This article examines the evolution of doctrines on the law of occupation in the course of its history from the late eighteenth century to the present day. While it highlights salient changes that have impinged upon the normative framework of the law of occupation, it is beyond its scope to undertake a comprehensive historical survey. Instead, the analysis will focus specifically on two main features underlying the historical development of the law of occupation: first, legal discourses on the Occupying Power's limited legislative authority under Article 43 of the 1899/1907 Hague RegulationsFootnote 1 (and later under Article 64 of the 1949 Fourth Geneva Convention), and the concept of ‘necessity’ that operates as an exception to this principle under these provisions; and second, the narratives and discourse on justifying the exclusion of ‘colonial occupations’ from the normative framework of the law of occupation.
As will be discussed below, the first issue relates to the exceptions that are essentially recognized as being built in to the normative framework of international humanitarian law. In contrast to those exceptions, the second issue concerns the institutional paradigm of colonialism that was made exceptional to the entire corpus of the law of occupation. Two reasons can be put forward for justifying the combined historical survey of these two prima facie discrete issues. First, the systemic inapplicability of the law of occupation (and the entire body of jus in bello) to colonialism (invasions and occupations of non-Western territories) was observable from the nineteenth century until the wave of decolonization after 1945, the period that coincided with the most important epoch for the consolidation of the law of occupation. Second, the systemic exclusion of colonialism from the compass of the laws of war epitomizes the binary opposition of the law as it is and the law as it ought to be (or, in this case, between the law of occupation as it has been and the law of occupation as it ought to have been).Footnote 2
The main body of the article is divided into two parts. The first part examines the historical development of the general corpus of the law of occupation from its nascent period in the wake of the Napoleonic Wars until the present day. In so doing, it will focus specifically on the interplay between the general rule predicated on the ‘conservationist’ principle and the concept of ‘necessity’, both of which are drawn from Article 43 of the 1899/1907 Hague Regulations (and later Article 64 of the 1949 Fourth Geneva Convention). Under the ‘conservationist’ principle, Occupying Powers cannot make changes to the local laws and administrative authorities of the occupied state.Footnote 3 However, exceptions to this general principle are allowed if an Occupying Power is ‘absolutely prevented’ from respecting the local laws. This is considered to embody the concept of ‘necessity’. Further, the two-tier approach inherent in this provision (the ‘conservationist’ principle as the general rule, with the ‘concept of necessity’ providing grounds for exceptions to that rule) is also discernible under Article 64 of the Fourth Geneva Convention, albeit with some changes.
In contrast, the second part critiques the historical discourses that have been presented to justify the system of colonialism as operating outside the normative regime on occupation. It will highlight how the mainstream doctrines on occupation overlooked a side current of anti-colonialist ethos on the part of the colonized peoples during the colonial era. It is the present writer's belief that, in our post-colonial world, the historical examinations of the law of occupation would be incomplete without analysing how the occupations that led to colonial control were placed outside the constraints of the law of occupation. It ought to be highlighted again that, while the ‘necessity’ grounds as exceptions to the general principle under Article 43 of the Hague Regulations (and Article 64 of the Fourth Geneva Convention) are ‘endogenous’ elements contemplated within the framework on the law of occupation, the debarring of the colonial context from the realm of the law of occupation was the structural issue of inequity underlying this body of law. This part is intended to challenge the effect of narrowly compartmentalizing our analytical framework in the existing study of the law of occupation.
Historical evolution of the law of occupation with special regard to the ‘conservationist principle’
Overview
In this part, we will explore the genesis and the historical evolution of the normative framework of the law of occupation with special regard to the ‘conservationist’ principle. As outlined above, this is one of the general principles that have governed the entire normative edifice of the law of occupation. It indicates that Occupying Powers are generally not entitled to modify local laws and administrative structures in the occupied territories. Clearly, this flows from the underlying assumptions of the law of occupation. The Occupying Power does not acquire sovereignty of the ousted occupied state. Instead, its role is to act only as a temporary custodian of the territory until the end of occupation.Footnote 4 The interaction between the conservationist principle and the concept of ‘necessity’ as an exception to this principle provides the microcosm for scholarly discourses and propositions on the law of occupation as a whole.Footnote 5 As will be discussed below, the parameters of ‘necessity’ grounds can be (over-)stretched with a view to claiming expanded legislative authority to enforce policy objectives in occupied territories, or merely for the purpose of justifying disregarding specific rules of the law of occupation.
The genesis of the legal regime of occupation
In the Enlightenment period, classic scholars such as Vattel,Footnote 6 Jean-Jacques Rousseau,Footnote 7 and Georg F. von MartensFootnote 8 advocated some elementary principles of the laws of war, including the distinction between combatants and non-combatants, and the sparing of the lives and property of non-combatants from the scourges of war.Footnote 9 The so-called Rousseau–Portalis doctrine suggests that war was characterized as a relationship between states, not between individuals.Footnote 10 Admittedly, this doctrine was developed at a time when jurists made little distinction between the notion of occupation and that of conquest.
