
6 Tristan Ferraro, Legal Adviser to the International Committee of the Red Cross (ICRC), flatly concludes that ‘the existence of consent is simply incompatible with the institution of belligerent occupation’ (emphasis added): Ferraro, Tristan, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’ (2012) 94 International Review of the Red Cross 132CrossRefGoogle Scholar, 153; see also Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009) 35–37CrossRefGoogle Scholar; Koutroulis, Vaios, Le début et la fin de l'application du droit de l'occupation (Pedone 2010) 76–89Google Scholar.
7 Tristan Ferraro, ‘Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory’, ICRC Report, March 2012, 10.
8 As to the applicability of the law of occupation in Iraq after 2004 see Dörmann, Knut and Colassis, Laurent, ‘International Humanitarian Law in the Iraqi Conflict’ (2004) 47 German Yearbook of International Law 293Google Scholar; Roberts, Adam, ‘The End of Occupation: Iraq 2004’ (2005) 54 International and Comparative Law Quarterly 27CrossRefGoogle Scholar; Carcano, Andrea, ‘End of the Occupation in 2004? The Status of the Multinational Force in Iraq after the Transfer of Sovereignty to the Interim Iraqi Government’ (2006) 11 Journal of Conflict and Security Law 41CrossRefGoogle Scholar; Wills, Siobhan, ‘The Legal Characterisation of the Armed Conflicts in Afghanistan and Iraq: Implications for Protection’ (2011) 58 Netherlands International Law Review 173CrossRefGoogle Scholar; Wills, Siobhan, ‘The Obligations Due to Former “Protected Persons” in Conflicts that have Ceased to be International: The People's Mujahedin Organization of Iran’ (2010) 15 Journal of Conflict & Security Law 117CrossRefGoogle Scholar.
9 Wall, Andru E, ‘Civilian Detentions in Iraq’ in Schmitt, Michael N and Pejic, Jelena (eds), International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Martinus Nijhoff 2007) 413Google Scholar, 414 (‘Not only did detentions in Iraq continue after the transfer of sovereignty but they skyrocketed – from around 4,000 detainees in the spring of 2004 to over 11,350 less than one year later … [B]y December 2005 14,000 detainees were being held by Coalition Forces’).
10 Carcano (n 8) 58; Dörmann and Colassis (n 8) 307–11.
11 As to the difference between land-lease and belligerent occupation, see Strauss, Michael J, Territorial Leasing in Diplomacy and International Law (Brill 2015) 198–202CrossRefGoogle Scholar.
12 Roberts, Adam, ‘What is a Military Occupation?’ (1985) 55 British Yearbook of International Law 249CrossRefGoogle Scholar, 277.
13 For a concise report in English on this, see Caroli, Rosa, ‘The Other Occupation of Japan: The Case of Okinawa’ in Caroli, Rosa and Basosi, Duccio (eds), Legacies of the U.S. Occupation of Japan: Appraisals after Sixty Years (Cambridge Scholars 2014) 109, 109–29Google Scholar.
14 Treaty of Peace with Japan (with two declarations) (entered into force 28 April 1952) 136 UNTS 46.
15 ibid art 1(a) reads: ‘The state of war between Japan and each of the Allied Powers is terminated’.
16 ibid art 3 reads: ‘Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto, … Pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands’.
17 It should be noted that the legal situation in mainland Japan was sharply different from that of the Islands. Okinawa and other small surrounding islands were landed and invaded by the US forces in April 1945. After the US established effective control of those islands, a military government was formed on the basis of the Hague Regulations. A few months later, on 14 August, the Japanese government announced its surrender to the Allied powers, and the ‘occupation’ started after its expression of acceptance of the allied forces’ presence on the mainland. This ‘consent’ of Japan is comparable with a ‘ceasefire’ agreement, which cannot exclude the application of the law of occupation, while, in reality, this occupation of mainland Japan was not seen as belligerent occupation: Ando, Nisuke, Surrender Occupation, and Private Property in International Law: An Evaluation of US Practice in Japan (Oxford University Press 1991) 81ffGoogle Scholar. Unlike the case of Germany to which the theory of debellatio could apply, the non-application of the law of occupation to Japan from 1945 to 1952, despite its application to Okinawa during the same period, may be seen as legally unsound.
