Chapter

Belligerent occupation : a plea for the establishment of an international supervisory mechanism

Orna Ben-Naftali

Realizing utopia : the future of international law

Oxford : Oxford University Press, 2012

p. 538-552

English

Three main lessons can be drawn from some recent cases (the occupation of Gaza and that of Iraq) : (i) an occupation is not an either/or situation - the decisive fact of "effective control" (potential and actual) rather than the tag "occupation" should determine the applicability of the law of occupation ; (ii) the scope of the obligations of the foreign power which exercises effective control should derive from and relate to the scope of the control actually exercised ; and (iii) an authoritative characterization of the situation by the Security Council - which took place in the case of Iraq but not in the case of Gaza - may often be required to delineate respective legal obligations and ensure no void in governance, including during transitional periods. It is undisputed that effective control by foreign military forces suspends, but does not transfer, sovereignty. The prohibition on annexation of an occupied territory is the normative consequence of this principle. Major shortcomings of the present legal regimes are : (i) the lack of a rule setting time limits on the duration of an occupation and the attendant failure to determine the illegality of an indefinite occupation and (ii) the lack of congruence between self-determination and transformative objectives pursued by the occupant. While it is neither feasible nor desirable to renegotiate the law of belligerent occupation in order to rectify its shortcomings, the sine qua non for enabling some advancement of this law is the establishment of an international supervisory mechanism equipped with the means to fulfil a number of tasks.

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• Realizing utopia : the future of international law / ed. by Antonio Cassese