This is a preliminary inquiry into the application to occupation law of the distinction between jus in bello (or IHL) and jus ad bellum. Under current doctrine, the two are mutually exclusive: the former applies irrespective of the “nature or origin of the armed conflict or the causes espoused by the Parties.” I argue that occupation law, although generally considered part of IHL, is intrinsically less susceptible to a strict application of the distinction.
Exploring its pedigree, meaning, and rationale, the paper notes the distinction's scant, soft Conventional expression and brief history, but also its fundamental character and the broad scope attributed to it under contemporary IHL. Although the distinction sometimes fulfill important humanitarian functions in occupied territories, occupation law—in regulating governance of territory—differs from ordinary IHL norms; this and other differences render the strict application of the distinction to occupation law, whose key norms often depend on jus ad bellum references to the “nature, origin and causes” of armed conflict, impossible.
The last part of the Paper calls for a more nuanced approach to the application of the distinction to occupation law and identifies some of its contours. Such an approach can enhance the efficacy of occupation law and facilitate fulfillment of the two different functions of occupation law: protection of individuals and the maintenance of international peace and security. The Paper concludes with preliminary observations on the roles and powers, under both jus ad bellum and jus in bello, of the Security Council with regard to occupied territories.
1 Throughout this paper, I refer only to armed conflict of an international character. For the relevance of the distinction in non-international armed conflicts, see Sassòli, Marco & Bouvier, Antoine A., How Does Law Protect in War? 108 (2nd ed. 2006); Bugnion, Francois, Jus Ad Bellum, Jus In Bello and Non-International Armed Conflicts, VI Y. B. Int'l Hum. L. 167 (2003).
2 For discussion of the justifications of the distinction, see Part II.C., infra.
3 See the brief discussion infra Part II.E.; this paper neither surveys nor relies on such critical analysis, as it focuses only the difficulty of applying distinction in situations of occupation due to the unique character of these situation and the norms regulating them.
4 This “accusation” perhaps saw its finest hour in the responses to the 1996 Nuclear Weapons Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) [hereinafter Nuclear Weapons Advisory Opinion]. See, e.g., Doswald-Beck, Louis, International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, 316 Int'l Rev. Red Cross 35, 53–54 (1997); Dinstein, Yoram, War, Aggression and Self-Defence 161–62 (4th ed. 2005); Greenwood, Christopher, Jus Ad Bellum and Jus In Bello in the Nuclear Weapons Advisory Opinion, in International Law, the International Court of Justice and Nuclear Weapons 264 (De Chazournes, Laurence Boisson & Sands, Philippe eds., 1999); Mullerson, Rein, On the Relationship Between Jus Ad Bellum and Jus In Bello in the General Assembly Advisory Opinion, in De Chazournes, Boisson & Sands, Philippe, supra, at 268; Verwey, Wil D., The International Court of Justice and the Legality of Nuclear Weapons: Some Observations, in International Law: Theory and Practice: Essays in Honour of Eric Suy, 751, 760 (Wellens, Karel C. ed., 1998). For “blurring the distinction” in the post-9/11 context, see the passages quoted from the report of the ICRC, infra note 105.
5 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, prmbl. ¶ 5, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I], quoted infra, text accompanying note 30.
6 Thus, it does not deal at all with the obvious difficulty posed by the introduction of the notion of “wars of national liberation” which the U.S., for example, considers to “inject subjectivity and politically controversial standards into the issues of the applicability of humanitarian law”; see Message from the President of the United States, U.S. Government Printing Office, 100th Congress, 1st Session, Treaty doc. 100–2, Washington D.C., 1987, ix. See also Bothe, Michael, Partsch, Karl Josef, & Solf, Waldemar A., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 33 (1982). Likewise, this Paper does not deal with the question of the (il)legality of occupation.
7 AP I, supra note 5, prmbl. ¶ 5.
8 Sassòli & Bouvier, supra note 1, at 103.
9 Kunz, Josef, Plus de lois de guerre? 41 Revue Générale de Droit International Public 22 (1934). Kolb also suggests that their use did not become widespread at first, and that “[t]he breakthrough occurred only after the Second World War, when Paul Guggenheim, another disciple of the School of Vienna, drew the terminological distinction in one of the first major international law treatises of the postwar era” (Guggenheim, Paul II, Lehrbuch des Völkerrechts 778 (1951)); Kolb, Robert, Origin of the Twin Terms Jus Ad Bellum/Jus In Bello, 320 Int'l Rev. Red Cross 553, 561 (1997).
10 Sassòli & Bouvier, supra note 1, at 106.
11 See discussion id. at 103.
12 See Harvard Research on Rights and Duties of States in Case of Aggression, Am. J. Int'l L. 33 (Supp.) 823 (1939). The Harvard Research does address the principle of equality of belligerents.
13 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].
14 See the discussion in Part II.B.1, infra.
15 International law was sharply divided between mutually exclusive “law of peace” and “law of war.”
16 Francois, F., Guerre juste, guerre d'agression et droit Internationale humanitaire, 847 Int'l Rev. Red Cross 523 (2002). All references are to the English edition of the article: Just Wars, Wars of Aggression and International Humanitarian Law, 7, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/5FLCT4/$File/bugnion%20ang%20.pdf (last visited June 22, 2008).
17 Sassòli & Bouvier, supra note 1, at 103, who also correctly point out that this is clearly reflected in the Preamble to API (supra note 5). Cf. Kennedy, David, The Dark Side of Virtue: Reassessing International Humanitarianism (2004).
18 See text accompanying infra note 133.
19 Bugnion, supra note 16, at 20.
20 Id. at 20–21. Bugnion also refers to Meyrowitz, Henri, Le Principe de L'égalité des Belligérants Devant le Droit de la Guerre 37–40 (1970).
21 See also Bugnion, supra note 16, at 21.
22 The Geneva Conventions of 12 August 1949: Commentary: the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 27 (Pictet, Jean S. ed., 1952).
23 Dinstein, supra note 4, at 159.
24 Even though it deals with many other theoretical issues underpinning the applicability of the Conventions see The Geneva Conventions of 12 August 1949: Commentary: the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 27–37 (Pictet, Jean S. ed., 1958) [hereinafter Commentary GC IV]; that isn't to say that the Commentary rules out such an interpretation.
25 Bugnion, supra note 16, at 17, argues that the prohibition against reprisals against protected persons and property (First Geneva Convention, supra note 13, art. 46; Second Geneva Convention, supra note 13, art. 47; Third Geneva Convention, supra note 13, art. 13; and Fourth Geneva Convention, supra note 13, art. 33) also confirms such interpretations.
26 Lauterpacht, Hersch, The Limits of the Operation of the Law of War, 30 Brit. Y. B. Int'l L. 206, 214–15 (1953) where the only relevant mention of the travaux préparatoires of the Conventions refers to a discussion of a Danish amendment (discussing possible POW status for civilians opposing an aggressive, hence unlawful, occupant) to an article of draft Third Geneva Convention (which was to become Article 4 of Convention III); see II. A Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, Geneva 1949: Final Record 425–27 (2005). If anything, the Danish amendment had the effect of distinguishing between resistance to aggressive and resistance to lawful occupation. Notably, the debate of the Danish amendment did not refer to draft Common Articles 1 and 2.