The ensuing French Revolution and the Napoleonic War, and the seeds of revolution and (romanticized) nationalism that were sown by the former across western Europe from the end of the eighteenth century well into the first half of the nineteenth century, challenged the conservative monarchical foundation of the political and constitutional orders in continental Europe.Footnote 11 The rudimentary building block of the law of belligerent occupation can be considered as having emerged as a technique of managing such chaotic territorial and constitutional/administrative orders.Footnote 12 In other words, it was the fruit of the geopolitical and constitutional changes that swept throughout western Europe at the turn of the nineteenth century.Footnote 13 Revolutionaries declared and waged wars on absolute monarchies in other countries while acting to liberate the oppressed local populations. They did so while firmly convinced of the benefits to the populace. Indeed, the French Constitution of 3 September 1791 specifically declared that ‘the French nation renounces the undertaking of any war with a view of making conquests, and it will never use its forces against the liberty of any people’.Footnote 14 Many such revolutionaries acted for the purpose of emancipating populations oppressed by their monarchs.Footnote 15
What emerged in the wake of the conservative European order restored by Metternich's Congress of Vienna were the ‘principles’ of the maintenance (or restoration) of sovereignty and independence of the states occupied during the Napoleonic Wars, despite many territorial alterations.Footnote 16 Admittedly, these principles were ingrained in the well-established ‘right to security’ and independence of sovereign states.Footnote 17 However, they were yet to be recognized as discrete principles of the law of occupation. The principles befitted the reactionary inclination of the Holy Alliance of 1815, premised on the delicate balance of power. With the ideas of liberalism and national self-determination already disseminated across Europe by the French Revolution and the Napoleonic Wars, the two other revolutions originating from France in 1830 and 1848 triggered popular revolts to demand constitutional reforms and political realignments throughout the Continent. This gradually contributed to the emerging European order of ethno-linguistic nation-states based on the idea of national sovereignty, an idea that can arguably be traced back to the post-Westphalian European order.Footnote 18 It is in this transformative period in Europe that the legal regime of occupation came to be separated conceptually from that of conquest.Footnote 19 Unlike the notion of conquest, which gave valid sovereign title to conquered territories, occupation was understood as leaving the sovereignty of the ousted government intact.
Tracing the origin of the ‘conservationist’ premise of the law of occupation at a scholarly level
The historical origin of the ‘conservationist’ premise of the law of occupationFootnote 20 can be traced through examinations of classic treatises. Both Hersch LauterpachtFootnote 21 and BenvenistiFootnote 22 suggest that the doctrinal refinement on the law of occupation owes much to August Wilhelm Heffter's treatise of 1844. Heffter suggested that, save in the case of debellatio, occupation was merely the form of temporary control that suspended the exercise of sovereign rights of the occupied state, without bringing about the transfer of sovereignty as such.Footnote 23 Further, a close look at Georg Friedrich von Martens’ Précis du droit des gens modernes de l'Europe (1789)Footnote 24 corroborates the thesis that the basic normative framework on occupation, including the conservationist principle, did not evolve until after the Congress of Vienna (1814–1815). As Bhuta notes,Footnote 25 the conservationist premise was conspicuously absent in this classic German author's text. This treatise, published in the same year as the French Revolution, neither mentioned the legal concept of ‘belligerent occupation’ nor recognized the rights of occupiers, as distinct from those of conquerors, in land warfare.Footnote 26 Von Martens even argued that:
The reason why one has occupied an enemy province determines, above all, whether one is allowed to alter, to a greater or lesser extent, the form of the government. The enemy is not obliged to conserve the constitution of the conquered country. Nor is it obliged to leave to that country the rights & privileges that its Sovereign has accorded. … Footnote 27
Contrary to the preservationist tenet of the later Hague Regulations, the conqueror was ‘not obliged to preserve the constitution of a conquered country or province, nor to leave the subjects in possession of the rights and privileges granted them by their former sovereign’.Footnote 28 Many scholars agree that the hallmarks of the conservationist principle, such as the limitations on the Occupying Power's right to amend local legislation in occupied territories and their right to administer public property,Footnote 29 were gradually recognized in the period of social transformation in Europe in the early to mid-nineteenth century.
Drafting the law of occupation and the consolidation of the conservationist principle in the late nineteenth century
In the political climate of post-1848 Europe, the ‘conservationist’ principle became a suitable normative vehicle not only for the conservative status quo for the powerful states but also for emerging nation-states, which favoured the protection of the lives and property of their citizens while being keen to keep their laws intact in the eventuality of occupation by another state.Footnote 30 Later, from the mid-nineteenth century onward, the principle of preservation of (or minimum disturbance to) laws and administrative structures of occupied territories matched the interests of the rising bourgeoisie as well. Consistent with laissez-faire philosophy,Footnote 31 this principle was deployed to minimize any adverse impact of occupation on the rights of private individuals’ (including the right to private property).Footnote 32 According to Karma Nabulsi, the conservationist premises of the law of occupation were consolidated by the moderate conservative instinct of the mainstream (bourgeois) international lawyers who played a crucial role in drafting key legal texts on the laws of war in the second half of the nineteenth century.Footnote 33 These texts include the 1863 Instructions for the Government of Armies of the United States in the Field (the Lieber Code), the 1874 Brussels Declaration (or Brussels Project),Footnote 34 the 1880 Manual on the Laws of War on Land (the Oxford Manual), and the Hague Law as the culmination of the treaty-making efforts at the two Peace Conferences of 1899 and 1907. These lawyers favoured a law-and-order approach and the preservation of the status quo of the local territory (the approach underlying what Nabulsi dubs the ‘Grotian tradition of war’).Footnote 35
