Tool or Taboo?: The Relevance of the Law of Occupation to Peace Operations

Dr. Marten Zwanenburg
Legal Adviser Ministry of Defence of the Netherlands

Trasnscript of audio recording from Plenary Session, Friday 5th September

"Tool or Taboo": The Substantial Relevance of the Law of Occupation to Peace Operations

Good morning everyone.

I’d like to make a few preliminary remarks before I start my presentation. First of all I’d like to thank the organisers of this Round Table for inviting me to this event. Secondly, I speak in a personal capacity.

The topic of my presentation is the substantial relevance of the law of occupation to peace operations and I have given it the title of “Tool or Taboo”.

I hope at the end of my presentation to be able to tell you whether I think the law of occupation is a tool or a taboo for peace operations.

As I said, the subtitle of my presentation as given to me by the organisers of the Round Table is the “substantial relevance of the law of occupation” and you might already think that this means that I have concluded that the relevance is substantial. That’s not quite the case yet at least, so I perhaps should say I’ll be talking about the substantive relevance of the law of occupation. That is, to what extent the law of occupation is relevant to the factual circumstances of peace operations.

So in distinction to the formal application of peace operations therefore I will not touch on that formal applicability. I will talk about situations where the law may be formally applicable, where it may not be and in many cases where it may be controversial.

In the time allotted to me there is no way I can be comprehensive. So I won’t be talking about a number of things. One of them, as I said, is the formal applicability of the law of occupation to peace operations. Another will be the relationship between the law of occupation and human rights, as interesting as it is. And a third one that I will touch on a little bit but not comprehensively is the relationship between Security Council Resolutions and the law of occupation.

First I will say a little bit about what I understand by peace operations. Then I will give a very brief introduction to the law of occupation and then I’ll move to the substantive relevance and will finish with a conclusion.

Now, if you talk about peace operations you should know what you mean precisely by peace operations. the difficulty with peace operations is that there are many terms that are used – peace operations, peace-support operations, peacekeeping, peace-enforcement—and I could go on for half an hour more.

But there are very few clear definitions and the reason is that peace operations is something that has developed in a very ad hoc way, as we heard yesterday by the United Nations, and therefore there are no clear, hard and fast legal definitions. The definition that I will use is the definition used by NATO for peace support operations which you can see up on the screen.

And the central element of that definition is the word impartially which, at least for NATO, distinguishes between ‘peace support operations’ and ‘war-fighting operations’. And I should say at the outset that it is very difficult to make the distinction between one and the other in certain situations. I should also say that this definition of peace operations is still quite comprehensive dealing both with UN commanded operations and UN authorised operations, and even operations that are not authorised by the UN. Think for example of the operation in Albania without UN mandate authorisation but with consent by Albania. And finally about peace operations I should say that I will distinguish between what I call international territorial administrations, which are operations that take over partially or totally the administration and government of the particular territory, and what I will call ‘regular operations.’ Basically just like civilians are all persons who are not combatants, I will use this term of ‘regular operations’ for any operation which fits this definition and is not an international territorial administration.

The key question is: what does the law of occupation have to offer these operations? We heard yesterday that military commanders want clear guidelines about what to do and, more importantly, what not to do on the ground. Can the law of occupation provide clearer guidelines for military commanders? If you look at the law of occupation and its development, the picture doesn’t look too hopeful.

After all the law of occupation is very old and the very definition of the law of occupation has mainly been the same since 2 centuries ago in the Brussels Declaration of 1864. Essentially the definition hasn’t changed much since then. So, at first sight it doesn’t look to hopeful that a law that old could provide useful guidelines for modern situations.

Here is a very brief outline of the law of occupation: As you’ve all heard, the definition of the law of occupation is in Article 42 of the Hague Regulations of 1907 and then, of course, we have the Fourth Geneva Convention which also provides important rules on the law of occupation. Basically the Hague Regulations tried to balance between the interests of the occupier, the local population of the occupied territory and the displaced sovereigns, so there was something of a triangle there, whereas the Fourth Geneva Convention is more interested in the interests of the local population. There’s more of a real balance there between the interests of the occupier and of the occupied population.

And of course another important facet of the law of occupation is that it has both negative and positive obligations. Up on the screen you see perhaps the most important positive obligation which is art 43 of the Hague Regulations.