18 Statement by John Foster Dulles, 25(1) The Department of State Bulletin, 17 September 1951, 452, 455 (‘Several of the Allied Powers urged that the treaty should require Japan to renounce its sovereignty over these islands in favor of United States sovereignty. Others suggested that these islands should be restored completely to Japan. In the face of this division of Allied opinion, the United States felt that the best formula would be to permit Japan to retain residual sovereignty, while making it possible for these islands to be brought into the U.N. trusteeship system, with the United States as administering authority’ (emphasis added)). In international law generally, the term ‘residual sovereignty’ is sometimes used to describe the right retained by a lessor state for leased territories, such as Guantanamo Bay or Hong Kong. O'Connell specifies the meaning of such sovereignty as the ultimate power to dispose of the territory: DP O'Connell, International Law, Vol 1 (Stevens and Sons 1965) 352, 354. Applying this to the context of art 3 of the Japanese Peace Treaty, the residual sovereignty retained by Japan was thought to be nothing more than ‘the right to expect that the United States will not transfer the Ryukyus, including Okinawa, to any third party’: House of Representatives, Committee on Armed Services (87th Congress 2d Session), Report No 1684, 16 May 1962, 5.
19 As a result of a series of tough political negotiations between the two countries later on, the reversion of the Islands to Japan was realised in 1972: Japan and United States of America, Agreement concerning the Ryukyu Islands and the Daito Islands (with Agreed Minutes and Exchanges of Notes), signed at Tokyo and Washington on 17 June 1971 (entered into force 15 May 1972) 841 UNTS 275. However, it was clear that in 1951 this ‘lease’ of the Islands was supposed to last for much longer, as can be seen from this private message to the US by the Emperor of Japan: ‘The Emperor further feels that United States military occupation of Okinawa … should be based upon the fiction of a long-term lease – 25 to 50 years or more – with sovereignty retained in Japan’: ‘Enclosure to Dispatch No. 1293, 22 September 1947 from the US Political Adviser for Japan, Tokyo, on the subject “Emperor of Japan's Opinion concerning the Future of the Ryukyu Islands”’ in WJ Sebald, ‘Emperor of Japan's Opinion concerning the Future of the Ryukyu Islands’, Okinawa Prefectural Archives, code 0000017550, http://www.archives.pref.okinawa.jp/wp-content/uploads/Emperors-message.pdf.
20 USCAR Proclamation No 13, which established the local governing body, clearly provides: ‘The Government of the Ryukyu Islands may exercise all powers of government within the Ryukyu Islands, subject however to the Proclamations, Ordinances, and Directives of the United States Civil Administration of the Ryukyu Islands (Art 2)’: Civil Administration Proclamation No 13, 29 February 1952, 1 Okinawasha, Gekkan, Laws and Regulations during the U.S. Administration of Okinawa, 1945–1972 (Ikemiya Shokai & Co 1983) 112Google Scholar (Laws and Regulations).
21 Even after the entry into force of the Peace Treaty on 28 April 1952, it was provided that ‘[a]ll proclamations, ordinances and directives of the United States Civil Administration of the Ryukyu Islands and of United States authorities previously exercising military government in the Ryukyu Islands … shall remain in full force and effect to the extent’: Civil Administration Proclamation No 22, 30 April 1953, 1 Laws and Regulations 117. This may be regarded as clear evidence that the basic structure of the military control over the Islands did not change after 1952.
22 Measures taken by the US military for land acquisition should be mentioned as a notable example. After the 1907 Hague Regulations ceased to apply in Okinawa, the USCAR issued Ordinance No 109 (3 April 1953, 2 Laws and Regulations 49) by which it could unilaterally declare acquisition of land for temporary or indefinite use even without the consent of the landowners, who were left without any due process safeguards and faced physical enforcement by US soldiers in the event of resistance: Miyagi, Etsujiro, ‘The Land Problem (1952–1958)’ in Ota, Masahide, Miyagi, Etsujiro and Hosaka, Hiroshi (eds), A Comprehensive Study on U.S. Military Government in Okinawa (An Interim Report) (Chapter 2) (University of the Ryukyus 1987) 36, 36–65Google Scholar, http://ir.lib.u-ryukyu.ac.jp/bitstream/20.500.12000/13849/3/62041071-3.pdf.