Across the Atlantic, when providing regulations on the Union's occupation of Confederate territories during the American Civil War, Francis Lieber confined the prescriptive capacity of the occupier to the case of ‘military necessity’ under Article 3 of the 1863 Code. This provision read that:
Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part, as in times of peace, unless otherwise ordered by the military authority.Footnote 36
Given the close friendship between this German émigré and Johan Caspar Bluntschli, it is very likely that the textual structure of this provision influenced the framing of the corresponding provisions on the occupier's legislative power in the subsequent Brussels Declaration and Oxford Manual, of which Bluntschli was one of the key architects.Footnote 37
The origin of Article 43 of the 1899/1907 Hague Regulations
To understand how the conservationist principle and the ‘concept of necessity’ exception to this were embodied in Article 43 of both the 1899 and the 1907 Hague Regulations,Footnote 38 it is important to look briefly at their precursors: Articles 2 and 3 of the Brussels Declaration of 1874. Article 2 of the Brussels Declaration states that:
The authority of the legitimate Power being suspended and having in fact passed into the hands of the Occupying Power, the latter shall take all the measures in its power to restore and ensure, so far as possible, public order and safety.Footnote 39
Article 3 of this aborted treaty then provides that: ‘To this end, it shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary.’Footnote 40 Prima facie, these two provisions seem incoherent. While Article 2 appears to accord the occupiers a wide range of legislative authority, Article 3 makes the exercise of this competence conditional on the concept of necessity. Nevertheless, when Articles 2 and 3 of the Brussels Declaration are considered in conjunction, it becomes clear that both the power to modify, suspend, or replace under Article 3 and also the power to enact (‘prendra toutes les mesures’) under Article 2 can be exercised in case of necessity.Footnote 41 While the Brussels Declaration never entered into force, the normative contents and textual structure (the general rule on the occupant's legislative authority, qualified by the exception to this rule in case of necessity) were grafted onto Articles 43–44 of the Oxford Manual, which was adopted by the Institut de Droit International in 1880.Footnote 42
Subsequently, the two apparently incongruous provisions of the Brussels Declaration were eventually integrated into the single provision in the 1899 Hague Regulations. This was prompted by the need to resolve the main controversy among the delegates of the First Peace Conference at The Hague (1899), where it was severely disputed whether Article 3 of the Brussels Declaration should be retained to prevent sweeping changes in the law of an occupied territory. At the seventh session of the Hague Conference, on 8 June 1899, some representatives highlighted the importance of this provision for small powers in view of the constraints imposed on the belligerent Occupying Power by the words ‘que s'il y a nécessité’. In contrast, the alternative proposal was to delete this provision and to give Occupying Powers greater scope for legislative capacity in return for certain specific obligations.Footnote 43 When the vote was taken, this provision was maintained by a narrow margin (13 votes against 10 and one abstention), at least until further discussion at a later session.Footnote 44 At the Eighth Session, Mr. Bihourd, the representative of France, suggested a compromise. He proposed that, while Article 3 should be eliminated, its spirit should be integrated into Article 2. The relevant part of his proposal read ‘en respectant, sauf empêchement absolu, les lois en viguer dans le pays’ (‘respecting, unless absolutely prevented, the laws in force in the country’).Footnote 45 It was therefore due to Bihourd's proposal that the key phrase ‘sauf empêchement absolu’ (‘unless absolutely prevented’) was introduced in the authentic French text of the 1899/1907 Hague RegulationsFootnote 46 in lieu of the wording ‘s'il y a nécessité’ that had appeared in Article 3 of the Brussels Declaration and Article 44 of the Oxford Manual. In any event, the difference in terminology was only semantic. Jurists have come to interpret the term ‘sauf empêchement absolu’ as embodying the concept of ‘necessity’,Footnote 47 a concept that has become the subject of much debate in scholarly legal study.Footnote 48
The law of occupation during World War I
Many occupation measures taken during World War I constituted the first challenges to the interpretation of Article 43 of the Hague Regulations. This was discernible mainly in relation to the two diametrically opposed positions: the measures adopted by the German occupying authorities in Belgium during the war; and the post-war Belgian decisions of invalidating the laws promulgated during the period of occupation. Charles Rousseau notes that the general rule on legislative authority was also bent by the British commander-in-chief as the occupying authority of Ottoman Turkey's Mesopotamia (the area in which the British later created the Kingdom of Iraq).Footnote 49 Further, the sketchy provision in the Hague Regulations regarding protection of the civilian population under occupation proved inadequate in dealing with the deportation of civilians in occupied Belgium and northern France during World War I.Footnote 50 This was one of the reasons for the International Committee of the Red Cross (ICRC) preparing in the interwar period the Tokyo draft text dealing with protection of civilian populations, which would provide the basis for the later Fourth Geneva Convention.Footnote 51