27 Id. Vol.II. B, at 9, 26, 27, 53, 107, 157, & 325.
28 Id. at 9, 12, 53, 54, 128, 157, & 325.
29 United States v. Wilhelm List (United Nations Military Tribunal at Nuremberg, decided Feb. 19, 1908), case available in 15 Int'l L. Rep. 632, 637 (1948) or United Nations War Commission, Law Report of Trial of War Criminals 34 (1949) [hereinafter List] was decided on February 19, 1948—a year and a half before the conclusion of the Geneva Conventions. On the relevance of List, see discussion in infra nn. 37 & 117.
30 This should be read in conjunction with the first, second and fourth paragraphs of the Preamble.
31 On Article 4, see discussion in text accompanying infra note 116. On Article 96(3) see Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 1090-1091 (Sandoz, Yves, Swinarski, Christophe, & Zimmermann, Bruno eds., 1987) [hereinafter Commentary AP I].
32 The view according to which the United Nations Charter itself supports the distinction must be mentioned here: Bugnion writes, for example:
Similarly, the United Nations Charter contains no provision modifying the conditions for the application of the law of war in relations between belligerents. Conversely, the Charter unreservedly affirms the principle of the sovereign equality of States, of which the principle of the equality of the belligerents before the law of war is one application.
Bugnion, supra note 16, at 19. These arguments may seem plausible today; it is doubtful whether they would have seemed as plausible in 1945. By contrast, the view that the international criminal law distinction between “war crimes” and the “crime of aggression” corresponds with the jus ad bellum/jus in bello distinction seems well-founded now and then: see, e.g., Kritsiotis, Dino, On the Jus Ad Bellum and Jus In Bello of Operation Enduring Freedom, 96 Am. Soc. Int'l L. Proc. 35 (2002).
33 Commentary AP I, supra note 31, at 27-28.
34 The new Third Additional Protocol does not include a restatement of the jus ad bellum/jus in bello distinction, yet it is hard to conceive of a serious claim, for example, that a perfidious use of the Red Crystal emblem is permissible based on the legitimacy of the use of force by the Party engaged in perfidy; see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of An Additional Distinctive Emblem (Protocol III) (December 8, 2005), 45 I.L.M. 555 (2006).
35 Crawford, James, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries 166 (2002). Note, for example, the broad terms of Resolution IV, Equality of Application of the Rules of the Law of War to Parties to an Armed Conflict, Sep.11, 1963, Annuire de L'institut de Droit International, Session de Bruxelles, 1963, 376 (1963):
Considering, on the one hand, that obligations whose purpose is to restrain the horrors of war and which are imposed on belligerents for humanitarian reasons by Conventions in force, by the general principles of law and by the rules of customary law, are always in force for the parties in all categories of armed conflicts and apply equally to actions undertaken by the United Nations …
See also Pastor-Ridruejo, José Antonio, On the Relationship between Ius In Bello and Ius Ad Bellum: Can A Notion of International Humanitarian Law Influence in the Determination of the Legality of the Use of Force?, in New Challenges of Humanitarian Law in Armed Conflict: Essays in Honor of Professor Juan Antonio Carrillo-Salcedo 3, 5 (Fernández-Sánchez, Pablo Antonio ed., 2005).
36 Such support is implicit, for example, in the method employed by the world court in the Nuclear Weapons Advisory Opinion, supra note 4, in which the ICJ conducted a double inquiry of legality of nuclear weapons, clarifying that in order to be lawful, a threat or use of any weapon must conform to the jus in bello and jus ad bellum alike; the Court first addressed jus ad bellum questions, see ¶¶ 37-50. Then the Court stated, in ¶ 51 “Having dealt with the Charter provisions relating to the threat or use of force, the Court will now turn to the law applicable in situations of armed conflict.” Under that framework, at ¶¶ 54-57, it sought specific rules on the permissibility of nuclear weapons and assessed the relevant “rules of humanitarian law applicable in armed conflict,” referring to treaties dating from 1899 to 1993.
37 See List, supra note 29; for treatment of the distinction in other war crimes trials see Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunals Vol. II: the Law of Armed Conflict 100et seq. (1968). See also Singapore Oil Stocks Case, 23 Int'l L. Rep. 810 (1956); N. V. De Bataafsche Petroleum Maatschappij v. The War Damage Commission, 51 Am. J. Int'l L. 808 (1957). See also Lauterpacht, supra note 26; and Dinstein, supra note 4.
38 Even if not always explicitly: see Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131 (July 9) [hereinafter Wall Advisory Opinion]; Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116 (Dec. 19) [hereinafter Armed Activities]; see also infra note 112.
39 See authorities cited supra note 37.
40 The Tribunal quoted with approval the following passage from Lauterpacht, Hersch, Oppenheim's International Law 174–75 (6th ed. 1940):
Whatever may be the cause of a war that has broken out, and whether or not the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done, and what must be done by the belligerents themselves in making war with each other …. This is so even if the declaration of war is ipso facto a violation of International Law, as when a belligerent declares war upon a neutral State for refusing passage to its troops, or when a State goes to war in patent violation of its obligations under the Covenant of the League or of the General Treaty for the Renunciation of War …. The rules of International Law apply to war from whatever cause it originates. (emphasis in the original R.G.).
Notably, the Charter of the International Military Tribunal was silent on this point.
41 The equality of belligerents has been dealt with by the authors of the Harvard Research, supra note 12; Lauterpacht, supra note 26, at 210 himself quotes earlier writers: “The law of war civilises on a fully equal footing both the legal and illegal war. It is only because it ignores that distinction that it is in the position to secure its general application”: Bluntschli, Johann Caspar, Das Modern Kreigsrecht der Zivilsierten Staaten 519 (3rd ed. 1878). What probably distinguishes Lauterpacht from earlier writers is that he identified—with usual precision of analysis and expression—the significance of developments in jus ad bellum for the application of jus in bello and the distinction itself. He propounded the rule that the causes of war are irrelevant to lawfulness of conduct in war; while prior to that, most writers focused on the narrower “equality of belligerents” rule: Lauterpacht, supra note 40.
42 Doswald-Beck, supra note 4, at 53.
43 Kalshoven, Frits, War, Laws of, in IV Encyclopedia of Public International Law 1374, 1379 (Bernhardt, Rudolf ed., 2000) discussing the equality of belligerents.
44 Meyrowitz, H., The Law of War in the Vietnamese Conflict, in III The Vietnam War and International Law 516, 517 (Falk, Richard A. ed., 1969).
45 Somer, Jonathan, Acts of Non-State Armed Groups and the Law Governing Armed Conflict, 10/21Asil Insight (August 24, 2006), available at http://www.asil.org/insights/2006/08/insights060824.html.
46 Greenwood, Christopher, The Relationship Between Ius ad Bellum and Ius in Bello, 9 Rev. Int'l Stud. 221, 225 (1983).
47 Sassòli, Marco, The Handbook of Humanitarian law in Armed Conflicts, 309 Int'l Rev. Red Cross 679 (1995) (book review).
48 Schwarzenberger, supra note 37, at 99.
49 Dinstein, supra note 4, at 157.
50 Note that under Article 38(1)(d) of the Statute of the International Court of Justice, 39 Am. J. Int'l L. Supp. 215 (1945) “judicial decisions and the teachings of the most highly qualified publicists” are considered only as “subsidiary means for the determination of rules of law.”