23 A comparable situation may be that of Guantanamo Bay which, like Okinawa, was indefinitely leased to the US for use as a naval base pursuant to an agreement with Cuba. The US government, for a long time, claimed the inapplicability of the US Constitution and its laws to Guantanamo, because it is not US territory. It is well known that this tricky status of the base was used to preclude any legal regulation regarding the treatment of detainees held there, granting full discretion to the Executive Power. However, this assertion was rejected in Boumediene v Bush 553 US 723 (2008), in which it was held that the extent of US control over the Guantanamo Bay Naval Base entails the extension of constitutional rights to protect foreign nationals detained there. As to the difference between land-lease and belligerent occupation in relation to Guantanamo Bay, see Strauss, Michael J, The Leasing of Guantanamo Bay (Praeger Security International 2009) 98–103Google Scholar.
24 With regard to the Soviet intervention in Czechoslovakia and Afghanistan, many states criticised the genuineness of the consent of the respective governments. For Czechoslovakia, its representative stated in the UN Security Council that foreign troops had crossed the borders without the knowledge of the Czechoslovak authorities: Security Council Official Records, 23rd year, 1441st meeting, 21 August 1968, UN Doc S/PV.1441, para 137. For Afghanistan, the Soviet assertion that the Afghan government approved the invasion lost its credibility when the Afghan President was murdered two days after the invasion. With regard to the US intervention against Panama, similar doubt can be cast because of the complex set of facts pertaining to the allocation of power inside the Panamanian government, which was controlled by the de facto leader General Manuel Noriega: see Nolte, George, ‘Intervention by Invitation’ in Wolfrum, Rüdiger (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2011)Google Scholar para 5.
25 Hague Regulations (n 2) art 42.
26 Unlike the French text, ‘the hostile army’ in the English text may seem to have a ‘functional/non-formalistic’ connotation, which is in conformity with the assertion in the later part of this article, but this is not significant, as English is not an authentic text of the Hague Conventions: Schindler, Dietrich and Toman, Jiri (eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (4th revised and completed edn, Martinus Nijhoff 2004) 56Google Scholar.
27 Ferraro (n 7) 20–22.
28 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), Report of the ILC 53rd sess, UN Doc A/56/10, 2001(II) Yearbook of the International Law Commission 26, art 20.
29 Nolte (n 24).
30 For instance, the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia (vol II, September 2009) presented a confusing expression: ‘If … Russia's military intervention cannot be justified under international law, and if neither Abkhazia nor South Ossetia is a recognised independent state, IHL – and in particular the rules concerning the protection of the civilian population (mainly Geneva Convention IV) and occupation – was and may still be applicable’: ibid 311.
31 Dinstein (n 6) 31–32, 35.
32 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II); Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III); GC IV (n 3).
33 Pictet, Jean S (ed), Commentary: IV Geneva Convention Relating to the Protection of Civilian Persons in Time of War (ICRC 1958) 21–22Google Scholar.
34 Since GC IV is ‘supplementary’ to Section II of the Hague Regulations (art 154), this expansion of the concept of armed conflict and occupation also affects the application of the latter rules.
35 Kolb, Robert and Vité, Sylvain, Le droit de l'occupation militaire: Perspectives historiques et enjeux juridiques actuels (Bruylant 2009) 112Google Scholar.
36 ibid 113; Kolb, Robert, Advanced Introduction to International Humanitarian Law (Edward Elgar 2014) 101CrossRefGoogle Scholar.
37 Nolte (n 24) para 26.
38 Ferraro (n 6) 134–36.
39 Ferraro (n 7) 21.
40 Daillier, Patrick, Forteau, Mathias and Pellet, Alain, Droit International Public (8th edn, LGDJ 2009) 208Google Scholar.
41 The logic here is borrowed from the theory of the ‘margin of appreciation’ relating to the application of human rights obligations: see ECtHR, Handyside v United Kingdom, App no 5493/72, 7 December 1976, para 48.
