Article

Unearthing the problematic terrain of prolonged occupation

Yutaka Arai-Takahashi

• Israel law review, Vol. 52, no. 2, 2019, p. 125-167

English

This article explores the travaux préparatoires of the key legal instruments on the laws of war and international humanitarian law (IHL) with a view to obtaining crucial insight into the ‘original’ understandings of their drafters as to the provisional nature and the temporal length of occupation. The findings of the travaux show the general premise of the framers of the ‘classic’ instruments on the laws of war that the legal regime of occupation should be provisional. In the concurrent doctrinal discourses this premise was endorsed by most scholars. Examination of the records of the negotiations on the drafting of the Fourth Geneva Convention of 1949 reveals that even the proponents of ‘transformative occupation’ did not seem to envisage occupation that would endure for decades. Nevertheless, by the time the 1977 Additional Protocol I was drafted, several instances of protracted occupation already existed, which seems to have led to a decisive shift in the argumentative structure. There is no disputing the applicability of IHL to any occupied territory, irrespective of the length of the occupation. Yet the suggestion that nothing under IHL would forestall an occupying power from engaging in protracted occupation departs from the traditional premise that occupation ought to be provisional. This also seems to be paradoxical in historical perspectives.

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