51 See especially Lauterpacht, supra note 26, at 206.
52 Sassòli & Bouvier, supra note 1, at 103. On the theoretical level, the application of the distinction may be challenged by the ex injuria non oritur jus maxim: Lauterpacht, supra note 26, passim; Greenwood, supra note 46, at 226; and Dinstein, supra note 4, at 157.
53 Wright, Quincy, The Outlawry of War and the Law of War, 47 Am. J. Int'l L. 365 (1953); Commentary AP I, supra note 31, at 28-29.
54 Bothe, Partsch, & Solf, supra note 6, at 32-33.
55 See, for a striking example, United Nations, Yearbook of the International Law Commission 51-53, 281 (1949).
56 See Meron, Theodor, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239, 241 (2000).
57 Greenwood, supra note 46, at 226.
58 Some point out that IHL rules are secondary to those of jus ad bellum, in that they are meant to apply only where and when the primary rules prohibiting force is violated: Sassòli & Bouvier, supra note 1, at 106. See also Commentary AP I, supra note 31, at 25-26.
59 See Lauterpacht, supra note 26, at 211.
60 “Definition of Aggression,” G.A. Res. 3314 (XXIX), U.N. GAOR 21st Sess., Supp. No. 21 U.N. Doc. A/9631 (Dec. 14, 1974).
61 Greenwood, Christopher, Historical Development and Legal Basis, in The Handbook of Humanitarian Law in Armed Conflicts 8 (Fleck, Dieter ed., 1995): “in most armed conflicts there is no authoritative determination by the Security Council of which party is the aggressor, both parties usually claim to be acting in self-defence…”; Dinstein, supra note 4, at 157-158.
62 Sassòli & Bouvier, supra note 1, at 103; Greenwood, supra note 46, at 226.
63 Lauterpacht supra note 26, at 212; Greenwood, supra note 46, at 226. See also Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations 41, 44–45 (2nd ed. 1992).
64 Greenwood, supra note 61, at 8; Lauterpacht, supra note 26, at 212.
65 Sassòli & Bouvier, supra note 1, at 103.
66 Id. at 106.
67 These are, respectively, the formulations used by Yoram Dinstein in the 2nd (1994) and 4th (2005) editions of War, Aggression and Self-Defence, supra note 4.
68 Sassòli & Bouvier, supra note 1, at 103. Consider the following statement:
International humanitarian law is, quite distinctly, the body of rules that regulates the protection of persons and conduct of hostilities once an armed conflict has occurred. Its aim is to alleviate the suffering of individuals affected by war regardless of the underlying causes—and therefore regardless of any justification—for the armed conflict. There are no “just” or “unjust” wars in terms of international humanitarian law because civilians, to name just one category of persons protected by its rules, have the right to be spared murder, torture or rape, no matter which side they happen to belong to.
Official Statement by Dr Jakob Kellenberger, President of the International Committee of the Red Cross, 58th Annual Session of the UN Commission on Human Rights, March 26 2002, reprinted in 845 Int'l Rev. Red Cross 240, 242 (2002).
69 AP I, supra note 5, prmbl. ¶ 5 (emphasis added R.G.); although the application of the distinction may equally benefit states rather than individuals.
70 Greenwood, supra note 46, at 227; see also Bugnion, supra note 16, at 16.
71 Greenwood, for example, explains the “apparently illogical rule” of equal application to aggressor and victim in that “humanitarian law is primarily intended to protect individuals rather than states, and those individuals are, in general, not responsible for any act of aggression committed by the state of which they are citizens”: (emphasis added R.G.); Greenwood, supra note 61, at 8.
72 [J]ust as the dissemination of humanitarian law contributes to the promotion of humanitarian ideals and of a spirit of peace among nations, the faithful application of such law can contribute to reestablishing peace, by limiting the effects of hostilities …. Thus there is no contradiction between expressing a desire for peace on the one hand and developing a law of armed conflicts on the other, as both actions proceed from the same “faith in fundamental human rights, in the dignity and worth of the human person.”
Commentary AP I, supra note 31, at 26; footnotes omitted.
See also Sassòli & Bouvier, supra note 1, at 340; Kalshoven, Frits & Zegveld, Liesbeth, Constraints on the Waging of War: an Introduction to International Humanitarian Law 14–15 (3rd ed. 2001).
73 Sassòli, Marco, Ius Ad Bellum and Ius In Bello—The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected In Warfare: Crucial or Outdated?, in International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein 241, 246–54 (Schmitt, Michael N. & Pejic, Jelena ed., 2007).
74 See Dinstein, supra note 4, at 156; Bugnion, supra note 16, at 18 et seq.
75 Sassòli & Bouvier, supra note 1, at 106. Another significant consequence is the exclusion of ordinary soldiers from individual criminal responsibility for violations of the jus ad bellum. Crimes against the peace apply only to persons in positions of authority.
76 Greenwood, supra note 46, at 225.
77 Bugnion, supra note 16, at 23: “This provision, which the Diplomatic Conference adopted by consensus, without debate or opposition, must be considered as the authentic interpretation of the Geneva Conventions. It is therefore binding on all the States party to the Conventions, whether or not they are bound by Protocol I.”
78 Not discussed in this article; see supra note 1, and the sources mentioned there.
79 See the discussion in text accompanying nn. 33-36. The following expression of the distinction is characteristic in that it does not limit the operation of the distinction to norms contained in Geneva Conventions or AP I:
[A] State cannot claim to be released from its obligations under international humanitarian law and refuse to apply its rules on the grounds that it is the victim of an aggression or for any other consideration deriving from the origin or nature of the conflict. To do so would be contrary to the spirit and the letter of the Geneva Conventions and Protocol I.
Bugnion, supra note 16, at 23. Francois Bugnion was at the time Director for International Law and Co-operation at the International Committee of the Red Cross, which most likely indicates at least a close similarity between his views and the ICRC position.
80 The fact of being the aggressor or the victim of aggression, of espousing a just or an unjust cause, does not absolve anyone from his obligations nor deprive anyone of the guarantees laid down by humanitarian law, even though it may be relevant and have an effect in other fields of international law.
Commentary AP I, supra note 31, at 29 (emphasis added R.G.); note the shift from protection of individuals to general IHL obligations. Likewise, Bugnion, supra note 16, at 26 concludes:
Thus, State practice corresponds to the conclusions of scholarly analysis: a belligerent cannot assert that it is freed from the obligations stemming from the laws and customs of war, and humanitarian law in particular, on the grounds that it is the victim of an aggression or that it is defending a just cause.
81 Sassòli & Bouvier, supra note 1, at 103.
82 According to the Commentary AP I, supra note 31, at 28, no jus ad bellum norm can set aside or nullify any norm of jus in bello and vice versa. AP I, supra note 5, prmbl. ¶ 4 speaks of a: “conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations.”
83 Likewise, norms of the one legal regime cannot affect the applicability of norms of the other: “IHL applies whenever there is de facto an armed conflict, however that conflict can be qualified under ius ad bellum”: Sassòli & Bouvier, supra note 1, at 103.