42 Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS 331.
43 Ferraro (n 7) 21.
44 In addition to the example of the Nazi ‘protectorate’ of Bohemia and Moravia, and the Anschluss (which are discussed below), Japan's invasion of French Indochina with the consent of the Vichy government in 1940–45 may be another example that warrants detailed examination. After the defeat of France and the establishment of the Vichy government, Japan decided to deploy armed forces to the Tonkin province (North Vietnam) in order to cut the assistance route from southeast Asia to the Chiang Kai-shek military in China. Japan, with harsh military pressure, convinced the Vichy government to agree to the deployment in 1940. The Vichy decision was resisted at times and agreed to at others by the local colonial governor of French Indochina, who, unlike his colleagues in Africa or other parts of the world, did not leave the Vichy side until the final period of the Second World War. Plus, the local French army opposed, incidentally but also quite seriously, the Japanese invasion at that time. During the following year Japan invaded the southern part of French Indochina, adopting the same tactic. After the Allied liberation of France, Japan gave French Indochina an ultimatum and became involved in a state of war in March 1945, initially in the formal sense. Before 1945, especially during 1940–41, Japan seemingly handled the agreements with the greatest of care so as not to be seen as a belligerent occupation, but we can trace some grounds to negate the legal validity of these Franco (Vichy)–Japanese agreements: the entitlement of the Vichy government to represent France, military threat by Japan, and the opposition of the local governor.
The Tokyo Trial of Major War Criminals of Japan recognised that these 1940–41 ‘invasions’ by Japan against French-Indochina represented the first step in the ‘push to the South’ policy, and such coercion upon the Vichy government constituted direct threats of illegal force: International Military Tribunal for the Far East, United States et al v Sadao Araki et al, Judgment of 24 November 1948, reproduced in Boister, Neil and Cryer, Robert (eds), Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments (Oxford University Press 2008) 477–78Google Scholar, 498–99. See also Indictment, ibid 40–41. Subsequent trials of Japanese war criminals by France in Saigon, in which 230 suspects in 39 cases were charged, limited its scope to cases after March 1945. Presumably, this was based on the view of the parties that incidents relating to military invasion and ‘occupation’ from 1940 to March 1945 were not covered by a trial to adjudge ‘war crimes’.
For reference information, the French government has not declassified any documents relating to these Saigon trials, while the Japanese government has been given some of these documents by France and has declassified them. The above description of the Saigon trials is based on research by Professor Chizuru Namba, ‘Kokuritsu Kou-bunsho Kan Shozo no “Saigon Saiban” Kanren Shiryo ni tsuite’ (in Japanese with English summary) [‘Materials concerning the “Saigon Trials” in the Possession of the National Archives of Japan’] (2008) 41 Kitanomaru [Journal of the National Archives of Japan] 81–79.
45 Second Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur, Report of the ILC 15th sess, UN Doc A/CN.4/156 and Add.1-3, 1963(II) Yearbook of the International Law Commission 36, 50, art 11. The Waldock 1963 commentary referred to other precedents of invalid agreements brought about by coercion of national representatives, including coercion by Japan of the Emperor of Korea and his ministers in 1905 to obtain their acceptance of a protectorate treaty: Agreement between Corea and Japan by which Japan assumed Charge of the Foreign Relations of Corea (entered into force 17 November 1905) 199 CTS 399. Although its validity was not questioned by the great powers at the time (including Britain, Russia and the US), a historical survey (Fukuju Unno, Kankoku Heigō (Iwanami Shoten1995) 157–61 (in Japanese)) suggests that it is difficult to find any substantial difference between the situations surrounding the Korea-Japan protectorate treaty of 1905 and that of President Hácha in 1939. As Waldock pointed out, coercion is usually a mixture of personal pressure on the individuals and threats against their people (ibid). This has intensified the debate on the validity of the 1905 Korea-Japan treaty between the two states up to the present day.
46 International Military Tribunal, United States et al v Hermann Wilhelm Göring et al, Judgment, 1 October 1946, 11 Trial of The Major War Criminals before the International Military Tribunal 192–94.
47 Clute, Robert E, The International Legal Status of Austria 1938–1955 (Martinus Nijhoff 1962) 11–22CrossRefGoogle Scholar.
