Occupation and Human Rights Law

Introduction

The law of occupation is a branch of international humanitarian law (IHL) that codifies the definition of an occupation and an occupying power’s obligations towards an occupied territory and population. Under Article 42 of the Hague Regulations, a ‘territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’¹Article 42, Hague Regulations 1907 An occupation is considered an international armed conflict under Common Article 2 of the Geneva Conventions 1949. Furthermore, Article 43 of the Hague Regulations states that the Occupying Power is responsible for restoring and ensuring, as far as possible, public order and safety, while respecting the laws in force in the country unless absolutely prevented. It is now accepted that IHRL also applies to an armed conflict, along with IHL, and the obligation to maintain ‘public order’ under Article 43 necessarily entails both human rights obligations along with IHL obligations. Consequently, IHRL applies in tandem with IHL in protecting those in occupied territory. It is pertinent to understand the interplay between IHL and IHRL and the issues in this regime interaction.

The Fourth Geneva Convention

According to Common Article 2 to the four Geneva Conventions, an occupation is an international armed conflict to which the Geneva Conventions, customary IHL, plus Additional Protocol I (so long as the occupying power has ratified it) would apply. The Fourth Geneva Convention is the most relevant for the purposes of this discussion as it pertains to the protection of civilian persons. Section III of GCIV pertains specifically to Occupied Territories. For example, Article 49 GCIV prohibits forced deportations, transfers and evacuations of the local population. Article 50 requires the occupying power to maintain the proper working of all institutions devoted to the care and education of children. Article 55 requires the Occupying Power to ensure proper food and medical supplies of the population, along with proper medical, public health and hygiene services under Article 56.

The rights provided under the Fourth Geneva Convention fall under the IHL rights regime. The applicability of GCIV in occupied territories binds the occupying power to observe and fulfil these rights. A grave breach of the Geneva Conventions can constitute a war crime which may be triable under international criminal law. However, these particular rights apply insofar an occupation exists, and thus displace such obligations by the occupied state.

Applicability of IHRL in armed conflict

Obligations under IHRL stem from certain international conventions, as well as through customary international human rights law. The two leading international human rights conventions are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These outline fundamental rights that must be guaranteed to individuals and which are applicable in both situations of conflict and peace. IHL grants different protections to different recognised categories of persons. Thus, a separate protection regime applies to prisoners of war than that of civilians. Under IHRL, however, protection is not dependent upon a person’s status within a conflict.

Certain rights can be derogated from in case of military necessity. Thus, in the event of conflict, IHL norms may displace certain IHRL norms temporarily; however, the observance of human rights in and of themselves does not disappear. More general derogations, such as of the freedom of movement through the imposition of curfews, are done in cases of national emergency (i.e., situations of conflict) to protect the local population.

Article 43, Hague Regulations

Article 43 of the Hague Regulations highlights the applicability of human rights obligations in occupied territories. Article 43 states the following:

The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

According to this provision, the Occupying Power assumes authority for the maintenance of public order and safety in place of the occupied territory’s State. It may do so by either respecting and enforcing the laws already in force in that country, or, if ‘absolutely prevented’, exercise law-making authority to maintain public order and safety. This obligation expands upon the various rights guaranteed under GCIV by obliging the Occupying Power to assume the role of the displaced State, with the caveat that it does not assume the territory as its own.

Furthermore, the achievement of public order and safety require actions by both the executive and the judicial branches. As Sassoli highlights, the maintenance of public order and safety is not ensured via military operations, but rather through a police force, which directs its operations at civilians for the purposes of controlling crime.²Sassoli, 5 This is regulated by standards embodied in IHRL, such as the inviolability of dignity, due process, and safeguards of arrest and detention. Similarly, any disputes about the interpretation and enforcement of certain laws are resolved through the judiciary, which must continue to observe the right to fair trial, for example. Thus, the maintenance of public safety and order, while a rule under IHL, necessitates the observance of human rights principles in situations of conflict.

In order to analyse how these rules have been applied in tandem, we must also look at the case law that has developed with regards to the applicability of IHRL in armed conflict, specifically in occupied territories.

The Wall Advisory Opinion

In the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ held that human rights must be observed in occupied territories except those that are derogated from.³Wall Advisory Opinion, para 106 In this specific case, the ICJ held that Israel was bound by the ICESCR and the Convention on the Rights of the Child as they applied to the Palestinian territory under their control. In discussing the construction of the wall within Palestinian territory, the Court held that its construction was not in conformity with Israel’s various human rights obligations as the livelihoods of Palestinians were being affected, in terms of a loss of fertile agricultural land,⁴Para 133 relocation of settlements involving the transfer of portions of the Palestinian population,⁵Para 120 and much more.

The ICJ’s Advisory Opinion substantiates the position of the Geneva Conventions and the Hague Regulations. The ICJ acknowledges the symbiotic relationship of IHL and IHRL in occupied territories, whereby neither precludes the other ipso facto. Rather, there must be a clear establishment of military necessity that is in the interest of the well-being of the citizens of the occupied territories if a certain right is being derogated from.

Issues with the Application of IHRL in Occupied Territories

While it is certain that IHRL applies in occupied territories, applying them in practice is more difficult. The Occupying Power will prioritise measures of security justified under the umbrella of ‘military necessity’, as it will seek to protect its own interests. However, as the de facto authority over the occupied territory, the Occupying Power is also tasked with extending human rights obligations (stemming from any conventions it has ratified or under customary international law) it has over its own territories to the occupied territory as well.

Furthermore, the extension of certain human rights requires positive steps by the Occupying Power. Economic and social rights such as the right to a minimum standard of health, the right to education, and gender equality require positive action (usually in the form of legislation) to become enforceable. In implementing IHRL obligations, the Occupying Power is required to invest significant resources into the development of the occupied territory – especially in areas affected by armed conflict. This makes it difficult to uphold IHRL in occupied territories, as the resources that are required to be spent on satisfying IHRL obligations are directed towards national security efforts.  

This dilemma is further highlighted by the language of Article 43, which requires the Occupying Power to respect the country’s existing legislation in the interests of the local population’s public order and safety. It is unclear whether this extends to a positive obligation to enact legislation that may improve the law’s conformity with IHRL, as Article 43 does not impose an explicit human rights obligation, but rather of public order and safety. The Occupying Power will prioritise measures that guarantee its own security interests and use its resources accordingly, as well as the basic rights guaranteed under IHL.

The language of Article 43 gives Occupying Powers the ability to invoke this vagueness to legitimise ‘broad legislative powers’, or to escape responsibility in ensuring the welfare and normal life of the local population ‘unless absolutely prevented’.⁶Sassoli, 2 Thus, Article 43 can be a double-edged sword. On the one hand, it can give licence to the Occupying Power to effectively overhaul the existing legislative system and impose legislation onto the occupied territory’s citizens (which they would not have consented to), or they may neglect their duty to uphold public order and safety altogether, claiming minimal efforts to do so as sufficing the ‘as far as possible’ requirement under Article 43.

Conclusion

A discussion of the international legal rules pertaining to the relationship between IHL and IHRL in occupied territories indicates that IHL does not entirely displace IHRL. IHRL continues to apply in occupations except where certain rights are derogated from by the occupying power in the interests of military necessity. The ICJ’s Wall Advisory Opinion confirms the obligation of the Occupying Power to ensure the fulfilment and observance of human rights obligations towards the citizens of the occupied territory.