84 In particular, jus ad bellum considerations cannot justify a failure to comply with IHL norms, and compliance with one regime does not absolve from compliance with the other. According to Bothe, Partsch, & Solf, supra note 6, at 33: “The Geneva Conventions and the Protocol … are equally valid for both aggressor and aggressed without asking for what reasons or on the basis of what motives one or the other is acting. This restatement of the “neutrality” of humanitarian law is important for the interpretation of the Protocol…”
85 Thus, jus in bello must never be interpreted by reference to jus ad bellum. See Sassòli & Bouvier, supra note 1, at 103.
86 The complete separation does not mean the absence of any interaction between the two legal regimes. Sassòli & Bouvier, supra note 1, at 103-04 for example note that in the drafting of IHL norms, note should be taken that they do not render efficient self-defence impossible. Conversely, jus ad bellum may not render the application of IHL impossible.
87 Bothe, Partsch, & Solf, supra note 6, as cited supra note 84. Neutrality in this context seems to refer to the total separation paradigm—i.e. that any jus ad bellum norm or consideration, together with the nature, origin or causes of war and the context of use of force are simply entirely irrelevant to the application—and interpretation —of IHL norms. See Sassòli & Bouvier, supra note 1, at 103 et seq.
88 Consider the following treatment of the preamble, AP I, supra note 5: “[t]his provision confirms the autonomy of humanitarian law in relation to jus ad bellum,” supra note 5; Bugnion, supra note 16, at 22.
89 Sassòli, Marco, Article 43 of The Hague Regulations and Peace Operations In The Twenty-First Century 10 (2004) warns of making the end of application of IHL dependant on legitimacy criteria, which blurs the distinction between jus ad bellum and jus in bello. See text cited infra note 179.
90 See discussion in supra, Part II.C. 1. The method of the jus in bello discipline employed by many IHL practitioners applies the law, due to a broad reading of the distinction, independently of the causes of conflict, its nature or origins—or its end results: “International humanitarian law is applicable whenever a situation of violence reaches the level of armed conflict. The underlying causes of the armed conflict have no bearing on the application of IHL”: ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 28th International Conference of the Red Cross and Red Crescent, Geneva, Dec. 2003, reproduced in Int'l Rev. Red Cross 853 213, 217 (2004) [hereinafter Contemporary Challenges]
91 Partsch, K.J., Humanitarian Law and Armed Conflict, in II Encyclopedia of Public International Law 933, 934 (Berhhardt, R. ed., 1995). Note, for example, that OCHA—the United Nations Office for the Coordination of Humanitarian Affairs—was not established until late 1991, and that its mandate was expanded to include humanitarian advocacy only in 1998.
92 Enterprises like the Teheran process led G.I.A.D. Draper to admonish that:
[t]he attempt to confuse the two regimes of law [IHL and International Human Rights Law] is insupportable in theory and inadequate in practice. The two regimes are not only distinct but are diametrically opposed. The confusion between the two was a heresy of the UN, brought about by political forces which achieved their purpose by the inclusion of struggles for self-determination within the law applicable to international armed conflicts:
Draper, G.I.A.D., Humanitarian Law and Human Rights, Acta Juridica 193, 205 (1979).
93 International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence, Address by Kellenberger, Jakob, President of the International Committee of the Red Cross, 27th Annual Round Table on Current Problems of International Humanitarian Law, Sept. 4, 2003, International Institute of Humanitarian Law, San Remo, reprinted in 851 Int'l Rev. Red Cross 645 (2003).
94 Sassòli, supra note 89, at 11.
95 The observations in this section stem from professional experience and impressions rather than empirical evidence or scholarly analysis. The literature does occasionally echo such components of disciplinary or institutional cultures. Consider, for example, the following statement:
IHL lawyers also apparently “fear that the politicization associated with human rights work will compromise the neutral and purely humanitarian nature of their work.” The alleged inability of IHRL to keep separate the jus ad bellum and the jus in bello is yet another concern offered by practitioners of IHL (footnotes omitted).
Cassimatis, Anthony E., International Humanitarian Law, Human Rights Law, and Fragmentation of International Law, 56 Int'l & Comp. L.Q. 623, 629 (2007). This also works conversely: Schabas, William S., Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Ius Ad Bellum, 40 Isr. L. Rev. 592 (2007):
Human rights law, on the other hand … views war itself as a violation. There is a human right to peace. Because of this fundamental incompatibility of perspective with regard to jus ad bellum, human rights law and international humanitarian law can only be reconciled … if human rights law abandons the right to peace and develops an indifference to the jus ad bellum … it is preferable not to attempt to find a neat and seamless relationship between international humanitarian law and international human rights law, in the interests of preserving the pacifist strain within international human rights law.
96 I use this phrase here in a sense reminiscent, though not entirely identical, to that used by Simma; see Simma, Bruno, Self-Contained Regimes, 16 Neth. Y.B. In'l L. 112 (1985); Simma, Bruno & Pulkowski, Dirk, Of Planets and the Universe: Self-Contained Regimes in International Law, 17 Euro. J. Int'l L. 483.
97 See discussion in Bugnion, supra note 16.
98 Thus, it has been argued that making wars more humane erodes the principle in Article 2(4) of the Charter but may also make wars tolerable, indecisive, and prolonged: McCoubrey, Hilaire, International Humanitarian Law: Modern Developments in the Limitation of Warfare 2 (2nd ed. 1998); or that too strict separation reduces the efficiency of jus ad bellum in addressing egregious violations jus in bello. The American Society of International Law 2006 Annual Meeting agenda included a session dedicated to “The Relationship Between Jus Ad Bellum and Jus In Bello: Past, Present, Future”; the agenda accepted that the separation of jus ad bellum and jus in bello was true “in theory” and asserted that “it is questionable whether there should now be a new normative dispensation, so that egregious violations of the one (jus in bello) could be regarded as the trigger for modern rights under the jus ad bellum.…”: 100th Annual Meeting Program, Am. Soc. Int'l L. Proc. 465 (2006). The Minutes of that Panel are reproduced id. 109-23.
99 Greenwood, supra note 46, at 221; McCoubrey, supra note 98, at 2.
100 Greenwood, Christopher, Self-Defence and the Conduct of International Armed Conflict, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 273 (Dinstein, Y. ed. 1989) discussing, for example, similarities between the proportionality requirements under jus in bello and jus ad bellum.
101 Gardam, Judith, Necessity, Proportionality and the Use of Force by States 16–17 (2004), discusses the humanitarian potential of the jus ad bellum proportionality requirement; Pastor-Ridruejo, supra note 35, at 7-10, 12 (potential relevance of the criteria for distinguishing between military objectives and civilian objects); Wedgwood, Ruth, Propositions on the Law of War after the Kosovo Campaign: Jus Ad Bellum and the Personal Factor in Histoty, 78 U.S. Naval War Coll. Int'l L. Ser. 435 (2003) (the merits of a war affect tolerance for methods of warfighting, relevant to the metric for “military advantage” in judging proportionality).