48 ibid 12 (emphasis added). Additionally, Federal Chancellor Figl stated that ‘Austria was at that time occupied in a manner contrary to international law and robbed of its capacity to negotiate without (the Anschluss) being legitimized by legal title’: ibid (emphasis added). It is unclear whether this reference to ‘military occupation’ was intended to mean that the government claimed that the law of occupation should have applied, or if it just criticised the annexation as illegal ad bellum.
49 As for the distinction between ‘absolute’ and ‘relative’ invalidity of treaties, see von der Decken, Kerstin, ‘Article 42’ in Dörr, Oliver and Schmalenbach, Kirsten (eds), Vienna Convention on the Law of Treaties: A Commentary (2nd edn, Springer 2018) 789Google Scholar, mn 12–14.
50 Ferraro (n 7) 21–22.
51 ibid.
52 Ferraro (n 6) 153.
53 ibid.
54 As for other possibilities, the consent of a de jure and effective government does not pose any legal difficulty, while that of a non-de jure and ineffective government is legally and militarily meaningless. The other significant possibility in the matrix is that of consent of a non-de jure but effective authority which has effective control over part of the territory. Can such authority give consent to another country to deploy its armed forces in the territory over which it has achieved control? First, this intervention generates international armed conflict (IAC) between the intervening state and the territorial state, and it is widely recognisable that the law of occupation would apply to the situation, even if the intervening state denies it.
55 Nolte (n 24) paras 14–18.
56 However, in the cases of France, Indo-China and Denmark, there were no prior agreements, which were addressed only after the ‘occupations’ were established: Kelly, Michael J, ‘Non-Belligerent Occupation’ (1999) 28 Israel Yearbook of Human Rights 17Google Scholar, 29.
57 Dinstein (n 6) 37.
58 Roberts (n 12) 264; Kelly (n 56) 29.
59 Ferraro (n 6) 153–54.
60 Ferraro (n 7) 23. It should be noted that even this observation, although agreed by consensus, is not as solid as it may seem, as the experts simply indicated a solution for the extreme end of the spectrum. There exists, however, a vast ‘grey zone’ between an undisputedly legitimate and effective government on the one hand, and the complete anarchy of a ‘failed state’ on the other. In such a grey zone, of course, the solution will be achieved by case-by-case considerations. The taxonomy of situations has to depend on the balance of the parties’ power, effectivity or legitimacy, and the political consideration of the outer world. Above all, it seems almost impossible for the experts to reach an agreement on the definition of ‘failed states’. An interesting example of ‘political manipulation’ of a situation involving a ‘failed state’, motivated by the interests of regional powers, is the treatment of the Transitional Federal Government (TFG) after 2004 in Somalia, the clearest example of a ‘failed state’. As to the process that the TFG, which had not exercised any control over the territory, used to entrench its position vis-à-vis the international community as the only viable and recognisable government of Somalia, see Lieblich, Eliav, International Law and Civil Wars: Intervention and Consent (Routledge 2013) 165–69CrossRefGoogle Scholar.
61 Sassòli, Marco, ‘The Concept and the Beginning of Occupation’ in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary (Oxford University Press 2015) 1389, 1402–03Google Scholar.
62 Eritrea-Ethiopia Claims Commission, Partial Award, Central Front, Ethiopia's Claim 2, Decision of 28 April 2004, 26 Reports of International Arbitral Awards 155, para 29.
63 ibid para 28.
64 ibid para 27. It should be noted that the boundary dispute between the two countries was referred to in a separate procedure by the Boundary Commission established by the Algiers Agreement of 12 December 2000 (Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea (entered into force 12 December 2000) 2138 UNTS 94), by which the Claims Commission was also established.
65 The applicability of GC IV in the West Bank was upheld by the International Court of Justice (ICJ) regardless of whether Jordan had any rights in respect thereof before 1967: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [93]. The United Kingdom took a broader view: ‘[I]f, during an armed conflict, a state takes military control of a territory it did not control before the conflict the Convention is applicable, whatever the underlying disputes about title’ (Marston, Geoffrey (ed), ‘United Kingdom Materials on International Law 1998’ (1999) 69 British Yearbook of International Law 443, 598–600Google Scholar (emphasis added)).