During World War I, the German occupying authorities in Belgium discarded all the constraints imposed by the Hague Regulations in order to undertake a wholesale change in administrative and legal structures.Footnote 52 They construed Article 43 of the Hague Regulations as authorizing the transfer of the expanded legislative authority to the German ‘Government General’.Footnote 53 The implementation of this policy included such far-reaching administrative changes as the attempted alterations in occupied Belgium's political framework in favour of the then disadvantaged Flemish.Footnote 54 Charles de Visscher considered that the German measures amounted to abuse of the occupant's power in a manner analogous to the doctrine of French administrative law, ‘l'excès de pouvoir et le détournement de pouvoir’ (‘acting in excess of authority and the abuse of power’).Footnote 55
In contrast, the post-war practice of the Belgian courts was that any act passed by the German occupying authorities was illegal.Footnote 56 German interpretation designed to justify their extensive prescriptive power during World War I was vehemently contested in a number of Belgian court decisions.Footnote 57 In the case of Mathot v. Longué,Footnote 58 the Court of Appeal of Liège, contrary to some decisions,Footnote 59 rejected any room for legislative manoeuvre on the part of the Occupying Power. It ruled that ‘the orders of the occupying Power … are not laws, but simply commands of the military authority of the occupant’,Footnote 60 and that the German order had therefore possessed ‘no legal value’.Footnote 61 Underlying the Belgian courts’ decisions was the so-called ‘Belgian school’,Footnote 62 according to which legislative and administrative acts adopted by the Occupying Power are only de facto commands, without any legal effect.Footnote 63 Benvenisti criticizes this view as ‘extreme’.Footnote 64 As he notes,Footnote 65 the Belgian judicial approach underwent an uneven change. During the German occupation in World War II, the Court of Cassation reverted to the judicial tendency, prevalent during World War I, to reject handing down a judgment on legislative measures issued by the Occupying Power.Footnote 66
In the aftermath of World War I, the Allies occupied the Rhineland through the Inter-Allied Rhineland High Commission (1919–1930). However, as its legal basis lay in the Treaty of Versailles, this can be viewed as a case of non-belligerent occupation (occupatio pacifica).Footnote 67 In the legal discourse of the interwar period, despite the deviations from the general rules on occupiers’ legislative power during World War I, the normative framework on occupation remained intact. Writing during World War II, Feilchenfeld commented that the survival of the law of occupation between 1918 and 1935 owed much to the absence of major occupations during this period, which would have severely tested the normative requirements.Footnote 68
The law of occupation in relation to World War II
As noted by Benvenisti, during World War II, the three main Axis powers – Germany, Italy, and Japan – as well as the USSR, were engaged in a practice of occupation that completely disregarded and rejected the fundamental tenets of the law of occupation. These countries attempted to effectuate perpetual control by way of the annexation of occupied territories or through the establishment of puppet states.Footnote 69 As is widely known, a spate of atrocities committed in the occupied territories during World War II demonstrated a barbaric form of occupation, as exemplified by the Nazi's ideology-based practice designed to implement the Holocaust.Footnote 70
The International Military Tribunal at Nuremberg (IMT) provided the famous dictum that the rules embodied in the Hague Regulations were declaratory of customary international law by 1939.Footnote 71 A closer inspection reveals, however that this dictum ought to be carefully analysed to grasp the process of such evolution. The relevant part reads:
The rules of land warfare expressed in the [1907 Hague] Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the [IMT] Charter.Footnote 72
If we take the view that the bulk of the law of occupation under the 1899/1907 Hague Regulations was not declaratory of customary laws when adopted as treaty-based rules, it must have undergone the process of hardening into customary law somewhere in the period between 1899 and 1939. However, it is not possible to pinpoint the moment at which the rules on occupation prescribed in the 1899 Hague Regulations matured into customary rules.Footnote 73 Nevertheless, one can contend that, by the time all the relevant rules under the 1899 Hague Regulations were reiterated in the 1907 Hague Regulations, the gist of the doctrines on occupation had ‘crystallized’.Footnote 74 This view can be borne out by the wording of the preamble of the Second Hague Convention of 1899, whose identical counterpart in the preamble of the Fourth Hague Convention of 1907 was quoted by the IMT: ‘Thinking it important … to revise the laws and general customs of war, either with the view of defining them more precisely or of laying down certain limits for the purpose of modifying their severity as far as possible’.Footnote 75 It ought to be recalled that both the conservationist principle and the ‘concept of necessity’ exception stipulated in Article 43 of the 1899/1907 Hague Regulations found equivalents in their antecedents (the Lieber Code, the Oxford Manual, and the Brussels Declaration). As discussed in the preceding sections, we can at least surmise that the conservationist principle that was already fleshed out in legal discourses of the mid-nineteenth century has been anchored in the bedrock of customary law longer than other detailed rules on occupation.
The Allied occupations in the immediate aftermath of World War II
Following World War II, the Allied and Soviet occupations of territories of Germany, Italy, Austria, other Axis countries in Europe, and Japan foreshadowed the already nascent Cold War rivalry. They furnished experimental grounds for two competing economic and political ideologies,Footnote 76 which provided much of the political impetus to throw away the Hague Regulations’ conservationist baggage.Footnote 77 In essence, these occupations were the first prototypes of ‘transformative’ occupation geared toward democratization. The joint Allied occupation of southern and central Italian territories, unlike the regimes of belligerent occupation established in Sicily and northern Italy, can be explained on the basis of the armistice agreement.Footnote 78 Irrespective of the legal bases, the Allied authorities undertook to rescind fascist laws. The United States’ occupation of post-war Japan, with its wide range of prescriptive powers, was predicated on the Instrument of Surrender.Footnote 79 This allowed the US to pursue wholesale democratic reforms of Japan's imperial and militarist legacies while unchecked by the conservationist principle and other constraints of the 1907 Hague Regulations.
