IHL in a New Era of Occupation

Flag of Turkey on a hill in what many consider to be occupied Cyprus. (CREDIT: Andriy Markov)

2014 has seen its share of global conflicts notable for the emergence of new technology and radical ideologies that change the way war is fought. This post explores the existing law on occupation, and how it is suited for concerns of these modern conflicts. For example, while the self-recognized Israeli occupation of the West Bank may have discernible legal boundaries, the law becomes gray and altogether difficult to enforce in other situations. Western Sahara, Crimea, and Northern Cyprus are all under occupation by foreign powers claiming sovereignty over the territory. Interestingly, these laws only apply between States, so the Islamic State’s actions against the sovereignty of multiple nations is unbounded as a technicality. 

The concept of property is the cornerstone of modern civilization, and in international law it is reflected in the borders that delineate the territory upon which States (as countries are called in international law) exert their sovereignty. This sovereignty gives each State the privilege to reap from its land as well as the obligation to care for it. It is the forced taking of this “property” that creates legal challenges. Although international law largely prohibits armed aggression, States inevitably wage wars, and, often take foreign territory. International law has established a series of legal regimes regulating the effects of such taking on the privileges and obligations attached to the territory.

First, annexation is illegal. States cannot take ownership of territories by force. Territories can only be transferred voluntarily, such as through a peace treaty at the cessation of hostilities. Therefore, territories that come under foreign occupation during an armed conflict do not convey the same privileges to their occupiers. For instance, occupying forces usually cannot reap resources from the land and cannot alter local institutions or laws.

Yet much like how enemy combatants may be held as prisoners of war (POWs), territory can be held as a strategic objective during the duration of hostilities. Captured territory deprives the owner of access to roads and ports vital to supplies and natural resources vital to the war effort. We saw this during the Korean War, when United Nations forces staged an amphibious landing behind North Korean lines and severed North Korean supply routes. However, as with POWs, these territories must be returned upon the cessation of active hostilities as foreign occupation is a continued form of hostility.

The Fourth Geneva Convention outlines a regime of obligations for the temporary occupying force. This regime balances military necessity with the basic needs of civilians. Often called the conservationist principle, the occupying power has a duty to conserve or maintain the status quo, and is expected to return the land to its sovereign owner in the same condition in which it was taken. Therefore, the occupier must maintain law and order as well as provide for basic necessities like healthcare, education, food, and other supplies.

Despite this well-established legal regime, modern conflicts increasingly strain its enforcement or interpretation. Unlike World War II, which inspired these legal provisions, some modern conflicts have no foreseeable resolution. So even as an occupying power may wish to respect the conservationist approach, it may find itself forced to change the status quo in order to facilitate the natural development of local economies after decades of occupation. Similarly, operations to overthrow authoritarian regimes through armed force and occupation are nevertheless a specific effort to change local institutions against the will of a sovereign government. Such scenarios highlight the weakness of the conservationist principle in the face of modern wars, and reveal an area of the law that is clearly open for development and innovation.

3 responses to “IHL in a New Era of Occupation

  1. Not a lot of attention has been paid to this provision in Common Article 2 of the Geneva Conventions: “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if said occupation meets with no armed resistance.” That would certainly seem to be the case in Crimea.

  2. Pingback: Weekly IHL Update | Humanity in the Midst of War·

  3. Pingback: Legality of Occupations for the Sake of Nation-Building | Humanity in the Midst of War·

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