66 Crawford, James, State Responsibility: The General Part (Cambridge University Press 2013) 287CrossRefGoogle Scholar.
67 Pictet (n 33) 274–75.
68 Ferraro (n 7) 29.
69 Accordingly, Benvenisti argues that the occupation of Iraq ceased in April 2005, rather than June 2004, when the new government was approved by the Iraqi Parliament endorsed by Iraqi people through election: Benvenisti, Eyal, The International Law of Occupation (2nd edn, Oxford University Press 2012) 254–56CrossRefGoogle Scholar.
70 Ferraro (n 6) 153.
71 As a possible example of such ‘occupation’, the Syrian military presence, by agreement with Lebanon, from 1990 to 2005 may be noted. Western countries, in their statements in the Security Council after the adoption of UNSC Res 1559 (2 September 2004), UN Doc S/RES/1559, requesting ‘all remaining foreign forces to withdraw from Lebanon’, stressed how significantly the Syrian government had imposed its political will on Lebanon, although they did not directly refer to the classification of the Syrian forces as the occupying forces in the sense of IHL: ‘Security Council Declares Support for Free, Fair Presidential Election in Lebanon; Calls for Withdrawal of Foreign Forces There’, Press Release, SC/8181, 2 September 2004, https://www.un.org/press/en/2004/sc8181.doc.htm.
72 ‘“Effective Control”: A Situation Triggering the Application of the Law of Belligerent Occupation, Background Document by Professor Michael Bothe’, Annex I of Ferraro (n 7) 37.
73 Benvenisti (n 69) 59–60.
74 ibid; ICTY, Prosecutor v Tadić, Judgment, IT-94-1-A, Appeals Chamber, 15 July 1999 [164]–[168].
75 ibid [164].
76 ibid [166], [168].
77 ibid [169].
78 ICTY, Prosecutor v Aleksovski, Judgment, IT-95-14/1-A, Appeals Chamber, 24 March 2000, [151]–[152]; ICTY, Prosecutor v Mucić and Others, Judgment, IT-96-21-A, Appeals Chamber, 20 February 2001, [81]–[84]; ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07, Pre-Trial Chamber I, 30 September 2008, [290]–[291].
79 It may seem possible, as an extension of this interpretation, to negate the application of the law of occupation when the central government does not consent but the population does have allegiance to or sympathy with the occupying force with which they share the same ethnicity (eg, Crimea, South Ossetia, Abkhazia or Northern Cyprus). However, such a positive attitude of the local population towards the occupant could not be equated with state consent. As one of the functions of the law is to preserve the status quo of the occupied territory, the territorial state is a beneficiary of the law of occupation. Humanitarian protection of the local population is but another of its important functions. Thus, the law of occupation should not be excluded in such cases.
80 Hoffmann points out that this emphasis on ‘allegiance’ for interpreting IHL is inconsistent with the prevailing understanding of ‘nationality’ in general international law: Hoffmann, Tamás, ‘The Perils of Judicial Construction of Identity – A Critical Analysis of the International Criminal Tribunal for the Former Yugoslavia's Jurisprudence on Protected Persons’ in Jenkins, Fiona, Nolan, Mark and Rubenstein, Kim (eds), Allegiance and Identity in a Globalised World (Cambridge University Press 2014) 497Google Scholar.
81 Meron (n 5) 256–60.
82 Ferraro (n 7) 21.
83 Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI.
