The Future of the Law of Occupation
Kristen E. Boon, THE FUTURE OF THE LAW OF OCCUPATION, Canadian Yearbook of International Law, 2009
29 Pages Posted: 2 Sep 2009 Last revised: 15 Sep 2009
Date Written: June 30, 2009
The law of occupation has become the subject of great contemporary interest because of two prominent, although sui generis situations: The long term Israeli occupation of the Gaza Strip, the West Bank, and the Golan Heights, and the “transformative” occupation of Iraq. In both situations, the occupying powers resisted the label of belligerent occupier, and selectively applied the Hague Regulations of 1907 and the Geneva Conventions of 1949 to the territories in question. In Iraq, a further level of complexity arose when the Security Council used its Chapter VII powers to finesse certain aspects of the law of occupation to address circumstances particular to that intervention, prompting a volley of inquiries into the future role of the Security Council in updating, amending, and administering the law of occupation. The unique circumstances of these occupations have sparked vigorous debate over the future of the law of occupation. To wit: Is the widely accepted but largely unenforced law of occupation capable of regulating transitions between armed conflict and peace in the Twenty First Century. Although judicial decisions interpreting the Hague Regulations and the Fourth Geneva Convention are rare, some recent cases have advanced doctrinal issues behind the scenes of this larger debate about the relevance of occupation law. This essay examines recent developments in the notoriously open-textured law of occupation that have arisen as the law of occupation has been variously ignored, invoked, challenged, examined, and ultimately reformed through practice. In particular, I discuss the triggers for beginning and ending an occupation, including recent jurisprudence on the “effective control” test. I examine who can be an occupier, the question of “multiple occupiers” under unified command, and the obligations of occupiers in the areas of legislation and institutional reform. I also consider the challenges of UN involvement in transitional situations, including the applicability of the law of occupation to UN forces, and the role of the Security Council in adapting the law of occupation. I conclude with a discussion of the principle of “conservationism”, and the relationship between the law of occupation and jus post bellum, in order to provide an assessment of possible "futures" of the law of occupation.
Keywords: Law of Occupation, Security Council
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