b) The Rights and Duties of an Occupying Power
The law of occupation has also faced recurrent challenges on the basis that it is ill-suited for contemporary occupation. The reluctance of some states to accept its application is often justified by claims that situations in which they are or might be involved in differ considerably from the classical concept of belligerent occupation. In other words, it has been argued that current occupation law is not sufficiently equipped to deal with the specificities of the new features of occupation.
Recent occupations have, in particular, triggered much legal commentary about the failure of occupation law to authorize the introduction of wholesale changes in the legal, political, institutional and economical structure of a territory placed under the under effective control of a foreign power. It has been contended that occupation law places an undue emphasis on preserving the continuity of the socio-political situation of an occupied territory. It has also been claimed that the transformation of an oppressive governmental system or the rebuilding of a society that has completely collapsed could be achieved during an occupation, and be in the interest of the international community, as well as authorized by the lex lata.
The far-reaching political and institutional changes undertaken in recent occupations have thus generated tension between the requirement of occupation law that the occupying power respects the laws and institutions in place and the perceived need to fundamentally alter the institutional, social or economic fabric of an occupied territory. It has been contended that, to reduce this tension, IHL should permit certain transformative processes and recognize the occupying power's role in fostering them. Such a position, however, raises the question of
the validity of limitations posed by IHL on an occupying power's rights and duties as reflected in article 43 of the 1907 Hague Regulations and article 64 of the Fourth Geneva Convention.
Given that occupation law does not expressly give "carte blanche" for various transformations that might be desired by an occupying power, some contemporary interpretations have aimed to achieve that result by granting an occupying power increasing leeway in the administration of an occupied territory. It is submitted that the limits to an occupying power's freedom - or not - to effect changes in an occupied territory need to be identified more clearly.
Prolonged occupation raises a whole set of legal questions in itself. Even though IHL contemplates the possibility that occupation may be of a protracted nature, none of the relevant IHL instruments place limits on the duration of effective control over a foreign territory. However, prolonged occupations place IHL under considerable strain insofar as they call into question some of the underlying principles of occupation law, in particular the provisional character of occupation and the necessity to preserve the status quo ante. As neither the 1907 Hague Regulations nor the Fourth Geneva Convention specify any lawful deviations from existing law in this scenario, many have argued that prolonged occupation necessitates specific regulations in response to the practical problems arising in such cases. The other view is that occupation law is sufficiently flexible to accommodate the humanitarian and legal concerns arising in prolonged occupation.
In addition to the issues raised above, it should be noted that human rights law may play an important role in delimiting an occupying power's rights and duties. This body of law is widely recognized as applicable in situations of occupation and, consequently, may impose formal obligations on an occupying power, or serve as a basis for altering existing local laws. The International Court of Justice has pointed to the relevance of human rights law in times of occupation and to an occupying power's legal obligation to take this body of norms into
account in both its conduct and in the policies it develops in an occupied territory.[18]
18. ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment 2005 &
Judgment 2006.
It is therefore necessary to identify how, and to what extent, human rights law applies in occupied territory and to explore the interplay between human rights law and the law of occupation.