84 Many commentators argue that Chapter VII operations categorically trigger the application of the law of armed conflict, including the law of occupation. However, this is not always sound, nor does it always reflect the ‘realistic’ attitude of the parties concerned. In some cases during the 1990s – such as NATO's bombing of Bosnian Serbs or the Quick Reaction Force in Somalia supporting peacekeepers on the ground, both of which were authorised by a Security Council Chapter VII resolution – the participating countries tried to negate the application of the law of armed conflict and those requests were seemingly accepted by the UN: Lepper, Steven J, ‘The Legal Status of Military Personnel in United Nations Peace Operations: One Delegate's Analysis’ (1996) 18 Houston Journal of International Law 359Google Scholar, 368; The Judge Advocate General's Legal Center and School (United States Army), International and Operational Law Department, ‘Chapter 18, The Law of War (LOW)’ in Operational Law Handbook (Publication JA-422) (1998). It should be also noted that, according to art 2(2) of the Convention on the Safety of United Nations and Associated Personnel (entered into force 15 January 1999) 2051 UNTS 363, it can be argued that Chapter VII operations do not necessarily qualify as ‘an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies’. A quick answer is this: in cases where the intervening force authorised by the Security Council engages in organised non-state armed groups, the potentially applicable rules, if any, would be the law of ‘non-international’ armed conflict, as this armed conflict is not fought between states; thus the application of the Convention, which is mutually exclusive vis-à-vis the law of armed conflict, is not excluded.
85 In West New Guinea (1962–63), El Salvador (1991–95), Cambodia (1992–93), Eastern Slavonia, Croatia (1996–98), Timor-Leste (1999–2002) and Kosovo (1999–present).
86 Dinstein (n 6) 37; Arai-Takahashi, Yutaka, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Martinus Nijhoff 2009) 604–05CrossRefGoogle Scholar.
87 Irmscher, Tobias H, ‘The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation’ (2001) 44 German Yearbook of International Law 353Google Scholar; Stahn, Carsten, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press 2008) 467–79CrossRefGoogle Scholar.
88 Arai-Takahashi (n 86) 605. As for the Australian army's experience of ‘applying’ GC IV to operations in Somalia, see also Kelly, Michael J, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework (Kluwer Law International 1999)Google Scholar.
89 It is for that purpose that states deploying force usually conclude a status of force agreement with the territorial states: Rowe, Peter, ‘Historical Developments Influencing the Present Law of Visiting Forces’ in Fleck, Dieter (ed), The Handbook of the Law of Visiting Forces (Oxford University Press 2018) 13–32Google Scholar.
90 UNGA Res 3314 (XXIX) (14 December 1974), UN Doc A/RES/3314(XXIX), para 3(e) (emphasis added).
91 The non-observance of trivial conditions found in the consent by itself could not necessarily place such conduct outside the limits of said consent. The Special Rapporteur of the ILC at the time, James Crawford, referred to ‘a requirement to pay rent for the use of facilities’ as an example of such trivial conditions and non-observance of which ‘would not transform the visiting force into an army of occupation’: Crawford, James, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002) 165Google Scholar fn 347. However, it should be noted that non-observance of some other conditions may destroy the legal foundation of the consent and constitute an act of aggression according to General Assembly Res 3314 (XXIX).
92 Also, it is difficult to find consistency of state practice that can be evidence of customary international rules. This is largely because such consensual deployment has been conducted on a case-by-case basis.
93 Kelly (n 56) 29.
94 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Updated Commentary, Cambridge University Press 2016) 167–74Google Scholar.
95 It should be noted that Additional Protocol II (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609) is not understood to apply to such a scenario, as its art 1(1) provides: ‘This Protocol … shall apply to all armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups’ (emphasis added).
96 The ICRC customary international humanitarian law project recognises the ‘convergence’ of rules applicable to IAC and NIAC in probably most parts of the law, but carefully avoids referring to ‘occupation’ in the context of NIAC. For instance, in its Rule 129, sub-para A, it provides that ‘[p]arties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory …’ (emphasis added), while in sub-para B, a slightly differentiated expression is found: ‘Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict …’ (emphasis added): Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol 1: Rules (Cambridge University Press 2005, revised 2009) 457–62CrossRefGoogle Scholar.
97 Obviously, in the event that the rebels successfully achieve statehood and are internationally recognised as such, the central government will be regarded as an invader or occupying power. Examples include Pakistan in 1971 vis-à-vis Bangladesh, and Serbia in the 1990s vis-à-vis Bosnia and Herzegovina or Croatia.
98 Kolb (n 36) 37.
99 Baxter, Richard R, ‘Ius in Bello Interno: The Present and Future Law’ in Moore, John Norton (ed), Law and Civil War in the Modern World (Johns Hopkins University Press 1974) 518Google Scholar, 531 (reproduced in Vagts, Detlev F and others (eds), Humanizing the Law of War: Selected Writings of Richard Baxter (Oxford University Press 2013) 271Google Scholar).