In contrast, there has been a cacophony of justifications for the Allied policy-oriented objective of carrying out de-Nazification and radical democratic reforms in West Germany. In anticipation of their occupations and policy of implementing sweeping reforms in laws and institutions, the western Allies insisted on unconditional surrender so that they could be exempt from the conservationist principle and other constraints of the Hague Regulations. One might argue that, while sovereignty continued to be vested in the German population, the Allied powers exercised ‘sovereign rights’ that they conferred upon themselves.Footnote 80 Despite the Allies' avowed intention to exclude the law of occupation as the source of their authority, some commentators explain the Allies measures within the framework of the Hague Regulations. Their methodology is to infer justifications from the ‘necessity’ exceptions under Article 43. The thrust of their argument is that retaining the Nuremberg race laws and other Nazi enactments would have endangered the security of the Occupying Power.Footnote 81 On the other hand, other writers regard the Allied occupation of GermanyFootnote 82 as the typical example of debellatio (subjugation), following the total collapse of effective government and the complete control effected by the occupying armed forces.Footnote 83 Hans Kelsen expressly contended that Germany as a sovereign state ceased to exist,Footnote 84 not least because of the total collapse of the central and local governments in their entirety (debellatio).Footnote 85 Empirically, it was the crumbling of the Nazi government that was pivotal for the Allies assuming the authority for occupation,Footnote 86 and this without awaiting Doenitz's signing of unconditional surrender proclaimed by the Declaration of Berlin of 5 June 1945.Footnote 87 In the present writer's opinion, it seems formalistic to attach much normative weight to that Declaration, given that none of the German governmental machinery existed by that time.
However, in developments after World War II, the doctrine of debellatio soon became archaic. As Benvenisti notes,Footnote 88 it was deemed irreconcilable with the ideas of peoples' sovereignty and self-determination embodied in the UN Charter.Footnote 89 Further, Article 2(2) Common to the four Geneva Conventions of 1949 contemplates the broad applicability of the Fourth Geneva Convention without considering the exceptional case of debellatio. Accordingly, if the Allied occupation of Germany had taken place after 1949, this would have been fully governed by the Fourth Geneva Convention.Footnote 90 Subject to Articles 47 and 6(3) of that Convention,Footnote 91 the Allies' transformative policies would have been defended more cogently on the basis of the broader parameters of what constitutes necessity set out in Article 64 of the Convention.
Article 64 of the fourth Geneva Convention
Since 1949, Article 64 of the Fourth Geneva Convention has served as a complement to Article 43 of the Hague Regulations. It has been widely noted by earlier writers that the structure of the former provision is designed as ‘an amplification and clarification’ of the latter,Footnote 92 and not as a revision of the terms for legislative power of the Occupying Power.Footnote 93 Even so, the language of Article 64 clearly suggests that it broadens the prescriptive power of the Occupying Power by articulating specific objectives underlying the notion of necessity.Footnote 94 Further, in establishing a more elastic dimension of the occupier's legislative power, Article 64 gives primacy to the necessity of securing the rights and wellbeing of the occupied population. This is supported by a profusion of positive duties incumbent on occupiers under the Fourth Convention. In this respect, it should be remembered that one of the main contributions of this treaty is to furnish a ‘bill of rights’ for the local population.Footnote 95 Presumably, such a shift in emphasis in favour of the rights of the local population mirrors the evolution of international human rights law and the rise of the welfare states in Europe (and the New Deal thinking of the United States administration before and during World War II). In essence, under the Fourth Geneva Convention the primary beneficiaries of the necessity grounds are switched from the political and military elites of the ousted sovereign state, who were anxious to see their laws and institutions preserved upon their return, to the occupied population with whom sovereignty is endowed.Footnote 96 This point can be of special pertinence to cases of ‘prolonged occupation’,Footnote 97 where necessity grounds can be invoked to justify novel laws to address the evolving social needs of the civilian population.Footnote 98
Failure to acknowledge the status of occupation and non-application of the law of occupation during the Cold War
In post-1949 academic discourse, while the ‘demise’ of Article 43 of the Hague Regulations has never been declared,Footnote 99 scholarly discussion of the legislative capacity of the Occupying Power under this provision (and under Article 64 of the Fourth Geneva Convention) has been subdued, save in the case of the Israeli occupation of the Palestinian territories.Footnote 100 This can partly be explained by the fortuitous ground that the law of occupation has rarely been relied upon by the relevant states. Most have failed to recognize the applicability of the law of occupation to de facto occupied territories,Footnote 101 irrespective of whether or not these resulted from proxy wars of the two superpowers during the Cold War.Footnote 102 This left debates both on the prescriptive power of the Occupying Power and indeed on the entire normative framework of the law of occupation nearly dormant for several decades. The law of occupation was excluded because the concept of occupation as such was mistakenly associated with a ‘defunct’ or even illegal regime.Footnote 103 This can be partly accounted for in the light of the special normative importance attached to the right to self-determination of peoples during and after the process of decolonization.Footnote 104 Furthermore, reluctance of the potential or de facto occupiers to recognize the status of occupation can be explained by a litany of onerous positive duties that the Fourth Geneva Convention would impose on them.Footnote 105
The occupation of Iraq: the law of occupation ‘resuscitated’ and the broad legislative authority of the occupiers
The occupation of Iraq,Footnote 106 which was led by the Anglo-American forces,Footnote 107 has awoken from ‘hibernation’ the law of occupation and confirmed the continued validity of many rules originating from the Hague Regulations,Footnote 108 while witnessing wide latitudes of legislative power conferred upon the Coalition Provisional Authority (CPA). Security Council Resolution 1483 (22 May 2003), adopted under Chapter VII of the UN Charter, expressly recognized the United States and the United Kingdom as the Occupying Powers that were duty bound to abide by the ‘obligations under applicable international law’.Footnote 109 The broad parameters of the legislative authority given to the Occupying Powers can be explained by the peculiar normative framework for occupied Iraq. This framework was provided by the laws of occupation and the Council's Resolutions 1483 and 1511.Footnote 110 Put differently, these mandatory resolutions gave a normative superstructure to the underlying edifice comprised of the law of occupation.Footnote 111 Yet, while allowing the possibility of modifying the Occupying Powers' obligations under existing international humanitarian law, in accordance with Article 103 of the UN Charter,Footnote 112 these Chapter VII-based resolutions did not ‘supersede’ the traditional law of occupation comprising the Hague and Geneva laws.Footnote 113 As the primary concern of the law of occupation is to secure the rights and wellbeing of inhabitants in occupied territories, it is essential that any modifications to this body of international humanitarian law be made in a clear and explicit manner.Footnote 114 While the relevant Council resolutions accorded the CPA wide legislative authority to implement ‘transformative’ objectives in political and economic fields in a manner unchecked by the constraints of the laws of occupation,Footnote 115 the CPA's legislative measures were not free from controversy.Footnote 116
Clearly, the Iraqi experience has contributed to obliterating any political inhibition in recognizing the status of occupation. Since then, the international authorities have been willing to acknowledge such status in a variety of scenarios. Aside from its Advisory Opinion in the Wall case,Footnote 117 the International Court of Justice, in its contentious case of the Armed Activities on the Territory of Congo, recognized Uganda as the Occupying Power in the Ituri region.Footnote 118 Similarly, the Eritrea/Ethiopia Claims Commission found cases of belligerent occupation in the territories adjacent to the border between the countries.Footnote 119 These episodes mark a striking contrast with the tendency in the preceding decades to avoid acknowledging states of occupation openly.Footnote 120 However, they have yet to raise any major issues of the legislative competence of the respective Occupying Powers.