Art. 43: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

As I said, I will not try to be comprehensive due to the time limitations so I will just try to cover some of the provisions of the Hague Regulations and the Fourth Geneva Convention and see whether they can provide guidelines for peace operations. And of course it’s logical to start with the Hague Regulations and perhaps the main article is Article 43 of those Hague Regulations. Basically it has two elements – a positive obligation for the occupier to do something and the second part is a negative obligation for the occupier to abstain from doing something, namely to change the laws of the occupied territory unless absolutely prevented from doing so.

The first part for regular peace operations will usually be logical in the sense that very often to restore public order will be included in the mandate. My military colleagues like to use the term ‘a safe and secure environment’ and I think that pretty much covers the obligation in art 43. I think that for regular peace operations they will not be interested in changing the laws of the occupied territory so it’s not such a question for them. If we look at international territorial administrations, on the other hand, that is precisely the reverse. It may be difficult for them to abide by the obligation not to change the laws of the occupied territory unless absolutely prevented. And of course there is some leeway provided in the law of occupation as it has developed in doctrine also, in that the occupier can change the laws – it is generally accepted – if that is necessary to respect human rights; la vie publique can be interpreted quite extensively. But there is at some point a cutoff line beyond which an occupying power cannot go and beyond which international territorial administrations sometimes do go and certainly want to go. So on the one hand Article 43 may provide useful guidelines, but it can also provide strictures. This is where UN Security Council resolutions come in because it is my view that the Security Council can set aside the law of occupation. This is precisely where it could do so, in providing that an occupying power or international territorial administration admin can go beyond the obligation to respect the laws in force as much as possible – with one caveat that is that the Security Council should do so clearly and unequivocally, which I know is quite a lot to ask from the SC. But I think that if you send military personnel and arms away in a peace operation, that’s the least you can do for them and I think the Security Council could do better.

Moving on to other provisions in the Hague Regulations, for example Article 48 and Article 49 which deal with things that the government would normally do. These can provide useful guidelines for international territorial administrations which could help in developing regulations and instructions by international territorial administrations. I also think that when it comes to property – and of course the law of occupation generally makes a distinction between private property and property of the state whereby private property has a higher level of protection than property of the state – I think that when it comes to the taking and using of property that there the law of occupation has very useful guidelines for military commanders. You could think of situations in which they could be useful to use land by a peace operation for building of a compound which usually will not be res nullius but will be somebody’s land. You could also think of seizing weapons at a checkpoint –a particular weapon that you seize and perhaps destroy will be someone’s property. And there I think that the laws of occupation and the Hague Regulations have useful provisions that could provide guidance. I’m thinking of Articles 47, 51, 52, 53, 55, 56.

In closing on that particular aspect I think that it’s very important for the legitimacy – and I think legitimacy is a key aspect of peace operations – to be seen to be dealing responsibly with property. So therefore I think it’s very helpful that the law of occupation has some guidelines to provide there.

Moving on to the Fourth Geneva Convention. As I said, the Fourth Geneva Convention deals to a large extent with the interests of the occupied population. And a large part of that part of Fourth Geneva Convention deals with the physical protection of the local population, in particular Part Three Section One which deals with the status and treatment of protected persons. And also there are very useful guidelines to be taken from the law of occupation. Think for example of article 27, art 31 and Art 33 of the Fourth Geneva Convention.

I’d just like to note that particularly in modern peace operations, which are comprehensive peace operations, and have many functions. Think of MINURC for example, which also has quite a large number of personnel, they interact with the local population on a daily basis so it’s very important for military commanders to have guidelines on how to deal with that local population and all the different functions that a peace operation operates in.

I should note, however, that a number of the provisions of the Fourth Geneva Convention that deal with the protection of individuals are quite generally formulated and that also there are some ‘escape clauses’ if you will. Think for example Art 5 of the Fourth Geneva Convention which allows rights of communication to be limited and also Article 27. I think that here we run up to the interaction between human rights and international humanitarian law. And I always warn people who are very adamant in wanting to apply the law of occupation to peace operations that this also opens the argument to other people to say that the law of occupation applies as the lex specialis and that therefore human rights no longer apply. And of course we all know that the law of human rights as the law of peacetime provides much more guarantees than the law of occupation.