102 Greenwood, supra note 100, at 282 argues that ‘the legality of the occupation itself depends upon whether the initial seizure of the territory can be regarded as a necessary and proportionate measure of self-defence” but also that, moreover, “only where the threat to the State is great and cannot adequately be resisted without the occupation of part of the aggressor's territory will occupation be lawful. Similarly, the continuation of an occupation after the threat has disappeared cannot be justified as legitimate self-defence.” He also argues that jus ad bellum may limit the conduct of an occupying power. This argument is echoed in Ben-Naftali, Orna, Gross, Aeyal M., & Michaeli, Keren, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 Berkley J. Int'l L. 551, 612 (2005), arguing that failure to meet fundamental obligations may divest an occupying power of jus in bello rights inherent in that status.
103 See, e.g., Mohamedou, Mohammad-Mahmoud Ould, Non-Linearity of Engagement: Transnational Armed Groups, International Law, and the Conflict Between Al Qaeda and the United States 23 (2005).
104 See discussion in Sassòli, supra note 89, at 18.
105 See, e.g., Ratner, Steven R., Revising the Geneva Conventions to Regulate Force by and against Terrorists: Four Fallacies, 1 I.D.F. L. Rev. 7 (2003). Consider also the following statement by the ICRC:
The events of September 11th 2001 in the United States have, in some quarters, affected perceptions of what constitutes war in the legal sense … States' responses to acts of transnational terrorism have, at the same time, given rise to two trends that deserve to be briefly mentioned here: …
1) to a blurring of the distinction between ius ad bellum (international rules governing the right to employ force) and ius in bello (IHL, international rules governing the way in which armed conflict is waged): …
2) International humanitarian law is applicable whenever a situation of violence reaches the level of armed conflict. The underlying causes of the armed conflict have no bearing on the application of IHL. However, alongside with a reexamination of established tenets of ius ad bellum, there seems also to be a questioning of the basic principle that whenever armed conflict does occur, it is governed by IHL (ius in bello). Invocation of the justness of the resort to armed force, particularly in the “war against terrorism,” has not infrequently served as a justification for denying the applicability of the full range of international humanitarian law norms in situations where that body of rules was undoubtedly applicable[.]
Contemporary Challenges, supra note 90, at 217 et seq.
106 In addition, it has been argued that the distinction cannot be sustained on a moral, but rather purely on a pragmatic ground. See McMahan, Jeff, Morality. Law, and the Relation between Jus Ad Bellum and Jus In Bello, 100 Am. Soc. Int'l L. Proc. 112, 114 (2006).
107 AP I, supra note 5, prmbl. ¶ 5.
108 Sabel, Robbie, The Problematic Fourth Geneva Convention: Rethinking the International Law of Occupation, Jurist Forum (July 16, 2003), available at http://jurist.law.pitt.edu: “[n]o distinction is made between legal and illegal occupation; international humanitarian law applies equally to the godly and to the sinners.” Compare, however, O'Connell, Mary Ellen, The Occupation of Iraq: What International Law Requires Now, Jurist Forum (Apr. 17, 2003), available at http://jurist.law.pitt.edu: “the United Nations can legitimately administer Iraq, not the representatives of an unlawful occupying power.”
109 Convention Respecting the Laws and Customs of War on Land (Hague, IV), Oct. 18, 1907, 36 Stat. 2277, 2306, 205 Consol. T.S. 277, 295 [hereinafter Hague Regulations].
110 For example, Common Article 2 of the Geneva Conventions defines occupation as one of two situations in which these conventions apply; AP I, supra note 5, art. 1 extends this definition.
111 See the Wall Advisory Opinion, supra note 38.
112 Armed Activities, supra note 38, ¶ 173: “In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an “occupying Power” in the meaning of the term as understood in the jus in bello…”.
113 Articles 2, 3 of the Project of an International Declaration Concerning the Laws and Customs of War, Brussels, Aug. 27, 1874, reprinted in Schindler, Dietrich & Toman, Jiri, The Laws of Armed Conflicts: a Collection of Conventions, Resolutions and Other Documents 55 (4th ed., 2004), and in Schwenk, Edmund, Legislative Power of the Military Occupant Under Article 43, Hague Regulations 54 Yale L. J. 393 (1944–1945). See also The Hague Peace Conventions and Declarations of 1899 And 1907 (Scott, James B. ed., 3rd ed. 1918).
114 Covenant of the League of Nations, Versailles, June 28, 1919, in force Jan. 10, 1920, 112 B.F.S.P. 13.
115 General Pact for the Renunciation of War, Paris, Aug. 27, 1928, 22 Am. J. Int'l L. Supp. 171 (1928).
116 AP I, supra note 5, art. 4 provides:
The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.
Prima facie, this provision deals with the legal status of Parties to a conflict and of occupied territories which is not affected by the application of IHL or, in the case of such territory, also by its occupation. As discussed in Part II.D, infra, this is one of the specific consequences of the separation of jus in bello from jus ad bellum: the application of one regime does not affect rights, obligations and legal position under the other. Article 4 was applied by the Eritrea-Ethiopia Claims Commission to hold Eritrea in occupation of an area subsequently held by the Boundary Commission to be within Eritrean territory:
under customary international humanitarian law, damage unlawfully caused by one Party to an international armed conflict to persons or property within territory that was peacefully administered by the other Party to that conflict prior to the outbreak of the conflict is damage for which the Party causing the damage should be responsible, and that such responsibility is not affected by where the boundary between them may subsequently be determined to be[.]
Partial Award, Central Front, Ethiopia's Claim 2, (Ethiopia v. Eritrea) §§ 27-28 (Eritrea-Ethiopia Claims Commission, 28 April 2004), available at http://www.pca-cpa.org/.
117 List, supra note 29, at 637.
118 Armed Activities, supra note 38, at 361-62 (Separate Opinion of Judge Kooijmans) (emphasis in the original R.G.). The Court, though not as elaborate as Judge Kooijmans, would probably have adopted this formulation: see ¶ 173 of the Judgement, cited supra note 112, and the dispositive, ¶ 345.
119 Article 47, Fourth Geneva Convention. Thus, the argument that the legality of Israel's 1967 actions jus ad bellum entitled it to annex the West Bank or even gave it “better title” was properly rejected: see Schwebel, Stephen M., What Weights to Conquest?, 64 Am. J. Int'l L. 344 (1970); Blum, Yehuda Z., The Juridical Status of Jerusalem 20–21 (1974).
120 Supra Part II.C.
121 Supra Part III.A.
122 Rather, as Benvenisti points out, they were concerned with preserving a particular European political order and protection of elite interests: Benvenisti, Eyal, The International Law of Occupation 24–29 (2nd ed. 2004).
123 Bhuta, Nehal, The Antinomies of Transformative Occupation, 16 Eur. J. Int'l L. 721, 724 (2005). See also Korman, Sharon, The Right of Conquest: the Acquisition of Territory by Force in International Law 8–9 (1996).
124 Andō, Nisuke, Surrender, Occupation and Private Property in International Law 35 (1991).
125 Kussbach, Erich, Conquest, in I Encyclopedia of Public International Law 756, 757 (Bernhardt, R. ed., 1992).
126 Bhuta, supra note 123, at 730.
127 Commentary GC IV, supra note 24, at 273-75.
128 Kussbach, supra note 125, at 757-58.
129 See S.C. Res. 242, U.N. Doc. S/RES/242 (Nov. 22, 1967); Declaration of the Principles of International Law Concerning Peaceful Relations and Cooperation Among States in Accordance with the Charter of the United Nations, Annex to G.A. Res.2625, U.N. GAOR, 25th Sess., Supp. 28, 121, U.N. Doc. A/8028 1970); Res. 3314, supra note 60, art. 3(a).