Concluding observations of the historical survey of the law of occupation
In the period between 1815 and 1949, many Occupying Powers flouted their obligations or claimed exceptional broader legislative authority by citing diverse justifications. Nevertheless, the conservationist principle as a general rule governing the entire corpus of the law of occupation has largely resisted historical vicissitudes. The primary reason for the longevity of this principle underlying Article 43 of the Hague Regulations lies in the application of the ‘necessity’ grounds as malleable exceptions. Similarly, the broadened parameters of the necessity grounds under Article 64 of the Fourth Geneva Convention are likely to sustain the general rule on the Occupying Power's legislative authority under this provision.Footnote 121 The provision is sufficiently elastic and well equipped to justify legislative measures to address a variety of political realities and reform agenda in occupied territories.Footnote 122 As an ancillary ground, one can add that to call into question the conservationist premise of the law of occupation would result in challenging the transient nature of this normative regime. This would be at variance not only with the sovereignty of the occupied populace but also with their right to self-determination.
In essence, the legal regime of occupation is no exception to the thesis that law is a social construct contingent on divergent social realities. Hence, scholarly discourses surrounding this legal regime are amenable to different contemporary ideas and to political realities.Footnote 123
The exclusion of ‘colonial occupation’ from the normative corpus of the law of occupation
Overview
Our examinations now turn to the criticism that, until the process of decolonization unfolded, the law of occupation was largely the ‘European project’Footnote 124 and was never contemplated as applicable to ‘colonial occupation’.Footnote 125 This part critiques the historically iniquitous feature of the law of occupation during the colonial period. As seen in the preceding part, the law of occupation has been marred by many instances in which the ‘concept of necessity’ exception was invoked to justify deviating from the general rule as predicated on the conservationist idea. Yet these exceptions have always operated within the normative parameters of the law of occupation. In contrast, the inapplicability of the law of occupation to colonial control was none other than an exception made to the entire corpus of this body of jus in bello.
The proposed analysis of this part goes beyond examining the law of occupation as it has been in the past. As far back as the early nineteenth century, Jeremy Bentham implicitly recognized the framework of tripartite conceptualization (the law as it has been; the law as it is; and the law as it ought to be).Footnote 126 This analytical structure has recently been given fresh insight by Anthea Roberts.Footnote 127 Working along similar lines, it is proposed in this part that the parameters of our inquiry should be expanded to go beyond the law of occupation as it has been and to encompass the normative projection in retrospect of the law of occupation as it ought to have been.Footnote 128 Such critical analysis will help to elucidate different narratives and rationalizations regarding the ways in which the law of occupation has failed to be applied in the colonial context. This critical and contextual prism can also be of help in assessing how the application of today's law of occupation is vulnerable to the charge of ‘political subjectivity’.Footnote 129 This part argues that, behind its façade of innocuous value-neutrality, the law of occupation had long hidden a tacit dichotomy: on the one hand, the application of this normative framework (and the entire corpus of jus in bello) only among ‘civilized’ nations capable of exercising sovereignty in international relations; and, on the other, the system of colonialism imposed upon the vast majority of non-Western nations bereft of sovereignty.
The methodology of this part is built on the underlying assumptions of the critical legal studies (CLS) movement. We should remember that, while proposing the (re-)unification of the law as it is and the law as it ought to be in its legal discourse, CLS highlights a contextual critique of the existing international legal structure. It advocates pursuing the anti-foundationist objective of unearthing heterogeneous identities and conflict of interests as the reality of international society.Footnote 130 Further, CLS's inclusive and culturally sensitive approach,Footnote 131 alongside its proposal to lift the ‘veil of power’,Footnote 132 reinforces our retrospective critique of the historically exclusive nature of the law of occupation. Spurred on by this methodology, this part aims to unmask the thinly veiled, binary assumption on which the whole gamut of jus in bello was based.
