War Crimes in an Occupation

Introduction

War crimes are serious violations of international humanitarian law and can take place in both international and non-international armed conflicts.¹ The Rome Statute which establishes the International Criminal Court (“ICC”) defines war crimes as “grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and conflicts not of an international character.² According to Article 8 of the Rome Statute war crimes include, inter alia, willful killing, torture, destruction of property, intentional attacks on civilian objects, or damage to the environment. Although the Statute applies in situations of both international and non-international armed conflicts, there is some contention regarding its inadequate coverage for war crimes in occupations – a form of international armed conflict under Common Article 2. Recognizing the growing need to regulate the atrocities in occupations, this article considers war crimes in an occupation, their limited coverage in the Rome Statute and the ambiguity surrounding when the law of occupation starts to apply which allows occupiers to advance transformative agendas and prolong their stay.

What is an Occupation?

Article 42 of the 1907 Hague Regulations (HagReg), holds that 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.” Pursuant to Common Article 2 of the four Geneva Conventions 1949, the Conventions apply to occupations giving rise to certain rights to the occupants and responsibilities on the occupying power. Furthermore, Article 6 Geneva Convention IV stipulates the temporary application of the Convention in cases of occupations whereby the occupying powers are bound to respect the laws, cultures and practices of the occupied territory, treat the occupied humanely, ensure the protection of protected persons, and not destroy their properties as underpinned in Articles 1-12, 27, 29-34, 47, 49, 51, 52. 53, 59, 61-77 and 143.³

Moreover, under the Hague Regulations, the occupying power must take measures that ensure public safety, and public order.⁴ Collective punishment is deemed unlawful and taking hostages is not allowed. Moreover, the population of the occupied territory cannot be forcibly enlisted in the occupier’s armed forces⁵ nor can the population be forcibly transferred from and within the occupied territory.⁶

When is the law of Occupation triggered?

The factual criteria for determining when the law of occupation begins has been affirmed in the US Military Tribunal of Nuremberg in the Hostages trial in which it was stated that “whether an invasion has developed into an occupation is a question of fact”.⁷ However, this does not mean that the determination of when an invasion becomes an occupation is straightforward. The objective determination of the existence of an occupation is difficult because of a few factors; determining the exercise of a degree of authority by the local government which would turn an invasion into an occupation, the extent to which that authority is continuing, and the occupying party’s refusal to abide by the obligations set forth in the Fourth Convention and the Hague Regulations. Further, the end of an occupation is difficult to ascertain because of various factors such as progressive phasing out, partial withdrawal, or the retention of various competences over areas previously occupied.⁸

To tackle these difficulties, one must refer to established jurisprudence to identify the start and end of an occupation which is crucial in determining whether war crimes can be tried under states of occupation. The determination of the effective control of the occupying power is the defining factor of an occupation. There has been much discussion about the constitutive elements of the notion of effective control in order to demonstrate that the said authority was in fact established or whether the armed forces are only stationed in locations as in the case of DRC v Uganda.⁹ Further, in the Natellic case, the International Criminal Tribunal for the Former Yugoslavia (ICTY) laid down some elements necessary for occupation such as:,

the occupying power must be in a position to substitute its own authority for that of the occupied authorities which must be rendered incapable of functioning publicly,
the enemy’s forces have surrendered,
The occupying power has a sufficient force present, a temporary administration established over the territory and the occupying power has issued directives to the civilian population.¹⁰

Following this, the case of Democratic Republic of the Congo (DRC) v Uganda laid down a test for determining whether the occupying power has effective control. The three pronged cumulative test is as follows:

the armed forces of a state are physically present in a foreign territory without the consent of the effective local government in place at the time of the invasion;
the effective local government in place at the time of the invasion has been or can be rendered substantially or completely incapable of exerting its powers by virtue of the foreign forces’ unconsented-to presence
the foreign forces are in a position to exercise authority over the territory concerned (or parts thereof) in lieu of the local government.¹¹

However, there is disagreement about whether an occupation exists when there is sufficient authority exercised by the occupying power or when there remains some level of effective authority exercised by the occupier.¹² Similarly, a conventional way of establishing the end of an occupation would be the withdrawal of the occupying power from the occupied territories. However, this does not mean that the continued presence of foreign troops in an area can be seen as the prevalence of an occupation only.¹³

Limited Coverage in the Rome Statute

Where there are specific duties allotted to the occupiers with regards to the treatment of occupiers, the Rome Statute does not consider many crimes undertaken by the occupying powers as war crimes. There is only one article i.e, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”; which is directly relevant to occupations. Although crimes like torture, wilfull killing, enforced disappearances, pillage, destruction of property and indiscriminate attacks under occupations would still be covered by the Rome Statute, however, the problem emerges when the violations undertaken are specific to occupations. The most prominent example in this regard is when the occupier undertakes a transformative occupation, in which it substantially changes the laws in place in the occupied territory. Some occupiers have justified modifying the demographic, legal, and political structure of the occupied state on grounds of necessity.¹⁴ Article 43 obliges an occupier to respect the laws in force “unless absolutely prevented”. There is little understanding as to what would constitute ‘absolute prevention’. For those occupiers which do not abide by this, i.e. in that they change the laws despite there not being an absolute need to do so. Even though there are far reaching effects of such an exercise, there is no corresponding war crime in the Rome Statute. Moreover, if the occupier were to not ensure public order in occupying territory, there is similarly no grave breach of IHL.

Occupying powers disrespecting the rules of Occupation

The effectiveness of the law on occupation depends on the willingness and ability of the occupied party’s to respect the aim of international law and the will to do so can be enforced through defining what is or is not a war crime. History has witnessed numerous examples of prolonged occupations where occupying states may have overhauled the legal system of the occupied territory. In some cases, occupying powers may also be interested in plundering natural resources and hence prolong their occupation which is beyond any military necessity.

Further, occupiers have in the past prolonged their occupation and justified its legality on the premise that the occupied state’s territory is disputed and the occupied state does not have sovereign status.¹⁵ This is used as a tool to elongate the presence in the occupied territory to show that an attempt is being made to liberate the occupied population and pose as protectors of the rights of the occupied. This problem is aggravated by the fact that the occupied state may not be able to file a case in the ICC for the war crime of transformative occupation. There only exists a war crime if there has been demographic transfer, as per Article 49 of Geneva Convention IV. Further, the vulnerability of weaker states is exacerbated when stronger states label the occupations as political rather than legal issues or mere non-international armed conflicts.¹⁶

Conclusion

War crimes are grave breaches of international humanitarian law, norms, and customs. They can occur in international, non-international conflicts and occupations as well. Occupations are a kind of international armed conflict that are supposed to be temporary. There are special obligations on the Occupying power underpinned in Fourth Geneva Convention and the Hague Regulations, however, they are often violated. These violations however are not war crimes under IHL and international criminal law. Given the nature of prolonged occupations and the transformative nature of some of these occupations, this is an oversight which should be corrected.

Aleezay Saeed

Aleezay Saeed is a 4th year student of law & policy at the Lahore University of Management Sciences. Her primary interests include international development and constitutional law. She also takes keen interest in the compliance of domestic policies related to gender with international standards.