130 Commentary GC IV, supra note 24, at 275. Article 47 is said to be “of an essentially humanitarian character; its object is to safeguard human beings and not to protect the political institutions and government machinery of the State as such”: (emphasis added) id. at 274.
131 The Commentary to Article 47 explains the rule on annexation in terms not of the prohibition to use force but rather, in the jus in bello notion of occupation: “the occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied Power of neither its Statehood nor its sovereignty; it merely interferes with its power to exercise its rights”; Commentary GC IV, supra note 24, at 275. This concept is implicit in Article 4, AP I, which provides that the mere “occupation of a territory…shall [not] affect the legal status of the territory in question,” see supra note 5.
132 On Article 47, a prominent IHL commentator writes, for example: “This provision is sometimes misunderstood as prohibiting such changes. Such prohibition is, however, an issue of jus ad bellum. Jus in bello simply continues to apply despite such changes and such changes do not justify violations of its provisions—including those on the admissibility of legislative changes”; Sassòli, supra note 89, at 9. This ignores both the jus in bello origin and function of the rule.
133 According to the Commentary on Article 4, API:
Everyone recognized this principle as an uncontested principle of international law which was, moreover, underlying both the Hague Regulations and the fourth Convention. Nowadays it follows from the inadmissibility of the use of force, as laid down in the Charter of the United Nations, and elaborated in the Declaration on Principles of International Law concerning friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (Resolution 2625 (XXV) of the United Nations General Assembly) (emphasis added R.G.).
Commentary API, supra note 31, at 73-74. Note the contrast of the two emphasised words: if only nowadays the principle follows from Article 2(4), than it cannot be said to be merely underlying the Hague Regulations and the Fourth Geneva Convention: it must be, for all intents and purposes, part of both.
134 Schwarzenberger, supra note 37, at 167-69. The indeterminacy of designating the aggressor explains why all belligerents should be denied lawful annexation; moreover, occupation by the victim may exceed what is necessary and proportional under the self-defence doctrine. The equal application of the rule against annexation can also be explained in terms of self-determination of the civilian population.
135 On the relations of occupation law and self-determination, see Benvenisti, supra note 122, at 97, 173-81, 183-87.
136 Fourth Geneva Convention, supra note 13, arts. 27 & 47 respectively.
137 Cyprus provides an interesting example. Note the circumspection of the Security Council in keeping the door ajar for future flexibility in the text of, for example, its S.C. Res. 397, U.N. Doc. S/RES/367 (Mar. 12, 1975); unlike the General Assembly, the Security Council has not addressed the Cyprus situation in terms of occupation. Cf. G.A. Res. 37/253, U.N. Doc. A/RES/37/253 (May 13, 1983).
138 See discussion of the rationale of the concept of “military occupation” in Roberts, Adam, What is Military Occupation?, 55 Brit. Y.B. Int'l L. 249, 299–301 (1984). See also Roberts, Adam, Prolonged Military Occupation: the Israeli-Occupied Territories since 1967, 84 Am. J. Int'l L. 44 (1990).
139 These goals may include, for example, regime change, territorial aggrandizement, restoration of boundaries or a regional status quo, the demilitarization of the enemy, averting humanitarian catastrophe, dissemination of ideology, attaining regional dominance, compelling the enemy to take a particular course of action or the enforcement of legal rights (a self-help measure in a decentralized international system. The occupation of enemy territory is a means to this end—whatever its efficacy).
140 Benvenisti, supra note 122, at 145-46.
141 Namely, humanitarian protection of the civilian population balanced against legitimate security needs of the occupying power in the occupied territory—narrowly defined.
142 For a very useful account, see Benvenisti, supra note 122, at 149-50. That is not to suggest that the causes of war are entirely irrelevant to the conduct of belligerents under other IHL rules; rather, I argue that such relevance, on the available historical record, typifies occupation situations.
143 See Sassòli & Bouvier, supra note 1, at 338-40.
144 Vienna Convention on the Law of Treaties, art. 60, 1155 U.N.T.S. 331; de Preux, Jean, The Geneva Conventions and Reciprocity, 244 Int'l Rev. Red Cross 25 (1985).
145 This is not necessarily the case, though, with regard to civilian objects, as attested to by the ongoing debate on—and on going practice of—targeting civilian, dual-use infrastructure.
146 Benvenisti, supra note 122, at 103.
147 See discussion of the attitude of Belgium, id. at 12-13.
148 Accordingly, some writers contend that jus ad bellum is addressed to statesmen and jus in bello to military officers: Kennedy, supra note 17, at 242. Others consider that “[t]he ius ad bellum is addressed to the leaders of a state, its policy makers both civilian and military. The application of the ius in bello is far wider. It imposes obligations not only upon the senior officers of a state's armed and the members of its government but upon all servicemen, whatever their rank, and, indeed, upon the entire civilian population”; Greenwood, supra note 46, at 231. Nonetheless, compliance with a considerable amount of IHL norms requires more the training of soldiers and less sensitisation of the civilian leadership.
149 Declaration Renouncing the Use, in Time of War of Explosive Projectiles Under 400 Grammes Weight, St. Petersburg, 11 December 1868, 1 Am. J. Int'l L. Supp. 95–96 (1907): “[T]he only legitimate object which the States should endeavour to accomplish during war is to weaken the military forces of the enemy”.
150 See the discussion in Part III.E., infra.
151 Rules on governance provide a normative framework for the administration of occupied territories. First and foremost, based on the transient, factual nature of occupation, they require the occupying power to administer the territory it occupies. Though quite silent on form and institutions of the administration, they provide a set of explicit and implicit substantive directives on administration. For example, they prescribe lawful purposes for actions, decisions, and policies by the occupying power and proscribe other, unlawful purposes. They impose several strict prohibitions, a number of positive or “commission” obligations and delineate the administrative discretion of the occupying power and its agents. Under the heading of governance, applicable rules regulate a broad range of topics. In many important respects, and subject to certain limitations, the occupying power is expected to de facto fulfil the role of government.
152 Although Article 64, Fourth Geneva Convention provides that the occupying power may enact provisions “essential to enable the Occupying Power to fulfill its obligations under the present Convention” (emphasis added R.G.), the accepted view today is that this principle “must be extended to all applicable IHL, since IHL cannot possibly require specific conduct from an occupying power and also prohibit it to legislate for that purpose”; Sassòli, supra note 89, at 12.
153 It is increasingly recognized that an occupying power is obliged to enact provisions necessary to enable it to meet its international human rights obligations. See Roberts, Adam, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 Am. J. Int'l L. 580, 588 (2006); Sassòli, supra note 89, at 12 et seq.
154 Such as removing “provisions which adversely affect racial or religious minorities”: Commentary GC IV, supra note 24, at 335.
155 That is, an occupying power using force in self-defence or under Security Council authorization.
156 These examples based on the four “D”s of U.S. occupation policies in Japan and Germany, and are based on the four “D”s: in the case of Japan, demilitarization, disarmament, decentralization of the economy (destruction of economic groups) and democratization. In the case of Germany, they included demilitarization, denatzification, de-industrialization, and democratization. See, e.g., Andō, supra note 124, passim.