The era of imperialism and the exclusivity of the law of occupation
The century of ‘relative peace’ in (western) Europe between 1815 and 1914 coincided with the height of imperialism in its later period, with many European powers, small and large, vying for territorial aggrandizement and empire-building outside the continent. ‘Occupying’ and acquiring non-Western (or non-Christian) territories by aggression or coercion was hardly condemned as illegal. Many states firmly believed in their ‘mission civilisatrice’, despite ‘uncivilized’ practice against the indigenous populations.Footnote 133 Ralph Wilde observes that ‘the idea of the “civilizing mission”’, as one of the underlying rationales of colonialism, was designed ‘to address the perceived incapacity for self-government … and also to build up local capacities, sometimes with the goal of making self-administration, meeting the standard [of civilization], eventually possible’.Footnote 134 Such was the European Zeitgeist that the General Act of the Berlin Conference (1885) in effect legitimized the ‘Scramble for Africa’.Footnote 135
Admittedly, in the nineteenth century not all instances of acquiring sovereign rights and territories outside Western states were realized through aggression. Even so, what appeared to be cases of ‘pacific’ occupation (occupatio pacifica) based on agreements between native rulers and European powers, or even agreements between the former and European corporations,Footnote 136 were often carried out in coercive circumstances.Footnote 137 Furthermore, some instances of colonial rule, far from being a benign model marked by development of economic and social infrastructure, were tainted with what would have constituted very serious violations of human rights if committed in metropolitan territories of ‘civilized’ nations.Footnote 138 Note that, even in Victorian Britain, there was a binary assumption upon which the British imperium et libertas was built: liberal political principles and practices that were defining features of the British domestic infrastructure were by no means wholeheartedly extended to the colonial possessions.Footnote 139
The tacit dichotomy between the legal regime of occupation applied among ‘civilized’ nations and the system of colonialism imposed upon ‘uncivilized’ nations
This section aims to elaborate the thesis that the paradigms of the law of occupation essentially developed as a ‘European project’. It can be assumed that, until the decolonization process was set in motion, with respect to non-consensual control over a foreign territory there operated a tacit dichotomy between the legal regime of occupation that was applicable only among ‘civilized’ European states and the system of colonial rules over ‘uncivilized’ peoples. None of the corpus of jus in bello was considered applicable to ‘colonial occupation’ or forced annexation of non-European territories.Footnote 140 As a comparison, one can note that it was only in the case of debellatio Footnote 141 that the normative paradigm of belligerent occupation was ruled out with respect to European powers.
This binary thinking was no doubt grounded on the idea that sovereignty was a ‘gift of civilization’.Footnote 142 Sovereignty was almost always a privilege attributed only to members of the ‘European family of states’,Footnote 143 to the exclusion of non-European nations.Footnote 144 Because non-Western societies were not entitled to sovereignty, the invisible barrier that separated the ‘civilized’ from ‘uncivilized’ nations disabled the application of the entirety of jus in bello to armed conflict that led to ‘colonial occupation’ of non-Western societies.Footnote 145 Bhuta argues that
The anomalous (from the classical international law point-of-view) distinction between effective control and sovereign rights over territory which lies at the heart of the law of occupation, and the law's enjoining of fundamental constitutional change by the military occupant, had no application to colonial wars or ‘police actions’ against less civilized – and therefore non-sovereign – peoples and territories.Footnote 146
As a result, military occupation of non-European territories was sufficient for the European powers to claim sovereign rights over those territories.Footnote 147 Further, together with discovery, conquest, and cession, the occupation of terra nullius was one of the modalities that a ‘civilized’ nation was able to invoke to acquire sovereignty over the ‘non-Christian world’.Footnote 148 As an ancillary argument, one can add that the temporary nature of the normative regime of occupation was unsuitable for the colonial powers’ avowed intention to exert sovereignty over the colonized territories.Footnote 149
It should be borne in mind that, by the time imperialism held sway in the late nineteenth century, many rules relating to occupation were already embodied in the Lieber Code (1863), the aborted Brussels Project (1874), and the Oxford Manual (1880). Further, many ‘occupations’ of territories in the course of imperial adventures took place after the First Hague Peace Conference (1899).Footnote 150 Bhuta contends that ‘As a matter of principle and practice, belligerent occupation in its 19th-century manifestation was applied exclusively to land wars between European sovereigns.’Footnote 151 The conceptual chasm between the ‘civilized’ and ‘uncivilized’ nations can be readily discerned. During the Franco-Prussian War (1870–1871), the Prussians arguably applied the customary law of occupation, leaving the French laws relatively intact.Footnote 152 Similarly, in the Spanish–American War of 1898, the US occupying forces retained the Spanish functionaries in Manila.Footnote 153 During the Second Anglo-Boer War (1899–1902), it was the British occupying forces' deviation from the body of customary norms on occupation that prompted Spaight to criticize the measures taken against the Dutch-speaking populations.Footnote 154 In contrast, the cosmopolitan and once mighty Ottoman Empire was not considered fully ‘civilized’. Accordingly, the Russian occupation of Bulgaria in 1877–1878 was excluded from the constraints of the occupation law, and this was pleaded by none other than Fyodor F. Martens.Footnote 155