100 Sassòli (n 61) 1402–03.
101 ECtHR, Ilascu and Others v Moldova and Russia, App no 48787/99, 8 July 2004, para 392; ECtHR, Catan and Others v Moldova and Russia, App nos 43370/04, 8252/05 and 18454/06, 19 October 2012, para 150.
102 See Heijer, Maarten den, ‘Shared Responsibility before the European Court of Human Rights’ (2013) 60 Netherlands International Law Review 411Google Scholar. For a comprehensive account of state practice of shared responsibility, see Nollkaemper, André and Plakokefalos, Ilias (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017)CrossRefGoogle Scholar.
103 In particular, such a trend is marked by two ICJ cases: Legal Consequences of the Construction of a Wall (n 65) and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 168.
104 Gross, Aeyal, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge University Press 2017) 338–96CrossRefGoogle Scholar.
105 Koskenniemi, Martti, ‘Occupation and Sovereignty – Still a Useful Distinction?’ in Engsdahl, Ola and Wrange, Pål (eds), Law at War: The Law as It Was and the Law as It Should Be: Liber Amicorum Ove Bring (Brill 2008) 163Google Scholar, 169.
106 For an interesting argument relating to the validity of sovereign consent with the ability to protect its own people, based on the theory of the responsibility to protect, see Lieblich (n 60) 173–208.
107 As for the influence of Jean-Jacques Rousseau's Du Contrat Social to the development of IHL, see Draper, GIAD, ‘The Development of International Humanitarian Law’ in UNESCO (ed), International Dimensions of Humanitarian Law (Henry Dunant Institute, UNESCO, Martinus Nijhoff 1988) 67, 68–69Google Scholar.
108 Recent debates on the ‘obligation to try to capture enemy soldiers before killing’ question the validity of such a fiction in extreme cases: see Goodman, Ryan, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24 European Journal of International Law 819Google Scholar; Jens David Ohlin, ‘Recapturing the Concept of Necessity’, Cornell Legal Studies Research Paper No. 13-90, https://ssrn.com/abstract=2230486 or http://dx.doi.org/10.2139/ssrn.2230486. Similarly, debates on elements of the direct participation of civilians in hostilities have reflected the doubts of some people over another fiction about the protective reach for civilians against direct attack: see Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009)Google Scholar.
109 Dinstein (n 6) 1.
110 ibid.
111 Possibly a ‘code of conduct’, which should be included in any status of forces agreement, may function in a similar way.
112 The relationship between this ‘human-centric’ reinterpretation of the law of occupation and the issue of self-determination is not explored in this article, but the following summary remarks: ‘In many documents, foreign occupation, along with colonialism and racially discriminatory regimes, has been stigmatised as a major infringement of the people's right of self-determination. However, from a normative perspective, the schemes of belligerent occupation have developed as a safeguard for the sovereignty of the occupied state against conquest or forceful annexation by the occupant. This means that the law of occupation as such can preserve the precondition under which people in an occupied territory exercise their right to freely determine their political status, as far as, under this law, (a) sovereignty and title to an occupied territory are not vested in the occupying power, (b) the occupying power is entrusted with the management of public order and civil life in the territory under its control, and (c) occupation is temporary, and may neither be permanent nor indefinite’: Gross (n 104) 18. The reinterpretation of the law of occupation asserted in this article could be understood as an extension of such normative safeguards to deceptive practices of consensual military occupation of foreign territories, which are excluded from the protective scope by a formalistic interpretation of the law of occupation. This is, needless to say, subject to adherence to the basic tenets of the law of occupation referred to above. On the other hand, it should be recalled that, as a matter of fact, foreign military rule as such, whether consensual or coercive, could affect the people's self-determination in an adverse way. Additionally, as Gross rightly argues, seeing occupation as ‘neutral’ may actually legitimise new forms of what should be considered illegal, and this danger is almost unavoidable (ibid 20–21). Such dilemma inherent in the law of occupation applies even to the ‘humanised’ law of occupation.