157 AP I, supra note 5, art. 52. See, e.g., ICTY, Final Report to the Prosecutor by the Committee Established to Review the Nato Bombing Campaign against the Federal Republic of Yugoslavia ¶ 55, 75 & 76 (June 8, 2000), available at http://www.un.org/icty/pressreal/nato061300.htm; or the discussion of civilian communication and economic infrastructure during the 2006 Israeli-Lebanon War: Amnesty International, Israel/Lebanon: Deliberate Destruction or ‘Collateral Damage’? Israeli Attacks on Civilian Infrastructure, MDE 18/007/2006 (Aug. 23, 2006), available at http://web.amnesty.org/library/Index/ENGMDE180072006?open“Revolutionary warfare also brought with it the phenomenon of the ‘nation-in-arms’, in which the total human resources of a territory were potentially mobilized in the name of patriotic duty”: Bhuta, supra note 123, at 730.
The law of belligerent occupation did not fare well in an epoch of total war. Mechanized aerial warfare, and the full engagement of a state's economy and society in the war effort made the distinctions between “private property” and appropriate military objects unsustainable. The work and wealth of ‘private’ economic actors were indispensable to war production, and victory over another state that had placed its entire economy and society on a war-footing implied not just the defeat of its armed forces, but the debilitation of the state's institutional and economic capacities. Even if the occupying state did not expressly aim to overthrow the enemy's social order, it was hard to imagine that the order would survive the measures necessary to bring about defeat.
159 Rona, Gabor, Interesting Times for International Humanitarian Law: Challenges from the ‘War on Terror,’ 27 Fletcher Forum of World Aff. 55, 67–68 (2003).
160 This is illustrated by the present Israeli plan to limit energy supplies to the Gaza Strip in response to the launching of rockets into Israeli territory. Consider, for example, a statement by an Israeli official: “‘We are sending a very clear signal to the Palestinians in Gaza that they had better start making their own arrangements’” to look after their needs, he said, adding that the pressure might ‘move Hamas’ from its current position of refusing to recognize Israel.” See Kershner, Isabel, Israel Restricts Gaza Crossing as Firing Persists, N.Y. Times, Oct. 29, 2007, available at http://www.nytimes.com/2007/10/29/world/middleeast/29mideast.html. See also Mualem, Mazal, Ministers Slam AG for Prohibiting Punitive Power Cuts to Gaza, Haaretz, Nov. 11, 2007, available at http://www.haaretz.com/hasen/spages/922720.html. In response to a High Court of Justice petition challenging the legality of the government plan, the State argued:
As to the reduction of fuel and diesel to the Gaza Strip, [the State] argues that there is no legal or other bar to taking such action by Israel. The State of Israel is in an armed conflict vis-à-vis the terrorist authority controlling the Gaza Strip, which continues for months now a criminal and indiscriminate attack against the civilian population in Israel. In these circumstances, and as long as the State strictly adheres to its obligation not to cause a humanitarian crisis in the Gaza Strip…
The same document also acknowledges that the principal aim of the reduction of supplies is “to apply pressure on the Hamas rule in order to influence it to reduce the scope of hostile activities against Israel from the [Gaza] Strip.… The terrorist authority in Gaza breaches almost any international law possible, whether vis-à-vis the citizens of the State of Israel or vis-à-vis its own ‘subjects.’”
Preliminary Response By The Respondents For Application And Petition For Order Nisi, HCJ 9132/07 Gaber Al-Bassiouni v. The Prime Minister [given Nov. 1, 2007] (unpublished) (unofficial translation R.G.). It should be noted that the State argued that its policy is lawful whether or not the Gaza Strip is occupied.
161 API, supra note 5, art. 51(3); see the ICRC, Summary Reports of the First, Second and Third Expert Meetings on the Notion of Direct Participation in Hostilities (2003), (2004), & (2005) respectively, available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/participation-hostilities-ihl-311205.
162 The occupied population also “normally” views the occupant with enmity. Unless and as long as the population considers the foreign forces as liberators—due to ethnic, political or religious affinity, or simply due to promises made or implicit in change of mastery—the occupied population considers the occupant a usurper of public authority and the occupation unjust, the obstacle to its free exercise of internal, sometimes external, self-determination. It distrusts, often with good reason, the occupying power, its policies and practices; the population views these as products of the occupant's political agenda—i.e., the causes it attributes to the occupant—and shapes its own strategies along tragically parallel lines of reasoning. In law and policy, both the occupant and occupied speak the jus in bello to justify their actions and attitudes jus ad bello—and the reverse, too.
163 AP I, supra note 5, prmbl. ¶ 5.
164 See the discussion in Roberts, supra note 138, at 249–51 et seq.
165 See, e.g., Press Release, Statement by the ICRC, Conference of High Contracting Parties to the Fourth Geneva Convention (Dec. 5, 2001), reprinted in 847 Int'l Rev. Red Cross 692 (2002) also available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/57JRGW?OpenDocument:
2. In accordance with a number of resolutions adopted by the United Nations General Assembly and Security Council and by the International Conference of the Red Cross and Red Crescent, which reflect the view of the international community, the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem… (emphasis added R.G.).
166 Article 43, Hague Regulations (emphasis added R.G.) demonstrates my point exactly.
167 Thus, the 1967 Israeli occupation of the West Bank from the Hashemite Kingdom of Jordan and of the Gaza Strip from Egypt is properly considered as occupation, despite the non-recognition of Hashemite claims or the absence of Egyptian claims to title. See Benvenisti, supra note 122, at 108–12.
168 Thus, an assessment of whether the presence of Argentinean or British forces on the Malvinas/Falklands during the conflict amounted to occupation required an assessment of title over the disputed islands. See generally The Falklands War: Lessons for Strategy, Diplomacy, and International Law (1985); Beck, Peter, The Falkland Islands as an International Problem (Coll, Alberto R. & Arend, Anthony C. eds., 1988).
169 It may well be argued that violations of the jus ad bellum typically trigger the applicability of IHL (see, e.g., supra Part II.E.) so that there is nothing special in a jus ad bellum analysis in the qualification of territory as occupied. Several counter-arguments come to mind. Firstly, while true, this is still not explained by the total separation paradigm. Secondly, what triggers IHL in general is the fact of use of force, not necessarily a violation of jus ad bellum: enforcement action can be authorized against a state to remedy an internal situation that has nothing to do with jus ad bellum. Thirdly and more importantly, in the case of qualification of occupation situations, an analysis of a broader set of jus ad bellum consideration may be required, as demonstrated below, in order to determine whether a subset of IHL norms—the law of occupation—comes into play.
170 Roberts, supra note 138, at 276–77.
171 Armed Activities, supra note 38, at 291–92.
172 See Commentary GC IV supra note 24, at 272–76; Gerson, Allen, War, Conquered Territory, and Military Occupation in the Contemporary International Legal System, 18 Harv. Int'l L. J. 525, 539 (1977) proposes a “rebuttable presumption” that reform by the occupant is unlawful, pending proof that it is necessary and justified.