Turning to the system of colonialism outside Europe, its exclusion from the legal regime of occupation matched a purported aim: the vast swathes of the landmass inhabited by ‘uncivilized peoples’ were poised for imperial spoils and conquest by European powers that were unshackled by the normative paradigm of jus in bello governing conduct of warfare and belligerent occupation, and possible war crimes.Footnote 156 Along these lines, Koskenniemi argues that ‘the law of colonial occupation that emerged in the late-19th century’ had an advantage of ‘enabl[ing] the colonial powers to rule over non-Europeans without the administrative burdens of formal sovereignty’.Footnote 157 Many commentators argue that such an exclusion of the legal regime of belligerent occupation was sustained by the idea of racial hierarchy.Footnote 158
‘Standard of civilization’
For Fyodor Fyodorovich Martens, the champion of the eponymous clause,Footnote 159 universalist conceptions of international law were only integrated among Western civilized peoples.Footnote 160 He was adamant that ‘it would be impossible to expect Turks or Chinese to observe the laws and customs of war as elaborated by the common efforts of the Christian and civilised nations’.Footnote 161 Francis Lieber's ‘martialist’ backbone, not dissimilar to his anti-abolitionist ethos in the United States domestic setting,Footnote 162 was faithfully replicated in his understanding that ‘The fundamental idea of all international law is the idea that all civilized nations of our race form a family of nations’.Footnote 163 These views are closely intertwined with the idea of the ‘standard of civilization’.Footnote 164 This idea denotes the ‘legal mechanism’ by which nations have historically been admitted to or barred from the ‘international society of states’.Footnote 165 In Gerrit Gong's thesis, the international society of European states was equated to ‘international society’ as a whole, because this was the only ‘society’ comprised of ‘civilized states’.Footnote 166 The assumption underlying this thesis is that, in encounters between European and non-European peoples and in the case of any ‘civilization clashes’, the European standard of civilization that bore ‘the hallmarks of the evolving Westphalian states’ system’ was deemed superior to standards of civilization espoused by non-Western peoples. As a corollary, the European standard of civilization constituted the benchmark against which different ‘levels of civilization’ attained by non-Western states were measured.Footnote 167
Concluding observations of the exclusivity of law of occupation
This part has demonstrated that, because the law of occupation was developed chiefly as a social construct among European powers entitled to sovereignty, it trivialized the fate of non-Western peoples divested of sovereignty. Remarkably, one of the few early Western publicists to voice concern about such a dichotomized understanding was Hersch Lauterpacht. While criticizing James Lorimer's debarring of ‘barbarous, and savage societies’ from the application of both the concept of sovereignty and the general corpus of international law,Footnote 168 this erudite publicist asserted in 1947 that ‘Modern international law knows of no distinction, for the purposes of recognition, between civilized and uncivilized States or between States within and outside the international community of civilized States’.Footnote 169 The dichotomized framework that prevailed from the nineteenth century until the mid-twentieth century was normatively incongruent. As Anghie notes,Footnote 170 while non-Western nations were divested of sovereignty,Footnote 171 many chartered corporations of Western powers designed for colonial enterprisesFootnote 172 were invested with the ‘sovereign’ rights to enter into treaties with non-Western nations to acquire ‘sovereignty’ over their land. Furthermore, and ironically, non-Western nations were considered ‘sovereigns’ only for the purpose of transferring their sovereignty to the corporation.Footnote 173 Indeed, in our post-colonial world the nations of the developing world are united in asserting that, far from having lacked sovereignty, their ‘“native sovereignty” survived the international system of colonialism’.Footnote 174 In conclusion, the exemption of ‘colonial occupation’ from the constraints of the law of occupation facilitated colonial control by European powers. While this was a serious cognitive disharmony, it was rationalized on the basis of the ‘standard of civilization’.
General conclusion
The first main part of this article surveyed the historical evolution of the law of occupation through the lens of the general rules relating to the Occupying Power's legislative authority. It focused on the conservationist principle under Article 43 of the Hague Regulations and on the elastic ways in which the ‘concept of necessity’ exception has been construed in both practice and legal doctrines. It demonstrated how the concept of ‘necessity’ under Article 43 has served as the ‘fluid vocabulary’ in adjusting to differing needs of Occupying Powers.Footnote 175 When supplemented by Article 64 of the Fourth Geneva Convention of 1949, this concept has been adjusted in the direction of promoting the rights and wellbeing of civilian populations under occupation. The analyses undertaken in both parts of the article corroborate the thesis that law is ‘a form of congealed politics’,Footnote 176 and that the entirety of legal discourse as a social construct stresses the importance of contextual analysis and understanding.Footnote 177 This can be demonstrated by many doctrinal endeavours, whether cogent or not, to rationalize what appear to be deviations from the general rule predicated on the conservationist ethos.
On the other hand, the second main part of the article, which critiqued issues of the exclusion of ‘colonial occupation’ from the law of occupation, lends succour to one of the main theses of the critical legal studies movement – that the law as the system of regulatory control is contingent upon, and parasitic on, ‘institutionalized social power’.Footnote 178 Until the period of decolonization, the entire conceptual edifice of the law of occupation remained embedded in the then exclusive ‘international society’, which, in the nineteenth and early twentieth centuries, comprised only the European and North American family of ‘civilized nations’. The law of occupation was the product of limited ‘interpretive communities’,Footnote 179 equipped with the enduring legacy of the concept of the ‘standard of civilization’. ‘Unearthing’ the hidden parallel process (the barring of ‘colonial occupation’ from the regulatory realm of the law of occupation) reveals how our social knowledge of this distinct branch of international humanitarian law has been contingent on particular historicity, inter-subjective dialogues, compromise, and normative projection of the privileged and exclusive circle of ‘civilized’ states.Footnote 180