A very important part of dealing with individuals is detention in modern peace operations. We will have a presentation on the Copenhagen Process later on today which is an indication of how important detention and the potential lack of clarity on the rules of detention are for contributing nations in modern pops. And therefore I think it’s also helpful to point out that the law of occupation has something to contribute. Think for example of the Australians in East Timor in ITERFET who were quite engaged in detention, used a number of provisions from the law of occupation. (Whether they thought it was formally applicable or whether they applied it by analogy I will not touch on.) They found that the law of occupation provided useful guidelines, for example in Article 69, in dealing with detainees and how further to deal with them and bring them to justice. But not only that, the law of occupation also provides legal bases for detention. I don’t want to suggest that if the law of occupation doesn’t apply formally a peace operation can rely on those de jure, but we all know that ‘all necessary means’, those three little words, don’t provide much guidance for how to deal with detention in a peace operation. To put flesh on the bones of those three little words I think it’s very useful that the law of occupation has Article 68 and Article 78 and that those can be useful to further develop guidelines for military commanders in peace operations on detention. Linked to that is Article 45 of the Fourth Geneva Convention which deals with the transfer of detainees. I’d like to point out that this article has been used by analogy, at least by my own country, in helping to devise an agreement with the Afghan Government in handing over detainees in Afghanistan even though the official position is that there’s no occupation there.

Those provisions I think are very useful, mostly for regular peace operations, but there are also provisions that are more useful for international territorial administrations when it comes to the provision of public services by such operations. One of those is Article 50 the Fourth Geneva Convention but you could also think of article 55 and 56. In international territorial administrations the provision of such services is often part of a mandate. The operation takes over the Government of the country and therefore also the provision of public services.

This raises a number of questions to do with the mandate of the operation. The first one is what if the mandate is more limited than the law of occupation would require. If, in a particular case, it’s controversial whether the law of occupation applies should this lead to a broadening of the mandate or will it lead to a mission (…) whereby the local population expects the commander to do something that is not really allowed by the mandate but to win the hearts and mind he’s going to do it anyway. And I’ve seen that happen in practice quite a number of times.

What if the capabilities of the operation are more limited than what the law of occupation would require? In a number of provisions the law of occupation says the occupying power must do the maximum extent of its abilities, or words to the same effect. But there are also some obligations which are not so limited. And what if simply the operation doesn’t have the personnel? We know that usually the UN Security Council in UN operations puts a personnel cap on peace operations. So what if that personnel cap is too small when we look at obligations from the law of occupation.

And finally, what I find an interesting provision is article 47 of the GCIV which I think requires a lot more study. At first I think it seems to put a lot of limitations on what an international territorial administration can do because often it wants to get local institutions running as soon as possible. At first, this article seems to limit that possibility. But if you look more closely at the text and the background, the object and purpose and the travaux preparetoires of Article 47, you’ll see that what it deals with is not so much that you’re limited with changing things but that you’re limited in changing things that will deprive the local population of rights they have. So perhaps it’s not such a big limitation as it seems at first sight.

And this brings me to my conclusion, or rather conclusions. I think it will be clear by now that I think that the law of occupation is a tool for peace operations – one of the tools that can provide useful guidelines even if the law of occupation is not formally applicable or if its application is controversial. Which provisions will provide useful guidelines depends to a large extent on whether we’re dealing with an international territorial administration or ‘regular’ peace operations. At the same time, we shouldn’t expect too much from the law of occupation because it’s the smallest circle of protection, if you will, and even within the law of occupation there are possibilities for limitations. And so I think it’s very important to look further at how the law of human rights and the law of occupation interact. And then there are a number of important questions which deserve more study such as: if the law of occupation applies, what if the mandate is broader than the law of occupation? There I said that UN Security Council resolutions with the caveat, when they’re clearly formulated can help. And on the other side of the coin when the mandate is broader than occupation and should of course be the other way around.

And finally, a note on accountability. As I said, legitimacy is a central tenant of peacekeeping operations. Accountability is a very important part of that, and there unfortunately the law of occupation doesn’t have too much to offer. We all know that there’s a lack of mechanisms of to deal with potential violations of humanitarian law. Also, there we should have some expectation management of what we should expect from the law of occupation.

Thank you.


Transcribed from the audio by Amy Iberg, IIHL Genève.