173 Or, if no agreement is involved, analogous rules on the formation of other international obligations.
174 AP I, supra note 5, prmbl. ¶ 5.
175 There the ICJ found that “in customary international law… there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack. The Court considers that the requirement of a request by the State which is the victim of the alleged attack is additional to the requirement that such State should have declared itself to have been attacked.” Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, Judgment, 1986 I.C.J. 14, 100-101 (June 27).
176 Armed Activities, supra note 38, at 291-92: The Court ruled that a series of multilateral and bilateral agreements on cessation of hostilities or regulating the withdrawal of Ugandan forces from the Democratic Republic of Congo prospectively or retroactively did not authorize the presence of Ugandan troops on DRC territory. The Court reached this conclusion based on the terms of the agreements (i.e., treaty interpretation) and on the jus ad bellum rule on the effects of cease-fire agreements. It dealt with the “Issue of consent” in ¶¶ 42-54 as a preliminary, not under the title “The issue of belligerent occupation” (¶¶ 167-80, at 309-11); however, it seems that had its findings on the question of consent been positive, the Court would not have found occupation rules applicable.
177 A claim of invalidity by analogy to Article 52, 1969 Vienna Convention on the Law of Treaties, supra note 144, leads to the same conclusion (“A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations”); such a claim is based on a breach of Article 2(4).
178 A case in point is, of course Security Council Resolution 1546 on Iraq: see S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004).
179 Sassòli questions:
when the devolution of governmental authority to a national government is effective enough to end the applicability of IHL on belligerent occupation altogether. Many would make that end depend on the (democratic) legitimacy of a new national government, given that, taking into account the right of the local people to self-determination, a democratic election cannot be considered as a change introduced by the occupying power, even if it was held under the latter's initiative and supervision. That democratically elected government could then end the occupation, even though troops of the former occupying power remain present on the territory of the state, by freely agreeing to their presence. The main problem with this line of argument is that the legitimacy of the new government is often controversial (as is the question of whether the new government's consent to the continued presence of foreign troops is freely given). International Human Rights Law provides only insufficient indications of such legitimacy, through the right to self-determination, political rights and the rights of minorities. International recognition of such legitimacy, in particular by the UN Security Council, may offer a clearer indication. However, it is precarious to make the (end of) application of IHL dependant on criteria of legitimacy, as this blurs the distinction between jus ad bellum and jus in bello[.]
Sassòli, supra note 89, at 11 (footnotes omitted). In n.51, he adds that “[t]his appears to be the ICRC position, which requalified the conflict in Afghanistan into non international armed conflict once the Karzai government was elected by the Loya Jirga,” which he deduces from Roberts, Adam, The Laws of War in the War on Terror, 32 Isr. Y.B. Hum. Rts. 193 (2002).
180 See Benvenisti, supra note 122, at 15-16, 213-14; Lauterpacht, H., The Problem of the Revision of the Laws of War, 29 Brit. Y.B. Int'l L. 360, 381 (1952–1953); Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 58–68 (2002).
181 “[I]t is regretted that Article 43 does not offer a fixed criterion to determine which changes are lawful”: Sassòli, supra note 89, at 12. Different publicists have proposed a number of tests to assess the permissibility of change and whether it is motivated by the benefit of the population; none of the proposals seems to solve the dilemma satisfactorily. See, e.g., Benvenisti, supra note 122, 15-16, 213-14; and Dinstein, Yoram, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding 9 (2004).
182 McNair, Arnold D. & Watts, Arthur D., The Legal Effects of War 369 (1966) list three grounds on which the occupying power may be “absolutely prevented” from respecting local law: the maintenance of order; the safety of the occupant; and the realization of the “legitimate purpose” of the occupation. This seems more like an attempt to solve the puzzling question of the compatibility of Allied policies in occupied Nazi Germany and Japan with the Hague Regulations than a genuine rule of law. For one thing, this opens up again the question of legitimacy. Secondly, in the occupant's view, the “legitimate purpose” of the occupation will invariably deviate from what the Hague Regulations permit.
183 If we accept that the Hague Regulations did apply to the Germany and Japan, any plausible legal justification to the complete transformations carried out by Allies in these countries will refer, necessarily, to the causes of the conflict and to moral, political or normative legitimacy.
184 Roberts, supra note 153.
185 Roberts, supra note 138, at 49-51; Benvenisti, supra note 122, at 149-50.
186 “In fact, the ‘prevented’ mentioned in the last part of article 43 is not “absolute” at all. The question is one of priorities and of the facility of achieving the goals set out in the first part of the article, namely ‘ensuring civil life’” see HCJ 202/81 Tabeeb v. The Minister of Defence  IsrSC 36(2) 622, 632, for an English summary see 13 Isr. Y.B. Hum. Rts. 364 (1983). Kretzmer, supra note 180, at 63 notes: “Subordinating limitations on law-changing power to the duty to ensure public order and civil life means first and foremost that those limitations are relaxed … the Court's interpretation has stripped the restrictions on legislative changes of any significant meaning.” At 64, he adds: “There has generally been a strong connection between steps taken by the military and the political agenda of the Government of Israel, in whose name the military commanders are acting.” See id. at 64-72 for cases demonstrating this characterization.
187 Kretzmer, supra note 180, at 67-68.
188 “[T]he risk of abuse of a broader interpretation should not be neglected, as it is the occupying power that decides whether a legislative act is necessary, and its interpretation is not subject to revision during the occupation”; Sassòli, supra note 89, at 12.
189 See Benvenisti, supra note 122, at 216.
191 Evans, Gareth J. & Sahnoun, Mohamed, The Responsibility to Protect Report of the International Commission on Intervention and State Sovereignty ¶ 6.6 (2001). Benvenisti seems to endorse this view on the role of the Security Council in relation to occupation. See Benvenisti, Eyal, The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective, 1 I.D.F. L. Rev. 19 (2003).
192 U.N. Charter, art. 39.
193 U.N. Charter, art. 24.
194 See G.A. Res. 49/43, U.N. Doc. A/RES/49/43 (Feb. 9, 1995): “the ongoing situation in the Serbian-controlled parts of Croatia is de facto allowing and promoting a state of occupation of parts of the sovereign Croatian territory, and thus seriously jeopardizing the sovereignty and territorial integrity of the Republic of Croatia.”
195 On the dispositive power of the Security Council, see Crawford, James, The Creation of States in International Law 549–64 (2nd ed. 2006); Brown, Bartram S., Human Rights, Sovereignty, and the Final Status of Kosovo, 80 Chi.- Kent. L. Rev. 235 (2005); but cf. to the dissent of Judge Fitzmaurice in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, at §§ 10, 115 (June 21).
196 On S.C. Res. 1483 on Iraq, see Benvenisti, supra note 191. See also S.C. Res. 1546, U.N. Doc.S/RES/1546 (June 8, 2004): “2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty.”
* Currently writing a doctoral dissertation on the law of occupation at the University of Michigan Law School, under the supervision of Prof. Steven Ratner. Comments welcome: firstname.lastname@example.org. I wish to thank Prof. Ratner as well as Prof. Dino Kritsiotis for their invaluable comments on an early draft. Any error is mine alone. At the time this Article was presented, the author served as Senior Legal and Policy Adviser to the International Committee of the Red Cross (ICRC) Delegation in the Israel, the Occupied and Autonomous Territories. The views expressed in the presentation and in this Article are the author's and do not represent those of the ICRC.
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