The discussions concerning the ways in which occupation law regulates prolonged occupiers are particularly interesting for their attempt at seeking progressive solutions to the impositions of limits on the occupier. Most experts agreed that the occupier is under an obligation to provide more for the occupied population the longer it stays in the foreign territory, primarily in order to ensure the continuation of normal life in the benefit of the local population. The debate concerned the contours of such an obligation and the ways in which it could be ensured that occupiers act in good faith with genuine intention to serve the local population, without maintaining the occupation indefinitely to serve its advantages or undertaking ‘transformative’ measures that are proscribed by occupation law.
The discussions of the application of the law of occupation to prolonged occupation goes to the heart of all current concerns about the role and object of occupation law. Whilst occupiers’ practices and policies continue to develop, the limits set in law are weakened the longer an occupier maintain its presence in the foreign territory. It is for this very reason that Christopher Greenwood, amongst others, pointed out that international law’s regulation of belligerent occupations should be developed towards ‘bringing about an end to the conflict which produced the occupation, not in trying to turn a body of law designed to ensure that a military regime observes basic standards of humanity into a device for establishing a liberal democracy or other long-term solution.’ (Christopher Greenwood, ‘The Administration of Occupied Territory in International Law’, in Emma Playfair (ed.),International Law and the Administration of Occupied Territories (Clarendon Press, Oxford, 1992)).
A further question is whether in a prolonged occupation the law should allow the occupier to undertake measures otherwise prohibited in short-term occupations – measures that demand ‘development’ as opposed to ‘maintenance’ as per the conservationist principle? A number of experts are reported as stating that the four assumptions of the conservationist principle are no longer applicable in cases of prolonged occupation. The experts discussions present three possible solutions to this quandary through the test that compares the policies undertaken by the occupier in the occupied territory with those it has taken vis-a-vis its own population. A second test requires that the occupier consult and obtain the consent of the local population in devising and implementing certain long-term policies in the occupied territory. Finally, another group suggested that an international supervisory body be established to supervise occupiers (an idea that is also elaborated by Orna Ben-Naftali, ‘Belligerent Occupation’ in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford University Press, 2012)).
Whilst the logistic elements of these tests remain unclear, one of the greatest challenges is to ensure that the occupier is indeed acting in ‘good faith’ and is genuinely tasked with providing for the ‘benefit of the local population’, a presumption that is very difficult to maintain in this type of precarious and volatile reality that is characterised by the absence of trust between enemies in war and the long-standing practice of occupiers who have exploited, subjugated or somehow profited from their occupation of foreign territory. Current state practice in military occupation has arguably proven not only an misunderstanding of the provisions of the law (see previous coverage of the Israeli Supreme Court’s judgment on the Quarries in the occupied Palestinian territory) but also the applicability of the law (as some governments, including the Israeli and the Georgian, has rejected the application of the law of occupation to foreign territory they had invaded).
Although the legal contours and content of the law applicable to prolonged occupation was only one of a number of contentious matters deliberated at the sessions, it highlights a general need to reinforce the mechanisms of the law of occupation by gaining a better understanding of their function in newly emerging situations. Whilst many of the experts agreed to the establishment of monitoring and supervisory mechanisms, which would ensure that the occupier is not entrusted with the last call of judgment and given all the benefit of the doubt in acting in the benefit of an enemy population.
As other ICRC expert meeting reports, this document does not purport to reach any conclusions, but rather seeks to problematise existing realities and axiomatic understandings of the law and thereby facilitate the progressive development of international humanitarian law and ensuring that it effectively redresses modern realities. Despite some discussions that have sought after supplanting and complementing current international humanitarian law, Knut Dormann, ICRC head of the legal division, notes that “it is the ICRC’s view that occupation law does not require any further development at present; it requires only some clarification, by way of interpretations made in the spirit of the law that ensure that the needs of the occupied population are met and the security interests of the occupying power preserved at the same time.” Despite the guarantee that the ICRC does not seek to rewrite or develop the law, but rather to enforce it effectively, the multitude of questions to which the report gives rise arguably opens quite a Pandora’s box on the manner in which the law’s provisions could be operationalised, let alone enforced.