December 18, 2019
It is not an easy task to determine when a situation is a legal occupation under IHL. Indeed, the only conventional text that provides a definition of this concept can be found in Article 42 of old Hague Regulations of 1907. According to this text “a territory is considered occupied when it is actually placed under the authority of the hostile army”. This text also adds that “the occupation extends only to the territory where such authority has been established and can be exercised”. It should be observed that Common Article 2 of the four Geneva Conventions has expanded this notion in order to include situations of occupation that have encountered no armed resistance, such as the occupation of the Danish territory by the Nazis during the second World War. However, Common Article 2 does not define what is meant by occupation. The internationalad hoctribunals, the International Court of Justice and many military manuals accept that the definition provided by Article 42 of the Hague Regulations applies in the context of the Geneva Convention IV. In other words, the scope of application of occupation is entirely predicated on the condition that can be inferred from the Hague Regulations, namely: whether a given territory is placed under the authority of the occupying power. To make this assessment, scholars and judges usually look at whether such a territory is placed under the effective control of the foreign armed forces. However, the question of “effective control” has raised several controversies. There are two competing interpretations as to what the term effective control entails. On the one hand, according to the ICRC Commentaries to the Geneva Conventions of 1958 and to certain decisions rendered by the ICTY in particular, in theNaletiliccase to which we will refer later certain provisions of the law of occupation as set out in the Geneva Convention IV should apply whenever a party to a conflict exercises minimum level of authority or control within foreign territory, including therefore during the invasion phase. In order words, the threshold of application of certain provisions of Geneva Convention IV is reduced in order to fully protect civilians as soon as they are confronted with military operations. On the other hand, according to a more restrictive approach that can be found in certain military manuals, the situation of occupation only exists once a party to the conflict is in position to exercise sufficient authority over enemy territory in order to enable it to discharge all the duties imposed by the law of occupation. In any event, it is usually admitted that the law of occupation will be triggered before occupying forces exert full control over a foreign territory, but when they exercise a lesser level of authority. As emphasized by Professor Yoram Dinstein “effective control is a condition sine qua non of belligerent occupation. But defining the exact amount of control deemed objectively ‘effective’ is an imponderable problem. In particular, the optimal size of the army of occupation and the manner of its deployment cannot be determineda priori. Circumstances vary from one occupied territory to another, and the degree of effective control required may depend on the terrain, the density of the population and a slew of other considerations”. It should be observed in this regard that, in theNaletiliccase, the ICTY has proposed few guidelines for determining whether a given situation amounts to occupation. Let’s recall them briefly: (i) the occupying power must be in a position to substitute its own authority for those of the enemy state. The enemy state must have been rendered incapable of functioning as an administrative authority; (ii) the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even if successful, does not affect the reality of occupation; (iii) the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; (iv) a temporary administration has been established over the territory; and (v) the occupying power has issued and enforced directions to the civilian population. Following the withdrawal of Israeli forces from the Gaza strip in 2006, some scholars have questioned the fact that the presence of foreign troops on the occupied territory was a necessary precondition for a situation of occupation to occur. Indeed, according to them, despite the fact that Israel forces were no longer present in Gaza, Israel was ade factooccupying power by exercising full control over the terrestrial, spatial and maritime boundaries of Gaza. The question of the presence of foreign troops is usually assessed in light of two factors: firstly, some sort of military presence will generally be required in order for the occupying forces to exercise effective control over the occupied territory; and, secondly and perhaps more importantly, such a presence will usually be necessary in order that the occupying power be able to enforce the rights and duties that are contained in the laws governing occupation, in particular Geneva Convention IV. That said the consensus view (as evidenced by legal literature, the jurisprudence of thead hoctribunals and many military manuals) is that foreign forces do not necessary have to exercise actual authority over every part of the occupied territory in order to qualify as occupying power as long as they are potentially able to exercise such an authority. Of course, no occupation will occur if the armed resistance is such that these forces are no longer able to exert effective control over that territory. On the contrary, sporadic resistance that does not significantly affect such authority will not impact on the occupation. As pointed out by Tristan Ferraro, Legal Advisor at the ICRC, it should finally be observed that “the existence of an occupation implies that foreign forces are imposing their authority over the government of the occupied territory by coercive, military, means”. In other words, if this government consents genuinely and validly to the foreign military presence, the laws of occupation will not apply.